Georgios Katsimberis v The Prosecutor General and Others

The applicant made police reports in April 2019 alleging perjury and malicious damage to property against Michael John van Blerk, Pokugara Properties (Private) Limited, former Harare City Council Town Clerk Hosea Chisango and others. The reports arose from the alleged unlawful destruction of a property that the applicant constructed through a joint venture arrangement with Pokugara Properties. From June 2020, the applicant appeared as a State witness in prosecutions for perjury and malicious damage to property against van Blerk, Pokugara Properties and others before the fourth, fifth and sixth respondents. From July 2020, the applicant simultaneously appeared as an accused person before the third respondent facing fraud charges. The fraud charge alleged that the applicant falsely misrepresented to Pokugara Properties that he had approved building plans when no such plans existed. The persons appearing as accused in the perjury and malicious damage cases were witnesses against the applicant in the fraud case. The applicant contended that the circumstances giving rise to the charges were the same and that he was being prosecuted as both witness and accused on the same facts.

• Whether the parallel prosecution of the applicant as both a witness and an accused person on the same facts violated his constitutional rights
• Whether the applicant's right to remain silent under s 50(4) of the Constitution was infringed
• Whether the applicant's right to equal protection before the law under s 56(1) of the Constitution was violated
• Whether the applicant's right to a fair trial under ss 69(1), 69(3), 70(1) and 70(3) of the Constitution was breached
• Whether evidence obtained in a manner that violates Chapter 4 of the Constitution was being used in violation of s 70(3)
• Whether the circumstances justified the High Court's interference with unterminated proceedings of the Magistrates Court
• Whether a permanent stay of prosecution was an appropriate remedy

The application was dismissed. Each party was ordered to bear its own costs.

A superior court will only interfere with unterminated criminal proceedings of a lower court in exceptional circumstances where: (1) there is proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means; or (2) the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant; or (3) grave injustice would otherwise result. The mere fact that an individual is simultaneously prosecuted as an accused person and called as a witness in separate proceedings arising from related facts does not, without more, constitute a violation of constitutional rights to remain silent, equal protection before the law, or a fair trial. An applicant must demonstrate actual prejudice and that the alleged infringements are irredeemable through normal trial processes and appellate remedies. The parallel prosecution of related matters, while potentially creating procedural complications, does not automatically render proceedings unfair where adequate procedural safeguards exist within the criminal justice system.

The court observed that the manner in which the Prosecutor General conducted the two prosecutions was "messy" and noted a "complete discordance" between the two prosecuting entities (the Prosecutor General's office and the Special Anti-Corruption Unit) as evidenced by SACU's letter of complaint. However, the court stated it was "not the business of this court to interfere with the prosecutorial powers of the respondent or enlighten the two entities on how they should complement each other in the discharge of their respective mandates." The court commented that if the applicant's complaint was genuinely about prejudices emanating from parallel prosecutions, seeking a wholesale permanent stay of prosecution was not advisable as it would effectively determine that the charges were contrived. The court also questioned why the applicant had not appealed the Magistrates Court's earlier dismissal of the application for referral to the Constitutional Court if he was serious about having the alleged constitutional infractions scrutinized. The court characterized the matter as falling within the realm of public interest litigation, warranting no adverse costs order.

This judgment is significant in Zimbabwean jurisprudence as it clarifies the high threshold required for superior courts to interfere with unterminated criminal proceedings of lower courts. It reinforces that mere allegations of constitutional rights violations are insufficient - applicants must demonstrate actual, irredeemable prejudice amounting to grave injustice. The case also addresses the interplay between an individual's rights as both a witness and an accused person in parallel criminal proceedings arising from the same facts. The judgment emphasizes that the criminal justice system has adequate safeguards and mechanisms to protect rights during trial, and that concerns about potential violations should ordinarily be addressed through normal appellate processes rather than premature intervention. The case is also instructive on the nature of public interest litigation and costs, with the court declining to make an adverse costs order on the basis that the matter fell within the realm of public interest litigation.