S v MASHAYAMOMBE
HIGH COURT, HARARE
[Criminal Trial HH 596-15]
June 30 and July 1 and 2, 2015
ZHOU J
Criminal procedure - Trial - Application for permanent stay of criminal proceedings - Abuse of court process - Piecemeal prosecution - Allegation of unequal treatment before the law and unfair trial in violation of sections 56(1) and 69(1) of the Constitution.
The applicant was indicted for trial before the High Court on a murder charge. Before pleading to the charge he made an application for a permanent stay of proceedings on the grounds of unequal treatment before the law and exposure to an unfair trial in violation of ss 56(1) and 69(1) of the Constitution. The basis of the application was that prior to being arraigned on the murder charge he had, on previous occasions, been arraigned before two different magistrate courts where he had been tried, convicted and sentenced on separate lesser charges which like the murder charge were all underpinned by a single transaction.
Held, that 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.
Held, further, that in the present case the applicant had been aware from his initial remand that he was facing allegations of murder in addition to other lesser offences which he was convicted of. He was never misled into thinking that the murder allegations would not be proceeded with once the other lesser charges had been completed.
Held, further, that the circumstances relied upon by the applicant did not disclose a contravention of ss 56(1) and 69(1) or any other provision of the Constitution and therefore this was not an appropriate case for a permanent stay of criminal proceeding.
Cases cited:
Connelly v Director of Public Prosecutions [1964] AC 1254 (HL); [1964] 2 All ER 401; (1964) 48 Cr App R 183; [1964] 2 WLR 1145, referred to
R v Maxwell [2010] UKSC 48; [2011] 1 WLR 1837; [2011] 4 All ER 941; [2011] 2 Cr App R 448; [2011] All ER (D) 178, referred to
S v Banga 1995 (2) ZLR 297 (S), referred to
S v Chidodo; S v Mukwirimba HH 215-88 (unreported), referred to
S v Dzimuri & Ors 1997 (2) ZLR 27 (H), referred to
S v Muromo and Another HH 286-12 (unreported), referred to
S v Nangani 1982 (1) ZLR 150 (S), applied
S v Thebe 2006 (1) ZLR 208 (H), referred to
Sivako v Attorney General 1999 (2) ZLR 271 (S), referred to
Prosecutor v Uhuru Kenyatta ICC-01/09-02/11, referred to
Legislation considered:
Constitution of the Republic of South Africa, (Act 108 of 1996), s 9(1)
Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 56(1), 69(1), 70(1)-(5)
Criminal Law (Codification and Reform) Act [Chapter 9:23], s 47
Books cited:
Currie I and De Waal J (eds) The Bill of Rights Handbook (5th edn, Juta & Co Ltd, Cape Town, 2005) (PJ Schwikkard at pp 742-744)
Woolman S and Bishop M (eds) Constitutional Law of South Africa
(2nd edn, Juta & Co Ltd, Cape Town, 2008) (Catherine Alberton and Beth Goldblatt vol 3 at pp 21-35)
Woolman S and Bishop M (eds) Constitutional Law of South Africa
(2nd edn, Juta & Co Ltd, Cape Town, 2008) (Frank Snyckers and Jolandi le Roux vol 3 at pp 50-100)
P Chikangaise, for the State
T Mpofu, with him N Chamisa and T Chigudumba, for the accused
ZHOU J:
This is a matter in which the applicant is facing a murder charge. It is being alleged that, in contravention of the provisions of s 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], on 31 August 2014 and at Hurungwe Prison Farm, Makuti at around 20.00 hours he unlawfully and with intent to kill or realising that there was a real risk or possibility that his conduct might cause death, caused the death of the deceased by strangling her with a neck tie, shoe lace and a ladies pant, and tying her hands with a rope.
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Prior to the charge being put, counsel for the applicant indicated that he intended to make an application for a permanent stay of the proceedings on the grounds that if the trial proceeded the applicant's fundamental rights as enshrined in the Constitution would be contravened. The application is contested by the respondent.
The proper procedure for making an application for a permanent stay of proceedings was not followed. Such an application must be made in writing and on notice to the prosecution. Sivako v Attorney General 1999 (2) ZLR 271 (S) at 275F; S v Banga 1995 (2) ZLR 297 (S). Nevertheless, I allowed submissions to be made from the bar because counsel indicated that they were only briefed to appear pro deo by an instructing attorney who is also appearing on a pro deo basis on the day on which this trial is due to commence. The brief to counsel is for the purpose of arguing the application for the criminal proceedings against the applicant to be stayed permanently.
The factual background to the matter, which both parties accept as common cause, is as follows:
On 8 September 2014 the applicant appeared on initial remand at the Karoi Magistrates' Court on charges of escaping from lawful custody, unlawful entry, theft of a motor vehicle, rape and murder. In October 2014 the applicant appeared before the Magistrates' Court at Karoi charged with escaping from lawful custody and unlawful entry. He pleaded guilty to both charges and was convicted of both offences. He was sentenced to twelve months imprisonment for the offence of escaping from lawful custody and to four years for the offence of unlawful entry. The sentences were ordered to run consecutively.
In December 2014 the applicant was arraigned before the Regional Magistrate at the Chinhoyi Magistrates' Court, this time charged with theft of a motor vehicle and rape. He was convicted on both charges having pleaded guilty to them. He was sentenced to 10 years imprisonment for the theft of a motor vehicle and to 20 years imprisonment for rape. The two sentences were also ordered to run consecutively.
In January 2015 he was brought to the Magistrates' Court at Harare for remand on the murder allegations. That is the offence for which he has been indicted to this Court. The series of events upon which the charges outlined above are premised are as follows: The applicant was in lawful custody. He escaped from lawful custody and gained unlawful entry into the premises of the deceased who was also the victim of the rape charge. He raped the deceased, and then, allegedly, murdered her. After allegedly murdering the deceased the applicant is said to have then stolen the deceased's motor vehicle which he drove from the deceased's premises.
The applicant's case is that the manner in which the charges against him have been instituted contravenes his rights as enshrined in ss 56(1) and 69(1) of the Constitution of Zimbabwe Amendment (No 20) Act, 2013 ("the Constitution"). The contention is that a single transaction underpins all the above charges, yet the State started by preferring against him the least serious of the charges, and has now indicted him for the most serious of them, murder. That approach, so goes the submission, is immoral and calculated to, and does, prejudice the applicant and, consequently renders the proceedings before this Court unfair. Mr Mpofu, who appeared for the applicant, submitted that if all the charges had been brought at the same time before the same court the penalties which the court would have handed down would not be the same as those imposed by the different courts which tried the applicant.
For the respondent, Ms Chikangaise submitted that there was no contravention of ss 56(1) and 69(1) of the Constitution, as there is no unfairness because the charges were brought within a reasonable time and the applicant has been afforded legal representation.
The application by the applicant is not founded upon improper splitting of charges, but on an alleged contravention of sections of the Constitution. The case, as submitted on his behalf, is that he has been and would be prejudiced by having been charged with less serious offences first, followed by more serious ones in the Chinhoyi Magistrates' Court, and the most serious of them all before this Court. The complaint is that the proceedings constitute an abuse of court process which should not be countenanced by this Court.
What must be considered by this Court, therefore, is whether, on the facts admitted as common cause, it can be said that the applicant's rights as enshrined in the two cited sections of the Constitution have been and/or would be contravened. If the contraventions are not excused by the limitations contained in the Constitution the accused urges the court to grant a permanent stay of the murder charges in respect of which he has been indicted to this Court.
The court was referred to a number of cases from other jurisdiction in support of the application. In R v Maxwell [2010] UKSC 48 SIR JOHN DYSON stated the following:
"It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give an accused person a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused person cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system."
The above grounds are wide enough to encapsulate the grounds recognised in this jurisdiction for a stay of criminal proceedings to be granted, such as 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 factors could include abuse of criminal procedures, for instance, where criminal proceedings are instituted to achieve a purpose other than that which they are by law designed to achieve. In the case of Prosecutor v Uhuru Kenyatta ICC-01/09-02/11 the following was said in relation to reliance on the abuse of process argument:
"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."
In the case of Connelly v Director of Public Prosecutions [1964] AC 1254 (HL)
LORD MORRIS emphasised the following principle:
"The power (which is inherent in a court's jurisdiction) to prevent abuses of its process and to control its own procedure must in a criminal court include a power to safeguard an accused person from oppression or prejudice."
Mr Mpofu also referred to four authorities from this jurisdiction in support of his contentions. The review judgment in S v Chidodo; S v Mukwirimba HH 215-88 (unreported) the case of S v Thebe 2006 (1) ZLR 208 (H) and the case of S v Muromo and Another HH 286-12 (unreported).
[The learned judge proceeded to give a synopsis of the three cases and continued]
These three cases are not quite in point to the matters in casu, and are not authority for the propositions advanced.
The issues in the case of S v Nangani 1982 (1) ZLR 150 (S) are different from the issue in the other three cases. In that case the appellant was charged in one indictment with one count of murder and three counts of robbery. When pleading to the murder charge, he admitted unlawfully killing the deceased, his "common law" wife, because he had found her having an affair with another man. A plea of guilty was entered. He was sentenced to death on the murder charge. On the robbery charges he was sentenced to an effective term of five years imprisonment. On appeal the conviction of murder was set aside and substituted with one of culpable homicide. The appellate court pointed out that the proper course which should have been embraced was to enter a plea of not guilty based on the explanation which the appellant had given regarding the circumstances of the offence or, at least, on the entrenched practice that a plea of not guilty should be entered in a murder case irrespective of what the accused has tendered as his plea. In the concluding paragraph at 163B the court made the following remarks:
"Finally I would say again that it is undesirable to join in the same indictment counts of murder and of other offences. This is permissible in terms of the proviso to section 131 of the Criminal Procedure and Evidence Act [Chapter 59] and it may well be convenient where the offences all arise out of one course of conduct. But where as here the offences are quite separate and distinct they should be charged in separate indictments and the murder charge tried first."
What is clear from the above statement is that 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 the instant case the facts do not arise out of one course of conduct. While the offences were committed by one person, the applicant, each offence was distinct with its own elements separate from the others. The statement in S v Nangani (supra) is to the effect that in that event the offences must be charged in separate indictments, and the murder charge tried first.
In a case such as the instant one where the Magistrates' Court had jurisdiction to try the other offences the proceedings cannot be rendered unfair by the fact that the prosecution proceeded with the less serious charges in that court. It does not make a difference that the trials took place at different stations. The Magistrates' Court at Karoi would not have had jurisdiction to entertain the rape and car theft charges, much the same way as the Regional Magistrate had no jurisdiction to try the murder charge which the applicant is facing before this Court.
Section 56(1) of the Constitution is worded in identical terms to s 9(1) of the Constitution of the Republic of South Africa (Act 108 of 1996). The equality provision enshrined in s 56(1) of our Constitution is one that should indubitably 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. See Catherine Alberton and Beth Goldblatt, in S Woolman and M Bishop (eds), Constitutional Law of South Africa (2nd edn, Juta & Co Ltd, Cape Town, 2008) vol 3 at pp 21-35.
It has not been suggested by the applicant that he has not received equal treatment in the proceedings before this and the other courts in which he was convicted. The State has given sound reasons as to why it proceeded in the manner it did in relation to the charges against the applicant. The rape and theft of motor vehicle cases could not be tried at the Karoi Magistrates' Court because that court had no jurisdiction to try those offences. Also, the Chinhoyi Magistrates' Court had no jurisdiction to hear the murder charge. The suggestion that if the offences had been brought before one court the sentences imposed would have been different is not based on any rule of law. The question of an appropriate penalty in any given case is a matter within the discretion of that particular court. If the penalty imposed is out of proportion to the offence charged there is recourse by way of appeal against the sentence.
As regards the right to a fair trial protected in s 69(1) of the Constitution, the fairness of the trial must be judged by reference to the specific instances of fairness given in s 70(1)(5), as well as other notions of fairness and justice which are not necessarily listed in that section. See Frank Snyckers and Jolandi le Roux, in S Woolman and M Bishop (eds), (op cit) at pp 50-100; PJ Schwikkard in I Currie and J de Waal (eds), The Bill of Rights Handbook (5th edn, Juta & Co Ltd, Cape Town, 2005) at pp 742-744. Those other notions of fairness and justice must reflect the normative value system upon which our constitutional order is founded. In the present case the applicant 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 has already been convicted of lesser charges. After all, the offences are totally different from each other. The offences do not arise from one "transaction" as suggested by applicant's counsel. The facts are distinct in each of the offences. There is no duplication of charges (compare with S v Dzimuri & Ors 1997 (2) ZLR 27 (H)).
In all the circumstances, this is not an appropriate case for a permanent stay of the criminal proceedings against the applicant. The facts alleged do not disclose a contravention of ss 56(1) and 69(1) or any other provision of the Constitution.
In the result, the application for the criminal proceedings to be permanently stayed is dismissed.
Pro Deo Counsel, applicant's legal practitioners
National Prosecution Authority, respondent's legal practitioners
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