Application for review of Magistrate Msipa in case of Williams and Mahlangu
IN THE HIGH COURT OF ZIMBABWE CASE NO. HC
HELD AT BULAWAYO EX REF: HC 37/10
EX REF: S.C53/09
EX REF CRB 2857-8/08
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
and
MAGODONGA MAHLANGU 2ND APPLICANT
and
THE STATE RESPONDENT
FOUNDING AFFIDAVIT
I the undersigned Jennifer Williams do hereby make oath and state as follows.
- I am the Applicant herein and my address of service is c/o my legal practitioners of record.
- The 2nd Applicant is Magodonga Mahlangu of the same address of service.
- The Respondent is the state as represented by the Attorney – General’s office whose address of service is 3rd Floor, Tredgold Building Fort Street, L. Takawira Ave, Bulawayo.
- The brief history of this matter is as follows
The 2nd Applicant and I have been appearing in the magistrate’s court facing a charge of contravening section 37 (i) (a) (1) of the criminal law (Codification and Reform) Act - participating in conduct likely to promote public violence, breaches of peace or bigotry in that on the 16th of October 2009 we together with others allegedly gathered at Mhlahlandlela Government complex singing and chanting slogans realizing there was a real risk or possibility of forcibly disturbing the peace, security and order of the public.
- We then made an application in the magistrates court for referral of the matter to the Supreme Court on the grounds that the aforesaid section of the Criminal Law Code violates sections 20, 21 and 22 of the Constitution. Such application was dismissed by the court a quo.
- We then made a direct application to the Supreme Court in terms of section 24 (1) of the constitution where we were alleging that the refusal by the magistrate to refer the matter to the Supreme Court violated section 18 (1) of the constitution by denying us the right to approach the Supreme Court as enshrined in section 24 (2) of the constitution.
- Such application was filed in the Supreme Court on the 10th of March 2009. The matter was argued in the Supreme Court on the 4th of June 2009 and The Honourable Chief Justice Chidyausiku undertook to hand down judgement on the application by the 7th of July 2009 which was going to be our next remand date in the magistrates court.
- As at the 7th of July 2009 no judgement had been handed down by the Supreme Court. We continued appearing several times on remand in the magistrate court and the State through the Chief Law Officer Mrs Cheda kept saying we should be given long remands with the hope that on the next remand date the Supreme Court would have made its ruling on our application. All that was to no avail as the Supreme Court has not even up to now made its ruling. Repeated efforts to pursue the ruling through the Supreme Court registrar proved futile as she kept advising that the Supreme Court is yet to make its ruling.
- The Registrar upon enquiry from us, had to write a letter marked Annexure A which confirmed that indeed the Supreme Court was still seized with the matter and trial in the magistrates court could not proceed. That was after the State had insisted on proceeding to trial despite the fact that the Supreme Court had not made its ruling on the application.
- On our appearance in court on the 1st of December 2009 our legal practitioners of record then made an application for refusal of further remand on the grounds that there was no need for us to be continuously remanded since the trial, as more fully appears in Annexure A, could not take off until the Supreme Court had made its ruling on our application. As such considering that the Supreme Court up to that time had not made its ruling on the matter and there was no indication as to when such ruling would be handed down it would be extremely prejudicial and more so needless for us to keep coming to court indefinitely while we await the Supreme Court ruling which would be handed down on some unknown date.
- Moreover we argued that the state was not going to lose anything by our removal from remand as we could be summoned for trial should our application fail in the Supreme Court.
- The State prosecutor opposed the application arguing inter-alia that he had been informed by the Director of Public Prosecutors that the Supreme Court had advised that the ruling would be delivered by end of December 2009.
- The Court a quo delivered its ruling on our application for refusal of further remand on the 21st of December 2009 a copy of which is hereto attached marked Annexure B. The magistrate in dismissing the Application ruled that we are the ones who caused the delay in the finalization of this matter by filing the Constitutional application in the Supreme Court and secondly that at any rate according to the State the Supreme Court was likely to deliver its ruling by end of December 2009.
- With the greatest respect the court a quo erred in its ruling. It appeared to accuse us of causing the delay of the trial by approaching the Supreme Court. It did not seem to take cognizance of the fact that approaching the Supreme Court on a constitutional issue is a right enshrined at law and protected by section 24(1) and (2) of the Constitution. We were within our rights to approach the Supreme Court and cannot be penalized for that. The court a quo’s decision in condemning us for approaching the Supreme Court was a serious and grave misdirection on its part with the result that the eventual decision premised on that ground was grossly unreasonable and irregular.
- Aggrieved by the court a quo’s ruling we then filed an application for review whereby we were challenging its decision as being anter-alia grossly unreasonable and irregular. The application was filed under cover of case no. H.C 37/10 which proceedings I beg leave to incorporate herein by reference.
- The said application is as such pending before this Honourable Court and since it has only recently been filed determination on it is definitely not going to be any time soon.
- We were remanded by the court a quo to the 24th of February 2010. It is fairly obvious that by then the aforesaid application for review would not have been disposed of and as such it would mean we would have to be remanded to some other date. On that next date it might be the same story as it is common cause that court matters take fairly long to be heard. Since it is fairly obvious that by the 24th of February 2010 the review application would not have been disposed of it therefore becomes necessary to have proceeded by way of an urgent chamber application as opposed to an ordinary court application. If we had launched this application as an ordinary one chances are extremely high that by the 24th of February 2010 it would not even have been allocated a hearing date. This would therefore render the relief sought academic since we would have to continue on remand until the application is heard at a later date in future.
- This would occasion immense prejudice to us as we would have to continue on the remand system indefinitely until our review application is determined by this court.
- Our free movement is curtailed as we would have to be continuously appearing in court without any indication as to when our matter would ever be finalized.
- Worse still as at this point the Supreme Court still has not delivered its ruling on our constitutional application despite the State’s assurances in the court a quo that such ruling would be delivered by end of December 2009. We are as such back to the same scenario where we not only have to wait indefinitely for the Supreme Court to deliver its ruling on our constitutional application but also where we have to wait for this court indefinitely to adjudicate on our review application.
- We are as such faced with a unenviable situation whereby we might have to wait for a very long time before any determination and ruling is ever made on either applications. Worse still we are apprehensive the Respondent might insist on commencing our trial despite the pending applications as it has attempted to do so previously.
- The state I must reiterate suffers no prejudice if we are to be removed from remand since it can always, and I must say has the capacity to summon us for trial should our constitutional application be thrown out by the Supreme Court. Conversely we suffer the extreme prejudice and inconvenience of having to be continuously appearing in the magistrates court on remand for an indefinite period.
We thus seek an order removing us from remand pending determination on our application for review and restraining the Respondent from initiating our prosecution.
Wherefore I pray for an order in terms of the attached Draft.
SWORN TO AND SIGNED AT BULAWAYO THIS DAY OF JANUARY 2010
……………………………………….
JENNIFER WILLIAMS
………………………………………
COMMISIONER OF OATHS
IN THE HIGH COURT OF ZIMBABWE CASE NO. HC
HELD AT BULAWAYO EX REF: HC 37/10
EX REF: S.C53/09
EX REF CRB 2857-8/08
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
and
MAGODONGA MAHLANGU 2ND APPLICANT
and
THE STATE RESPONDENT
SUPPORTING AFFIDAVIT
I the undersigned Magodonga Mahlangu do hereby make oath and state as follows.
- I am the 2ndApplicant herein and my address of service is c/o my legal practitioners of record.
- The other parties are as cited in the Founding Affidavit.
- I have read and understood the 1st Applicant’s Founding Affidavit and I confirm the contents therefore and identify myself with the same.
Wherefore I also pray for an order in terms of the attached Draft.
SWORN TO AND SIGNED AT BULAWAYO THIS DAY OF JANUARY 2010
……………………………………….
MAGODONGA MAHLANGU
………………………………………
COMMISIONER OF OATHS
IN THE HIGH COURT OF ZIMBABWE CASE NO. HC
HELD AT BULAWAYO EX REF: HC 37/10
EX REF: S.C53/09
EX REF CRB 2857-8/08
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
and
MAGODONGA MAHLANGU 2ND APPLICANT
and
THE STATE RESPONDENT
CERTIFICATE OF URGENCY
I, JOB SIBANDA a Legal Practitioner of this Honourable Court practicing under Messrs Job Sibanda and Associates do hereby certify that I have read the Applicant’s Founding Affidavit and confirm that the matter is urgent for the following reasons:
1) The Applicants filed a review application in this Honourable Court wherein they were challenging the Court a quo’s decision dismissing their application for refusal of further remand.
2) They are due to appear for further remand in the magistrates court on the 24th of February 2010.
3) The review application has only recently been filed on the 10th of January 2010 and it is common cause that by the time of their next appearance in the magistrates court the review application would not have been disposed of let alone even set down.
4) This would then mean they mean would have to be further remanded to some other date and thereby their continuance on remand is perpetuated rendering the filing of the review application of academic relevance.
5) It is thus essential that this matter be dealt with urgently as going by way of an ordinary court application would mean that by their next remand date the application would not have been heard
6) There is also a reasonable apprehension that the Respondent might insist on proceeding with the trial despite the fact that there is a pending constitutional application in the Supreme Court. as it has attempted to do so previously.
In the premises I certify that this matter warrants the urgent attention of this Honourable Court.
DATED AT BULAWAYO ON THIS DAY OF JANUARY 2010
…………………………………….
LEGAL PRACTITIONER
IN THE HIGH COURT OF ZIMBABWE CASE NO. HC
HELD AT BULAWAYO EX REF: HC 37/10
EX REF: S.C53/09
EX REF CRB 2857-8/08
In the matter between:
JENNIFER WILLIAMS 1ST APPLICANT
and
MAGODONGA MAHLANGU 2ND APPLICANT
and
THE STATE RESPONDENT ______________________________________________________________________
PROVISIONAL ORDER
TAKE NOTICE THAT on the day of 2010 the Honourable Mr Justice sitting at the High Court in BULAWAYO issued a provisional order as shown overleaf.
The annexed, affidavits and documents were used in support of the application of this provisional order.
If you intend to oppose the confirmation of this provisional order, you will have to file a Notice of Opposition in Form No. 29B, together with one or more opposing affidavits, with the Registrar of the High Court at BULAWAYO within ten days after the date on which this provisional order and annextures were served upon you.
You will also have to serve a copy of the Notice of Opposition and affidavit (s) on the Applicant at the address for service specified in the application.
If you do not file an opposing affidavit within the period specified above, this matter will be set down for hearing in the High Court at Bulawayo without further notice to you and will be dealt with as an unopposed application for confirmation of the Provisional Order.
If you wish to have the Provisional Order changed or set aside sooner than the Rules of Court normally allowed and can show good cause for this, you should approach the Applicant or Applicant’s Legal Practitioners to agree in consultation with the Registrar, on a suitable hearing date.
If this cannot be agreed or there is great urgency, you may make a chamber application on Notice to the Applicant for directions from a Judge as to when the matter can be argued.
TERMS OF THE FINAL ORDER SOUGHT
- That the Respondent be and is hereby interdicted from summoning, causing or attempting to cause the Applicants to be placed on remand in respect of case NO. CRB 2857-8/08 until the proceedings in case NO. HC 37/10 are finalized.
- The Respondent be and is hereby restrained from instituting or attempting to institute the prosecution of the Applicants in the magistrates court in CRB No. 2857-8/08 until the proceedings in Supreme Court Case No. S.C 53/09 are finalized.
- The Respondent to pay the costs of this application only if it opposes it.
INTERIM RELIEF GRANTED
- Pending finalization of the review application under case no. HC 37/10 the Applicants be and are hereby removed from remand in the magistrates court CRB NO. 2857-8/08
SERVICE OF THE PROVISIONAL ORDER
To be served upon the Respondent by the Applican’t Legal Practitioners.