Ruling of Magistrate Msipa on constitutional application in the matter of the State vs Williams and Mahlangu

The applicants are the founder and coordinator of Women of Zimbabwe Arise (WOZA). They were arrested on 16 October 2008 and 19 June 2004 upon allegations of having committed both jointly acts likely to interfere with ordinary comfort, convenience, peace or quiet of the public and also on allegation acting together in any place realising that there’s a real risk or possibility of the disturbing peace, security or order of the public.

On 22 January 2009, counsel for the applicants challenged the right of the state to prosecute the applicants. He did so, on the ground that the facts with the particular sections do not disclose any offence and further he stated that there would be previous prejudice if the accused are prosecuted. It is apparent that their conduct is protected by law. The state responded by opposing the application and stated in its argument that the charges should stand as they are; that both charges disclose an offence in this application the court dismissed the application and reasons were availed to both counsel.

On the 27th January2009 the applicants through their lawyer approached the court seeking a postponement due to the fact that he had other commitments and needed sufficient time to go through the ruling that had been made on the 22nd January 2009.

Once again the state was opposed to the postponement and reiterated by indicting the court that witnesses were in attendance and the defence’s request to postpone the matter was meant to delay the trial.

The court ruled that the trial should proceed and the appellants filed a notice of appeal against refusal to grant a postponement on the 28 January 2009. The order was granted on the 13 February by the High Court that matter should be postponed to 26 February. On the 25th February 2009 counsel filed yet another notice of appeal again the ruling that had been made by the court on the 22 January 2009.

On the 26 February 2009 the matter could be heard because the court did not have the High Court’s order and hence the matter was postponed to the 05/03/09.

On the 05 March 2009 where the matter was supposed to proceed to trial counsel for the applicants indicated to the court that he was requesting the applicants’ matter be referred to the Supreme Court for its decision in terms of S.24 (2) of the Constitution of Zimbabwe.

In the three application the applicants made in this occur referred above, the matter could not commence to trial. Despite the fact that the matter had been set down for trial on the 22 January 2009 by consent. In essence on one was caught by surprise. The witnesses attended the accused persons and the defence attended, the state was ready for trial but defence counsel sought to a postponement as highlighted above by making an application to quash the charge/indictment on the basis that the facts did not disclose a charge.

Subsequently on two other occasions, despite the presence of the witnesses and the preparedness of the state counsel the defence asked for another postponement and the trial was further delayed.

Before this court for determination is a fourth application made on the 5th March 2009 which date was again a trial date.

Section 24 of the Constitution of Zimbabwe has been interpreted clearly by the Supreme Court in the case of Martin vs A.G and Aruss 1993 (i) ZLR at 153 Supreme Court as right to approach the Supreme Court for relief. In that case the Supreme Court laid down the test to be used by the court before which the application is made in terms of that section.

Gubbay C.J as he then was and the other 4 judges of the Supreme Court held “…………the test of whether a request for referral under S24 (2) of the Constitution is frivolous/vexatious is whether or not it would constitute on abuse of the process of the Supreme Court and had to be determined by applying conscientious and objective thought to the question.”

The bona fides of the application can be commended probably by conscientiously and objectively looking at the circumstances preceding this application. The issue of the constitutionality or otherwise of the charges the accused are facing is only being raise now after three other application brought by the defence to present the trial of this matter on three other dates.

It is my objective view that matters brought before this court must be tried on trial date if all witness are present, the court is properly constituted, the defence is present and was aware of the final date and if the accused are in a healthy state making it proper for a comprehensible proceeding. A postponement must e refused save for compelling reasons.

From the attitude of the defence, it would appear from the circumstances and the charge and the facts of the case, the accused are playing for time and are deliberately frustrating the course of justice by preventing the commencement of the trial. The various application made before have not been without merit save for one postponement that they were granted by the High Court from these circumstances. I am convinced that this application is without bona fides and is clearly an abuse of the process of the Supreme Court. My conclusion therefore is that this request for referral under S24 of the Constitution is therefore frivolous and vexatious and must be denied and I order that the matter must proceed to trial.