REPORTABLE ZLR (49)

Judgment No. SC 67/04

Const. Application No. 66/04

IN RE: (1) WELLBORN HATIVAGONE

(2) WILFORD JIRIVENGWA

SUPREME COURT OF ZIMBABWE

SANDURA  JA, CHEDA JA, ZIYAMBI JA, MALABA JA & GWAUNZA  JA

HARARE, JUNE 10 & SEPTEMBER 10, 2004

P Kwenda, for the first applicant

N Chikono, for the second applicant

V Shava, for the Attorney-General

SANDURA  JA: At the request of counsel for the applicants, this matter was referred to this Court by a regional magistrate in terms of s 24(2) of the Constitution of Zimbabwe (“the Constitution”), which reads as follows:

“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 specific question referred for determination by this Court is whether the prosecution of the applicants for fraud should not be permanently stayed on the ground that their right to a fair trial within a reasonable time, enshrined in s 18(2) of the Constitution, had been violated.

The relevant factual background upon which the applicants based their contentions may be tabulated conveniently as follows –

1. At the relevant time the first applicant (“Hativagone”) was the managing director of five companies (“the companies”), and the second applicant (“Jirivengwa”) was an executive officer in the accounts section of the Central Mechanical Equipment Department in the Ministry of Transport (“the C.M.E.D.”).

2. On 24 December 1997 Hativagone received from the C.M.E.D. five cheques totalling $2 796 336.33, allegedly for goods supplied or services rendered by the companies to the C.M.E.D..

3. On 16 April 1998 Hativagone was arrested and formally charged with five counts of fraud, the allegations being that in December 1997 he and Jirivengwa had unlawfully and with intent to defraud misrepresented to the C.M.E.D. that the companies had supplied goods or rendered services to the C.M.E.D., and that as a result of that misrepresentation the C.M.E.D. had issued five cheques payable to the companies totalling $2 796 336.33 for goods which had not been supplied or services which had not been rendered to it.

On the same day, Hativagone made a warned and cautioned statement in which he denied the charges. When asked whether he could produce the relevant documents showing the goods supplied or the services rendered to the C.M.E.D. by the companies, he said:

“The policy in my group of companies is to get rid of documents once a transaction has been finalised. Although at this stage I do not know specifically whether these were destroyed, I shall check and produce them if they are available.”

However, the required documents were never produced.

4. On 20 April 1998 Hativagone was taken to the magistrate's court and was placed on remand.

5. On 14 December 1998 Jirivengwa was arrested and on the same day was taken to the magistrate's court for the initial remand, having made a warned and cautioned statement in which he denied all the five counts of fraud.

6. On 18 February 1999 the charges against Hativagone were withdrawn before plea, and thereafter in September 1999 the charges against Jirivengwa were also withdrawn before plea. Hativagone had, therefore, been on remand for about ten months, and Jirivengwa for about nine months.

7. However, on 31 July 2003 the charges were resurrected and the applicants’ trial was set down to commence on 27 October 2003 in the regional magistrate's court. The trial date was later altered by consent to 17 November 2003, and the applicants were issued with summonses directing them to appear in the regional magistrate's court on that date.

8. On 28 October 2003 counsel for the applicants notified the public prosecutor that on 17 November 2003 the presiding regional magistrate would be requested, in terms of s 24(2) of the Constitution, to refer the matter to this Court in order for the Court to determine whether the prosecution of the applicants for fraud should not be permanently stayed.

9. On 17 November 2003, after the applicants had pleaded not guilty to the charges, counsel for the applicants requested the presiding regional magistrate to refer the matter to this Court, as previously indicated. Both applicants gave evidence in support of that request and were cross-examined by the public prosecutor. Thereafter, the presiding regional magistrate referred the matter to this Court, the public prosecutor having conceded that the raising of the constitutional question was not merely frivolous or vexatious.

Section 18(2) of the Constitution, which the applicants relied upon, reads as follows:

“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 factors which must be considered in the determination of whether an accused person has been afforded a fair hearing within a reasonable time were identified by JUSTICE POWELL in Barker v Wingo 407 US 514 (1972) at 530-532 as follows:

“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.

Closely related to length of delay is the reason that government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defence should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason such as a missing witness, should serve to justify appropriate delay.

We have already discussed the third factor, the defendant’s responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasise that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pre-trial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defence will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defence witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.”

This passage was quoted with approval by DUMBUTSHENA  CJ in Fikilini v Attorney-General 1990 (1) ZLR 105 (SC) at 113A-114A, and by GUBBAY  CJ in In re Mlambo 1991 (2) ZLR 339 (SC) at 349H-351A. The factors identified by POWELL J have, therefore, received the approval of this Court.

In the light of these factors, four questions arise for determination. The first is whether the delay in bringing the applicants to trial was presumptively prejudicial; the second is whether the Attorney-General gave a reasonable explanation for the delay; the third is whether the applicants asserted their right to be tried within a reasonable time; and the fourth is whether the applicants have been prejudiced by the delay. I shall deal with these questions in turn.

THE LENGTH OF THE DELAY

As already stated, Hativagone was formally charged on 16 April 1998 and was placed on remand on 20 April 1998. Jirivengwa was formally charged on 14 December 1998 and was placed on remand on that date.

Thereafter, on 18 February 1999 the charges against Hativagone were withdrawn before plea, and in September 1999 the charges against Jirivengwa were also withdrawn before plea. In respect of both applicants, the charges were subsequently resurrected on 31 July 2003 and the trial was set down to commence on 27 October 2003, which date was later altered by consent to 17 November 2003.

In determining the length of the delay the time frame commences to run from the time of arrest or first remand, and the subsequent withdrawal of the charges before plea is irrelevant. That point was made by GUBBAY  CJ in In re Mlambo supra at 348 C-E as follows:

“Can the State stop the clock by resorting to the expedient of withdrawing the charge before plea, as it is permitted to do under s 297(3) of the Criminal Procedure and Evidence Act, only to reinstate the same charge, or a charge based on the identical information, when in a position to commence with the trial?

In my opinion, the type of withdrawal envisaged in s 18(2) of the Constitution is an irrevocable one – a withdrawal after plea by the Attorney-General in terms of s 13 of the Criminal Procedure and Evidence Act, thereby entitling the accused to a verdict of acquittal in respect of that charge. In other words, the withdrawal must be one in which no hearing of the charge can ever arise. To adopt any other construction would be to emasculate the protection the Constitution intends to afford.”

Applying that principle, the delay in respect of Hativagone was about five-and-a-half years, and that in respect of Jirivengwa was about four years and ten months.

In my view, there can be no doubt that the delay in bringing the applicants to trial was presumptively prejudicial. Indeed, Mr Shava, who appeared for the Attorney-General, quite properly conceded this. The first question posed above is, therefore, answered in the affirmative.

THE EXPLANATION FOR THE DELAY

The explanation given by the Attorney-General was as follows. He had waited for the completion of a criminal trial in which the accused was Elvis Zvinavashe (“Elvis”), an alleged accomplice of the applicants and a former employee of the C.M.E.D., who had been charged with contravening a section of the Prevention of Corruption Act [Chapter 9:16], and whom the Attorney-General regarded as a key State witness in the trial of the applicants.

The allegation against Elvis was that he had received from Hativagone a bribe in the form of a Mazda B1800 pick-up truck as an inducement for him to process for payment the fictitious invoices submitted to the C.M.E.D. by Hativagone, through Jirivengwa. It was alleged that Jirivengwa had handed the said invoices to Elvis with the instruction that they be processed for payment, and that Elvis had complied with that instruction because he had been bribed by Hativagone.

In the circumstances, it was alleged that Elvis had facilitated the issuing of the five cheques, totalling $2 796 336.33, by the C.M.E.D. for goods which had not been supplied or services which had not been rendered to it. The allegations against Elvis were, therefore, inextricably intertwined with the allegations against the applicants.

In due course, Elvis was tried and convicted. However, the proceedings were subsequently set aside by the High Court and a fresh trial was ordered in 2002.

The fresh trial took place some time later and Elvis was again convicted, and was sentenced to six years’ imprisonment with labour. It was only then that the Attorney-General was in a position to prosecute the applicants. The charges against them were then reinstated and the applicants’ trial was set down to commence in October 2003, with Elvis as a key witness for the prosecution.

In my view, the Attorney-General gave a satisfactory explanation for the delay in bringing the applicants to trial.

In the first place, the decision by the Attorney-General to defer the prosecution of the applicants until Elvis’ trial had been completed cannot be described as unreasonable, bearing in mind that Elvis was going to be the principal State witness at the trial of the applicants, and that as he was an accomplice it would have been undesirable to call him as a witness before his own trial had been completed.

Secondly, the fact that Elvis had to go through a second trial, after the proceedings in the first trial had been set aside by the High Court, was largely responsible for the delay in bringing the applicants to trial, and this is not something for which the Attorney-General could be blamed.

In the circumstances, the second question posed above is answered in the affirmative.

THE ASSERTION OF THE CONSTITUTIONAL RIGHT

As already stated, Hativagone had been on remand for about ten months and Jirivengwa for about nine months when the charges were withdrawn before plea. During those periods, the applicants must have appeared in the magistrate's court for remand on numerous occasions. The issue which arises for consideration is whether, and on how many occasions, the applicants asserted their constitutional right to be tried within a reasonable time.

The issue is important because if they did not assert that right, they could hardly complain about the delay in bringing them to trial when they were informed about the trial date.

The record of the proceedings in the regional magistrate's court shows that when Hativagone was asked by the public prosecutor how he had asserted his constitutional right to be tried within a reasonable time he said that his counsel had visited the investigating officer at his offices, but did not say what had been discussed on that visit. Indeed, as he had not attended the meeting, he could not have known what was discussed. When asked whether he had asserted his right in court, he said “it was also raised during the time of remand”, but did not say how he had asserted his right, when he had done so and on how many occasions he had done so.

Similarly, when Jirivengwa was asked whether he had asserted his right to be tried within a reasonable time, he said his legal practitioner had written a letter to the magistrate's court asking for a trial date.

On that evidence, this Court must determine whether the applicants asserted their right to be tried within a reasonable time. As the burden of proof rested on them, the Court must determine whether, on a balance of probabilities, that burden was discharged by the applicants.

Bearing in mind the evidence, there can be no doubt that the applicants failed to discharge that burden. As they were remanded on numerous occasions, it is rather surprising that they gave no evidence on the frequency and force of their objection to the delay in bringing them to trial. Instead, they appear to have made a half-hearted attempt to complain about the delay on a single occasion.

In the circumstances, the third question is answered in the negative. That conclusion is fatal to the success of the application.

PREJUDICE

With regard to the fourth factor, the evidence given by Hativagone was that the delay had caused him actual prejudice in several ways.

Firstly, four of the five companies involved in supplying the goods or rendering the services in question to the C.M.E.D. had closed down and the former employees could not easily be located. Some of them had left the country and one had died.

Secondly, most or all the records of his companies had been destroyed because it was the policy of his companies that documents which were considered no longer relevant should be destroyed after three years. Since the transactions in question took place in 1997, i.e. more than three years ago, the required documents must have been destroyed.

Thirdly, he had tried to contact the investigating officer in the case in order to find out what documents were required to rebut the fraud allegations but was informed that he had left the police force and could not be located.

And fourthly, since 1998 the only company of his which was still operational had relocated on three occasions and many documents had been destroyed as a result.

In the circumstances, it was submitted on behalf of Hativagone that it was no longer possible for him to find the documents required by him to rebut the fraud charges.

However, it seems to me that if the relevant documents were destroyed they were not destroyed in the circumstances alleged. I say so because when Hativagone made his warned and cautioned statement on 16 April 1998, about four months after the offences had been committed, he undertook to produce the relevant invoices to the police but never did.

The relevant part of his warned and cautioned statement reads as follows:

“Question: Are you in a position to supply documents in respect of (the) services which were rendered and for which the payments were made by C.M.E.D.?

Answer: The policy in my group of companies is to get rid of documents once a transaction has been finalised. Although at this stage I do not know specifically whether these were destroyed I shall check and produce them if they are available.”

It is important to note the contradiction between what Hativagone said in his statement and what he subsequently said to the regional magistrate about when the documents were to be destroyed. In his statement he said the destruction took place once the transaction had been finalised, but in his evidence in the regional magistrate's court he said documents which were considered no longer relevant were destroyed three years after the transaction.

Nevertheless, it is clear that on 16 April 1998 Hativagone knew that the relevant invoices were required by the police. He should have taken them to the police shortly thereafter or explained to the police why he could not produce them, but did not do so.

Thus, if the relevant invoices were in his possession or that of his companies he should have carefully kept them, bearing in mind the fact that he required them to rebut the fraud charges. On the other hand, if they had already been destroyed, a trial within a reasonable time would not have assisted him as far as the invoices were concerned.

It follows, therefore, that the Attorney-General was not responsible for any prejudice to Hativagone which was caused by the unavailability of the required invoices. But any prejudice caused by the unavailability of potential witnesses would have been caused by the delay, in respect of which the Attorney-General gave a reasonable explanation.

I now wish to consider Jirivengwa’s evidence on how the delay prejudiced him. The only valid ground on which he alleged that the delay had prejudiced him was the unavailability of potential witnesses. He alleged that one had died and that it would be difficult to locate those potential witnesses who were no longer working for the C.M.E.D..

In the circumstances, and on the basis that both applicants were prejudiced by the unavailability of potential witnesses, the fourth question is answered in the affirmative.

Nevertheless, the application cannot succeed for two reasons already stated. The first is that the Attorney-General had given a satisfactory explanation for the delay, and the second is that the applicants had failed to establish that they had asserted the right to be tried within a reasonable time.

Finally, in line with the decision of this Court in S v Banga 1995 (2) ZLR 297 (S) I shall make no order as to costs.

In the result, the application is devoid of merit and is, therefore, dismissed.

CHEDA JA: I agree.

ZIYAMBI JA: I agree.

MALABA JA: I agree.

GWAUNZA JA: I agree.

P Kwenda & Partners, first applicant's legal practitioners

Mhiribidi Ngarava & Moyo, second applicant's legal practitioners