Walter Magaya v The State

Walter Magaya was charged with rape and the criminal trial commenced on 3 April 2018. He pleaded not guilty but did not present a defence outline. Instead, he insisted on making an application arguing that continuing the trial would violate his constitutional rights because the rape complainant had allegedly withdrawn her complaint, and therefore the State was acting with mala fides in continuing the prosecution. A similar constitutional matter had previously been placed before the Constitutional Court, which struck it off the roll in September 2017. The applicant sought an order declaring the continued prosecution unlawful and unconstitutional, and seeking acquittal under s 180(6) of the Criminal Procedure and Evidence Act. The State raised a point in limine that the application was irregular and amounted to the accused prosecuting his own case, and that the constitutional matter had already been struck off by the Constitutional Court.

• Whether a constitutional application can be brought at any stage of criminal proceedings to halt a trial
• Whether civil application procedures can be used within criminal trial proceedings
• Whether the State's decision to continue with prosecution despite an alleged withdrawal of complaint constitutes prosecutorial misconduct or constitutional violation
• Whether the court should halt a criminal trial before the State has led its evidence on the basis of alleged constitutional violations
• The applicability of the Criminal Procedure and Evidence Act versus civil procedural rules in criminal trials

The application to halt the trial was dismissed. The application for leave to appeal to the Supreme Court was dismissed. The criminal trial was ordered to proceed.

Civil application procedures cannot be improperly imported into criminal trial proceedings where the Criminal Procedure and Evidence Act governs. A constitutional application cannot be used to halt a criminal trial before the State has led its evidence where the State has reasonable grounds to prosecute. The determination of whether constitutional rights have been violated requires a full evidentiary basis and proper proportionality analysis under s 86 of the Constitution, which can only be undertaken after the State has presented its case. The fact that the Constitution constitutionalises all law does not render the procedural provisions of the Criminal Procedure and Evidence Act unconstitutional - these provisions are consistent with the constitutional right to a fair trial. The State, as dominus litis, is entitled to proceed to trial where it has reasonable suspicion that a crime has been committed, and it is not for the accused to refuse to be tried or for the court to silence the State at that stage. Constitutional violations are not established by mere assertion but require proper judicial analysis based on evidence.

The court observed that the applicant appeared to have misconstrued his constitutional rights as being the liberty to do whatever he wants as the basis of "constitutionalism" as opposed to doing what is correct within the confines of appropriate procedures laid down in law. The court noted that the application exemplified a continuing abuse of court process and appeared to be a deliberate plot to delay the trial at any cost, which would not bode well for the administration of justice as people would lose confidence in the courts. The court commented that the order sought would make a mockery of the criminal justice system in that what the applicant effectively sought was dismissal of his matter without a hearing despite the State's position that he had a case to answer. The court also noted that the argument that a constitutional application can be raised at any time "misses a crucial point" and that applicant's counsel "appears to miss or perhaps deliberately dismiss" fundamental points about constitutional analysis in criminal proceedings.

This case clarifies important principles regarding the intersection of constitutional rights and criminal procedure in Zimbabwean law. It establishes that while constitutional rights are fundamental, they cannot be invoked to circumvent proper criminal procedure or to prevent a trial from proceeding where the State has reasonable grounds to prosecute. The case affirms the principle that the State is dominus litis in criminal proceedings and that constitutional violations cannot be determined in the abstract or before evidence has been led. It reinforces that the constitutionalisation of all law under the Constitution does not mean that established criminal procedures are unconstitutional, and that proper procedural avenues must be followed even when raising constitutional challenges. The judgment emphasizes the importance of proportionality analysis under constitutional review and that such analysis requires a full evidentiary basis.