S V CHUMA & ANOR 2012 (2) ZLR 237 (H)

Flynote

Criminal procedure — stay of proceedings — stay sought on ground of breach of right to trial within a reasonable time — magistrate not entitled to grant stay — should refer matter to Supreme Court

Headnote

The accused were granted bail in January 2005 following their arrest on drugs charges. They appeared regularly at remand hearings until September 2007, when the record seems to have disappeared. No further proceedings took place until April 2010, when the accused appeared before a magistrate after they had been apprehended by the police and brought to court for an application for a cancellation of the warrant of arrest. The warrant of arrest was cancelled. However, the magistrate who had partly heard the matter had since left the bench. For reasons that were not very clear from the record, the matter dragged on slowly until May 2012, when the defence counsel launched an application in the magistrate court for a "permanent stay of proceedings. On at least three occasions, between 2006 and February 2012, the accused persons' legal practitioners had sought the postponement of the matter on the grounds that they were involved in other commitments elsewhere. In June 2012 the magistrate purported to grant a permanent stay of proceedings.

Held, that the magistrate's order was incompetent. The accused persons' application was premised on an alleged breach of the provisions of s 18(2) of the Constitution of Zimbabwe 1980. In terms of s 24(2) of the Constitution the court may, on its own accord, refer a constitutional issue to the Supreme Court. When a party to the proceedings applies for referral, the court must refer the issue to the Supreme Court unless it finds that the application for referral is frivolous and vexatious. The magistrate should have referred the application for a permanent stay of proceedings against the accused to the Supreme Court in terms of s 24(2). He erred when he granted the order for a permanent stay of proceedings because he had no jurisdiction to do so.