Judgment No. HB 95/2002
Case No. HC 1780/2002
FLETCHER DULINI NCUBE
and
SONY NICHOLAS MASARA
and
ARMY ZULU
versus
THE STATE
IN THE HIGH COURT OF ZIMBABWE
CHIWESHE J
BULAWAYO 31 JULY and 1 AUGUST 2002
Adv. Anderson for the applicants
Mrs M Moya-Matshanga for the respondent
Judgment
CHIWESHE J: On 16 July 2002 applicants sought and obtained a
provisional order calling upon the respondent to show cause why a final order should
not be made as follows:
“1. The indictment in the above matter be struck off;
2. The applicants be removed from remand.”
By way of interim relief the following order was granted:
“Pending determination of this matter the applicant is granted the following
relief:
(a) the indictment of the applicants be postponed until this court has made a determination with regard the present matter.
(b) respondent be and is hereby ordered to show cause why applicants should not be removed from remand.
(c) respondent be and is hereby ordered to file its answering papers on or before 12 noon of 17 July 2002 and applicants are granted leave to set the matter down within 48 hours thereafter.”
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The background facts to this application are as follows. Applicant and
co-accused persons face charges of murder. They were arrested in November 2001.
They are all on bail pending trial in the High Court. They have been on remand since
the time of their arrest.
According to the respondents (and this has not been challenged) their
Bulawayo office received instructions from the Attorney-General’s office in Harare
that the applicants be indicted to the High Court in Harare. A letter was then written
to the Clerk of Court (Criminal) requesting him to issue summons against the
applicants in terms of section 110 (3)(a) of the Criminal Procedure and Evidence Act
[Chapter 9:07]. The letter was copied to applicant’s legal practitioners. In terms of
the summons issued, the applicants were required to be in court 2, Tredgold
Magistrates’ Court at 8.30a.m on 12 July 2002. The summons were not served as the
police were unable to locate applicants. Warrants were then issued in terms of section
110 (3)(b) of the Criminal Procedure and Evidence Act. When the police sought to
uplift the warrants they were informed that the magistrate had cancelled the warrants
in chambers. It was then agreed between the respondent and applicants’ legal
practitioners that the applicants be brought (by their legal practitioners) on 15 July
2002 for indictment. Applicants’ legal practitioners duly brought the applicants late
in the afternoon of that date. They served respondents with a chamber application
seeking to bar respondent from indicting the applicants. A provisional order was
granted on the basis of those papers on 16 July 2002. It was granted “ex parte”. The
reasons for that decision were given under the hand of my brother KAMOCHA J in
judgment number HB-80-2002 and are stated as follows:
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“The legal practitioners indicated that they had discussed the issue of making an application in court to have the applicants removed from the remand with the Attorney-General’s Office but it (the Attorney-General’s Office) did not seem to want to have an application brought to court. They then ended up deciding to make this application for a provisional order to compel the state to come and argue the matter in court. They went on to say they had already served the papers on the Attorney-General’s Office. It was on that basis that the provisional order was granted.”
With respect, the correctness of that decision is doubtful moreso because it is
not based on the merits of the case before the court but on the assumption that the
Attorney-General’s Office would not attend court unless the provisional order was
granted. In my view the issues canvassed in the application are neither new nor
urgent. I do not consider therefore this matter to be an appropriate case in which an ex
parte judgment (even on a provisional basis) should have been granted. In terms of
the merits of the matter no assistance is derived from that judgment regarding
confirmation or otherwise of the provisional order.
In their heads of argument applicants contend that the state has not disclosed
any admissible evidence to link them with the offence. “The sole basis on which it is
alleged that they were implicated consists of alleged confessions by other persons
sought to be indicted with them as co-accused in which they are alleged to have been
implicated.”
It is further argued that whilst the Attorney-General has the power to prosecute
he is only entitled to exercise that power in accordance with sections 18 and 13 of the
Constitution (that is where admissible evidence is disclosed on which the court may
objectively find the existence of a reasonable suspicion that the offence charged has
been committed and that the accused should stand trial).
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According to applicants the indictment papers which are before this court do
not allege any evidence against the applicants save for the alleged confessions by
their co-accused after their arrest - these are not admissible against applicants.
On their part respondents argue that the application should be dismissed
because it has no basis in law. They aver that the application is frivolous and
vexatious and goes against the provisions of section 76 subsection 4(a) of the
Constitution as well as section 110 of the Criminal Procedure and Evidence Act. They
argue that the application seeks to usurp the powers of the Attorney-General.
Subsection 4(a) of section 76 of the Constitution of Zimbabwe reads:
“(4) The Attorney-General shall have power in any case, in which he considers it desirable so to do -
(a) to institute and undertake criminal proceedings before any court ... and to prosecute or defend an appeal from any determination in such proceedings.”
And subsection (7) of that section provides:
“(7) In the exercise of his powers under subsection (4) or (4)(a) the Attorney-General shall not be subject to the direction or control of any person or authority.”
The applicants rely on section 13 of the constitution of Zimbabwe for the
proposition that the Attorney-General can only exercise the powers bestowed upon
him subject to the limitations imposed by that section, and in this case, in particular
subsection (2)(e) of that section.
Section 13(1) and (2) reads:
“13 Protection of right to personal liberty
(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the cases specified in subsection (2).
(2) The cases referred to in subsection (1) are where a person is deprived of his personal liberty as may be authorised by law -
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(a) ...
(b) ...
(c) ...
(d) ...
(e) upon reasonable suspicion of his having committed or being about to commit a criminal offence.
(f) ...
(g) ...
(h) ...
(i) ...”
Section 18(1) of the constitution of Zimbabwe upon which the applicants rely
states:
“18 Provisions to secure protection of the law
(1) Subject to the provisions of this Constitution, every person is entitled to the protection of the law.”
Whilst I agree with the respondents that the prerogative in deciding to
prosecute any criminal matter rests with the Attorney-General (subject to the
provisions relating to private prosecution) I would also agree with the applicants that
in exercising his discretion in that regard the Attorney -General must do so judiciously
and in accordance with the law. That power cannot be exercised outside the
parameters of the law nor in an arbitrary manner.
The main thrust of this application is the contention by applicants that there
are no grounds giving rise to a reasonable suspicion that they committed the offence in
regard to which they have been in remand and in respect of which they stand to be
indicted.
In the case of Martin v A-G and Another 1993(1) ZLR 153 at 159 it was held thus:
“It is the entitlement of every individual to challenge the power and right of the state to place him on remand. This he does upon a submission that insufficient facts have been alleged to enable the court to objectively find the existence of a reasonable suspicion of his having committed or being about to
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commit a criminal offence, thereby justifying the deprivation of his personal
liberty under section 13(2)(e) of the constitution. He may adduce evidence, as the applicant did, designed to demolish, clarify or weaken the facts alleged by the state. The test to be applied is the same as that for arrest without warrant. It does not require the firm resolution of conflicting evidence that guilt beyond a reasonable doubt demands, nor even a preponderance of probability. Certainty as to the truth is not involved, for otherwise it ceases to become suspicion and becomes fact. Suspicion, by definition, is a state of conjecture or surmise whereof proof is lacking.”
In so holding GUBBAY CJ reiterated the point made in the
case of Attorney-General v Blumears and Another 1991(1) ZLR 118 (S) at 123 A-B.
(See also Bull v Attorney-General and Another 1986(1) ZLR 117 (S)).
That the requirements and test for the existence of a reasonable suspicion that
an accused person has committed or is about to commit an offence is as enunciated in
the above cases admits of no doubt. Whilst there is ample authority in this regard
concerning arrests without warrant, detention, remand and bail applications, I am
unable to find, nor are the parties able to refer me to any authority in which an
indictment was stopped on the grounds that no reasonable suspicion exists that an
offence has been committed.
Applicants argue that the same considerations would nonetheless apply in
relation to an indictment - in fact the same considerations apply throughout the
pre-trial stage, including indictment. I tend to agree with Adv. Anderson’s
submissions in that regard. It appears to me that the reason why there is a dearth of
authorities at the indictment stage is probably due to ignorance on the part of
unrepresented accused persons or where the accused person is legally represented,
such issues would have been canvassed at an earlier stage, particularly at the remand
stage. Assuming that an indictment can be challenged on the same basis and that the
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test for the existence of a reasonable suspicion would be the same as laid down in the
above cited cases, then this application cannot succeed. The state is not required to
prove its case at this stage, not even on a balance of probabilities. All it needs do at
this stage is demonstrate that on the facts alleged a reasonable suspicion arises that
an offence has been committed. The test is the same as that for arrest without warrant.
Suspicion has been described in the Martin case supra as “a state of conjecture or
surmise whereof proof is lacking” The admissibility or otherwise of any facts or
evidence that the state may seek to establish or adduce is not a factor for consideration
at this stage. Applicants seek a ruling on the basis that whatever evidence the state
may have in the form of confessions by co-accused in which applicants are implicated
would ordinarily be inadmissible as against applicants and therefore no reasonable
suspicion could be held to exist that the applicants committed an offence. With
respect, that would amount to an unjustifiable extension of the test to be applied.
In my view such issues stand for determination by the trial court. Suffice it to
say that where an accused person implicates another in circumstances such as the
present, that would be sufficient grounds for holding that a reasonable suspicion exists
that an offence has been committed by such other. On that basis an arrest is
justifiable. The accused person may be placed on remand on the same basis and
indicted if needs be.
Reliance has been placed by applicants on the following cases:
Attorney-General v Moyo SC 33-02
Spooner v The State HB-51-01
Moyo and Another v The State HB 26-02
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In these cases what was under consideration was the question of admission to
bail. The admissibility or otherwise of co-accused’s extra curial statements was
considered for purposes of bail. I do not consider those cases relevant to the present
applicant. My attention has also been drawn to the provisions of sections 178 and 179
of the Criminal Procedure and Evidence Act. Again those provisions in my view have
no direct bearing on the present applicant.
Applicants have been on remand for close to nine months now. At no stage
during that period did they apply to be removed from remand even though they knew
or ought to have known the facts upon which the state relied for placing them on
remand. Those facts do not appear to have changed. It was only after the state
indicated its intention to indict them that the present application was made (on an
urgent basis). I can only conclude that the application is made solely for purposes of
defeating the process of indictment. In any event I have already concluded that on
the merits the application cannot succeed.
It is ordered that the provisional order be and is hereby discharged with costs.
Webb, Low & Barry applicants’ legal practitioners
Attorney-General’s Office respondent’s legal practitioners