REPORTABLE
/ZLR (3)
Judgment No.
SC 5/07
Civil
Application No. 108/06
WALTER
SIWAWA v THE STATE
SUPREME
COURT OF ZIMBABWE
SANDURA JA,
CHEDA JA & MALABA JA
HARARE,
FEBRUARY, 5 & MARCH 13 2007
S
Machiridza,
for the applicant
V
Shava,
for the respondent
CHEDA
JA: The applicant was arrested on 28 November 2003. He was charged
with theft of six computer hard drives, seven computer
processors and
eight computer memory chips from National Merchant Bank(NMB)
where he was employed.
He appeared
in court for remand several times until 10 October 2005. On that
date further remand was refused. His trial could
not start for
various reasons.
On 16 April
2006 an application was made for referral of the matter to this Court
on the ground that his rights to a fair trial
within a reasonable
time had been infringed upon. The court a
quo
granted that application.
In
all, from the time of his arrest to the date this application was
made, a period of only two years had passed.
The applicant
gave evidence when the application was made. He was cross-examined.
His evidence was that he was picked up by the
police on 28 November
2003 and detained. On 30 November 2003 a warned and cautioned
statement was recorded from him. He was taken
to court on 1
December 2003. He was granted bail of $500 000 with reporting
conditions. After that he appeared in court for remand
five times
up to 14 May 2004.
On 14 May 2004
his legal practitioners wrote a letter to the prosecutor asking for a
trial date. The trial date was set as 28 August
2004. The trial
did not take place that day. He was further remanded to another
trial date of 8 December 2004. On that date
the trial magistrate
was not available and the prosecutor was not ready to proceed. The
matter was remanded to 9 March 2005.
On that date the State was
ready but the witnesses were not present. On 13 May 2005 the
witnesses were again not present. On
6 October 2005 he asked his
lawyer to apply for refusal of further remand. The application was
granted. He was then summoned
to appear in court and he made the
application for referral of the matter to the Supreme Court.
In In
re Mlambo
1991(2) ZLR 339 (SC) the Supreme Court set out a number of factors
that need to be taken into account before an application for referral
to the Supreme Court for a permanent stay of prosecution is made.
On the point
of raising the issue with the lower court, the applicant clearly did
complain and asked for a trial date but the trial
never took place.
The reason for that have been given.
The
Supreme Court also pointed out that the length of the delay is one of
the factors that triggers the inquiry into the delay that
may
prejudice an accused person. In this case the delay of two years
cannot be said to be too long.
Further to
that, there were clear reasons why the trial could not take place
even when the State was ready to prosecute. On one
occasion the
trial magistrate was not available. On more than two other
occasions the witnesses were not present. This is from
the
applicants own evidence. It is very likely that the trial could
have started long before the application for referral of
the matter
was made, in which case the trial could have taken place within a
period of less than two years. It cannot be said that
the State was
to blame for all the occasions when the trial could not take off.
In his
evidence the applicant did not show that the delay prejudiced him in
any way. He is on bail and continues to be employed
by the
complainant. All that he complained of is that the witnesses might
forget what took place by the time they are called to
give evidence.
The
case against the applicant is not a complicated one needing a lot of
details that witnesses are likely to forget. It has not
been shown
or alleged that there are witnesses who have either died or
disappeared who could have given any crucial evidence at his
trial.
He has neither shown nor alleged that there is anything related to
the delay that makes it difficult for him to prepare
his defence.
Section 18(2)
of the Constitution of Zimbabwe was intended to provide relief for
persons who find that they are not being afforded
a fair hearing
within a reasonable time. It has not been shown in this case that
the delay of two years, and for which reasons
have been given, is
unreasonable.
I
therefore see no merit in the application and it is dismissed.
No
submissions were made on costs, so there will be no order as to
costs.
SANDURA JA: I agree.
MALABA JA: I
agree.
Muzangaza,
Mandaza & Tomana,
applicants legal practitioners
