Judgment No. CCZ 7/2015 2
Const. Application No. CCZ 472/14
The applicant was not happy with this development. After unsuccessful
attempts to resuscitate the relationship, he proceeded to her residence accompanied by a
friend and a police detail. Thereafter the parties proceeded to the business premises where the
applicant shot the deceased and the policeman after conducting enquiries on the status of the
business venture. The deceased died at the scene leading to the arrest of the applicant and
thereafter his conviction. An automatic appeal followed against the conviction and sentence
by operation of law.
On 17 November 2014, in his appeal before the Supreme Court, the applicant
alleged that the High Court had violated his right to a fair trial and applied that the matter be
referred to this Court in terms of s 175 (4) of the Constitution of Zimbabwe, (“the
Constitution”). The relevant section reads:
“(4) Powers of courts in constitutional matters
If a constitutional matter arises in any proceedings before a court, the person presiding
over that court may and if so requested by any party to the proceedings must refer the
matter to the Constitutional Court unless he or she considers the request as merely
frivolous or vexatious.”
The Supreme Court agreed that the request was neither frivolous nor vexatious
and consequently made the following order:
“IT IS ORDERED THAT:
Two constitutional issues have arisen.
1. The appellant alleges that his right to a fair hearing guaranteed by s 69(1) of
the Constitution of Zimbabwe was violated by the presiding Judge who
descended into the arena.
2. The appellant was given a sentence which was not competent in terms of the
law. In particular he was sentenced at a time where Parliament had not
enacted a law providing the circumstances in which a death sentence may be
imposed in terms of s 48(2) of the Constitution of Zimbabwe.”