Job Sikhala v The State and Lanzini N.O

### Preamble
1
HH 63-22
HC 5481/20
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JOB SIKHALA

versus

THE STATE

and

LANZINI NCUBE N.O

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 16 September 2021 and 31 January 2022

OPPOSED MATTER

J Bamu, for the applicant

T Mapfuwa, for the respondents

MANGOTA J:     The applicant, Job Sikhala (“Sikhala”), is a legal practitioner and a politician. He is reviewing the decision of the second respondent (“the magistrate”), who, sitting at the court in Harare, placed him on remand on a charge of contravening s 187(1)(a) as read with s 36(1)(a); alternatively contravening s 187(1)(b) as read with s 36(1)(b); alternatively contravening s 37(1)(a) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23] (“the Act”). He advances two grounds of review. These are that:

The second respondent’s decision was grossly irregular in that it departs from previously decided cases binding on second respondent namely the findings made in S v Sikhala HMA 4/20.

The second respondent was also grossly unreasonable and irrational in that he placed applicant on remand where the facts alleged against him did not disclose an offence and further when it was self-evidence (sic) that such facts had in fact been embellished and concocted by the State.

He moves me to declare his continued remand to be a violation of his constitutional rights as well as to protection of the law, set aside the decision of the magistrate and remove him from remand.

The circumstances which gave rise to the charge and its alternatives are contained in Form 242 which the State placed before the magistrate who, on a consideration of the same, placed Sikhala on remand. They allege that:

“….during the period extending from 10 March 2020 to 21 August 2020 and while in Harare the accused person intending or realizing that there is a real risk or possibility that other persons may be persuaded or induced by the communication to engage in public violence or participate in a gathering that would disturb the peace originated and posted video on different social media platforms by uttering the following words:

…. people from Zambezi to Limpopo, from Forbes Boarder post to Victoria Falls, 31 July should be your day…..This is the kind of war we have. If we do not fight this war, nothing will come out until we die. These men have oppressed the people for a long time….. This time around, they will have to kill, really kill us. These man have stolen our youth. We did not enjoy it at all….. All the people in London are heeding the message that on that day they must besiege our embassies, even the ones in America they will also be in action on the 21st and 31st of July 2020. Those in Australia and South Africa are all saying they will be taking some action… I will fight the State since I am not easily intimidated.”

The above quoted words constitute the text on the basis of which charges were preferred against Sikhala. He was alleged to have incited or induced, by words, his audience to disturb the peace, security or order of Zimbabwe’s public or any section thereof. He was, in short, alleged to have incited his audience within and without Zimbabwe to commit acts of public violence.

The statement of Sikhala is that the above-quoted words which constitute the text of the charges which the State levelled against him were not uttered by him in one single statement. They were, he insists, uttered over a period of time and on different dates. He submits that the piecing together of the words/ statements by the State creates a distorted impression which gives rise to a crime where none exists. He, accordingly, challenges his placement on remand. He insists that what he uttered does not create a reasonable suspicion that he committed an offence and he should not, therefore, be placed on remand.

The application of Sikhala cannot succeed. He raised, through counsel, an in limine matter which I heard and dismissed. The preliminary matter related to the date that the State filed its Heads. It filed them outside the dies and when it was barred. After I had heard its application for upliftment of the bar as measured against the challenges, amongst them the presence of the corona virus disease, which occasioned the filing of Heads by it, I had no difficulty in uplifting the bar and directing that the heads which were filed outside the time which the rules of court permit be regarded as having been properly filed with effect from the date that they were so filed. In ruling as I did, I remained persuaded by the need on my part as well as on that of the parties to have the matter decided more on the merits than on a technicality which route Sikhala was moving me to follow.

Sikhala and the State, as parties, are ad idem on the point that Sikhala is inviting me to interfere with uncompleted proceedings which relate to the charge(s) which the State preferred against him. Section 29 of the High Court Act [Chapter 7:06] confers on me the power to review unterminated proceedings of the court of the magistrate, among other inferior courts and/ or tribunals. That power was generously extended to me in Dombodzvuku & Anor v Sithole & Anor, 2004(2) ZLR 242 (H) at 245 B wherein it was stated that:

“The power of this court to review criminal proceedings of the magistrate’s court at any stage of the proceedings in the lower court is not in dispute. Section 29 of the High Court Act [Chapter 7:07] grants this court extensive power to review the criminal proceedings of the magistrates’ court. It is specifically provided in s 29 that this court or any judge of this court may mero motu call for a record and review the criminal proceedings of the lower court if it comes to the court’s or judge’s notice that any such proceedings may not be in accordance with real and substantial justice. The powers conferred on the High Court and its judges by this section can be exercised at any stage of the proceedings.”

It was probably out of a realization of a possible, if not probable, abuse of s 29 of the High Court Act as read with the dictum of the court in Dombodzvuku v Sithole by persons who appear before the court of the magistrate facing criminal charges that persuaded the Supreme Court and this court to trim the power of the High Court to exercise unbridled discretion to review uncompleted proceedings of inferior courts, tribunals and/or administrative authorities. The Supreme Court and this court must have remained alive to the fact that, if they did not place some qualification to the power of the High Court as conferred to it by case law and statute, the High Court would be inundated with applications for review of uncompleted proceedings by persons who did not/do not want to face prosecution for the offences which they are alleged to have committed.

The above-observed matter remains in consonant with the comments of the magistrate who considered Sikhala’s application not to be placed on remand. He remarked that:

“I wish to add that in recent times, these courts have been inundated with protracted remand hearings. That problem appears to emanate from a failure by all involved to appreciate that the remand application must never go beyond the determination of the existence or otherwise of a reasonable suspicion. The court should be concerned only with matters meant to prove or disprove the existence of a reasonable suspicion.”

The magistrate was quick to point out the difference between placing an accused person on remand and having the latter arraigned before the court for trial. He laments the tendency which obtains in many cases where loads of evidence which the accused adduces at the remand stage of a case constitutes the latter’s defence at trial. He cautions accused persons not to confuse the two processes. He discourages those of them who appear before the court of the magistrate for initial remand not to confuse their trial with their initial remand as the confusion has the danger of dragging the remand procedure into trial.

It is for the abovementioned reason, if for no other, that the Supreme Court stated in Attorney-General v Makamba, 2005(2) ZLR 54 (S) at 64 C-E that:

“The general rule is that a superior court should intervene in uncompleted proceedings of the lower court only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

Hungwe J (as he then was) weighed in on the subject-matter when he stated in S v Rose, 2012 (2) ZLR 238 at 243 G that:

“The test when a superior court could intervene in unterminated proceedings is whether a grave injustice can be done to a litigant. The intervention can be done if the injustice is so gross that it is incapable of correction by way of ordinary review or appeal or where it is unconscionable to wait for the conclusion of the proceedings before seeking review in the normal way.”

Waverly John v The State & Anor, HH 117/14 puts the same principle more appropriately than otherwise when it states that:

“The High Court should only interfere where actual and permanent prejudice will be occasioned to the accused.”

Sikhala does not state that a miscarriage of justice will visit him if his application for review is unsuccessful. Nor is he asserting that a failure of the application will occasion him with actual and permanent prejudice. He does not, in fact, tell why he can not wait to review or appeal the decision of the magistrate in the normal way when the proceedings which relate to the charge(s) have been completed. He is, in short, not asserting that it would be unconscionable for him to wait for the conclusion of his trial and have the proceedings reviewed in the normal way. He does not raise any special or exceptional circumstances which justify a review of the uncompleted proceedings.

All what Sikhala is doing is to move me to interfere with the magistrates’ uncompleted proceedings on the ground that the magistrate did not follow precedent which the court laid down in S v Sikhala, HMA 4/20. He accuses the magistrate of having failed to follow the decision in HMA 4/20 which he insists is binding on the court a quo. He asserts that the magistrate’s decision in which he departed from the case which this court decided in his favour constitutes an irregularity of immeasurable proportions.

The statement of Mr Mafuwa who appeared for the State in this application is to the contrary. He submits that the circumstances of HMA 4/20 are markedly different from those of the present application. In the former case, he asserts, Sikhala pleaded to the charge which had been prepared and put to him. The exception which he raised to the charge, Mafuwa submits, shows that Sikhala had already been placed on remand. In the application which he placed before the court a quo, he asserts, the duty of the prosecution was to satisfy the court that there was/is a reasonable suspicion that Sikhala committed the offence.

The principle of what is normally referred as stare decisis is Sikhala’s first line of attack. The principle thrives on the proposition that inferior courts are bound by decisions of superior courts. It, accordingly, becomes a cardinal sin for such an inferior court as that of the magistrate in casu to have ignored the decision which the court was pleased to enunciate in S v. Sikhala, HMA 4/20.

It is pertinent for me to mention that dicta which superior courts make in the course of deciding a matter are not made in a vacuum. The pronouncements are made in the context of what the parties place before the superior court. The observed matter not unnaturally reasons outside the principle of stare decisis.  The rule is, therefore, not a hard and fast one. It can, depending on circumstances, be departed from.  Where the circumstances of the case which generated the dictum are dis-similar from the circumstances which the inferior court is seized with, the inferior court has a discretion. It can choose to remain bound by some aspects of the dictum or depart from it altogether. Where it chooses the latter route with justification, the inferior court cannot be crucified on the altar of expediency for having refused to be bound by the decision of the superior court which has no bearing on what is before it.

The question which begs the answer, in this application, is whether or not the court of the magistrate committed a cardinal sin when it neither referred to S v Sikhala nor made any comments on the propriety or otherwise of that case in respect of what it was then seized with. Mr Mafuwa submitted that the case which the magistrate was dealing with was totally dis-similar to S v Sikhala, HMA 4/20. I agree with his observations for the following reasons:

In his address of 25th August, 2020 Mr Matinenga, for Sikhala, drew the magistrate’s attention to para 20.2 of his submissions in support of the application challenging Sikhala’s placement on remand. It is in the same that he made reference to the dictum which Mawadze J made. The dictum was made in the context of what the parties who were before the learned judge placed before the latter. The judge was therefore placing a construction to a particular set of words which the State alleged Sikhala uttered. His decision, it is needless to emphasize, rested on the text of the words which he had to interpret at the time.

In order for the magistrate to stand convicted of having departed from the laid down precedent, Sikhala should show, on a balance of probabilities, that the text which he placed  before the magistrate was /is, in substance, the same as , or similar to, what he place before the judge. The context, in other words, must be the same. Absent that proof, Sikhala’s accusation of the magistrate cannot hold. It cannot do so on the ground that each case is decided on its own circumstances.

A comparison of the text which Sikhala placed before the magistrate as read with the comments of Mawadze J in respect of the text which he considered under HMA 4/20 would show that the two texts are markedly different from each other. Commenting on the text which was then before him, Mawadze J lamented that the offending words were not contextualized, suffered poor grammatical construction of sentences which were simply plucked out of some other preceding utterances and were terminated before the accused had completed the sentences or what he went to say thereafter.

The text which the State placed before the magistrate, on the other hand, does not suffer any of the defects which existed in the text which the learned judge had to agonize over. It does not have any problems of grammar. It does not appear to have been plucked out of some preceding utterances. Nor does its sentences terminate before Sikhala completed them. It is well couched and it appears tailored to create a particular impression in the mind of its reader. It is easy to read as well as to follow. It is arranged in a chronological order. Apart from some words which it leaves out in the first, fourth, seventh and eighth sentences, its text does not require the knowledge of a rocket scientist to decipher what it is conveying.

The moment it is accepted, as it should, that the text which Mawadze J was considering in S v Sikhala is different from the one which the magistrate considered in the application wherein Sikhala challenged his placement on remand, the decision of the magistrate to disregard the dictum which was made in S v Sikhala cannot be faulted. He had no reason to follow a decision which was based on principles which were totally different from what he was dealing with. He did not violate the principle of stare decisis in the circumstances of the application which was then before him. The fact that he did not refer to the case when he delivered his ruling remains immaterial to the fact of whether or not he should have considered himself bound by what was /is not binding upon him. Sikhala’s first line of argument which he bases on the rule of stare decisis is therefore without merit.

The magistrate made every effort to define the constitutive elements of a reasonable suspicion which suffices for placing an accused person on remand. He picked up two pertinent principles. These are that:

the grounds / facts alleged by the State and presented to the court must constitute a crime recognizable at law- and

the facts alleged must sufficiently link the accused person to the commission of the offence.

He went on to give a definition of the crime which the State preferred against Sikhala, compared the text of the words which the latter uttered with the defined offence and remained satisfied that a reasonable suspicion of him having committed a crime exists. It is immaterial that words which constitute Form 242 which the State placed before the magistrate were not uttered in a single day. What is material, however, is that Sikhala uttered them. What is also material is that the net effect of the words which he uttered creates in the mind of the reader a reasonable suspicion of a crime having been committed.

Sikhala’s assertion which is to the effect that the words were cherry-picked from various sources and woven together into a single statement by the State cannot be correct. The words came from no source other than from Sikhala himself. He asserts that he uttered them at different times and that it was his constitutional right to utter them. His allegation which is to the effect that the State wove the uttered words into a single statement forms Sikhala’s defence to the charge. It cannot let him off the hook at remand stage, so to speak.

A reading of the text which the State placed before the magistrate leaves no one in doubt as to what Sikhala meant to convey to those who read his statement.  I can, in this regard, do no better than to repeat the findings of the magistrate who stated at p 61 of the record that:

“There is no doubt in the court’s mind that the words uttered portray a man in belligerent mood. They depict a combative person ready to go to the extremes to achieve his objectives. War is necessarily violent. When you exhort others to go to war you are necessarily calling for violence…”

The wise words of the magistrate as read with the text of the words which Sikhala uttered are in consonant with dicta which were laid down in AV v Blumears & Anor , 1991 (1) ZLR 118 (SC) and Martin v AG & Anor, 1993 (1) 153(SC)

Sikhala engaged into an academic exercise which took him nowhere other than to reason around his mind. He was properly placed on remand. He should wait for his trial as a result of which he would raise the defence which he sought to rely upon when he challenged his placement on remand. His application for review is dismissed with costs.

Mbidzo Muchadehama & Makoni, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners