IN RE CHINAMASA 1999 (2) ZLR 291 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — s 24 — referral to Supreme Court of alleged contravention of Declaration of Rights — form in which question is to be referred to Supreme Court — s 18(3)(e) — right to examine witnesses — not breached by requiring party charged with contempt to file heads of argument — s 18(8) — protection against self-incrimination — not breached by being required to file a defence outline

Criminal law — contempt of court — contempt ex facie curiae — whether exclusively within Attorney-General's province as to whether action may be taken — whether High Court has right to deal with alleged contempt of High Court

Criminal procedure — Attorney-General — whether has exclusive right to prosecute all crimes

Headnote

Following the passing of sentence in a criminal case which had attracted much publicity, the Attorney-General made a statement criticising the sentence. The statement was made in terms which the trial judge concerned considered to be contemptuous, and a citation was issued against the Attorney-General by the Registrar of the High Court at the instance of the trial judge. Dates for hearing were set by consent, and counsel appointed by the court to act as amicus curiae. Counsel acting as amicus curiae and the Attorney-General's counsel were required to file heads of argument by a specific date. At the hearing, the Attorney-General asked for 6 questions to be referred to the Supreme Court in terms of s24 of the Constitution.

Held, that the court being asked to refer the matter has a duty to satisfy itself that the application and the question to be referred fall within the ambit of s 24. If necessary, the court should rephrase the question in a form which it considers will enable the Supreme Court to make the appropriate determination.

Held, further, that contempt of court is a crime sui generis and although the Attorney-General may sometimes prosecute cases of contempt, this does not always happen. The Attorney-General plays no part in cases of contempt in facie curiae or civil contempt.

Held, further, that s 76 of the Constitution does not give the Attorney-General the exclusive right to prosecute all crimes. His absence from the prosecution does not deprive the court of its establishment by law.

Held, further, that the directive to file a defence outline does not contravene the protection against being compelled to give evidence at one's trial.

Held, further, that the requirement to file heads of argument does not contravene the right of an accused person to examine witnesses.