Bernard Manyara v The State

The applicant was arrested in November 2005 on a charge of converting to his own use a sum of ZW$760,000,000.00 given to him by the complainant to purchase diesel and petrol. He was detained but later released and arrested again in November 2007. At the end of 2008 he was taken off remand because the State was not ready to proceed. Following his further arrest in May 2011, he was summoned to appear in court on 20 June 2011. The applicant alleged inordinate delay of approximately 6 years in bringing the matter to trial and claimed violation of his right to a fair trial within a reasonable time under section 18(2) of the former Constitution. He sought a permanent stay of prosecution. The applicant filed a notice of application for referral to the Supreme Court (Constitutional Court) but failed to file the promised affidavit. Only written submissions were filed, along with ancillary documents. The State contested this, noting the complainant's statement indicated the applicant had fled to South Africa in 2005 and only returned to Zimbabwe in 2011, which appeared to be corroborated by the police docket.

• Whether the matter was properly before the Constitutional Court given the procedural deficiencies in the referral application
• Whether the Court could determine the alleged violation of the right to a fair trial within a reasonable time on the basis of the evidence on record
• What procedural requirements must be met when seeking referral of an alleged constitutional violation from the Magistrates Court to the Constitutional Court
• Whether the application for permanent stay of prosecution should be granted based on alleged delay

The application was dismissed. No order as to costs was made as none were sought by the respondent. The Court indicated it would not remit the matter to the trial court for inquiry, but noted that it remained open to the applicant to institute a fresh application before that court in compliance with established procedural requirements.

Where an accused person seeks referral of an alleged violation of the constitutional right to a fair trial within a reasonable time to the Constitutional Court, viva voce evidence must be led before the lower court on the four established factors: (1) the length of delay; (2) the reason or explanation and responsibility for delay; (3) assertion of rights by the accused; and (4) prejudice to the accused arising from the delay. It is essential that the accused testify to these matters and that the State be given the opportunity to test the veracity of such evidence through cross-examination and to adduce its own rebuttal evidence. A referral application that is fundamentally defective from its inception due to failure to comply with these procedural requirements is incurably defective and cannot be regularised. The Constitutional Court cannot properly determine an alleged constitutional violation in the absence of the requisite evidence on record.

The Court observed that only in exceptional circumstances will an applicant be permitted to supplement the record of proceedings before the lower court by production of affidavits, and cogent reasons must be provided as to why further evidence was not presented to the lower court. The Court noted that while it would not remit the matter to the trial court for regularisation given the incurable nature of the defects, it remained open to the applicant, should he deem fit upon proper advice, to institute a fresh application before that court in compliance with established procedural requirements. The Court also reiterated that the absence of viva voce evidence completely disables findings as to whether delay has caused mental anguish, disruption to business and social activities (particularly where liberty was not interfered with), and whether it has impaired the accused's ability to exonerate himself due to death, disappearance or forgetfulness of potential witnesses.

This case is significant in Zimbabwean constitutional and criminal procedure law as it reinforces strict procedural requirements for applications seeking referral of alleged constitutional violations from lower courts to the Constitutional Court. It emphasizes that allegations of violation of the right to a fair trial within a reasonable time must be properly substantiated through viva voce evidence addressing the established four-factor test (length of delay, reasons for delay, assertion of rights, and prejudice). The judgment underscores that mere written submissions from the bar are wholly insufficient and that the lower court must conduct a proper inquiry with evidence tested through cross-examination before referring a constitutional matter to the apex court. It serves as an important precedural guide for legal practitioners in constitutional referral applications and demonstrates the Court's commitment to procedural rigor in constitutional matters.