Captain Alfred Ngonidzashe Mugadza v (1) Minister of Defence N.O. (2) Commander of the Zimbabwe National Army (ZNA) N.O. (3) The President General Court Martial No 02/2013 N.O. (4) The Director of Military Prosecutions N.O.

### Preamble
Judgment No. CCZ 23/17
Civil Appeal No. CCZ 55/13
1
REPORTABLE (22)
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REPORTABLE	(22)

CAPTAIN     ALFRED     NGONIDZASHE     MUGADZA

v

(1)     MINISTER     OF     DEFENCE     N.O.

(2)     COMMANDER     OF     THE     ZIMBABWE     NATIONAL     ARMY     (ZNA)     N.O.

THE     PRESIDENT    GENERAL     COURT     MARTIAL     NO 02/2013     N.O.

THE    DIRECTOR     OF     MILITARY     PROSECUTIONS     N.O.

CONSTITUTIONAL COURT OF ZIMBABWE

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC,

GWAUNZA JCC, GARWE JCC, GOWORA JCC,

HLATSHWAYO JCC, PATEL JCC & GUVAVA JCC

HARARE, OCTOBER 16 2013 & NOVEMBER 22 2017

T. Mpofu, for the applicant

C. Garisenheta, for the respondents

GARWE JA:

[1] 	In this application, the applicant seeks an order in the following terms:

“(a) The prosecution of applicant by the General Court Martial 02/13 for the offence of contravening paragraph 15 (2) (a) of the Defence Act [Chapter 11:02], that is, absence without leave which occurred in 2004 be and is hereby permanently stayed.

(b) First, second, third and fourth respondents, the one paying the others to be absolved, are to pay the costs of suit.”

[2]	The application, which was opposed by the respondents, was heard before this court on 16 October 2013 and judgment reserved.  For reasons that remain unclear, no judgment was prepared in this matter.  The matter was only recently allocated to me to write this judgment.

FACTUAL BACKGROUND

[3]	The applicant is a captain in the Zimbabwe National Army, having attested in June 1989.  The respondents are the Minister of Defence, Commander of the Zimbabwe National Army, the President of the General Court Martial and the Director, Military Prosecutions.  The respondents are cited in their official capacities.

[4]	In 2004, the applicant was charged with the offence of being absent from duty contrary to para 15 (2) (a) of the First Schedule to the Defence Act [Chapter 11:02] (“the Defence Act”).  It was alleged that he had absented himself from duty for 185 days whilst attending a military course at Nyanga.  He was arrested and detained at Harare Remand Prison for thirty days.  His summary of evidence for the purposes of trial was prepared in 2005 and he was then released.  What happened between 2005 and 2013 when the present application was filed is in dispute.  What is clear however is that in January 2013 the applicant noted what he termed an appeal to the Defence Forces Service Commission.  In the prayer he sought an order, inter alia, that he be paid all his benefits and pensions.  The appeal remains pending before that Commission.

[5]	On 9 May 2013, he was arrested by members of the military police and placed in the remand prison.  At the time of the filing of the present application, he was detained at Harare Central Prison awaiting trial by the Court Martial.  He was subsequently released on bail and, on 19 September 2013, CHIDYAUSIKU CJ made an order in chambers for the Court Martial proceedings to be stayed pending determination of the current application.

PROCEEDINGS BEFORE THIS COURT

[6]	The applicant does not say in terms of what constitutional provision he approaches this court.  It is however safe to assume that he approaches this court directly in terms of s 85 (1) of the Constitution of Zimbabwe.

[7]	In his affidavit, he states that the decision to arrest him was motivated by a desire to frustrate the appeal that he had filed in January 2013 against his dismissal from the army.  He submits that the decision to prosecute him in 2013 for an offence allegedly committed in 2004 is grossly unreasonable and is a violation of his constitutional right to a fair trial within a reasonable time.  He states that he has always been available to stand trial and would periodically check, with Army Headquarters, on the progress being made to have him reinstated into his former position.

[8]	The second, third and fourth respondents all oppose the application.  They state that after the preparation of the summary of evidence in 2005, the applicant was released pending the convening of a General Court Martial.  After his release, he disappeared and for a long time could not be located so that he could be summoned for the court hearing.  Moreover, at the same time, the applicant was facing charges of theft of 979 bags of cement and Harare Central Police were also looking for him.  They submit that the present application is a ploy to stultify lawful proceedings by the General Court Martial.

WHETHER THIS COURT CAN INTERVENE IN PROCEEDINGS PENDING BEFORE THE COURT MARTIAL

[9]	It is common cause that there are proceedings pending before the Court Martial.  The question that necessarily arises is whether it would be proper for this court to interfere with the pending proceedings and order a permanent stay of proceedings before that court.

[10]	Section 162 of the Constitution provides that judicial authority is vested in the courts, which include the Customary Law Courts and, notably for purposes of this application, “other courts established by or under an Act of Parliament.”  Section 174 of the Constitution makes provision for an Act of Parliament to establish, inter alia, other courts subordinate to the High Court.  Part VI of the Defence Forces Act establishes the Courts Martial, which consist of a General Court Martial, a District Court Martial and a Field General Court Martial.  The Act further prescribes the constitution, duties, powers, rules of procedure and jurisdiction of these courts and the automatic review of court martial proceedings by a confirming authority.

SUPERIOR COURTS RELUCTANT TO INTERVENE IN ONGOING PROCEEDINGS IN LOWER COURTS

[11]	As a general rule, the power of review or appeal of a court is exercised only after termination of the matter.  The party must await the result of his trial on the merits and thereafter appeal.  The court, however, may exercise its review or appellate jurisdiction to intervene in unterminated proceedings where the irregularity is gross and grave injustice might otherwise result or where it is such that justice might not by any other means be attained – Masedza & Others v Magistrate, Rusape & Another 1998 (1) ZLR 36 (H), 42 B; Ndhlovu v Regional Magistrate, Eastern Division & Another 1989 (1) ZLR 264 (HC), 269 E – F and 270 A – B;  Wahlhaus & Others v Additional Magistrate, Johannesburg & Another 1959 (3) S.A. 113 (A), 120 A.

[12] The reason for this approach is based on policy.  In Masedza & Others (supra), the court cited with approval remarks in McComb v Assistant Resident Magistrate & Attorney General 1917 TPD 717, 718 that: -

“…, if the court is called upon to intervene whenever a magistrate disallows a question in cross – examination, it might protract the hearing of the case indefinitely.  After having got the court’s ruling on the question, when the matter comes up before the magistrate again, the attorney may wish to put other questions which the magistrate deems wholly irrelevant and the magistrate may disallow them, and an application may again be made to this court for a mandamus to compel the magistrate to allow the questions.  That only shows how undesirable it is for the court, in the absence of good reasons, to intervene in the middle of (or rather, as in this case at the beginning) of criminal proceedings upon an application of this nature.”

See also the remarks of Makarau J (as she then was) in Dombodzvuku & Another v Sithole N.O. & Another 2004 (2) ZLR 242 (H), 245 C – F.

DIRECT APPLICATION IN TERMS OF SECTION 85 OF THE CONSTITUTION NOT PROPER IN ONGOING PROCEEDINGS

[13]	In a number of decisions, this court has emphasised that a direct application seeking relief in respect of proceedings pending before a lower court is improper and must be brought to this court by way of referral in terms of s 175 (4) of the Constitution.

[14]	In Chihava & Others v Principal Magistrate and Another 2015 (2) ZLR 31 (CC), the applicants, whilst proceedings were pending, approached this court directly alleging that the manner in which criminal proceedings against them were conducted in the Magistrates’ Court violated their rights in terms of s 70 of the Constitution.  They sought an order quashing the proceedings and directing a trial de novo before a different magistrate.  This court considered whether it was the intention of Parliament that a party to proceedings in a lower court can be allowed to abandon “such proceedings midstream and without any ceremony, … approach the Constitutional Court” in terms of s 85 of the Constitution.

14.1	At page 38 F – G, this court (per Gwaunza JCC) remarked as follows: -

“… it appears from the facts of the case that evidence should have been led in the lower court, to enable the magistrate to determine whether or not the case merited a referral to the Constitutional Court.  The end result is that the latter court is seized with a matter that might not only have required viva voce evidence to be led, but may, for all intents and purposes, have been ruled frivolous or vexatious by the magistrate.  This court is not able to call and hear viva voce evidence from the parties, and would thus be handicapped in terms of properly determining the matter”.

14.2	In striking the application of the roll, the court concluded at page 39 F: -

“Consequently and except in circumstances akin to those in Martin’s case (supra), any constitutional issue that arises during proceedings in a lower court ought to and must be brought to this court only upon referral in terms of s 175 (4) of the Constitution….”

[15]	This court recently adopted the same approach in (1) Farai Katsande (2) Zimbabwe Banks and Allied Worker’s Union v Infrastructure Development Bank of Zimbabwe CCZ 9/17.  At page 6 of the cyclostyled judgment this court again remarked: -

“The route taken by the applicants in bringing this matter to the Constitutional Court is criticised in the case of Anna Colleta Chihava & 2 Others … .  In that case the court held that the wording of s 85 (1) of the Constitution should not be understood to mean that a litigant is free to unceremoniously abandon proceedings in a lower court, and be able to mount a constitutional challenge before the court, seeking the same relief that the lower court would have been competent to grant.  A contrary interpretation would not only result in an absurdity – where different courts may be seized simultaneously with the same dispute – but would also cause procedural confusion pertaining to the courts’ jurisdictional parameters.  It would also open the way to undeserving or unripe cases being brought to the Constitutional Court, to the detriment of its effective operation.”

[16] 	I agree entirely with the above sentiments.

[17]	It follows from the above decisions of this court that a direct application to this court in respect of pending proceedings is generally not one that this court would entertain or countenance.  In any event, the point has repeatedly been made that it is the duty of the lower court referring a constitutional issue to this court to resolve disputes of fact before making such a referral.  This court does not, generally speaking, have the capacity to hear evidence and entertain cross – examination of witnesses.  This is the role of the lower courts. This court is required to determine constitutional issues arising from specific findings of fact made by the lower court.

[18]	I find, for the above reasons, that the present application is not properly before this court.  I should also add that the matter would, in any event, have stood to be dismissed on account of the glaring disputes of fact that remain unresolved, an aspect I feel I should now turn to, for completeness of the matter.

THERE ARE DISPUTES OF FACT IN THE PRESENT MATTER

[19]	Indeed there are disputes of fact in the present matter which cannot be resolved by this court.  In particular, the applicant says between 2005 and 2013 he was available to attend trial and that he would regularly visit Army Headquarters to ascertain what was happening to his case.  The respondents dispute this and state that once the applicant was released after the recording of his summary of evidence in 2005, he disappeared into thin air, only to be arrested in 2013 and then placed on remand.

[20]	The position is established that, in a case, such as the present, where a permanent stay is sought, the lower court is required to look at four basic factors.  These are (1) the length of the delay (2) the explanation given by the State for that delay (3) whether the applicant asserted his rights to a speedy trial and (4) whether there has been prejudice to the applicant.  The interests of society in having the guilt or innocence of a person accused of committing a criminal offence determined is also a relevant consideration.

[21]	In Douglas Togarasei Mwonzora & 31 Others v The State CCZ 9/15, this court, in dismissing the matter, stated at pages 4 – 5 of the cyclostyled judgment: -

“[14] 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.  This is because the prosecution is entitled to be afforded the time and opportunity to investigate the complaint and to be ready to adduce evidence, if necessary – S v Banga (2) ZLR 297.

[15] Further it is insufficient to make a statement from the bar, as the applicants’ legal practitioners did in this case.  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 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.  In short, it is the responsibility of the court referring a matter to resolve any disputes of fact before making such a referral.

[16] 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.

[17] In S v Banga (supra) GUBBAY CJ remarked at page 301 E – G :-

“I trust that I have made it clear that it is essential for an accused, who requests a referral to this court of an alleged contravention of the Declaration of Rights, to ensure that evidence is placed before the lower court.  It is on that evidence that the opinion has to be expressed as to whether the question raised is merely frivolous or vexatious.  It is on that record that the Supreme Court hears argument and then decides if a fundamental right had been infringed. Only in exceptional circumstances will an applicant be permitted to supplement the record of the proceedings before the lower court by the production of affidavits”.

DISPOSITION

[22]	In light of all the foregoing, it is clear that this matter is not properly before this court.  Several things went wrong when the decision was taken to file this application with this court. Not being properly before this court, the application stands to be struck off the roll.

[23]	In the result, it is ordered as follows: -

“(1) The application be and is hereby struck off the Roll.

(2) There shall be no order as to costs”.

CHIDYAUSIKU CJ:      	(Deceased)

MALABA DCJ:    		I agree

ZIYAMBI JCC:		I agree

GWAUNZA JCC:		I agree

GOWORA JCC:		I agree

HLATSHWAYO JCC:	I agree

PATEL JCC:			I agree

GUVAVA JCC: 		I agree

Mutumbwa, Mugabe & Partners, applicant’s legal practitioners

Civil Division, of the Attorney General’s Office, legal practitioners for the respondents