Judgment record
Tendai Biti v Chief Superintendent Majuta and Senior Assistant Commissioner Nyathi and Commissioner General Chihuri and Econet Wireless Zimbabwe Limited
HH 156-2011HH 156-20112011
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HH 156-2011
HC 6608/11
TENDAI BITI
versus
CHIEF SUPERINTENDENT MAJUTA
and
SENIOR ASSISTANT COMMISSIONER NYATHI
and
COMMISSIONER GENERAL CHIHURI
and
ECONET WIRELESS ZIMBABWE LIMITED
HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 13th June 2011
Mr Mpofu, for the Applicants
Mr Mutangadura, for the 1st, 2nd and 3rd Respondents
Mrs Mtshiya, for the first respondent
BHUNU J: The applicant is the Minister of Finance in the Ministry of Finance.
On the other hand the first to third respondents are members of the Zimbabwe Republic
Police engaged in criminal investigations concerning cell phone lines 0772 568 807, 0774
346 082 and 0778 437 880 which have to do with the applicant’s calls.
The first respondent is the investigating officer whereas the second respondent is
the Officer Commanding, Criminal Investigations (CID). The third respondent is the
Commissioner General responsible for all police operations in Zimbabwe.
The fourth respondent is a company in the business of mobile telephone
communication services and is responsible for operating the above three cell phone
numbers.
The police are currently investigating allegations against the applicant to the
effect that he unlawfully authorized an employee in his Ministry one Petronella Chishawa
to go on various foreign trips on special per diem rates thereby showing favour to the said
Petronella Chishawa.
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In the course of investigations the first respondent first sought to obtain a record
of information pertaining to the above three numbers on 20 June 2011 from the fourth
respondent without success.
Having failed to obtain the required information upon request the police invoked
the provisions of s 54 (2) (a) and (b) of the Criminal Procedure and Evidence Act [ Cap.
9:07]. That section permits police to enter premises and obtain evidence upon reasonable
suspicion that relevant information may be obtained therein. The section provides as
follows:
“54 Entering of premises for purposes of obtaining evidence
(1). Where a police officer in the investigation of an offence or alleged offence
reasonably suspects that a person who may furnish information with reference to
any such offence is upon or in any premises, he may, without warrant, enter the
premises for the purpose of interrogating such person and obtaining a statement
from him:
Provided that a police officer shall not enter any dwelling in terms of this section
without the consent of the occupier thereof.
(2) Where a police officer of such class as the Minister may designate considers on
reasonable grounds that it is necessary for the purpose of investigating or
detecting an offence to examine any books, documents or other records, he may,
without warrant—
(a) enter any premises for the purpose of examining such books, documents or other
records; and
(b) require from any person thereupon or therein the production then and there of
such books, documents or other records which are or have been upon or in the
premises or in the custody or under the control of any person by whom the
premises are occupied or used; and may examine and make extracts from and
copies of all such books, documents and other records:
Provided that a police officer shall not enter any dwelling in terms of this subsection
without the consent of the occupier thereof.”
The above section quite clearly authorizes the police to obtain without warrant the
required information not only upon reasonable suspicion that a crime has been committed
but also for purposes of detecting crime.
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Out of an abundance of caution the police in an exparte application also obtained
a search warrant in terms of s 49 as read with s 50 of the Act authorizing them to enter
the fourth respondent’s premises and seize the required information in the form of
records pertaining to the call history of the three cell phone lines in question.
The applicant has since appealed to this Court for an order setting aside the search
warrant. He has now filed an urgent chamber application seeking to interdict the first,
second and third respondents from accessing any information concerning his calls and the
fourth respondent from providing the required information.
In determining the application the Court is duty bound to determine the
applicant’s prospects of success on appeal. The first hurdle which the applicant has to
surmount is whether or not the search warrant is appeallable.
It is trite that the magistrate’s court is a creature of statute. It has no inherent
jurisdiction. It thus can only do that which it is empowered to do by statute as it has no
power of its own other than that conferred upon it by statute. The right to appeal against
the Magistrates’ Court decision in criminal proceedings is conferred upon it under s 60 of
the Magistrates Court Act [Cap 7:10] which provides that:
“60 Appeal from magistrates courts in criminal cases
(1) Subject to this section and any other enactment, any person who is
convicted of any offence by a court may appeal to the High Court against
the conviction and additionally, or alternatively, any sentence or order of
the court following upon the conviction?
(2)….
(3) A person who is convicted of any offence by a court and who is
discharged after conviction in terms of any provision of the Criminal
Procedure and Evidence Act [Chapter 9:07] may appeal against such
conviction to the High Court.
(4) Any person who has been convicted by a court but sentenced by a judge of the
High Court in terms of Part IX of the Criminal Procedure and Evidence Act
[Chapter 9:07] may appeal to the Supreme Court against such conviction or any
sentence imposed upon him or any order of court following upon such sentence as
though he had been both convicted and sentenced in the High Court.”
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It is self evident that the Magistrates Court Act makes no provision for an appeal to
any court against the issuance of a search warrant in terms of s 54 of the Criminal
Procedure and Evidence Act. I have also perused the Criminal Procedure and Evidence
Act and I am satisfied that it makes no provision for an appeal against a search warrant
issued by a magistrate in terms of the Act.
Section 60 of the High Court Act [Cap 7: 06] limits the right of appeal in criminal
cases from the Magistrates Court to those aggrieved by conviction or sentence or where
the right of appeal to the High Court has been conferred by statute. Despite being
specifically asked, counsel for the applicant has been unable to point to any statutory
provision which entitles an aggrieved person to appeal to the High Court against the
issuing of a search warrant by a magistrate.
In the absence of any right of appeal to the High Court, it appears to me that a search
warrant issued by a magistrate can only be impugned on review and not appeal. That
being the case, the prospects of the High Court entertaining the appeal pending before it
in respect of this matter are pretty deem indeed.
The applicant also belatedly almost as an afterthought sought to attack the search
warrant on the basis of irregularity complaining that the magistrate made no record of the
proceedings leading to the issuing of the search warrant. That complaint amounts to an
attack on the validity of the proceedings before the magistrate.
It is correct to say that in terms of s 5 of the Magistrates Court Act [Cap. 7:10] the
Magistrates Court is a Court of record. The magistrate is therefore, duty bound to
maintain an accurate written record of all proceedings before him. See S v Ndebele 1988
(2) ZLR 249. No record of proceedings has however been placed before me to ascertain
what transpired at the magistrates court. I was simply told from the bar that the magistrate
did not record the proceedings. Apart from counsel’s mere say so from the bar no effort
was made to contact either the magistrate or the clerk of court for an explanation.
In the absence of an explanation from the magistrates’ court I am not prepared to
condemn the magistrate and hold that he did not do his job properly. There is a
presumption in favour of validity of all official documents issued by government officials
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in the course of duty. The search warrant is therefore considered valid until proven
otherwise.
The onus was on the applicant to prove on a balance of probabilities that the
warrant is invalid on account of the alleged irregularity. This, the applicant has failed to
do. In any case such a complaint ought to have been brought by way of review after
affording the magistrate a chance to be heard.
The main thrust of the applicant’s argument is however based on the common law
rules enunciated in the case of Phiri & Others v Industrial Steel and Pipe (Pvt) Ltd 1996
(1) ZLR45 (S) to the effect that the noting of an appeal suspends the decision appealed
against. That case should however be contrasted with the decision of MUNGWIRA J in
the case of Founders Building Society v Mazuka (1) ZLR 526 531 in which she quoted
Gillespie with approval in the case of Vengesai & Others v Zimbabwe Glass industries
1998 ZLR 593 (H) at 598 where the learned judge remarked that:
“In stating the common law, CORBETT JA referred to the automatic stay of
execution upon the noting of appeal, as a general rule of practice. That is, not a
rule of law, but a long established practice regarded as generally binding, subject
to the court’s discretion. The concept of a rule of practice is peculiarly appropriate
only to superior courts of inherent jurisdiction. Any other court, tribunal or
authority is a creature of statute and bound by the four corners of its enabling
legislation. Moreover, the authorities cited by CORBETT JA are authorities
relevant to appeals from superior courts
…
It follows that in the absence of any statute specifically conferring such discretion
on an inferior tribunal or authority or otherwise regulating the question of
enforcement of judgments pending an appeal from that authority, no such
discretion can exist. Such a court or authority can exercise only the powers
conferred by the statute”
The applicant has failed to point to any legislation authorizing the automatic
suspension of the search warrant upon appeal in the magistrates court. I must however
state that while I prefer the dicta of GILLESPIE J in the Vengesai case (supra) I am
bound by the decision of Mc NALLY JA emanating from the Supreme Court in the Phiri
case (supra).
That principle is however, inapplicable in this case for the simple reason that the
appeal that the applicant has lodged appears to be a nullity and of no force or effect. It is
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trite that for an applicant to succeed in an application for an interdict, he must establish a
clear right. In this case it can not be said that the applicant has established a clear right
when the basis of the application is founded on what appears to be a nullity.
Viewed from a different angle, there was no appeal against the police’s bid to
proceed in terms of s 54 (2) (a) and (b). There is also no order barring the police from
proceeding in terms of that section.
On the facts before me the allegations made by the police give rise to a reasonable
suspicion that an offence may have been committed emanating from Ms Petronella
Chishawa’s trips abroad. It is not denied that Ms Chishawa works in the Ministry of
Finance where the applicant is the responsible minister. Whether or not the applicant
showed favour to her when she embarked on the said trips is a matter of evidence. It is
not unreasonable for the police to suspect that such evidence may be found in the record
of the history of calls he might have made to his subordinates or colleagues. For that
reason, I have no basis for barring the police from proceeding in terms of s 54 (2) (a) and
(b) of the Criminal Procedure and Evidence Act. There being a reasonable suspicion the
question of inversion of privacy does not arise.
While the applicant has the right to privacy under section 18 of the Constitution,
that right is not absolute. The police also have the legal right to detect, investigate and
arrest suspects. Thus where the police have reasonable cause to investigate crime the
subject’s right to privacy must of necessity give way for the common good and public
interest to fight crime.
The law does not prohibit lawful inversion of privacy. What it prohibits is wanton
and unlawful inversion of privacy. In this case as the police appear to be acting according
to law, the application can not succeed. Not surprisingly the 4 th respondent has pledged to
abide by the decision of this Court and not take sides one way or the other.
It is accordingly ordered:
1. That the application for an interdict barring the first, second and third
respondents from accessing any information concerning the applicant’s calls
be and is hereby dismissed.
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2. That the applicant’s application for an interdict barring the fourth respondent
from providing the first, second and third respondents with any information
concerning the applicant’s calls be and is hereby dismissed.
3. The fourth respondent shall abide by this Court’s decision.
4. The applicant shall bear the costs of suit.
Atherstone & Cook, applicant’s Legal Practitioners
Attorney general’s Office the, 1st, 2nd and 3rd Respondents’ Legal Practitioners.