Court name
Supreme Court of Zimbabwe
Case number
SC 52 of 2006
Civil Application 189 of 2003

S v Nkomo and Another (89/03) (SC 52 of 2006, Civil Application 189 of 2003) [2006] ZWSC 52 (04 December 2006);

Law report citations
Media neutral citation
[2006] ZWSC 52



















Judgment
No. SC 52/06



Civil Application No. 189/03








(1)
GADZANANI NKOMO (2) DINGANI MOYO






v





THE
STATE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & ZIYAMBI JA


BULAWAYO,
JULY 31 & DECEMBER 5, 2006








K
Phulu
, for the
applicants





T
Mkhwananzi
, for the
respondent








Application
in terms of s 24(2) of the Constitution of Zimbabwe.









ZIYAMBI JA: This matter was
referred to this Court by the Regional Magistrate in terms of s 24 of
the Constitution of Zimbabwe
(“the Constitution”). The facts
forming the background of the application are as follows -





The
applicants were arrested on 31 May 2002 on a charge of armed robbery.
It was alleged that they had unlawfully assaulted an employee
of
Caltex Zimbabwe and, by using force and violence to induce
submission, stolen from him the sum of $7000,00. The applicants
were
remanded in custody.







About three months later, on 11
September 2002, the applicants made an application before the
Provincial Magistrate for a stay of
proceedings on the basis that
they had been remanded on “countless occasions” and the
respondent was unable to provide trial
dates. No affidavits were
filed in support of the application and no prior notice was given to
the prosecutor of the applicants’
intention to make this
application at the remand hearing. In this regard, the Supreme
Court has pronounced as follows:







“It
seems to me, also, that before permitting an accused person to raise
the question of not having been brought to trial within a
reasonable
time, the lower court should be satisfied that ample
written
notice has been given to the State, with a copy filed of record, of
the intention to advance the complaint. The prosecution is
entitled
to be afforded the time and opportunity to investigate the cause of
the delay and to be ready to adduce evidence as to the
reasons
therefor, if it is considered necessary to do so.” (my emphasis)










See S
v Banga
1995 (2) ZLR
297 at 302.













It seems the application was not
pursued because the trial date was set for 23 October 2002 at the
Regional Court in Bulawayo and
indeed the trial commenced on that
date, less than five months after the arrest of the applicants. At
the end of the day’s hearing
the matter was postponed to 11
November 2002 for continuation. However, prior to that date, the
Regional Magistrate who was seized
with the matter was transferred to
Marondera court and, because of a critical shortage of staff, was not
permitted by his superior
to return to Bulawayo for the completion of
the case.










On 18 June 2003, the applicants’
legal practitioners revived the application for stay of prosecution
using the same papers. The
legal practitioner tendered the
following statement from the bar:







“It is a partly heard matter.
The Trial Magistrate has been transferred. In the record is an
application for stay of proceedings.
I would like the application
incorporated to my earlier submission for stay of proceedings which
are already filed in the record.
Since the time of their arrest the
accused persons have been in custody. They have been in custody
from 31 May 2002. This is
the date which is relevant for they were
never free from that date until now.






Gadzanai
Nkomo is now very ill. I am applying in terms of s 18 of the
Constitution for the accused persons should have a fair trial.

Their right to a fair trial has been violated by circumstances.
This is not a frivolous and vexatious application. It would
amount
to negligence on the part of the defence to fail to make this
application. I would like the Supreme Court to decide on the
issue.”






Once
again, no affidavits were filed nor was any evidence led in support
of the statement which was tendered by the legal practitioner
from
the bar.






“Regrettably,
the manner in which the legal practitioner requested the referral was
totally misconceived. It was wholly insufficient
to make a
statement from the bar, and then to point solely to the length of the
delay. He was obliged to call the applicant to
testify to the
extent to which, if at all, the cause of the delay was his
responsibility; to whether at any time before 16 August
1994, he had
asserted his right to be tried within a reasonable time; and, even
more importantly, to whether any
actual
prejudice had been suffered as a result of the delay.”








Per
GUBBAY CJ in
S v Banga
(
supra)
at p 300.





The
application was not opposed by the prosecutor for the stated reason
that he did not know when the magistrate would be available
to
finalize the matter.










The regional magistrate, in
granting the application for referral of the matter to this Court,
had this to say:







“The failure of Mr Sengweni to
come and finalise his matters from Marondera Court where he is now
stationed is mainly an administrative
issue. At some stage during
early this year Mr Sengweni was barred from returning to this station
to finalise these matters by
the Provincial Magistrate there Mrs
Gwatiringa who said they were short staffed.







Now it is a problem of funds.
We were told that money for travel and subsistence allowance was
exhausted at this station …. Mr
Sengweni has so many partly heard
matters at this station. The question to be decided by the Supreme
Court is whether these administrative
matters which I have
highlighted above impinged on the accused persons’ right to a fair
trial within a reasonable time as stated
in s 18 of the Constitution
of Zimbabwe. The record is accordingly referred to the Supreme
Court at the request of the defence
for this issue to be decided.
However, the Provincial Magistrate assured me that they have secured
money for Mr Sengweni, to come
and finalise some of his cases in
August this year 2003.”










Section 24(2) of the Constitution
provides:







“(2) If in any proceedings in
the High Court or in any court subordinate to the High Court any
question arises as to the contravention
of the Declaration of Rights,
the person presiding in that court may, and if so requested by any
party to the proceedings shall,
refer the question to the Supreme
Court unless, in his opinion, the raising of the question is merely
frivolous or vexatious.”







One of the rights enshrined in
the Declaration of Rights is the right to a fair hearing within a
reasonable time. Thus s 18(2) of
the Constitution provides:







“18. Provisions
to secure protection of law







(1) …







(2) If any person is charged
with a criminal offence, then, unless the charge is withdrawn, the
case shall be afforded a fair hearing
within a reasonable time by an
independent and impartial court established by law.”









The issue before us, as stated
by the regional magistrate, is whether the applicants’ right to a
fair hearing within a reasonable
time has been violated because of
the administrative matters referred to, in short, the fact that the
magistrate was for some six
months (or eight months at the most)
unable to return to the station for the conclusion of the trial.






Generally
speaking, in applications of this nature, the length of the delay is
the ‘triggering mechanism’. If the delay is
presumptively
prejudicial then the court, going by the evidence on the record
before it, will conduct an inquiry into the constitutionality
of the
delay, taking into account the factors which were set out in
In
re Mlambo
1991 (2) ZLR
339 (SC). They are -






1. The explanation and
responsibility for the delay;



2. The assertion of his rights by
the accused person;



3. Prejudice arising from the
delay; and



4. The conduct of the prosecutor
and of the accused person in regard to the delay.





See
also
S v Nhando &
Ors
2001(2) ZLR 84.






In the instant case, however,
the applicants have placed no evidence before us from which we can
conclude that the delay of five
months in bringing them to trial or
the delay of six months in concluding their trial is presumptively
prejudicial.






The
absence of
viva voce
evidence can be fatal to an applicant’s case because it:






“… completely disables
findings to be made that the long delay has been the cause of mental
anguish and disruption to the business and
social activities of the
accused, … and that it has impaired his ability to exonerate
himself from the charge due to death, disappearance
or forgetfulness
of potential witnesses.”









S
v Banga supra
at p 301
E. See also
S v
Matarutse
SC 101 –
94.






Not only is there no written
application dealing with the issue referred to us, but no evidence
was led on the issue from the applicants.
In such a case this Court
is handicapped. It cannot allow, and rely upon, statements made by
the legal practitioner from the
bar. Nor can the written
application in the record assist the applicants because it relates
only to the period 31 May to 11 September,
2002 which is not relevant
to the issue referred to us.







It follows from the above, that
the application must be dismissed.







I wish to comment, however,
that it appears from the remarks made by the magistrate that the
trial would, in all probability, have
been concluded in August 2003
had the applicants’ legal practitioner not persisted in the request
for the referral of this question
to the Supreme Court. The
position now is that some three years later, the applicants are still
awaiting trial and much of the
blame for this state of affairs must
be laid at the door of the applicants and their legal practitioner.







Accordingly, the application is
dismissed. No order of costs has been prayed for by the respondent
and none is made.

















CHIDYAUSIKU CJ: I agree.














CHEDA
JA: I agree.
















Coghlan & Welsh,
applicants’ legal practitioners