The Prosecutor General of Zimbabwe v Taydine Investments (Represented by Edson Mazarire)

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HB 262/20
HCA (COND) 34/20
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THE PROSECUTOR GENERAL OF ZIMBABWE

Versus

TAYDINE INVESTMENTS

(Represented by Edson Mazarire)

HIGH COURT OF ZIMBABWE

DUBE-BANDA

BULAWAYO, 12 & 19 NOVEMBER 2020

Opposed application

T. Maduma, for the applicant

K. Ngwenya, for the respondent

DUBE-BANDA J: This is an application for leave to appeal against the respondent’s acquittal at the close of the state case. The applicant is the Prosecutor General of Zimbabwe. The application was filed in terms of section 61(b) of the Magistrate’s Court Act [Chapter 7:10]. An affidavit of one Blessing Gundani, a Principal Public Prosecutor, stationed at Tredgold Building, Bulawayo is used in support of the application. Again, in support of the application, applicant attached the charge sheet; outline of the state case, respondent’s defence outline; a copy of the proceedings from the magistrate’s court; a copy of the ruling from the magistrate’s court; a draft notice of appeal; and a number of documentary exhibits produced at the trial.

The respondent appeared before a Magistrate sitting at Western Commonage, facing a charge of contravening section 113(2)(a) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] “Intentionally omits to account or accounts incorrectly for the property.” He pleaded not guilty to the charge. At the close of the case for the prosecution, he was discharged in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. Aggrieved by the discharge of the respondent, applicant launched this application. The application is opposed. Respondent filed a notice of opposition, an opposing affidavit and heads of argument. After hearing this matter, I reserved judgment.

It is important to highlight the manner in which this application was prosecuted. The application was drawn by one Mr Gundani, who deposed to an affidavit in support of the application. At the commencement of the hearing, Mr Maduma, notified the court that he was appearing for the applicant. He informed the court that he was handed over the file of this matter in the morning of the set-down date, i.e. 12 November 2020.  He said Mr Gundani who was seized with the matter was not available to motivate the application. It did not escape the court’s immediate observation of this court that Mr Maduma had not read the file, he had no idea of the issues and the evidence adduced before the magistrate’s court. To cover up for this deficiency, he submitted that he was now conceding that the magistrate was correct in discharging the respondent at the close of the case for the prosecution. Asked why, in view of the concession, was the application not withdrawn, his answer was incomprehensible. When the court pointed out to Mr Maduma the evidence on record and the test application at the close of the case for the prosecution, he made a proverbial U-turn, and submitted that he now supports the application. Apart from saying he now supports the application, he made no further submissions in support thereof. I take the view that this is an unsatisfactory manner of prosecuting an application before this court.

Other than resisting the relief sought by the applicant on the merits, the respondent also raised a number of preliminary points. In this case, I adopted a ‘complete’ or ‘holistic’ approach. What this approach entails is that for the sake of saving time and to avoid a piece-meal treatment of the matter, the preliminary points have to be argued together with the merits. However, when the court retires to consider the matter it may dispose of the case solely on the preliminary points, notwithstanding the fact that they were argued together with the merits. But if the court considers the preliminary points not to have been properly taken, it then proceeds to deal with the merits. The main consideration is to save the court’s time by avoiding unnecessary duplication when the matter could have been argued all at once.

In his opening submissions, Mr Ngwenya, counsel for the respondent applied that two documents, being a document with the title “application for amendment of citation of notice of appeal”, and “applicant’s supplementary founding affidavit” be expunged from the record. First, I consider the document with the title “application for amendment of citation of notice of appeal” which reads as follows:

BE PLEASED TO TAKE NOTICE that the Prosecutor-General of Zimbabwe applies to amend the citation of the Notice of Appeal filed with the Registrar of the High Court, Bulawayo on 7 September 2020. The applicant seeks to amend the citation by the removal of section 61(b) of the Magistrates Court [Chapter 9:10], and the insertion of section 198(4)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

This notice of amendment makes sad reading, it purports to seek to amend a notice of appeal, there is no notice of appeal on record. What is before court is a draft notice of appeal. The draft notice of appeal does not even speak to section 61 of the Magistrate Court that this notice seeks to amend. It seeks to amend a notice of appeal that is not before court. Again, this notice was just thrown into the record, no attempt was made to move the court to consider it. Mr Maduma did not even refer to this notice. An amendment is not just for the asking, a litigant cannot just throw a notice into the record and keep quiet and expect the court to consider it mero motu. It is elementary that a litigant must move the court to consider granting the amendment sought. This notice is still-born, this court cannot relate to it. I have completely disregarded this document, as it was improperly placed before court.

The second document with the title “applicant’s supplementary founding affidavit” was filed on the 6 November 2020. The title of this document is itself irregular, an affidavit cannot be “supplementary” and “founding” in the same instance. This exhibits a misunderstanding of the difference between a founding and a supplementary affidavit. Most importantly, respondent filed and served its notice of opposition on the 17 September 2020, and filed and served its heads of argument on the 3 November 2020, applicant then filed this document on the 6 November 2020. A litigant is not permitted, without leave of court, or a judge of this court to file further affidavits after the other party had filed and served its heads of argument. This amounts to irregular procedure. In Fuyana v Moyo SC 54/06, the Supreme Court held said:

Worse still, after hearing this matter I reserved judgment. The applicant, without the leave of the Judge, filed yet another lengthy document, in which he sought to explain why the notice of appeal was not filed on time and to lecture me on how a CHIEF JUSTICE should discharge his duties and his intention to write a book about this case. I have completely disregarded this document, as it was improperly placed before me. The application stands or falls on the founding affidavit. It is not open to litigants to file affidavits in complete disregard of the Rules.

Likewise, I have completely disregarded this document, as it was improperly placed before court.

The respondent in its heads of argument and oral submissions raised two points in limine, these are:

That there is no proper application before this court  as the applicant has brought this application for leave to appeal in terms of s 61 of the Magistrates Court Act [Chapter 7:10] instead of s 198 (4) of the Criminal Procedure and Evidence Act [Chapter 9:07].

That there has been an inordinate and unexplained delay in mounting this application for leave to appeal thus warranting its dismissal.

I now deal with the two points in limine seratium.

Citation of s 61 of the Magistrates Court Act [Chapter 7:10] instead of s 198 (4) of the Criminal Procedure and Evidence Act [Chapter 9:07]

Mr Ngwenya submitted that the applicant should have sought leave to appeal in terms of s 198 (4) of the Criminal Procedure and Evidence Act [Chapter 9:07], instead of s 61 of the Magistrates Court Act [Chapter 7:10]. The provisions of s 198 (3) and s 198 (4) of the Criminal Procedure and Evidence Act [Chapter 9:07] are as follows;

“198 (3)	If at the close of the state case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.

(4)	If the Attorney General (read Prosecutor General) is dissatisfied with a 				decision –

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of a magistrate in terms of subsection (3) he may with the leave of a judge of the High Court, appeal against the decision to the High Court.” (Underlining is my own).

Further the provisions of s 61 of the Magistrates Court Act [Chapter 7:10] are as follows:

“61 	Prosecutor General may appeal to High Court on a point of law or against acquittal.

If the Prosecutor General is dissatisfied with the judgment of a Court in a criminal matter- –

upon a point of law; or

because it has acquitted or quashed the conviction of any person who was the accused in the case on a view of the facts which could not reasonably be entertained;

he may, with the leave of a judge of the High Court appeal to the High Court against that judgment.”

The provisions of s 198 (3) and s 198 (4) of the Criminal Procedure and Evidence Act [Chapter 9:07] have been interpreted in a number of cases. See Attorney General v Bennet 2011 (1) ZLR 369 (5); Attorney General v Bvuma & Anor 1998 (2) ZLR 96 (S); Attorney General v Tarwirei 1997 (1) ZLR 575 (s); Attorney General v Mzizi 1991 (2) ZLR 321.

Mr Ngwenya argued that an application for leave to appeal in terms of s 61 of the Magistrates Court Act [Chapter 7:10], relates to a judgment which envisages a situation where all the proceedings are terminated or a full trial has been completed rather than a discharge at the close of the state case. I agree. There is a clear legal distinction between section 61 of the Magistrates Court Act [Chapter 7:10] and s 198 (4) of the Criminal Procedure and Evidence Act [Chapter 9:07]. Section 61 relates to an application for leave to appeal at the conclusion of a criminal trial. Section 198(4) deals with an application for leave to appeal at the close of the case for the prosecution.

In The Prosecutor General of Zimbabwe versus Mtetwa and Mugwagwa Esquire HH 82/16, the court noted that the use or citation of the wrong provision by the Prosecutor General who is expected to be well informed in terms of the law is not an issue which can simply be overlooked by this court or wished away. It is clear that s 61 of the Magistrates Court Act [Chapter 7:10] arises at the conclusion of the trial whereas s 198 (4) of Criminal Procedure and Evidence Act [Chapter 9:07] applies during the course of the trial at the close of the state case.

Mr Ngwenya submitted that such a glaring failure by the applicant to cite or refer to the correct provision of the law cannot be said to be inconsequential or condoned mero motu. The respondent is entitled to know in terms of which provision the applicant has applied for leave to appeal as this will inform its response. It is contended that the application is fatally and incurably defective. I agree.  See The Prosecutor General of Zimbabwe versus Mtetwa and Mugwagwa Esquire HH 82/16. Mr Maduma made no attempt to seek condonation. In fact he made no submission in respect of this procedural irregularity.  As already said, no application for condonation has been made. I therefore find merit in the respondent’s protestation in this regard and will uphold this point in limine.

Delay in bringing this application

According to Mr Ngwenya, there has been an inordinate and unexplained delay in bringing this application, and this is said to be prejudicial to the respondent. It is not in issue that there is no time limit prescribed in s 198 (4) of the Criminal Procedure and Evidence Act [Chapter 9:07] within which an application to seek leave to appeal should be made by the Prosecutor General. It is however, trite that such an application should be made within a reasonable time or period. See The Prosecutor General of Zimbabwe versus Mtetwa and Mugwagwa Esquire (supra).

I agree with the observation by MAWADZE J in The Prosecutor General of Zimbabwe versus Mtetwa and Mugwagwa Esquire (supra), that the overriding reason for this principle is the need for finality in litigation and to ensure that the right to a fair trial is protected. The right to a fair hearing is enshrined in section 69 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (Constitution) and this court has duty to protect that right. It is couched as follows;

“69.	Right to a fair hearing

Every person accused of an offence has a right to a fair and public trial within areasonable time before an independent and impartial court.

In the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law” (emphasis is my own).

Section 69 (1) of the Constitution guarantees every accused person the right to a fair trial. This means that the entire process of bringing an accused person to trial and the trial itself needs to be tested against the standard of a fair trial. What constitutes reasonable time for the purposes of protecting the right to a fair trial is a matter of fact and must be decided on a case by case basis.

Respondent was discharged by the trial court on the 5 November 2019. This application for leave to appeal was filed on the 7 September 2020. There has been a delay of a period approximating nine months from the ruling. Applicant has totally refrained from stating the reasons or giving an explanation for such a long delay in filing this application.

There must be a time limit. Since the section 198 (4) of the Criminal Procedure and Evidence Act does not provide any time-line,  it seems to me that the court should be at large to consider what is a reasonable time within which the Prosecutor-general should make such an application. I find the delay to be too long and unreasonable in the circumstances and I consider that in such cases the court should decline to assist a party who seeks the courts' assistance after such a long delay. See Moyo v Moyo 1999 (2) ZLR 265 (HC).

I have no doubt in my mind that the time taken to approach this court is inordinate and that there was need for the applicant to fully explain this delay of nine months in view of the facts of this case. While I appreciate that there is no time frame in the relevant provision to bring this application it should be noted that this is not a blank cheque availed to the Prosecutor General to bring such an application at any time.

It is therefore my finding that there has been an inordinate and unexplained delay in bringing this application. I will therefore uphold this point in limine taken by the respondent. Since I have upheld two of the points in limine raised by the respondent, it is now unnecessary for me to go into the merits of this application.

Disposition

In the result, I order as follows:

The application for leave to appeal be and is hereby dismissed.

National Prosecuting Authority, applicant’s legal practitioner

J.T. Mabhikwa & Partners, respondent’s legal practitioners