The applicant, a legal practitioner appearing in person, sought declaratory orders against the Prosecutor-General to bar criminal prosecution in the magistrate's court. The criminal charge related to theft of trust property concerning a complainant who alleged the applicant had stolen her money. The matter had been reported to both the police and the Law Society of Zimbabwe. The applicant contended he had paid the money through the complainant's legal practitioners and that her other legal practitioners had admitted full payment. The Prosecutor-General had initially declined to prosecute, but subsequently changed his mind and issued a criminal summons for the applicant to appear in the magistrate's court. The applicant argued that approximately ten months elapsed between the initial decision to decline prosecution and the new summons. The application was set down on the unopposed roll, with the respondent's notice of opposition deliberately excluded from the bound record. The applicant claimed the respondent had been automatically barred for filing the notice of opposition out of time. The respondent had written to the applicant prior to the set down seeking consent to uplift the bar, but the applicant did not address this request, instead urging out-of-court settlement negotiations.
The application was dismissed. The court gave reasons ex tempore when dismissing the matter.
The Prosecutor-General is not bound in perpetuity by an initial decision to decline prosecution and may subsequently change his mind and resuscitate criminal proceedings. Sections 13 and 16 of the Criminal Procedure and Evidence Act [Chapter 9:07] do not restrict the Prosecutor-General's discretion to reconsider a decision not to prosecute; these provisions relate only to private prosecutions and the issuance of certificates of nolle prosequi. There is no legislative restriction preventing the prosecution authority from reversing an earlier decision not to prosecute, whether or not a certificate of nolle prosequi has been issued. A party cannot obtain declaratory relief from a motion court to permanently bar criminal prosecution solely on the basis that the Prosecutor-General previously declined to prosecute. The merits of any defence to criminal charges must be determined by the criminal trial court, not by motion court proceedings. A notice of opposition, even if filed out of time, cannot be deliberately excluded from the court record; Rule 236 permitting an applicant to set down a matter without notice to a barred respondent is permissive and subject to the court's discretion, not a licence to conceal opposition papers from the court.
Mafusire J observed that the applicant's conduct demonstrated the inherent dangers of a legal practitioner acting for himself in a matter of profound personal importance that potentially threatened his entire professional life. In such circumstances, it is difficult to maintain the sense of balance and emotional detachment necessary for proper articulation of legal issues. The court also commented that the applicant's strategy of excluding the notice of opposition while persisting with the application after the respondent requested an indulgence constituted an abuse of court process, with the ulterior motive of snatching a judgment to use as leverage in settlement negotiations. The judge noted various possible reasons why a prosecutor might legitimately change an initial decision not to prosecute, including the emergence of new evidence or simply reconsidering an earlier decision as having been wrong.
This case is significant for establishing the scope of the Prosecutor-General's discretion in criminal prosecution decisions and the limits on judicial interference with prosecutorial discretion. It confirms that an initial decision not to prosecute does not create any permanent or binding limitation on the prosecution authority's ability to reconsider and initiate prosecution. The judgment also addresses important procedural matters concerning the proper handling of notices of opposition filed out of time and the prohibition against manipulating court processes by excluding relevant documents from the record. The case serves as a cautionary example of the dangers of legal practitioners representing themselves in matters of profound personal importance, where emotional involvement may compromise professional judgment and detachment. It reinforces that motion courts are not the appropriate forum for determining the merits of criminal defences, which must be adjudicated in the proper criminal trial court.