SUPREME COURT OF ZIMBABWE
MALABA DCJ, ZIYAMBI JA & PATEL AJA
HARARE, MAY 13, 2013
The applicant in person
E Nyazama, for the respondent
ZIYAMBI JA: At the end of the hearing the application was dismissed and it was indicated that reasons for the decision would follow in due course. These are the reasons. This matter was referred to the Supreme Court by the Magistrate in terms of s 24(2) of the Constitution of Zimbabwe which provides as follows:
“24 Enforcement of protective provisions
(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”.
The referral came about in the following manner. On 8 February 2012, the applicant, who is a registered legal practitioner, appeared before the Magistrate in Gweru in response to a summons to answer a charge of Contravening s 16(2) (b) of the Public Order and Security Act [Cap 11:17]. The offence was allegedly committed on 25 June 2005. When the charge was put to him, the applicant did not plead to it but instead made an application for the matter to be referred to the Supreme Court in terms of s 24(2). It was his intention to seek an order:
“For a permanent stay of prosecution in terms of the Constitution of Zimbabwe in Section 18(2) on the basis that my right to a fair trial, within reasonable time has been violated”.
He alleged that the charges emanated from an incident which occurred on 25 June 2005 in Zaka and that a warned and cautioned statement was recorded in July of the same year. The delay in bringing him to trial amounted to six years and eight months. The allegation was that the delay was attributable to the conduct of the State because he resides in Masvingo and has never removed himself from the jurisdiction of the courts. He averred that nothing could have been done by him to assert his rights especially as the matter was not brought to court on a remand hearing.