Judgment No. CCZ 14/2017
Const. Application No. SC 263/12
Before pleading to the charge, the applicants made an application in terms of
s 24 (2) of the former Constitution for their matter to be referred to the Supreme Court (then
sitting as the Constitutional Court). The question for determination by the Supreme Court was
formulated in para 13 of their written application in the following terms:
“Whether section 2 (f) of the 3rd Schedule of the Criminal Law (Codification and
Reform) Act [Chapter 9:23], with the contravention of which the Applicants are
charged, is in violation of the following fundamental human rights contained in the
Declaration of Rights of the Constitution of Zimbabwe: right to liberty (Section 13 [1]),
right to protection of the law (Section 18 [1]), right to freedom of expression (Section
20 (1)), and right to freedom of association and assembly (Section 21 (1)).
Alternatively, whether the prosecution of the Applicants on the present charge, based
on the facts in the State Outline, constitutes a violation of the applicants’ following
fundamental human rights contained in the Declaration of Rights of the Constitution of
Zimbabwe: right to liberty (Section 13 (1)), right to protection of the law (Section 18
(1)), right to freedom of expression (Section 20 (1)), and right to freedom of association
and assembly (Section 21 (1)).”
The record of proceedings in the Magistrate’s Court reveals that at an early stage
in the proceedings the prosecutor invoked s 202 of the Criminal Procedure and Evidence Act,
[Chapter 9:07] and applied to amend the charge by deleting “2 (v)” and substituting it with
“2 (f)” such that the charge would then be “Criminal nuisance as defined in s 46 as read with
para 2 (f) of the Third Schedule of the Criminal Law (Codification and Reform) Act,
[Chapter 9:23], (the Codification Act). No amendment was sought to the wording of the charge
or to the facts outlined in the State Outline.
The applicants’ legal practitioner submitted before the magistrate that the
defence had no objection to the amendment of the charge. Although there is no ruling by the
magistrate on the unopposed application, the probability and likelihood seem to be that the
amendment was granted. This is so because in the written application presented to the
magistrate in terms of s 24(2) of the Constitution for referral of the matter to this court, the
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