Eric Navaya v (1) The Magistrate T Mutetwa N.O. (2) Prosecutor General of Zimbabwe

### Preamble
Judgment No. CCZ 16/20
Constitutional Application No. CCZ 38/19
REPORTABLE (16)
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REPORTABLE (16)

ERIC NAVAYA

v

(1)  THE   MAGISTRATE  T  MUTETWA  N.O.

(2)     PROSECUTOR     GENERAL     OF     ZIMBABWE

CONSTITUTIONAL COURT OF ZIMBABWE

HARARE, MARCH 20 & OCTOBER 15, 2020

C Warara, for the applicant

No appearance for the first respondent

T Mapfuwa, for the second respondent

Before: MALABA CJ, In Chambers

AN APPLICATION FOR CONDONATION OF LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL

This is a chamber application for an order for condonation of late filing of an application for leave to appeal made in terms of r 35(1) of the Constitutional Court Rules, 2016 (“the Rules”).

The applicant intends to apply for leave to appeal against a decision of the magistrate’s court (“the court a quo”) holding that there was no unreasonable delay in the institution of criminal proceedings against him.

The applicant had made an “application” before the court a quo for the referral to the Constitutional Court for determination of the question whether the delay by the police in bringing his case to court because the docket had gone missing was an unreasonable delay violative of his right to a fair trial within a reasonable time, enshrined in s 69(1) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (“the Constitution”).

The Court holds that the applicant has failed to show that the issue of failure to bring the criminal charge for trial within a reasonable time could not be resolved by the court a quo.

The decision by the court a quo was not a matter raised in terms of s 175(4) of the Constitution. The applicant did not make a request for referral of a constitutional question to the Court for determination in terms of s 175(4) of the Constitution. He had not approached the court a quo in terms of s 85(1) of the Constitution alleging an infringement of his fundamental right enshrined in s 69(1) of the Constitution.

FACTUAL BACKGROUND

The applicant was arraigned before the magistrate’s court in Mutoko on a charge of contravening s 27(d) of the Firearms Act [Chapter 10:09] and ss 93 and 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

At the hearing of the matter, the applicant argued that the criminal proceedings before the first respondent were in violation of his right to a fair trial within a reasonable time, protected by s 69(1) of the Constitution.

The allegations, which were made in an application for an order of stay of proceedings, were that the criminal charges were brought to court after an inordinate delay. He complained that the criminal charges were preferred against him by the police in 2010, yet the court proceedings were not commenced until December 2018. He averred that if the matter were to proceed, the trial proceedings would prejudice his interests in that he would face difficulties in locating evidence and witnesses as eight years had passed after the charges were preferred against him.

In determining the issue, the court a quo held that, whilst a docket ought to be brought to court within a reasonable time, the explanation for the delay given by the State was reasonable. It found that the issue that the docket got lost at some point in time and that such position had been communicated to the applicant constituted a reasonable explanation.

The court a quo also found that the alleged challenges raised by the applicant relating to failure to locate witnesses and evidence, in particular fears of forgetting certain things, were not peculiar to the applicant as they could also prejudice the State and might work in his favour. The application was dismissed on 29 October 2019.

The applicant intends to apply for leave to appeal to the Court against the decision of the court a quo. Leave to appeal ought to have been sought in an application filed and served within fifteen days, as required by the Rules. The applicant filed the application for leave to appeal five days after the expiry of the dies induciae.

The application for condonation was opposed by the second respondent. The basis of the opposition was that the applicant ought to have made the substantive application before the first respondent in terms of s 167A of the Criminal Procedure and Evidence Act [Chapter 9:07] (“the Act”). The second respondent stated that s 167A of the Act relates to complaints arising from alleged unreasonable delay in bringing an accused to trial.

SUBMISSIONS BEFORE THE COURT

Counsel for the applicant said that the parties had made submissions relating to the aspect of the application of s 167A of the Act, but the court a quo had treated the issue as irrelevant as if no right had been affected in the process. This had led to the application for referral in terms of s 175(4) of the Constitution, which was declined. The applicant submitted that the court a quo ought to have ordered an investigation into the matter, but failed to do so. The applicant submitted that the decision of the court a quo was that the matter proceed to trial, which was detrimental to his interests.

The second respondent maintained that the matter was one which the trial court ought to have determined without the need for a referral to the Court. The argument was that the court a quo had the power to deal with the matter in terms of s 167A of the Act. It was stated that a wrong procedure had been adopted, as the applicant could not avoid acting in terms of the legislation relevant to his cause. It was submitted that there was no indication in the applicant’s founding papers or in the judgment of the court a quo that the parties had made submissions in relation to s 167A of the Act. The section empowers the Court to hear applications for relief arising from inordinate delay. The record of proceedings showed that the applicant made an application for referral in terms of s 175(4) of the Constitution.

The contention by the second respondent was that not only did the applicant fail to ground his complaint in the applicable statutory provisions, he did not make a request for a referral of a constitutional question to the Court for determination in terms of s 175(4) of the Constitution. The decision of the court a quo was not one the applicant had a right to appeal against to the Court. The effect of the contention by the second respondent was that entertaining an application for condonation of non-compliance with the Rules in respect of leave to appeal against a decision of a subordinate court which is not appealable to the Court would have the effect of encouraging abuse of the Court’s process.

THE LAW AND THE FACTS

The applicant admitted that the question of the unreasonableness of the delay in bringing him to court because the docket could not be found was raised in the court a quo in the context of the provisions of s 167A of the Act. The applicant ought to have pressed for a decision and the relief sought in terms of the law he had chosen to rely on, which law provided for the applicable remedy in the circumstances of the case. He could not abandon the statutorily prescribed remedy he had invoked for the remedy under s 175(4) of the Constitution. The two remedies are mutually exclusive. The provisions of s 167A of the Act are based on the principle of the subordinate court having jurisdiction to go into the merits of the question whether there has been unreasonable delay in the bringing or completion of criminal proceedings which is substantially prejudicial to the accused. Under s 175(4) of the Constitution, a subordinate court only has to decide the question whether the request for referral of a constitutional matter to the Court for determination is frivolous or vexatious.

Section 167A of the Act section provides as follows:

“167A Unreasonable delay in bringing accused to trial

(1)	A court before which criminal proceedings are pending shall investigate any delay in the completion of the proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, to the accused or his or her legal representative, to a witness or other person concerned in the proceedings, or to the public interest.

(2)	In considering whether any delay is unreasonable for the purposes of subsection (1), the court shall consider all the circumstances of the case and in particular the following —

(a)	the extent of the delay;

(b)	the reasons advanced for the delay;

(c)	whether any person can be blamed for the delay;

(d)	whether the accused has raised such objections to the delay as he or she might reasonably have been expected to have raised;

(e)	the seriousness, extent or complexity of the charge or charges;

(f)	any actual or potential prejudice which the delay may have caused to the State, to the accused or his or her legal representative or to any other person concerned in the proceedings;

(g)	the effect of the delay on the administration of justice;

(h)	the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued.

(3)	If after an investigation in terms of subsection (1) the court finds that —

(a)	the completion of the proceedings is being unduly delayed; or

(b)	there has been an unreasonable delay in bringing the accused to trial or in completing the trial;

the court may issue such order as it considers appropriate in order to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice, including an order —

(i)	refusing further postponement of the proceedings;

(ii)	granting a postponement subject to such conditions as the court may determine;

(iii)that the prosecution of the accused for the offence be permanently stayed;

(iv)	that the matter be referred to the appropriate authority for an administrative investigation and possible disciplinary action against any person responsible for the delay.

(4)	The Prosecutor-General may appeal against an order referred to in subsection (3)(iii) as if it were an acquittal of the accused.”

If the applicant was aggrieved by the manner the court a quo had approached the question he had raised for determination in terms of s 167A of the Act, his remedy was an appeal to the High Court. The fact that the court a quo acted as if it did not appreciate the full import of the provisions of s 167A of the Act and their relevance in the determination of the questions he had posed was no basis for deciding to abandon the statutory remedy and attempting to resort to the remedy under s 175(4) of the Constitution in the course of the same proceedings before the subordinate court.

The facts on the basis of which the applicant formulated the questions he had posed for determination by the court a quo under s 167A of the Act are the same facts on the basis of which he would have formulated constitutional questions for determination by the Court under s 175(4) of the Constitution. For the procedural remedy provided for under s 175(4) of the Constitution to be properly invoked, there must be evidence that a request was made by a party to the proceedings for the constitutional matter which would have arisen or been raised in the proceedings in the subordinate court to be referred to the Court for determination. The presiding person is obliged to refer the constitutional question to the Court for determination unless he or she considers the “request” to be merely frivolous or vexatious.

What was presented to the court a quo was an application. No “request” was made to the presiding person to refer to the Court the constitutional question the applicant considered to have arisen from the proceedings in the court a quo.

The ground of appeal intended to be placed before the Court should leave to appeal be granted is couched as follows:

“The trial Magistrate in the court a quo misdirected himself in dismissing the application for referral on the basis that the State had provided a reasonable explanation for the delay of trial and that if the appellant was prejudiced by the State’s delay in bringing the matter to court he was supposed to seek redress or compensation (and) thereby violated the appellant’s constitutional right to a fair and public trial within a reasonable time.” (the underlining is for emphasis)

The intended ground of appeal should leave to appeal be granted shows that the presiding person in the court a quo did not have brought to his attention for the purposes of s 175(4) of the Constitution what he was required to decide. The applicant accepted by implication that he placed before the presiding person for decision the question whether the delay in bringing him to court constituted a violation of his right to a fair trial within a reasonable time. His complaint was not that the presiding person decided a matter he ought not to have determined. His complaint was that the decision did not go his way. He would not have sought to attack the decision of the court a quo as a violation of his right to a fair trial within a reasonable time had it been in his favour. The applicant would be seeking leave to appeal against a decision on a matter irregularly placed before the court a quo. Needless to say, there are no reasonable prospects of the application for leave to appeal being granted in the circumstances.

DISPOSITION

The application is dismissed with no order as to costs.

HLATSHWAYO AJCC:		I agree

PATEL AJCC:		I agree

Warara & Associates, applicant’s legal practitioners

Prosecutor General of Zimbabwe, for the second respondent