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Mr Tomana

Daniel Nemukuyu Senior Court Reporter
The Prosecutor-General, Mr Johannes Tomana, has filed an application to the Constitutional Court seeking permission to oppose a constitutional matter in which three police officers are challenging magistrates’ powers to unilaterally extend detention of suspects in police custody beyond the permissible 48 hours.

The police officers – Sikhumbuzo Mathe, Walter Denhere and Ishmael Phiri accused of stealing US$270 000 – want Section 32 (2) of the Criminal Procedure and Evidence Act that empowers magistrates to exercise their discretion and issue the warrants in respect of suspects in police custody struck down.

They argue that the law was in violation of Section 50 (3) of the Constitution and that it must be struck off the statutes.
Section 50 (3) of the new Constitution of Zimbabwe reads: “Any person, who is not brought to court within the 48-hour period referred to in Subsection (2), must be released immediately unless their detention has earlier been extended by a competent court.”

The trio convinced the State that a “competent court” means the magistrate must hear both parties before deciding to extend detention.
They are also claiming US$15 000 each from the State after Gwanda resident magistrate Mr Reuben Mukavhi issued them with warrants of further detention.

Last week, law officer Mr Editor Mavuto conceded that Mr Mukavhi was legally wrong and that he breached the Constitution of Zimbabwe in issuing out the warrants without conducting a court hearing.

However, Mr Mavuto argued that the State should not pay the damages as that would not be deterrent in any way.
Chief Justice Godfrey Chidyausiku asked the parties to file a consent order that will be endorsed by the court.

While the case was still pending, Mr Tomana made a U-turn and authorised Chief Law Officer Mr Chris Mutangadura to file an application authorising him to file an application seeking to alter the State’s position on the matter.

In an application filed at the Constitutional Court on Friday, Mr Mutangadura indicated in the papers that Mr Mavuto’s concession was not proper and that it must be struck off  the court record.

Mr Mutangadura deposed an affidavit seeking permission to substitute Mr Mavuto’s heads of argument with new ones opposing the constitutional matter.

Mr Mutangadura stated in his affidavit that there was nothing wrong with the magistrate’s decision and that the constitutional application by the three policemen should be dismissed.

“Honestly, I believe that Section 32 of the Criminal Procedure and Evidence Act is not in violation of Section 50 (3) of the Constitution of Zimbabwe.

“I also do not agree with the interpretation of Section 50 (3) of the Zimbabwean Constitution by the respondents (policemen) insofar as the computation of detention time is concerned as well as the definition of a ‘competent court’ as suggested by the respondents.

“I aver that the procedure for extension of detention time in terms of Section 50 (3) cited above does not require convening a court and the presence of an accused person and a prosecutor,” said Mr Mutangadura.