S v MASHAYAMOMBE 2015 (2) ZLR 50 (H)

Flynote

Constitutional law — C Constitution of Zimbabwe 2013 — Declaration of Rights — right to equal protection of the law (s 56(1)) — right to fair trial within reasonable time (s 69(1)) — accused person charged with multiple offences, including murder — State proceeding against accused on lesser charges before indicting him on murder charge — State having valid reasons for proceeding as it did — accused always aware that he faced murder charge — rights not breached — no entitlement to stay of prosecution on grounds of abuse of process

Headnote

The accused person had been placed on remand on charges of escaping from lawful custody, unlawful entry, theft of a motor vehicle, rape and murder. He had been in custody, from which he escaped. He gained unlawful entry into the premises of the deceased. He raped the deceased and then, it was alleged, murdered her. After murdering the deceased, the accused stole the deceased's motor vehicle, which he drove from the deceased's premises. He was tried before a provincial magistrate on the first two charges; he pleaded guilty and was sentenced to a term of imprisonment. Two months later he was tried before a regional magistrate on the charges of theft of a motor vehicle and rape. Again, he pleaded guilty and was sentenced to lengthy periods of imprisonment. He was then indicted for trial before the High Court on the murder charge. His counsel applied for a permanent stay of proceedings on the grounds that the manner in which the charges against him were instituted contravened his rights as enshrined in s 56(1) and s 69(1) of the Constitution of Zimbabwe 2013. These provisions respectively give the right to equal protection and benefit of the law and the right to a fair and public trial within a reasonable time before an independent and impartial court. It was argued that a single transaction underpinned all the charges, yet the State started by prosecuting him on the least serious of the charges, and had now indicted him for the most serious of them, murder. That approach was immoral and calculated to, and did, prejudice the applicant and so rendered the proceedings before the High Court unfair.

Held, that a stay of criminal proceedings could be granted where there is an unreasonable delay in the prosecution of a matter or where, in the circumstances of a case, it is not possible for an accused to be guaranteed a fair trial by reason of some other factors, such as abuse of criminal procedure, where criminal proceedings are instituted to achieve a purpose other than that which they are, by law, designed to achieve. An abuse of process application should only be granted on an exceptional basis. It is a measure of last resort, to be adopted where all other possible measures have been exhausted. The abuse of process doctrine is ordinarily concerned with serious prosecutorial misconduct or with serious breaches of the rights of an accused by State authorities. It is undesirable to join in the same indictment a murder count and other offences, except where it is convenient because the facts arise out of one course of conduct. In this instant case the facts did not arise out of one course of conduct. While the offences were committed by one person, each offence was distinct with its own elements separate from the others.

Held, further, that the equality provision enshrined in s 56(1) should be given broad, substantive content in order to ensure that substantive rather than merely formal equality is realised. To that end, equality before the law should entail entitling everyone to equal treatment by courts of law or equality in the legal process. The section protects against arbitrary and irrational State action. The impact of the State action must be considered in the assessment of whether the equality provision was contravened, but if the State has a defensible purpose, together with reasons for its actions, that bear some relationship to the stated purpose, then the action cannot be irrational.

Held, further, that as regards the right to a fair trial protected in s 69(1), the fairness of the trial must be judged by reference to the specific instances of fairness given in s 70(1) to (5), as well as other notions of fairness and justice which are not necessarily listed in that section. Those other notions of fairness and justice must reflect the normative value system upon which our constitutional order is founded. In this case the accused was aware from his initial remand that he was facing allegations of murder, in addition to the other offences which he has been convicted of. It is not as if he was misled into thinking that the murder allegations would not be proceeded with once the other charges had been completed. It would be a subversion of justice for him to escape prosecution on the basis that he had already been convicted of lesser charges. The offences were totally different from each other and did not arise from one "transaction". There was no duplication of charges.