S v Madondo & Anor (B 394 of 2015) [2015] ZWHHC 512 (4 June 2015)

1 HH 512-15 B 394/15 PANGANAI DAVISON MADONDO and MARVELOUS CALVATE versus THE STATE HIGH COURT OF ZIMBABWE MAWADZE J HARARE, 5 June 2015 Appeal against refusal of bail T Chakurira, for the appellants E Makoto, for the respondent MAWADZE J: The appellants were arrested on 1 May 2015 by Criminal Detectives from Braeside Police Station in Harare and were only arraigned before the magistrate sitting at Mbare Magistrates Court on 4 May 2015. It is apparent from the facts that the Police details had tried and failed to obtain the appellants’ warrants for further detention both at Mbare and Harare Magistrates Court before the expiry of the 48 hours. In their wisdom the Police details decided to detain the appellants until 4 May 2015. The appellants are being charged of the offence of Fraud as defined in s 136 (a) of the Criminal Law Code [Chapter 9:23]. The allegations are that the appellants acting in concert with the other accused persons at large flighted an advertisement in the Herald on 18 March 2015 that a residential stand no. 1145 Sunningdale 3, Prospect Harare was being sold for US$13 500. The complainant one Erick Chagwedera in response to the advertisement contacted one Cain Tigere (who is at large) whose real name is Tendai Nyambuya as per the advertisement who claimed to be the legitimate owner of the stand who in turn referred the complainant to the first appellant who pretended to be the agent for Tendai Nyambuya to carry out the verification process at the Deeds Office. As a result the complainant was given by Tendai Nyambuya a photocopy of the Deed of Transfer Number 113/96 in the name of Cain Tigere and Tapiwa Tigere. The complainant and Tendai Nyambuya proceeded to Marondera where they met the second appellant who identified herself as Tapiwa Tigere. The first appellant then produced an agreement of sale and the second appellant produced HH 512-15 B 394/15 photocopies of passports in the names of Cain Tigere and Tapiwa Tigere who were ostensibly husband and wife. The complainant then made a part payment of US$7000 as deposit for the stand to Tendai Nyambuya in presence of both appellants leaving a balance of US$6 500. On 30 April 2015 the complainant tried to contact the appellants and Tendai Nyambuya to pay the outstanding amount and realised that he had been duped as the telephone number he had been given was not reachable. A report was made to the Police and the appellants were arrested. When the appellants were arraigned before the Magistrate Court at Mbare on 4 May 2015 an application for their immediate release was made on the basis that they had been detained in excess of 48 hours in violation of their constitutional right to liberty. The Magistrate who was seized with this matter accepted as per the submission of both the state and counsel for appellants that the appellants had been detained in excess of 48 hours. The magistrates however declined to release the appellants on the basis that the magistrate had no powers at law to release the appellants and that it was the High Court which was vested with such powers in terms of s 50 (7) of the Constitution. The magistrate proceeded to deal with the application for bail by the appellants and declined to admit both appellants to bail on the basis that they have the propensity commit similar offences as they were arrested after placing further advertisements in the newspaper to dupe other people. While the appellants appealed to this court against the magistrate’s refusal to admit them to bail, what exercised my mind is the continued detention of the appellants. It is my view that before this court can even deal with the appeal against refusal to grant bail by the lower court the legality of the detention in excess of 48 hours should be dealt with. Section 50 of the Constitution deals with the rights of arrested and detained person. The provisions of s 50 (2) are clear and straightforward and they are as follows; “(2) Any person who is arrested or detained- (a) for the purpose of bringing him or her before a court; or (b) for an alleged offence; and who is not released must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place or the detention began, as the case maybe, whether or not the period ends on a Saturday, Sunday or public holiday.” In terms of s 50 (2), any person who is arrested or detained by the police should be brought before a court within 48 hours. As already said the appellants were not brought before the court within the stipulated 48 hour period. HH 512-15 B 394/15 Section 50 (3) of the Constitution provides as follows; “(3) Any person who is not brought to court within the forty-eight period referred in subsection 2 must be released immediately unless their detention has earlier been extended by a competent court.” (emphasis is my own) Further to this s 50 (8) of the Constitution provides as follows; “(8) an arrest or detention which contravenes this section, or in which the conditions set out in this section are not met is illegal.” It is common cause that the appellants were not brought before the magistrates court within the stipulated 48 hours as provided for in s 50 (2) of the Constitution, and that their continued detention was not extended by a competent court in terms of s 50 (3) of the Constitution. Further the applicants were not released immediately after the expiry of the 48 hours. In terms of s 50 (8) the continued detention of the appellants contravenes the provisions of both s 50 (2) and s 50 (3) of the Constitution and is without doubt illegal. Judicial Officers, like the magistrates should familiarise themselves with the provisions of the Constitution in order to protect the rights of arrested and detained persons who in most cases are first brought before them. The Constitution is the supreme law and should be complied with. I am surprised that the magistrate before whom the appellants were brought at Mbare was at pains to find ways not to apply the clear and unambiguous provisions of the Constitution. One of the important duties of a judicial officer is to apply the law without fear or favour. The administration of justice is put into disrepute if judicial officers dive and duck to avoid their responsibilities. I am amazed that the magistrate reasoned that only the High Court has jurisdiction to deal the over detention of the appellants. The magistrate for some strange reason made reference to s 50 (7) of the Constitution which clearly is irrelevant to circumstances of the appellants. The remedy for breaching s 50 (2) of the Constitution is provided for in s 5 (3) of the same Constitution which is to release the detained person immediately in the absence of an extension of such a detention by a competent court. The reason for that is clear as such continued detention is illegal as it offends s 50 (8) of the Constitution. It is clear from the facts of this case that the appellants were over detained in excess of 48 hours without due authority of a competent court. The magistrate before whom the appellants appeared cannot and should not have condoned that illegality. It was incumbent upon the magistrate in the face of such an illegality to immediately release the appellants as HH 512-15 B 394/15 provided for in s 50 (3) of the Constitution. The magistrate has jurisdiction to act in that manner. I am not inclined in this case to deal with the appeal of the appellants in relation to bail application as to do so would amount to condoning a clear illegality. The consequences of unlawful detention are clear. See S v Makwakwa 1997 (2) ZLR 298. I am therefore obliged to act in terms of s 50 (3) of the Constitution and order the immediate release of the appellants as their continued detention is illegal. In the result I make the following order; It is ordered; That the appellants Panganayi Davison Madondo and Marvelous Culvate be released immediately. Zimudzi & Associates, appellants’ legal practitioners National Prosecuting Authority, respondent’s legal practitioners