REPORTABLE (17)
Judgment
No. SC 17/06
Constitutional
Application No. 211/05
BRUCE IRVING
WATSON v THE STATE
SUPREME COURT OF
ZIMBABWE
CHEDA JA, MALABA JA
& CHEDA AJA
BULAWAYO, APRIL 3, 2006
P Dube, for the
applicant
T Mkwananzi, for
the respondent
CHEDA AJA: This is an application for a permanent stay of
prosecution or proceedings against the applicant in terms of s 24(2)
of the Constitution of Zimbabwe.
The brief facts of
this case are that on 9 August 1994 the applicant, while driving
a Toyota Hilux motor vehicle registration
no. 571-878F, along
the Ngundu-Chiredzi Road negligently caused the death of one
Tapiwa Gukutu. He was thus charged with
culpable homicide.
After the accident,
the witnesses statements were recorded, a sketch plan was drawn
and a warned and cautioned statement was
recorded from the applicant.
The matter was then treated as a sudden death and the docket was
closed.
The applicant was
placed on remand but later placed off remand. He was, however,
re-summonsed to appear in court on 12 December
2004, wherein he
was remanded to appear in court on 6 April 2005. It is on that
date that he applied for the matter to be
referred to this Court, on
the grounds that his right to a fair trial within a reasonable time
had been infringed or violated.
It is the applicants contention
that the delay of ten years and eight months before he was brought to
trial is excessive and unreasonable.
Indeed, there has
been a delay of almost eleven years in bringing the applicant to
trial. A delay of any length requires an explanation
and such an
explanation must be a reasonable one. Mr Mkwananzi, for
the respondent, in his submissions conceded that the delay was
unreasonably long and the reason given by the Attorney-Generals
Office, namely that the public prosecutor handling the matter died,
is not adequate. The further reason for the delay is that there
was
a communication breakdown between the State and the applicants
legal practitioners.
This, too, is not a
reasonable excuse. The concession by the respondent that there was
an inordinate delay by the State in bringing
the applicant to trial
is well-founded and is therefore proper.
The right to a fair
hearing within a reasonable time is enshrined in the Constitution.
Section 18(2) of the Constitution
states:
(2) 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unless the charge is withdrawn, the case shall be afforded a fair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 impartial court established by
law.
The definition of a
reasonable time is not defined in the Constitution. Therefore,
the question of a reasonable time is
determined by the circumstances
of each case.
In In re Mlambo
1991 (2) ZLR 339 (S), where there was a delay of four years eleven
months, it was held that the said delay was very long, giving
rise to
a strong presumption of prejudice to the applicant. (See also S
v Tau 1997 (1) ZLR 93).
In S v Nhando and
Ors 2001 (2) ZLR 84 (S), CHIDYAUSIKU ACJ (as he then
was) clearly laid down the determining factors which should be
considered
in the allegations of an infringement of s 24(2) of
the Constitution for referral to the Supreme Court, namely
1. the length of the delay;
2. the reasons for the delay;
3. the assertion by the accused of his or her right to a speedy
trial; and
4. the prejudice to the accused caused by the delay.
The delay in casu is, by any standards, unreasonably long
and cannot be supported by any court of law. (See In re Mlambo
supra). The reasons for such delay are so flimsy that they are
not worthy of serious consideration.
The applicant has
always been available to stand trial and has always notified the
authorities of his movements, albeit for ten
years.
The delay has no
doubt, in my view, resulted in anxiety and serious concern to him,
which was not necessary at all.
My judgment,
therefore, is that there has been an infringement of the applicants
constitutional right by depriving him of a fair
hearing within a
reasonable time, which is his right in terms of s 18(2) of the
Constitution.
It should be
appreciated that the right to a fair trial is a basic human right.
When it is violated innocent people face conviction,
imprisonment
and, at times, execution. If this occurs, the justice system itself
loses credibility in the eyes of those who look
to it for the smooth
delivery of justice. It should be emphasised, therefore, that
anyone arrested or detained on a criminal charge
should be promptly
brought before a competent court of law, which will then exercise its
judicial power over him/her and such trial
should be held within a
reasonable time. This is to ensure that the accused does not suffer
unduly prolonged uncertainty and that
evidence is not lost in the
process.
In casu, in my
view, the inordinate delay caused irretrievable prejudice to the
applicant in the circumstances.
The applicants
relief in essence is the permanent stay of prosecution or proceedings
against him.
In the result the
application is allowed and the following order is made
The proceedings under case no. CRB 360/04 Chiredzi be and are
hereby permanently stayed.
CHEDA JA: I
agree.
MALABA JA: I
agree.
Calderwood, Bryce Hendrie & Partners, applicant's legal
practitioners