The State v Ernest Ncube

Ernest Ncube was arrested on 23 February 2004 and charged with one count of murder and one count of attempted murder. He was released on bail in April 2004 and religiously attended routine remand at Gwanda Magistrates' Court until 2 April 2007 when further remand was refused. He remained at his rural home at Nkankezi throughout this period. The applicant was only indicted for trial on 18 May 2017, more than 13 years after the commission of the offences. During this delay, three of the applicant's crucial defence witnesses (George Ndlovu, Moses Ndlovu, and Richard Nyoni) died. The police docket was shuffled between the police and the Attorney General's Office from 2004, and was ready for prosecution by 2009, but no trial was set down until 2017. The applicant was 52 years old at the time of the offence and 65 years old at the time of indictment.

• Whether the applicant's constitutional right to a fair trial within a reasonable time under section 69(1) of the Constitution of Zimbabwe (Amendment No. 20) 2013 had been infringed
• Whether a delay of 13 years in bringing the matter to trial was inordinate and inexcusable
• Whether the state provided a reasonable explanation for the delay
• Whether the applicant asserted his right to a speedy trial
• Whether the applicant suffered actual prejudice as a result of the delay
• Whether the court should grant a permanent stay of prosecution

The application for a permanent stay of prosecution was granted. Prosecution in the matter was permanently stayed.

A delay of 13 years in bringing an accused to trial is inordinate and presumptively prejudicial. Where the state fails to provide a reasonable and credible explanation for such delay (general references to backlog being insufficient), where the accused has asserted his right to a speedy trial, and where actual prejudice has been established (including death of key defence witnesses, fading memory, and emotional and financial suffering), the accused's constitutional right to a fair trial within a reasonable time under section 69(1) of the Constitution has been infringed. In such circumstances, a permanent stay of prosecution is warranted as the minimum remedy. The court has inherent common law power and discretion to regulate its own proceedings and to put a stop to any violation of an accused's constitutional rights to a fair and speedy trial.

The court observed that while the grant of a permanent stay is an exceptional remedy and each case must be decided on its own merits, once the right to a fair and speedy trial has been infringed, an applicant is ordinarily entitled to a permanent stay of prosecution. The court also noted, citing Re: Mlambo, that subjection to a criminal charge over time gives rise to restrictions on liberty, inconveniences, social stigma and pressures detrimental to the mental and physical health of the individual. The court suggested that the delay was most likely caused by the state's failure to put its house in order, noting that the docket was ready for prosecution in 2009 yet the applicant was only indicted 8 years later with no credible explanation for the intervening period of inactivity.

This case reinforces the constitutional protection of an accused person's right to a fair trial within a reasonable time under section 69(1) of the Zimbabwean Constitution. It demonstrates the court's willingness to grant a permanent stay of prosecution, an exceptional remedy, where there has been an inordinate and inexcusable delay causing actual prejudice to the accused. The case provides guidance on the application of the Re: Mlambo principles in circumstances of extreme delay (13 years), and emphasizes that general explanations such as backlog of cases are insufficient to justify unreasonable delays. The judgment affirms the court's common law power and discretion to stop proceedings where an accused's constitutional rights have been violated, placing substantive limits on the state's prosecutorial power.