S v MWONZORA & ORS 2015 (2) ZLR 637 (S)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 24(2) — application for matter to be referred by lower court to Supreme Court — requirement by applicant in criminal matter to give notice to prosecutor — need for applicant to give evidence in support of application — duty of lower court to consider whether a constitutional issue has been raised and whether application is frivolous or vexatious

The applicants had been charged in the magistrates court with public violence. A number of complaints were raised by them about the manner of their arrest and subsequent treatment. The matter was postponed on a number of occasions to enable the court to deal with the matters raised. The applicants then, without giving notice to the prosecution, applied to the magistrate for the matter to be referred to the Supreme Court in terms of s 24(2) of the 1980 Constitution, which was then still in force. They tendered a written application in which they chronicled various violations of their constitutional rights at the instance of the State and other persons. No evidence was led in support of these allegations. Although the prosecutor opposed the application, the magistrate held that the issues raised deserved the attention of the Supreme Court, which court, he said, would need to make a proper enquiry.

Held, that the matter was not properly before the Supreme Court. A judicial officer faced with an application for referral has no option but to refer, unless, in his opinion, the raising of the question is frivolous and vexatious.The magistrate did not, as he should have, ask himself whether the issues

raised were not frivolous and vexatious; he made no finding that the application was not frivolous or vexatious.

Held, further, that before permitting an accused person to raise the question whether his constitutional rights have been violated, it is a requirement that ample written notice of such an application should be given to the State. The prosecution is entitled to be afforded the time and opportunity to investigate the complaint and to be ready to adduce evidence, if necessary.

Held, further, that it is insufficient to make a statement from the bar. The applicants should have been called to testify under oath in order to substantiate their complaints that their rights had been violated. Had that happened, the prosecutor would then have had the opportunity to c cross-examine the applicants and, thereafter, to adduce such evidence as he may have considered necessary to contradict the allegations made by the applicants. Only after hearing evidence from both sides would the magistrate have been in a position to make findings of fact, which findings he would have been bound to take into account in deciding whether or not to refer the issues raised to the Supreme Court. It is the responsibility of the court referring a matter to resolve any disputes of fact before making such a referral. The absence of oral evidence can be fatal to an application of this nature because it completely disables findings to be made on the complaints raised. It is on the basis of those findings that the Supreme Court is called upon to deal with the allegations raised and, where necessary, afford appropriate relief.