S v MUKANDI & ORS 2014 (2) ZLR 422 (CC)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — right to fair trial within a reasonable period of time (s 18(2)) — long delay before person brought to trial — onus on person to show delay unreasonable — court must also have regard to society's interest in seeing D trial brought to a conclusion

Headnote

The applicants sought a permanent stay of their prosecution on charges of fraud, alternatively contravening the Prevention of Corruption Act [Chapter 9:16]. The first three applicants were members of the E Central Intelligence Organisation and the fourth was a businessman. The first applicant was a law graduate and qualified to practise in Zimbabwe. They were first arraigned in March 1999, granted bail and then remanded at intervals until January 2000, when the State announced it needed more time to prepare its case. The applicants were removed from remand and the State advised to proceed by way of summons. The prosecution was not ready to proceed until December 2002. In July 2001, no further action having by then been taken by the State, the first applicant left the country and went to Canada for ten years, until he was deported back to Zimbabwe for reasons unrelated to the present case. The other applicants remained within Zimbabwe for most of that time. When the first applicant returned in September 2011, summons was served on him, and subsequently on the other applicants, for trial to start in December 2011. The matter did not start then, and was remanded until mid-January 2012, when the matter was, at the request of the applicants, referred by the presiding magistrate to the Supreme Court in terms of s 24(2) of the Constitution of Zimbabwe 1980. The issue was whether the applicants' right under s 18(2) to a fair trial within a reasonable period had been infringed.

The State averred that it would have been imprudent to have tried the other three applicants in the absence of the first applicant, and until he was sent back to Zimbabwe the prosecution was unable to proceed.

Held, that in determining such an application the following factors are to betaken into account: (a) the length of the delay; (b) the reasons for the delay; (c) the assertion by the accused of his or her right to a speedy trial; and (d) the prejudice to the accused caused by the delay. Here, the length of the delay was presumptively prejudicial. The onus was on the applicant to establish that the delay was unreasonable. Lesser delays than that in casu had been held to be unreasonable. The applicants had not suggested that the delay up to December 2002 was unreasonable.

Held, further, that the events that intervened between the time when the applicants were first charged and the eventual setting down of the matter for trial would serve to afford an acceptable explanation for the inordinate delay. The test for determining whether there has been an unreasonable delay or not requires an objective analysis of all the factors surrounding the entire process, including any challenges and problems that the prosecuting authority might have been faced with during the relevant period. The attitude and actions of the accused persons are also a consideration in the assessment.

Held, further, that, there was no basis for holding that, because the immigration authorities and a department within the police force were aware of the first applicant's departure from Zimbabwe, the prosecuting authorities must also have been aware. He would have been aware that, unless charges had been withdrawn after a plea was tendered in court, those charges remained pending.

Held, further, that the court had to strike a balance between the interests of the accused person and those of society. As much as an accused person has the right to assert that his constitutional rights should be given effect to, it is in the interest of a functioning society that suspected perpetrators of a crime be brought to trial.

Held, further, that although the first applicant made allegations about the prejudice that he had suffered, the others did not make any specific averments. The yardstick for ordering a permanent stay of prosecution is not simply a question or issue of fairness to the particular accused, although it is an important consideration. The court also has to consider whether there is an abuse of the court processes by the prosecuting authority for some ulterior motive. It is also of importance to consider whether the continuation of the prosecution is inconsistent with the recognized processes of the administration of criminal justice and so constitutes an abuse of court process. Finally, the court, when considering whether a delay is alleged to have prejudiced an accused's right to a fair trial, must have regard to the interest that society has in the resolution of the culpability of an accused person, especially when a permanent stay of prosecution is sought.

Held, further, that the applicants had the onus of showing that a trial after such a lengthy period would prejudice them in their defence. They had not done so. The charges they faced were very serious and the amount involved was considerable. The allegations related to fraud involving government funds and taxpayers would have an interest in the outcome of criminal charges concerning fraud allegedly committed in respect of state funds. When weighed against the prejudice that the applicants alleged they would suffer from a delayed prosecution, society would be justified in expecting that the criminal trial be brought to its logical conclusion.