S V NEMUTENZI 1992 (2) ZLR 233 (H)

S v NEMUTENZI 1992 (2) ZLR 233 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — s 18(2) — right to trial within reasonable period of time — when right infringed

Human rights — right to be tried within reasonable period of time

Headnote

The accused was charged with culpable homicide, alternatively contravening s 43(1)(a) of the Road Traffic Act 1976, arising out of a motor accident in which he was involved on 20 July 1986. He appeared in court and pleaded not guilty to the charge in November 1987. The trial commenced but was stopped in early 1988 as the presiding officer became subject to an inquiry which led to his dismissal. On 19 December 1989 the Attorney-General's office sent the record of the proceedings in this case to the Registrar and requested him to place the case before a judge of the High Court so that the previous proceedings could be set aside and a trial de novo could be ordered. The case was not referred to a judge as requested. The Attorney-General had now written again to the Registrar enclosing another copy of the record and requesting him to have a judge set aside the previous proceedings and order a trial de novo.

On review, the High Court ordered a permanent stay of the criminal proceedings against the accused. It found that the accused's constitutional right to be tried within a reasonable period of time had been violated. The inordinate delay of four years and eleven months in this case was in no way attributable to the conduct of the accused but was entirely attributable to the inefficiency of the State machinery.

The State had argued that there had been no violation of the accused's constitutional right as he had failed to assert his right to be tried within a reasonable time period and he had suffered no prejudice as a result of the protracted delay. On this issue, the court said that where the delay was entirely attributable to the State and the accused has done nothing to cause the delay, the focus should not be on the non-assertion of the right but rather on whether the accused voluntarily waived his right to be tried expeditiously. Only if he has voluntarily waived his right should he be precluded from arguing that his constitutional right has been violated. In the present case the accused had not voluntarily waived his right to be tried expeditiously.

On the issue of prejudice the court said that even where, as in the present case, there had been a lengthy delay, the court would presume that the accused had suffered prejudice in the form of anxiety and concern whilst awaiting trial unless the State could show that there was no prejudice. The State had not shown that no prejudice had been suffered in the present case. The fact that the accused had not complained about the delay in the case did not mean that he had not suffered anxiety and concern.

The court also pointed out that the longer the delay had been, the more difficult it would be for the State to justify it and for the court to excuse it.

Despite the seriousness of the charge against the accused, the court decided that there was no alternative but to order a permanent stay in the proceedings.

In reaching its conclusion the court reviewed local and foreign case law relating to this issue.