Gadzanani Nkomo and Dingani Moyo v The State

The applicants were arrested on 31 May 2002 on a charge of armed robbery, allegedly having assaulted a Caltex Zimbabwe employee and stolen $7000.00. They were remanded in custody. On 11 September 2002, they applied for a stay of proceedings before the Provincial Magistrate, but this was not pursued as a trial date was set for 23 October 2002. The trial commenced on that date (less than five months after arrest) but was postponed to 11 November 2002 for continuation. Before that date, the Regional Magistrate hearing the matter was transferred to Marondera court and was not permitted to return to Bulawayo due to staff shortages. On 18 June 2003, the applicants' legal practitioners revived the stay application, making submissions from the bar without filing affidavits or leading evidence. The matter was referred to the Supreme Court in terms of s 24(2) of the Constitution to determine whether the administrative delays violated the applicants' right to a fair trial within a reasonable time under s 18(2) of the Constitution.

• Whether the applicants' constitutional right to a fair hearing within a reasonable time under s 18(2) of the Constitution had been violated due to administrative delays in concluding their trial
• Whether the delay of five months in bringing the applicants to trial or six months in concluding the trial was presumptively prejudicial
• Whether the procedural deficiencies in the application (lack of affidavits, evidence, and proper notice) were fatal to the applicants' case

The application was dismissed. No order as to costs was made.

In applications alleging violation of the constitutional right to a fair trial within a reasonable time under s 18(2) of the Constitution: (1) applicants must give ample written notice to the State with a copy filed of record; (2) applicants must file affidavits and lead viva voce evidence to establish that the delay is presumptively prejudicial; (3) the court must conduct an inquiry into the factors set out in In re Mlambo (1991) (2) ZLR 339 (SC): explanation and responsibility for delay, assertion of rights by the accused, prejudice arising from delay, and conduct of prosecutor and accused; (4) statements made by legal practitioners from the bar cannot be relied upon as evidence; and (5) the absence of viva voce evidence is fatal to an applicant's case as it completely disables findings of prejudice such as mental anguish, disruption to business and social activities, or impairment of ability to exonerate oneself.

The Court observed that the trial would probably have been concluded in August 2003 had the applicants' legal practitioner not persisted with the request for referral to the Supreme Court. The Court commented that three years after the referral, the applicants were still awaiting trial and that much of the blame for this state of affairs must be laid at the door of the applicants and their legal practitioner. This suggests judicial displeasure with the manner in which the application was pursued and implies that improper or ill-prepared constitutional applications can actually worsen the position of accused persons rather than vindicating their rights.

This case reinforces important procedural requirements for constitutional applications alleging violation of the right to trial within a reasonable time in Zimbabwean law. It emphasizes that: (1) ample written notice must be given to the State; (2) affidavits must be filed in support of such applications; (3) viva voce evidence must be led to establish prejudice; (4) statements from the bar by legal practitioners are insufficient; and (5) applicants bear responsibility for delays caused by pursuing improperly constituted applications. The case serves as a warning to legal practitioners about the consequences of procedurally defective constitutional applications and demonstrates the courts' unwillingness to assist applicants who fail to properly place evidence before the court.