Martin Dinha v The State

### Preamble
Judgment No. CCZ 11/20
Constitutional Application No. CCZ 18/19
DISTRIBUTABLE (10)
Judgment No. CCZ 11/20
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DISTRIBUTABLE (10)

MARTIN     DINHA    v     THE     STATE

CONSTITUTIONAL COURT OF ZIMBABWE

HARARE, NOVEMBER 8, 2019 & JULY 17, 2020

Ms R Mabwe, with her J T Chimombe, for the applicant

E Mavuto, for the respondent

Before: MALABA CJ, In Chambers

AN APPLICATION FOR REINSTATEMENT OF A CONSTITUTIONAL REFERRAL

This is a chamber application in terms of r 20 of the Constitutional Court Rules, 2016 (“the Rules”) for an order for reinstatement of a matter deemed to have been abandoned and dismissed by the Registrar of the Constitutional Court (“the Registrar”). The matter had come to the Constitutional Court (“the Court”) by way of a referral in terms of s 175(4) of the Constitution.

The applicant intends to place before the Court a matter relating to the constitutional validity of a decision of the High Court (“the court a quo”) dismissing an application for postponement of criminal proceedings. The allegation is that the decision of the court a quo refusing a postponement of the trial infringed the applicant’s fundamental right to a fair trial, enshrined in s 69(1) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (“the Constitution”).

The Court holds that the applicant has failed to show good cause for the reinstatement of the matter. He failed to demonstrate that a constitutional issue arises. There was no trial in the court a quo in respect of which the applicant’s right to a fair trial can be said to have been violated. The application is without merit and ought to be dismissed. The reasons for the decision are set out below.

FACTUAL BACKGROUND

The applicant was charged with one count of criminal abuse of duty as a public officer in terms of s 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”) or alternatively bribery as defined in s 170(1)(a)(i) and (ii) of the Criminal Law Code.

The applicant’s trial was due to commence in the High Court on 19 October 2015.  The matter was postponed to 23 October 2015 because the applicant had not been served with the outline of the case for the State. The postponement was also intended to give the applicant’s legal practitioner an opportunity to indicate how much time he needed to prepare for the trial.

On 23 October 2015 the applicant’s legal practitioner indicated that he was not in a position to proceed to trial, as he needed access to certain documents that were protected under the Official Secrets Act [Chapter 11:09]. He argued that the documents were relevant to the applicant’s defence.  The matter was postponed to 30 October 2015 to enable the applicant to obtain access to the said documents.

On 30 October 2015 the applicant sought a further postponement of the matter to enable “the finalisation of the declassification process”. The application was opposed by the respondent on the basis that the date for the commencement of the trial had been fixed. The prosecutor argued that the applicant had had sufficient time to acquire the documents he alleged were relevant to his defence. On 3 November 2015 the court a quo found that there were no good grounds for seeking a further postponement of the matter. The court a quo nonetheless ordered that the applicant be further remanded without the trial having commenced. The matter was postponed to 23 November 2015.

The applicant applied for the matter to be referred to the Court on account of a possible breach of s 69(1) of the Constitution.  The application for a referral was accordingly granted. The questions referred can be gleaned from the judgment of the court a quo and the Form CCZ 4, wherein the applicant alleged that there was an infringement of his right under s 69(1) of the Constitution. He said that the determination of the court a quo under HH 867/15 refusing him the postponement that he had sought violated his right to a fair trial, in that it did not accord him the opportunity to fully prepare his defence to the criminal charge he was facing.

On 8 March 2019 the matter was deemed to have been abandoned and dismissed by the Registrar because the applicant had failed, when called upon to do so, to file proof of payment of the Sheriff’s costs. On 17 April 2019 the applicant filed the chamber application for reinstatement of the matter that had been brought to the Court by way of referral. The respondent was not opposed to the application for reinstatement of the referral.

APPLICATION OF THE LAW TO THE FACTS

The position is settled that in an application for the reinstatement of a matter deemed abandoned and dismissed the applicant must show good cause for non-compliance with the rules of court. See Vera v Mitsui & Company Ltd SC 32/04.

Rule 45 of the Rules provides for the application of the Supreme Court Rules 2018 in a matter not dealt with in the Rules as follows:

“45. Application of Supreme Court Rules

In any matter not dealt with in these rules, the practice and procedure of the Court shall, subject to any direction to the contrary by the Court or a Judge, follow, as near as may be, the practice and procedure of the Supreme Court or, where the rules of the Supreme Court are silent, of the High Court.”

Rule 70 of the Supreme Court Rules 2018 provides that:

“(1)	Where an appeal is -

(a)	deemed to have lapsed; or

(b)	regarded as abandoned; or

(c)	deemed to have been dismissed in terms of any provision of these rules;

the registrar shall notify the parties accordingly.

(2)	The appellant may, within 15 days of receiving any notification by the registrar in terms of subrule (1), apply for the reinstatement of the appeal on good cause shown.”

It is against the above background that the requirements for an application of this nature will be dealt with below to establish whether the applicant has shown good cause for the reinstatement of the referral to the Court.

REASONABLENESS OF THE EXPLANATION

In an application of this nature, the applicant must satisfy the Court that he or she or it has a reasonable explanation for failure to comply with the Rules.

In casu, the applicant must satisfy the Court that he has a reasonable explanation for failure to pay the Sheriff’s costs timeously. The reason proffered for the delay in paying the Sheriff’s costs and non-compliance with the Rules is that the applicant’s erstwhile legal practitioners did not inform him of the contents of the Registrar’s letter deeming the matter abandoned and dismissed. He only became aware of the dismissal on 4 April 2019 when he instructed his current legal practitioners to peruse the court record.

There is no explanation as to why the applicant’s erstwhile legal practitioners did not pay the Sheriff’s costs timeously, as required by the Rules. Further, while the above may seem like a plausible explanation, it should be noted that, where a party seeks to cast blame for non-action upon its erstwhile legal practitioners, an affidavit must be obtained from the one on whom such blame lies.  No such affidavit has been attached to the application.

In Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa 2010 (1) ZLR 267 (S) at p 277G-H, the Supreme Court held as follows in this regard:

“One cannot consider absolving the respondent from the consequences of lack of diligence committed by its legal practitioners, when there is no suggestion in its papers that the ‘oversight’ was that of a legal practitioner.

It would have been after the responsible legal practitioner had filed an affidavit admitting fault and explaining in some detail what happened, that the Judge would be in a position to decide whether the respondent should not be visited with the sins of its legal practitioners.” (the underlining is for emphasis)

There is no affidavit from the applicant’s erstwhile legal practitioners proffering an explanation for the failure to pay the Sheriff’s costs. In view of the fact that no affidavit has been filed by the applicant’s erstwhile legal practitioners accepting or challenging the blame attributed to them, what remains is the applicant’s self-serving statement seeking to place the blame for non-compliance with the Rules of Court on the erstwhile legal practitioners. It is the Court’s view that the explanation falls short of a reasonable explanation, as is required in an application of this nature.

The applicant also attributed the failure to pay the requisite costs in time to “negligible and insignificant” conduct that cannot prejudice him in the adjudication of issues pertaining to his constitutional rights which have been referred to the Court. The reason proffered by the applicant shows that he took lightly the issue of payment of the Sheriff’s costs. To him such costs were “insignificant”, as stated in his founding affidavit.

PROSPECTS OF SUCCESS

In assessing the prospects of success, the Court is tasked with assessing whether the applicant has established a prima facie case which justifies that he be given a day in court. More is required to be established than that there is a mere possibility of success. An applicant must show on a balance of probabilities that he or she or it has reasonable prospects of success and in doing so he or she or it must point to some fault or misdirection in the judgment he or she or it seeks to impugn.

Where it is found that the explanation for non-compliance with the Rules is not reasonable, there ought to be good prospects of success for the application to be granted. It is incumbent upon the Court to determine whether the applicant has discharged that onus on a balance of probabilities.

The applicant does not address the issue of prospects of success in the founding affidavit. He merely states that:

“This is a bona fide application occasioned by no fault of the applicant. The merits of the case are clear and I draw attention to the constitutional questions and submissions made therefrom which I believe is eloquent and self-explanatory.”

It is trite that an application stands or falls on its founding affidavit. The failure to address the prospects of success is fatal.

The questions referred to the Court for determination are as follows:

“1.	Whether the determination of the High Court under case number HH 867/15 is inconsistent with the applicant’s right to a fair trial as set out under section 69(1) of the Constitution of Zimbabwe in that it effectively does not accord the applicant the opportunity to fully prepare for his defence to a criminal charge.

2.	If the determination of the High Court is at variance with section 69(1) of the Constitution of Zimbabwe, whether the trial cause should be stayed pending the declassification by the State of the documents which are required by the applicant for the prosecution of his defence.”

The first issue for determination is whether, if reinstatement is granted, the matter would be properly before the Court. The matter can be disposed of on this ground alone if the Court finds that the referral would not be properly before it.

A constitutional matter is defined in s 332 of the Constitution to mean a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution.

Both questions referred to the Court make reference to “a determination” of the High Court. It is not apparent from a reading of these issues as to what the applicant considered to be “a determination” of the High Court. Referral questions ought to be clear. The Court must be able to understand without difficulty the issues arising for determination from what is placed before it.

Further, a reading of the questions referred to the Court by the applicant shows that they have no relation to the contentious issue of the request for a postponement that was purportedly dismissed. As it stands, they fall short of the standard that they ought to be clear.

An applicant ought to ensure that the questions referred to the Court for determination are specific and particularised. There is no adequate substance in the questions referred to the Court for it to understand the issues that are sought to be placed before it to grant the relief that the applicant seeks. There are no proper constitutional questions referred to the Court for determination in compliance with s 175(4) of the Constitution.

Before a constitutional question is referred to the Court for determination, the presiding person must exercise his or her mind as to whether the request for a referral is frivolous or vexatious. Section 175(4) of the Constitution provides as follows:

“(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.” (the underlining is for emphasis)

Rule 24(2) of the Rules states:

“(2) Where the person presiding over a court of lesser jurisdiction is requested by a party to the proceedings to refer the matter to the Court and he or she is satisfied that the request is not frivolous or vexatious, he or she shall refer the matter to the Court.” (the underlining is for emphasis)

There must be a moment in the procedure set out in s 175(4) of the Constitution when the presiding person must address his or her mind to factors that answer a number of questions, including whether the request to refer the matter to the Court is frivolous or vexatious, and whether the determination by the Court is necessary for the purpose of the proceedings before him or her. See Nyagura v Ncube N.O. and Ors CCZ 7/19 at pp 9-10.

A reading of the judgment of the court a quo shows that the court did not properly apply its mind to the issue of whether the request for the referral of the questions perceived by the applicant to be constitutional in nature or effect was frivolous or vexatious. The court a quo did not bear in mind that it was the implication of its decision under HH 867/15 refusing the request for a postponement that was in issue. The learned Judge did not apply his mind to the effects of the question whether his decision to refuse a postponement was a violation of the right to a fair trial, as alleged by the applicant. Had he properly applied his mind to the facts on the basis of which the referral was sought, the learned Judge would have realised that the constitutional question was being raised in the proceedings before him and that he was under a duty to decide whether the determination of the question by the Court was necessary for the purposes of the issues of the case before him.

The judgment in HH 867/15 shows that there was in effect no refusal of the request for postponement of the trial. The court a quo still granted the postponement, notwithstanding the fact that it had dismissed the application. It is not clear from a reading of the judgment referring the issues to the Court whether the postponement granted was to enable the applicant to obtain the classified documents.

The applicant had been given ample time to obtain the documents in question. The case started as far back as 2015. It is not apparent from the record why the applicant has not secured the documents in question to date. The applicant cannot continue to delay the day of reckoning by continuing to request postponements of the matter. There ought to be finality to litigation. Had the court a quo applied its mind to the matters required by s 175(4) of the Constitution to be addressed by a presiding person, it would have found that the request for referral of the issues presented to it was frivolous.

Good cause for reinstatement has not been shown by the applicant.

DISPOSITION

The application is dismissed with costs.

GOWORA AJCC:	I agree

PATEL AJCC:	I agree

G. Sithole Law Chambers, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners