S v MAVHARAMU 1998 (2) ZLR 341 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 18(2) — right to fair trial within a reasonable period of time — accused being convicted of rape eleven years after the offence was committed and the accused originally arrested — subsequent delays attributable to the State — High Court's power to protect constitutional rights — appropriate remedy — if trial has not yet taken place, a stay of proceedings — if trial has taken place, setting aside of proceedings — delays — extent to which unrepresented and unsophisticated accused can be expected to assert right to early trial — prejudice — nature of prejudice to be considered in assessing delay — whether prejudice to the defence sine qua non to relief

Criminal procedure — trial — unrepresented accused — court's duty to assist — duty to ensure trial takes place within reasonable period of time

Criminal procedure — trial — delays — magistrate's duty to query requests for remand

Headnote

Eleven years after the crime was committed, the accused was convicted of rape and sentenced to a term of imprisonment which would normally have been appropriate. At the time of the offence in November 1986, the accused was 18 years old, and single. By the time he was convicted in November 1997, he was a married man with a young family. He had been arrested shortly after the crime was committed, but a trial date was not set until nearly 18 months after the offence. By this time, the accused was at liberty. An attempt was made to secure his appearance by service of a summons, but by then he had left his rural home and gone to work in Mutare. He was re-arrested in September 1989, nearly two years after the crime was committed, and placed on remand at the periodical court at Nyazura until January 1990. A trial date was set for June 1990 but for reasons which were not clear matters fell into abeyance. No further action was taken. The accused again went to seek work in Harare.

In October 1996, the police happened to find the accused. He was arrested. The witnesses were found. This process took nearly a year. The trial was finally concluded in November 1997. The matter was only sent for review in June 1998. The Attorney-General argued that although the delay was lengthy it was justifiable. He attributed the bulk of the delay to the fault of the accused.

Held, that the initial delay of a year to complete investigations was not acceptable. The delay of 18 months waiting for trial date was also avoidable. The accused could not be criticised for the lengthy delay before his final re-arrest. He was not a fugitive from justice. His absence followed action, or inaction, which placed him at liberty, without any duty to report or present himself to any person or court. He was under no constraint and could not be held responsible for the delays.

Held, further that although the accused failed to assert his rights to a speedy trial, this did not exclude from consideration the manifest delays which occurred. The accused was a person with no recourse to legal representation. His only knowledge of the law must have been that it is, to all intents and purposes, overwhelming in its might and intractable in its exigencies. His failure to take assiduous steps to enforce his freedom could not be held against him. He could only look to the presiding magistrate for an explanation of his rights or an investigation of the apparent breach of those rights.

Held, further, that actual prejudice, in the sense of inhibition in the conduct of the defence case, is not the only criterion. Just as the constitutional protection should not be withheld where the delay is not excessive but prejudice is caused, so too, where there is unconscionable delay, relief should not be denied on the grounds that a procedurally fair hearing eventually took place. Prejudice to the conduct of the defence is the weightiest species of prejudice, but is not a sine qua non. The constitutional requirement is also that the hearing should take place within a reasonable time.

Held, further, that the High Court has jurisdiction to entertain applications for constitutional protection and give the appropriate remedy. The remedy which is applied must be a broad based one, within the discretion of the court, and tailored to meet the actual breach which is proven. Once a breach has been established, no order expediting a hearing can remedy that breach, for to press on to trial would be to deprive the person of his protection. If the trial is not complete, the minimum remedy will be a stay of proceedings. Where a proven breach only receives judicial attention after the conclusion of proceedings, the question arises whether the conviction and sentence should be allowed to stand.

Held, further, that although rape is an offence for which the public demands more severe and exemplary treatment of offenders, the doing of justice requires striking a balance between competing rights. Full weight should be given to the serious harm done to the accused. To preserve the conviction, but set aside the sentence, would be to grace the proceedings with undue legitimacy. Consequently, the conviction should be quashed.