S v KUSANGAYA 1998 (2) ZLR 10 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 18(2) — right to fair trial within reasonable time — breach of such right — whether magistrate or High Court judge on appeal has jurisdiction to deal with this constitutional issue

Court — High Court — jurisdiction — court's jurisdiction to afford relief in event of breach of accused person's constitutional rights

Criminal procedure — stay of criminal proceedings — stay on ground of breach of right to trial within a reasonable period of time — whether magistrate or High Court on appeal can stay proceedings on this ground — High Court Act [Chapter 7:06] — s 29(3) — whether applicable in respect of violation of a constitutional right

Human rights — right to trial within a reasonable period of time

Headnote

The appellant had been tried in the magistrates court on a criminal charge. He applied for a stay of these proceedings on the grounds that the delay in bringing the trial to a conclusion constituted a violation of his right to trial within a reasonable period of time in terms of s 18(2) of the Constitution of Zimbabwe. The magistrate decided that he had no jurisdiction to stay the proceedings on the basis of the alleged breach of the appellant's constitutional right. The magistrate found the appellant guilty and proceeded to sentence him.

The appellant appealed to the High Court against conviction and sentence on the grounds of the alleged violation of his constitutional right to a trial within a reasonable period of time. The State submitted that the High Court had no jurisdiction to entertain the appeal, as a constitutional question can only be dealt with by the Supreme Court upon reference by a lower court.

Held, that, arising out of the High Court's inherent review jurisdiction, the High Court has jurisdiction to order a permanent stay of criminal proceedings. Using these powers, the High Court can grant an appropriate remedy where the constitutional right of a person to a fair trial within a reasonable period of time has been violated. The constitutional provision providing for reference to the Supreme Court of constitutional questions merely establishes a procedural mechanism whereby constitutional issues may be raised by the lower courts for decision by the Supreme Court. This provision does not affect the inherent review jurisdiction of the High Court.

Held, further, that s 29(3) of the High Court Act [Chapter 7:06] has no application to matters where constitutional rights have been breached. This provision lays down that a conviction or sentence can only be quashed or set aside by reason of an irregularity or defect in the record if the judge considers that a substantial miscarriage of justice has actually occurred. Where a fundamental constitutional right has been violated, the person affected is entitled to the appropriate remedy, immaterial of whether an actual miscarriage of justice has occurred. To have regard to whether a miscarriage of justice has resulted from the breach of the fundamental right negates the right and the remedy to which the person is entitled by virtue of the breach. Thus in a case of violation of the right to trial within a reasonable period of time, the person affected by the breach is entitled to his constitutional remedy whether or not an actual miscarriage of justice has occurred.

Held, further, that a magistrate has no inherent jurisdiction to grant a permanent stay of criminal proceedings. There are, however, ways in which a magistrate can provide an effective remedy where there has been undue delay in bringing an accused for trial or in concluding the trial. The matter may arise when the accused appears on remand, or where he has pleaded but there is undue delay in concluding the trial or where he is brought, after undue delay, for trial on a plea of guilty or not guilty. In all these instances, if the magistrate considers that the constitutional right of the accused to trial within a reasonable period of time has been violated, it is the duty of the magistrate to explain to the accused his constitutional rights. If the accused elects to invoke his constitutional right, the magistrate must elicit the relevant facts from the accused and then refer the matter to the Attorney-General for the institution of appropriate proceedings before the Supreme Court to have a stay of prosecution granted, if this is merited. Where, however, the trial has commenced and the prosecutor seeks a series of postponements, the trial magistrate may, in his discretion, refuse to grant a further postponement with the result that an acquittal follows on the merits.

Held, further, that for a magistrate to refuse a further remand or to grant a discharge for want of prosecution would not necessarily address the breach of the accused's constitutional rights, because in both instances he may be still be summoned to face trial on the same charges.

Held, further, that in the present case, the appellant was not entitled to a stay of the criminal proceedings as he had failed to take steps to assert this right.