Newton Ndlovu v The State

In September 2005, the community of Macanlays Resettlement Collen Bawn, Gwanda organized an ambush to curb stock theft. On 7 September 2005, the deceased walked into the ambush and when summoned to stop, attempted to flee. The applicant shot the deceased in the right thigh and stomach as he tried to escape. The deceased was transferred to hospital and died on 10 September 2005. The applicant was arrested on 10 September 2005 on allegations of murder. He gave a warned and cautioned statement on 11 September 2005, confirmed on 2 December 2005, stating he had not intended to kill but only to frighten the deceased. The applicant was placed on remand on 12 September 2005 and granted bail on 3 October 2005, with conditions to report twice weekly at Collen Bawn Police Station. The applicant religiously complied with bail conditions and made enquiries about his trial. In December 2009, bail conditions were relaxed to once weekly reporting. The applicant's legal practitioner wrote to the Area Public Prosecutor on 2 April 2014 enquiring about the delay. The applicant was finally indicted to the High Court for trial on 7 March 2016, approximately 11 years after the alleged offense. The applicant then approached the court seeking permanent stay of prosecution due to alleged violation of his constitutional right to trial within a reasonable time.

• Whether the applicant's constitutional right to trial within a reasonable time under section 69(1) of the Constitution had been violated
• Whether a delay of 11 years in bringing the applicant to trial warranted a permanent stay of prosecution
• Whether the applicant had adequately asserted his right to a speedy trial
• Whether viva voce evidence was required in applications for permanent stay of prosecution based on delay

The application for permanent stay of prosecution was dismissed with no order as to costs.

In applications for permanent stay of prosecution based on alleged violation of the constitutional right to trial within a reasonable time, where there are factual issues involved, the applicant must give viva voce evidence under oath to substantiate the complaint. It is insufficient for the applicant to merely state the application on paper through affidavits or make statements from the bar. The respondent must be given the opportunity to cross-examine the applicant and adduce evidence to rebut the allegations. Failure to lead viva voce evidence in such applications constitutes a fatal defect that warrants dismissal of the application.

The court observed that since the current constitution came into force, there has been an upsurge in cases where applicants seek permanent stay of prosecution due to alleged inordinate delays. The court noted the respondent's reliance on institutional challenges in handling murder cases but did not make substantive findings on this issue due to the procedural defect. The court also noted the respondent's argument that the applicant had never demanded a trial date or brought the delay to the respondent's attention, and the applicant's counsel's argument that an 11-year delay could not be justified by any stretch of imagination, but again did not make substantive findings on these issues. The court acknowledged the legal principle from In re Mlambo that it is for the person charged to persuade the court that the delay complained of exceeds what is reasonable, and from S v Bangu that an applicant must assert his right to trial within a reasonable time, but did not apply these principles to the facts due to the absence of viva voce evidence.

This case is significant in Zimbabwean constitutional and criminal procedure law as it establishes strict procedural requirements for applications seeking permanent stay of prosecution based on delay in violation of constitutional rights. It confirms that applicants cannot merely rely on affidavits and submissions from the bar but must lead viva voce evidence to substantiate their claims of constitutional violations. The case reinforces the importance of compliance with Constitutional Court Rules, 2016, particularly section 24(4), in cases involving factual disputes about constitutional rights. It also illustrates the courts' approach to the increasing number of applications for permanent stay based on section 69(1) of the Constitution following its enactment. While the case deals with a Zimbabwean constitutional provision, it provides useful guidance for South African practitioners on procedural requirements in similar applications, particularly regarding the necessity of oral evidence in constitutional litigation involving disputed facts.