The applicant was charged with two counts of fraud under section 136(B) of the Criminal Law (Codification and Reform) Act. He allegedly sold the same stand (stand number 521 St Patrick's Close, Helensvale Township, Harare) to two different complainants in 2008, receiving US$62,000 from the first complainant in February 2008 and US$48,500 from the second complainant in October 2008. He was arrested and signed a warned and cautioned statement on 15 February 2009, placed on remand on 17 February 2009, and attended court on ten occasions before further remand was refused on 05 November 2009. In November 2010, a law officer in the Attorney-General's Office declined prosecution on the erroneous ground that the allegations did not constitute a criminal offence. In May 2011, after representations from the first complainant, the Attorney-General rescinded the decision to decline prosecution and the applicant was re-summoned. He was placed on remand again on 10 August 2011. On 20 February 2012, the applicant applied for referral to the Constitutional Court alleging violation of his constitutional rights, which the magistrate granted.
The application was dismissed. There was no order as to costs.
1. A complainant in a criminal matter has a substantial interest in the prosecution and is entitled to make representations to the Attorney-General regarding prosecution decisions. The Attorney-General retains discretion to accept or reject such representations without his independence being compromised. 2. In applications alleging violation of the right to a fair trial within a reasonable time due to delay, the applicant must lead evidence (not merely make submissions from the Bar) addressing: (a) the explanation and responsibility for the delay; (b) the assertion by the accused of his right to be tried within a reasonable time; (c) the prejudice arising from the delay; and (d) the conduct of the prosecution and the accused. 3. Failure to place proper evidence before the lower court on these factors is fatal to an application for stay of prosecution based on delay.
The Court observed that the law officer's conclusion in November 2010 that the alleged conduct constituted only a civil wrong and not a criminal offence was erroneous, noting that the alleged conduct, if proved, constitutes both a criminal offence and a civil wrong. The Court also noted 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.
This case reinforces important principles in Zimbabwean constitutional criminal procedure law regarding applications for stay of prosecution based on delay. It reaffirms the procedural requirements established in In Re Mlambo for challenging prosecutorial delay, emphasizing that applicants must lead proper evidence on key factors (responsibility for delay, assertion of rights, and prejudice) rather than merely making submissions from the Bar. The case also clarifies that complainants in criminal matters have a legitimate right to make representations to the Attorney-General regarding prosecution decisions without compromising prosecutorial independence, and that the Attorney-General has the discretion to reconsider decisions in light of such representations.