The State v Memory Chuma and Mevisi Sibindi

On 20 December 2004, the accused persons appeared before a magistrate at Western Commonage Magistrates' Court charged with contravening section 4(b) of the Dangerous Drugs Regulations Government Notice 1111/75 as read with section 6(2) of the Dangerous Drugs Act (Chapter 15:02). The allegations were that on 17 December 2004, at Number 61466 Pelandaba, Bulawayo, both accused persons unlawfully dealt in 55 kilograms of dagga without a licence or permit. The accused persons were granted bail on 3 January 2005 and attended remands until 6 September 2007 when the record fell off the system. On 15 April 2010, the accused persons were apprehended and appeared in court. The matter dragged on slowly with multiple postponements sought by both the State and defence counsel. On 18 June 2012, following a written application by defence counsel that the accused's right to a fair trial had been infringed, the magistrate granted an order for permanent stay of proceedings. This order was challenged by both the Resident Magistrate at Western Commonage and the Provincial Magistrate, who forwarded the matter for review on the basis that the magistrate lacked jurisdiction to make such an order.

• Whether a magistrate has jurisdiction to grant an order for permanent stay of criminal proceedings
• Whether a constitutional issue regarding alleged violation of the right to fair trial under section 18(2) of the Constitution should have been referred to the Supreme Court in terms of section 24(2) of the Constitution
• What is the proper procedure when a constitutional issue is raised before a subordinate court

1. The order of the magistrate of 18 June 2012 is hereby set aside. 2. The matter is referred back to the magistrate's court for trial de novo before a different magistrate.

A magistrate does not have jurisdiction to grant an order for permanent stay of criminal proceedings on constitutional grounds. When a constitutional issue is raised before a subordinate court regarding an alleged contravention of the Declaration of Rights, section 24(2) of the Constitution requires the presiding officer to refer the matter to the Supreme Court (and must do so if requested by a party) unless the application is frivolous or vexatious. The role of the magistrate in such circumstances is limited to determining whether the constitutional issue should be referred to the Supreme Court, not to adjudicate on the constitutional issue itself or grant substantive relief based on constitutional grounds.

The court noted that both the State and defence counsel had contributed to the delays in the matter, with defence counsel seeking postponements on at least three occasions between 2006 and 20 February 2012 on grounds of other commitments. The court also observed that there were no reasons given for the magistrate's decision, which was described as 'clearly incompetent and inappropriate.' The court cited the case of Concillia Chinanzvavana and others v The State HH 73/09 as authority for the proposition that when an application for referral to the Supreme Court is made, the subordinate court has a very limited role and must refer the case to the Supreme Court if it cannot find that the application is frivolous and vexatious.

This case clarifies the jurisdictional limitations of magistrates' courts in Zimbabwe when constitutional issues are raised in criminal proceedings. It emphasizes that magistrates do not have the power to grant permanent stays of prosecution based on constitutional grounds, and must instead refer such matters to the Supreme Court in terms of section 24(2) of the Constitution. The case reinforces the constitutional framework for dealing with alleged violations of fundamental rights in subordinate courts and ensures that such serious constitutional issues are properly adjudicated by the appropriate superior court. This is an important precedent for understanding the proper procedure when constitutional rights are invoked in criminal proceedings before magistrates' courts.