S and 2 Others v Dolosi (6 of 2025) [2025] ZWCC 6 (27 May 2025)

40 Judgment No. CCZ 6/24 Constitutional Application No. CCZ 48/23 REPORTABLE (4) EMMANUEL DOLOSI v (1) THE STATE (2) MINISTER OF JUSTICE AND PARLIAMENTARY AFFAIRS (3) THE ATTORNEY GENERAL OF ZIMBABWE CONSTITUTIONAL COURT OF ZIMBABWE GARWE JCC, GOWORA JCC & PATEL JCC HARARE: 24 June, 2024 & 27 May, 2025 T. Biti, for the applicant T. Mapfuwa, for the 1st respondent No appearance for the 2nd and 3rd respondents GOWORA JCC: This is an application for leave for direct access to the Constitutional Court. The application has been filed in terms of s 167(5) of the Constitution of Zimbabwe, 2013, (“the Constitution”) as read with r 21(2) of the Constitutional Court Rules, 2016 (“the Rules”). If granted leave to access the Court directly, the applicant intends to bring an application under s 85(1) (a) of the Constitution, seeking the setting aside of the judgment of the Supreme Court in Dolosi & Ors v The State SC 98/23 on the premise that it infringed two of his fundamental rights, namely the right to a fair trial and equal protection and benefit of the law which he says are guaranteed under ss 69(3) and 56(1) of the Constitution respectively. Although not referred to in specific terms, the applicant also appears to seek relief pursuant to an alleged violation of his right to a fair trial under s 69(1). Taking into account the provisions of s 69(3) and the contentions by the applicant as regards the alleged violations he seeks to impugn I will assume that the correct section in contention is s 69(1) and not s 69(3). FACTUAL BACKGROUND [2] The applicant is a male adult. He and four others were convicted of murder by the High Court on 30 June 2014. The death penalty was imposed upon them following the conviction resulting in an automatic appeal to the Supreme Court. At the time that the appeal in the court a quo was heard they were on death row. It is common cause that the Supreme Court set that sentence aside and remitted the to the High Court for sentence to be imposed afresh. At the hearing of this application, the applicant and his co-accused were awaiting sentence before the High Court. [3] The first respondent is the State represented by the National Prosecuting Authority. The second and third respondents are the Minister of Justice, Legal and Parliamentary Affairs, and the Attorney General of Zimbabwe, respectively, cited in their official capacities. Only the first respondent is represented before us. The second and third respondents did not participate in the proceedings. [4] In September 2010, the applicant, along with four other co-accused persons, was arrested and charged with murder. The allegations were that, during a robbery, the applicant and his co-accused had unlawfully and intentionally caused the death of one Edson Manhembe by fatally shooting him three times in his chest and stomach with a firearm. The robbery resulting in the death of the deceased occurred at a farm run by the Police known as Gletwyn Farm in Chishawasha, a suburb in Harare. [5] The applicant and his co-accused were duly arraigned before the High Court in September 2012 and, on 30 June 2014, they were convicted of murder with actual intent based on the doctrine of common purpose. They received the death penalty which sentence was subsequently set aside by the court a quo as aforementioned. [6] The imposition of a death penalty entitles an accused person to an automatic right of appeal before the Supreme Court against both the conviction and sentence. In casu, the appeal was heard by the Supreme Court on 25 March 2022. [7] In that appeal, the applicant denied that he was guilty of the murder. In his defence, in arguing against the conviction, the applicant successfully challenged the admissibility of the indications he had made following his arrest by the police. He submitted that these were not made freely and voluntarily as he had been assaulted and threatened by the police to make the same. He further contended that the High Court had wrongly convicted him of murder using the common purpose doctrine because he did not have the requisite mens rea to commit murder as his sole intention was to commit robbery at the farm. He further argued that he never intended to commit murder and did not have the means to do so. [8] In addition, the applicant contended that the High Court had, after convicting them of murder, erroneously applied repealed provisions of the Criminal Law (Codification and Reform) Act [Chapter 9:23], “the Criminal Law Code”, to sentence him and his co-accused to death. He argued that there were no aggravating circumstances warranting the imposition of the death penalty. [9] The Supreme Court rendered its judgment in the matter on 29 September 2023. It threw out the evidence on the indications made by the applicant and his co-accused. It found that there was inadequate rebuttal of allegations of ill-treatment and assault in the making of such indications. It further found that the accused persons had been denied legal representation during the process of making the indications in question. [10] The Supreme Court also found that the High Court had wrongly applied the common law doctrine of common purpose by relying on s 192 of the Criminal Law Code in convicting the applicant and his co-accused of murder with actual intent. Nevertheless, it went on to find that the applicant and his co-accused had associated with each other in an enterprise to rob the farm. As two of the co-accused were armed with firearms, the Supreme Court held that the applicant and his co-accused ought to have appreciated the real risk or possibility that these firearms would be used to overcome resistance and ought to have been aware of the consequences attendant upon the use of such weapons. Due to this, the court a quo held that the applicant and his co-accused were co-perpetrators who fell within the ambit of s 196A of the Criminal Law Code. [11] The Supreme Court, however, concluded that the applicant and his co-accused had not intentionally set out to kill any person and, in the circumstances, a conviction of murder with actual intent in terms of s 47(1) (a) of the Criminal Law Code could not be sustained. Consequently, the court set aside the conviction of murder with actual intent and substituted it with murder with constructive intent in terms of s 47(1) (b) of the Criminal Law Code. [12] Additionally, the Supreme Court held that the sentence of death had been imposed on the applicant and his co-accused at a time when the law providing for the death penalty had not come into operation. Consequently, the court set aside the sentence of death and remitted the matter to the High Court for the consideration and passing of an appropriate sentence in accordance with the law. This decision prompted the applicant to file this application seeking direct access to this Court. THE APPLICATION [13] In his founding affidavit, the applicant contends that the Supreme Court violated his rights to a fair trial and equal protection and benefit of the law under ss 56(1) and 69(1) of the Constitution respectively. The alleged violation of rights is said to have arisen from the Supreme Court’s finding that the record of proceedings showed that the post-mortem report on the cause of death of Edson Manhenga was produced by consent. [14] He further avers that the judgment of the Supreme Court should be set aside because he and his co-accused should have been acquitted once it was established that they had been tortured and assaulted by the police. This, so he alleges, was because the assaults constituted a serious breach of human rights that went to the root of the matter and vitiated the validity of the trial. [15] The applicant also alleges that the Supreme Court fundamentally infringed on his right to a fair trial by determining liability based on s 196A of the Criminal Law Code which only became law two years after their conviction in July 2016 following the promulgation of the General Laws Amendment Act No. 3 of 2016. [16] Additionally, the applicant contends that the Supreme Court erred in remitting the matter to the High Court for consideration and passing of an appropriate sentence in accordance with the law without defining the law that was to be used. The applicant contends that the failure to set out the guideline on which law was applicable infringed his right to a fair trial. [17] The applicant thus contends that it is in the interests of justice that he be granted direct access to the Court as his life is at stake as he is now on death row. He claims that the application raises constitutional questions related to the following: The effect on the legitimacy of a criminal trial where human rights abuses such as torture have been shown to exist. Whether a trial can be fair when the court has deliberately ignored a fundamental factual question. The fundamental question here being the fact that the medical chain of evidence was never established or proved in his trial before the High Court. Important issues related to the application of the doctrine of common purpose as defined in section 196 of the Code is consistent with the Constitution. What law should guide the High Court as regards an appropriate sentence where a matter is remitted to the High Court for resentencing in a case where a person was convicted on a charge of murder before the enactment of Act No. 3 of 2016? [18] The application is opposed by the State, the first respondent herein. The State argues that the Supreme Court, sitting as an appeal court, found that the evidence of indications led during the trial infringed the applicant’s rights to a fair trial and, as a consequence of such finding, expunged the evidence. Thus, the claim for relief based on tainted evidence does not hold water given the expungement from the record of the evidence in question. I must agree. [19] Further to the above, the respondent also argues that the Supreme Court found that the use of the common law principle of common purpose had been irregularly applied but reasoned that the trial court had properly referred to the provisions of section 192 of the Criminal Law Code to justify the conviction of the applicant and his co-accused. Thus, the respondent contends that the Supreme Court duly upheld and recognized the applicant’s rights to a fair trial and equal protection and benefit of the law and did not violate them as claimed. [20] In addition, the respondent avers that the application is frivolous and vexatious and amounts to an attempt to appeal to this Court on a non-cognizable violation of his fundamental rights by the Supreme Court arising from the manner the court a quo determined the automatic appeal from the High Court. It contends that the Supreme Court’s finding on the post-mortem report does not in any way infringe the applicant’s rights. It is, thus, the respondent’s position that it is not in the interests of justice to allow this application. Accordingly, the respondent prays for its dismissal. ARGUMENTS IN THIS COURT [21] Mr Biti, counsel for the applicant, submitted that the Supreme Court infringed the applicant’s right to a fair trial and that, where the conduct of a court is complained of, it is subject to an application for direct access. Mr Biti submitted further that the application was premised on four complaints against the Supreme Court. [22] The first complaint was that the finding by the Supreme Court that the medical chain of evidence had been submitted by consent violated the applicant’s rights. He argued that where one is charged with murder and there is no medical evidence adduced in proof of the death of the deceased, then the threshold of proof beyond a reasonable doubt would not have been met. [23] The Court engaged counsel on whether it was in dispute that the deceased had been shot on the day in question and had in fact died from the shots fired by one of the accomplices, and, further, whether any of the accused persons had questioned the cause of death. Counsel submitted that, although the cause of death was not in dispute, the onus to prove its case beyond a reasonable doubt rested on the State and it had failed to discharge that onus. [24] It is common cause that the cause of death had not been disputed during the trial. Based on the attitude adopted by the accused persons during the trial, the prosecution would have accepted that there would be little or no purpose served in proving that which was not in dispute. It is therefore only logical to conclude that, given this acceptance of the cause of death, the trial court would have found that the post-mortem report was produced in evidence by consent. It is, therefore, futile to raise before this Court an issue on the sufficiency of the State case which was more properly an issue for determination before the trial court. It is my considered view that the alleged complaint on the basis upon which the report was admitted into evidence does not raise any constitutional issue for determination by the Court. The Court, therefore, does not intend to detain itself on the issue or complaint as suggested by counsel. [25] The second complaint against the Supreme Court’s decision was that there was evidence that the applicant and his co-accused had been tortured during indications. Mr Biti suggested that once it had been established that the accused persons’ rights were violated, then the Court ought to have regarded it as going to the root of the charge entitling the accused persons to an acquittal. He further argued that the conclusion by the Supreme Court that there was evidence of torture warranted the setting aside of the entire trial proceedings and not just the trial within a trial. [26] Again, the above is not an issue that ought to detain the Court. The evidence on the indications was found by the Supreme Court to have been tainted by allegations of torture and ill-treatment. An added concern was that the accused persons had allegedly been denied access to legal representation during the process of making indications. As a consequence, the evidence was expunged from the record and the Supreme Court did not consider it during the determination of the appeal. In any event, the record shows that, in arguing the appeal before the court a quo, the applicant never suggested that the reliance by the trial court on the evidence in question had breached his rights to a fair trial effectively vitiating the same. Even though the evidence was expunged from the record, there was evidence aliunde linking the applicant to the offence. In his own words, he had gone to the farm as a driver. He was at the farm when the fatal shooting took place. [27] The Supreme Court determined the appeal solely premised on the sufficiency of the State case as to the guilt of the applicant and his co-accused. It was determined and resolved on that basis. No constitutional issues were raised in regard to the allegations of torture and the applicant cannot raise such in this application nor can he criticize the judgment of the court a quo on that premise. At no stage did the applicant submit before the court a quo that a permanent stay was warranted on account of the alleged torture. There was, therefore, no failure on the part of the court a quo to consider whether an enshrined right had been infringed during the trial before the High Court because this was not an issue before the court. [28] Mr Biti further submitted that the Supreme Court had wrongly convicted the applicant and his co-accused based on the provisions of s 196A of the Criminal Law Code which only came into effect in 2016, this notwithstanding the fact that the applicant and his co-accused had been convicted in 2014. He argued that, before the amendment, the provisions of s 196 incorporated, as an essential element of the offence, that an accused should have the requisite mental element to commit the offence in order to be found guilty as a co-perpetrator. This necessary mental element, he maintained, was absent in the amendment introduced in 196A wherein the mental element is presumptive. Mr Biti submitted that once it is accepted that the Supreme Court relied on the wrong section, then the difference between the two sections should be questioned. He further submitted that, as a result of the wrong application, the Supreme Court infringed the applicant’s right to a fair trial as enshrined in s 69(1) of the Constitution. [29] Lastly, Mr Biti, contended that the wide definition of common purpose under s 196 before the amendment is an infringement of the right to a fair trial. The import of this submission will be dealt with when discussing the relief sought in the draft order attached to the substantive application. [30] It was thus Mr Biti’s submission that the application has prospects of success. [31] In opposing the application, counsel for the respondent, Mr. Mapfuwa, suggested that the applicant was simply disputing the findings of the Supreme Court on non-constitutional issues. He submitted that the applicant should not be granted direct access as there are no constitutional matters in issue and that, as such, it is not in the interests of justice that direct access be allowed. Mr. Mapfuwa argued that all of the applicant’s grounds were predicated on factual findings by the Supreme Court. He submitted that the Supreme Court’s assessment of facts is not, and cannot be, a breach of the right to a fair trial. Accordingly, he prayed for the dismissal of the application for leave for direct access. ISSUES FOR DETERMINATION [32] When regard is had to the pleadings filed of record and the submissions by counsel in support of their clients’ respective positions, the issue emerging for determination by the Court is whether it is in the interests of justice that leave for direct access to the Court be granted. Arising from that consideration the Court must thereafter determine whether there are factors showing that the substantive application enjoys prospects of success if leave were to be granted. [33] Before delving into the substance of the dispute, however, a court seized with a dispute for its consideration and determination must satisfy itself that a matter placed before it has been pleaded properly. [34] In the substantive application attached to the application for leave, the applicant seeks that the Court issue an order in the following terms: 1. That the judgement of the Supreme Court in Emmanuel Dolosi, Kudzai Madziro, Leeroy Muteyera and Ronald Roorai Sambo v The State Judgment No. SC98-23 be and is hereby set aside on the basis that it is in breach of the Applicant's constitutional rights. 2. That the Applicant's conviction on the crime of murder by the High Court of Zimbabwe in June 2014 be and is hereby set aside. 3. Section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] be and is hereby declared unconstitutional and invalid. 4. There is no order as to costs. [35] A cursory examination of the draft order set out above will tend to show that the applicant has pleaded two distinct and disparate causes of action. The one seeks to impugn a judgment of the Supreme Court, whilst the other seeks an order of invalidity in respect of s 196 of the Criminal Code, itself the subject of dissent in the judgment sought to be impugned. This manner of pleading is imprecise and impermissible. [36] The manner in which the applicant pleaded its case is a cause for concern. The applicant seeks, in the same application, to have the judgment of the Supreme Court set aside and, consequent thereto, the preceding judgment of the High Court. The basis of the grievance is an alleged violation on the part of the Supreme Court of the rights of the applicant under s 69 (3) and 56(1) of the Constitution. This is relief premised on an alleged violation of rights under s 85. [37] In apparent contradiction thereof, the applicant additionally seeks, in the same draft order, a declaration of invalidity in respect s 196 of the Criminal Code. He has not alleged, either in specific terms or impliedly, that s 196 was inconsistent with the Constitution and, as a result, should be declared invalid. There is, on the papers, no allegation of the violation of a right in respect of s 196 nor is there any allegation as to which of his rights it has violated. A declaration of invalidity would be premised on s 175 of the Constitution. The draft order in this regard is clearly at odds with the allegations as set out in the affidavit. The cause of action as pleaded, both in the application requesting leave for direct access to the Court as well as the draft substantive application itself, is the alleged violation of his rights by the Supreme Court in the judgment rendered consequent to the appeal it heard, presumably premised on s 85(1)(a). [38] There is no separate cause of action specifically pleaded for a finding that any right has been violated pursuant to the arrest and prosecution of the applicant and his co-accused, resulting in a conviction as co-perpetrators. The High Court made reference to s 188 and s 196 of the Code in considering their participation in the murder and their criminal intent. The High Court then concluded that their actions were sufficient for them to be found guilty of murder with actual intent on the on the basis of the doctrine of common purpose. The Supreme Court, in determining the appeal, found them guilty as co-perpetrators under s 196A. Given the above, the reference by the applicant to s 196 is therefore misplaced. [39] In Zimbabwe Human Rights Association v Parliament of Zimbabwe and Ors CCZ 6/22, Patel JCC advanced the following: “In essence, what the applicant has purported to do is to proceed under two mutually exclusive provisions of the Constitution, viz. s 85 (1) and s 167 (2) (d). This course of action was pointedly frowned upon in Central African Building Society v Stone & Ors SC 15/21, at p. 17, para. 38, where Gwaunza DCJ observed that: ‘…. an application under s 85 of the Constitution should not be raised as an alternative cause of action …. . Section 85(1) is a fundamental provision of the Constitution and an application under it, being sui generis, should ideally be made specifically and separately as such.’” (my emphasis) See also Law Society of Zimbabwe v Parliament of Zimbabwe & Ors CCZ 10/23 [40] The above sentiments were reiterated by this Court, in Stone & Anor v Central African Building Society & Ors CCZ 5/24. Therein, the Court spoke to the sui generis nature of an application filed in terms of s 85(1) and the importance of it being made separately from any other cause of action. The Court indicated therein that the conflation of causes of actions was to be abhorred. The Court opined thus at pp 13-14, para 39: “In casu, it is evident that the applicants conflated the constitutional application under s 85 with a non-constitutional cause of action. The link between the two is impermissible in that, in conjunction with a declaration of invalidity, they sought a declaration that Exchange Control Directive No. R120/2018 be declared grossly unreasonable and ultra vires its enabling provision s 35 (1) of the Exchange Control Regulations, 1996. The latter did not envisage the enforcement of a fundamental right under s 85 (1) as pleaded in the founding affidavit establishing locus standi. I have no hesitation in stating that not only is this impermissible but the procedure adopted was grossly irregular.” [41] In my view, the relief sought in casu is defective in that a court cannot lawfully issue an order that contradicts itself. The declaration of invalidity sought in para 3 of the draft order, is not based on any cause of action pleaded by the applicant. The Supreme Court applied s 196A of the Code. The cause of action is an alleged violation of rights by the Supreme Court itself. He has not alleged that the provisions of s 196 applied by the court a quo to find him guilty of murder as a co-perpetrator constitute a violation of his rights under the Constitution. A draft order speaks to relief sought consequent to a cause of action properly pleaded and based on a dispute. Not only is there no cause of action pleaded in relation to the alleged invalidity of s 196, there is also no dispute that has been alleged requiring the declaration of invalidity sought in the draft order. [42] In light of the foregoing, it is my view the draft order is fatally defective. Whilst before this Court the applicant seeks an order granting him leave to directly approach the Full Court requesting the Court to set aside a judgment of the Supreme Court, paragraph 3 of the substantive order seeks an order of invalidity. Such an order does not require that an applicant obtain leave for direct access. The invalidity of s 196, if it is indeed invalid, should have been raised in the proceedings before the High Court and, as a consequence, referred to the Court in terms of s 175(4).It is also relief that may be granted by any other court, except the Supreme Court, subject only to the mandatory requirement that the order be confirmed by this Court. [43] It is a trite position of the law that the Supreme Court is the final court of appeal and that no decision of the Supreme Court shall be appealable unless the court determined a constitutional matter. The applicant accepts that the Supreme Court did not determine a constitutional issue. However, he seeks leave to attack the decision of the court a quo on the basis that the decision infringed his constitutionally protected rights, specifically, his fair trial rights. [44] The finality of the decisions of the Supreme Court is by operation of law. The Constitution says so in s 169(1) in clear and unambiguous language. Section 26 of the Supreme Court Act [Chapter 7:13] provides an additional shield to the final nature of those judgments and states that those judgments are not appealable. They can only be reversed by the Supreme Court itself in the exercise of its discretion if it considers that it is in the interests of justice to depart from a decided principle on a matter. This position was affirmed in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor 2018 (2) ZLR 743 (CC) where it was held as follows: “A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has the power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling, or opinion on a non-constitutional matter. The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”(Emphasis is mine.) See also Denhere v Denhere & Anor 2019 (1) ZLR 554 (CC), Mwoyounotsva v ZINWA CCZ 17/20 [45] It is settled that the courts, including the Supreme Court itself, are bound and obligated to protect the fundamental rights of the litigants appearing before them for the determination of their disputes. Where the Supreme Court fails to act in terms of the objective standards prescribed by the procedural and substantive laws governing its proceedings, such that it is disabled from rendering its decision, the validity of such decision, notwithstanding that it is final, may be challenged. Put differently, if the Supreme Court fails to comply with the requirements of the protection provided by the law of fundamental rights of the litigant, resulting in the violation or likelihood of the violation of a right, the final nature of a decision of the Supreme Court may be challenged as being invalid under s 85. APPLICATIONS FOR LEAVE FOR DIRECT ACCESS TO THE COURT [46] Applications for direct access to this Court are governed by r 21(3). That rule requires that an applicant show that it is in the interests of justice for leave to be granted. In turn, in determining whether it is in the interests of justice that leave be granted, the Court considers key factors, particularly those outlined in r 21(8), which factors are crucial in determining whether granting direct access is indeed in the interests of justice. Rule 21(8) provides that: “(8) In determining whether or not it is in the interests of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account— (a) the prospects of success if direct access is granted; (b) whether the applicant has any other remedy available to him or her; (C) whether there are disputes of fact in the matter.” [47] As a matter of principle in an application such as this, notwithstanding the above requirements set out in the rules, before a determination of whether it is in the interests of justice that leave be granted is made, the existence of a constitutional matter must be established in order for this Court to assume jurisdiction over the matter. In Moyo v Sergeant Chacha & Ors CCZ 19/17 at pg. 24, the Court said: “The making of an application alleging infringement of a fundamental human right or freedom does not necessarily mean that the issue for determination is violation of a fundamental human right or freedom enshrined in the Constitution. The Constitutional Court still has to satisfy itself that the issue for determination is a constitutional matter or an issue connected with a decision on a constitutional matter involving the interpretation, protection or enforcement of the constitutional guarantee of the fundamental human right or freedom.” (emphasis added) [48] Notwithstanding the vehement opposition from the respondent, I am unable to accept the contention that the applicant has not raised constitutional issues for determination. Although the matter has not been pleaded with the precision and clarity expected of matters coming before the Court, it is my view that the applicant has made out a sufficient cause of action for the jurisdiction of the Court to be triggered. See Meda v Sibanda & Ors 2016(2) ZLR 503(CC) [49] An applicant alleging that the Supreme Court has, contrary to its obligation under s 44 to of the Constitution to uphold and protect the rights of litigants, violated his rights must plead facts that unequivocally show an abdication of the court’s obligation under s 44 above. [50] In casu, the applicant acknowledges that the judgment of the Supreme Court was on a non-constitutional matter. However, the contention is that the Court has the requisite jurisdiction to determine the matter as the judgment of the Supreme Court infringed the applicant’s fundamental rights. [51] A litigant’s right to approach this Court on a non-constitutional matter on an allegation that a fundamental right or freedom has been violated was established in the case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor 2018(2) ZLR 743(CC) at 747H-748A: “Consideration of the relevant constitutional provisions supports the view that the validity of a decision of the Supreme Court in proceedings involving non-constitutional matters may be challenged on the ground that it has infringed a fundamental right or freedom enshrined in Chapter IV of the Constitution. The basis of the right of a party to the proceedings to challenge the validity of a decision of the Supreme Court in the circumstances is the Constitution itself. The right given to a litigant under s 85(1) of the Constitution to approach the Court for appropriate relief on the allegation stated is correlative to the constitutional obligation imposed on the Supreme Court as a body exercising public authority.” See also Fairclot Investments P/L v Augur Investments & Ors CCZ 16/24. [52] It therefore goes without saying that whilst it is permissible for a litigant to challenge a Supreme Court decision on a non-constitutional issue on the basis that it infringes their fundamental rights and freedoms, such litigant is expected to show that the impugned decision was a result of the Supreme Court’s failure to observe the objective standards set by the procedural and substantive laws governing the proceedings before it. This was underscored in Lytton supra at 755A-C as follows: “The facts must show that there is a real likelihood of the Court finding that the Supreme Court infringed the applicant’s right to judicial protection. The Supreme Court must have failed to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination. The failure to act lawfully would have to be shown to have disabled the court from making a decision on the non-constitutional issue. The theory of constitutional review of a decision of the Supreme Court in a case involving a non-constitutional matter is based on the principle of loss of rights in such proceedings because of the court’s failure to act in terms of the law, thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision. Arbitrariness and inconsistencies threaten the claim to judicial authority. The remedy under s 85(1) of the Constitution is not for the protection of fundamental rights and freedoms in the abstract. Concrete review requires that there be clear and sufficient evidence of the facts on the basis of which allegations of infringements of fundamental rights or freedoms are made.” [53] Perusal of the Supreme Court judgment in casu reflects that it made a finding that the High Court had wrongly applied the common law doctrine of common purpose as the doctrine had been codified. However, due to the concessions made by counsel for the applicant and his co-accused that the parties collectively had the intention to rob the farm, the Supreme Court held that their conduct fell within the ambit of s 196A of the Criminal Law Code. This was because they ought to have realized the risks and consequences of the possible use of the firearms carried by their associates in subduing any resistance to the robbery. [54] It is that decision that the applicant seeks to be set aside for allegedly breaching his fundamental rights to a fair trial and equal protection and benefit of the law. In terms of s 169(1) of the Constitution as read with s 26(1) of the Supreme Court Act [Chapter 7:13], a final decision of the Supreme Court on a non-constitutional matter cannot be wrong. Reference must be made to the case of Williams & Anor v Msipa N.O. & Ors 2010 (2) ZLR 552 (S) at 576C where the Court stated as follows: “A wrong judicial decision does not violate the fundamental right to the protection of the law guaranteed to a litigant because an appeal procedure is usually available as a remedy for the correction of the decision. Where there is no appeal procedure there cannot be said to be a wrong judicial decision because only an appeal court has the right to say that a judicial decision is wrong. See Maharaj v A G of Trinidad & Tobago (No. 2) (PC) [1979] AC 385 at 399 D–H; Boordman v Attorney General [1996] 2 LRC 196 at 205i–206b.” [55] Thus, whilst the Supreme Court substituted s 196A in place of the doctrine of common purpose in terms of which the trial court found the applicants and his co-accused guilty of murder premised under s 188 and 196 as co-perpetrators, can it be said that this was an error constituting a failure to act in accordance with the requirements of the law? In other words, can it be concluded authoritatively that the Supreme Court was disabled from making a proper decision on the non-constitutional issue before it, leading to a conclusion that there was infringement of the applicant’s rights to a fair trial and equal protection and benefit of the law? [56] The applicant submits that his application has prospects of success because the decision of the Supreme Court violates his rights to a fair trial and equal benefit and protection of the law enshrined in ss 56(1) and 69(1) of the Constitution. Whether there are prospects of success if direct access is granted. [57] The inquiry into the prospects of success of the application for direct access involves probing the merits to see if the applicant has an arguable case. In Dinha v The State CCZ 11-20, prospects of success were explained at pg. 6 as follows: “In assessing the prospects of success, the Court is tasked with assessing whether the applicant has established a prima facie case which justifies that he be given a day in court. More is required to be established than that there is a mere possibility of success. An applicant must show on a balance of probabilities that he or she or it has reasonable prospects of success and in doing so he or she or it must point to some fault or misdirection in the judgment him or her or it seeks to impugn.” (emphasis added) [58] Before this Court, the applicant has spent the greater part of his submissions attacking the Supreme Court’s findings on the medical evidence upon which he was convicted. This is clearly an attack on the factual findings made by the Supreme Court. The law is clear. A purely factual matter does not raise a constitutional issue. This was emphasized in Mukondo v The State CCZ 2-19 at pg. 6-7 as follows: “The question of whether or not the court a quo correctly assessed and evaluated the evidence before it is a factual matter that does not involve the interpretation, protection or enforcement of the Constitution. A contention that the court a quo did not take some evidence into account in reaching its decision cannot be used as a ground to allege that the applicant’s right to a fair trial, enshrined in s 69(1) of the Constitution, was violated. … No constitutional issue can arise from a contention that evidence was incorrectly assessed by the subordinate court. The Court does not assume jurisdiction when it is being called upon to reverse factual findings of the court a quo on non-constitutional issues.” [59] The gravamen of the other of the applicant’s claim is that it is in the interests of justice that he be granted direct access to the Court given the allegation that his life is at risk due to a death penalty imposed on him. The applicant is no longer on death row and he was not candid with the Court in making this particular averment. Thus, an argument premised on this contention cannot hold water as the death penalty was set aside by the Supreme Court on appeal. In setting aside the sentence of death, the court a quo remitted the matter to the High Court for the passing of an appropriate sentence. This is the source of the grievance on the part of the applicant. [60] The Supreme Court concluded that the applicant and his co-accused had been wrongly sentenced and it was well within the powers of the Supreme Court to remit the matter for proper sentencing. The application in casu is now interfering with that process. The applicant suggests that the order of remittal is a violation of his rights under s 69(3). He gives no details nor is he specific as to the manner of violation. In any event, if the applicant is not satisfied with the sentence that will be imposed on him when the matter is heard again before the High Court, he can still appeal to the Supreme Court challenging that decision. Such an avenue to approach the courts is still open to him. Thus, the applicant’s alleged violation of his s 69(3) right is unfounded. [61] In order to be granted relief on the basis that the right under s 56(1) of the Constitution has been violated, an applicant must prove that he or she was denied the same protection of the law which was afforded to others in the same situation – see Nkomo v Minister of Local Government, Rural & Urban Development & Ors CCZ 6/16. A failure in casu to demonstrate differential treatment means that the application for direct access cannot succeed as there is no basis for finding that the Supreme Court’s decision violated the applicant’s right in question. [62] The applicant has neglected to adequately articulate how his right to equal protection and benefit of the law as enshrined in s 56(1) was violated by the Supreme Court. That challenge lacks a crucial element. He has not shown how the decision by the Supreme Court has materially differed in substance from decisions accorded to other appellants appearing before the court on appeal or in similar cases. It was incumbent upon him to establish elements of discriminatory treatment against him by the Supreme Court as compared to other similarly situated individuals. He has not done this. [63] Lastly, the applicant contends that the Supreme Court’s application of s 196A instead of s 196 of the Criminal Law Code gives rise to a constitutional issue. He submits, through counsel, that the Supreme Court overlooked the fact that s 196A only became law in July 2016, following the enactment of the General Laws Amendment Act No. 3 of 2016, yet the crime he was convicted of had occurred six years earlier. As a consequence, the applicant contends that the Supreme Court had violated his rights as enshrined under s 69(1). [64] In the heads of argument and in oral submissions to the Court, the applicant suggested that the Supreme Court had infringed his right to a fair trial under s 69(1) by substituting s 188, under which he had been found to be guilty of murder as a co-perpetrator, with s 196A. The argument was that, as s 196A did not exist at the time of the alleged crime, the Supreme Court made an error in finding that the applicant possessed the requisite mens rea to commit murder. Counsel further argued that the Court should undertake a comparative examination of the provisions s 196 prior to the amendment of 2016 with s 196A in order to determine which of them was appropriate for establishing the mens rea necessary for a conviction based on participation in a crime by co-perpetrators in casu. [65] The allegations forming the complaint against the judgment of the Supreme Court are set out in the following manner, both in the application for leave as well as the substantive application itself. The applicant avers: “Moreover, and in any event, the Supreme Court applied section 196A of the Code and not section 196 of the Code. Section 196A of the Code only came into being in July of 2016 upon the enactment of Act No. 3 of 2016. The gross misdirection is an infringement of the applicant’s right to a fair trial as codified by s 69(1) of the Constitution. ………………………………………………………………………………………………………………………………………… Having established the above facts, the applicant wishes to challenge the unconstitutional conduct of the Supreme Court in arriving at the Judgement in SC 9/23” [66] A mere allegation of breach of constitutional rights without more does not entitle a litigant to approach this Court directly. It must be evident, from the facts set out in the affidavit, that the Supreme Court is guilty of some transgression. The applicant was duty bound to show that the court a quo had, in determining the matter before it, invaded some right or shrugged off one. He argued that the Supreme Court made an error in finding that the applicant possessed the requisite mens rea to commit murder. [67] It was his argument that the doctrine of common purpose requires mens rea and that in his case the mens rea is absent. It is suggested that the finding of the court a quo is wrong and ought to be set aside. Thus, the contention made is that, despite having set aside the finding of common purpose by the High Court, the Supreme Court itself proceeded to apply s 196A which deals with the same common purpose principles. By so doing, it is contended, the Supreme Court violated his right to a fair trial as enshrined in s 69(1) of the Constitution. He went on to suggest that the substitution of s 188 and s 196 with s 196A was a misdirection which constituted a violation of his right to a fair trial under s 69(1) of the Constitution. The applicant contends that the Supreme Court should have instead found him guilty on the basis of s 196. [68] In pursuing this argument, counsel for the applicant contended that if the court a quo had applied s 196 there would have been no conviction in respect of the applicant. Since it is the entire judgment that he seeks to have set aside, I must assume that this contention also refers to his co-accused. It was argued that s 196 placed an onerous burden on the State to establish mens rea, whereas s 196A is presumptive in finding the existence of mens rea on the part of an accused person. The criticism of the judgment is therefore based primarily on the disparities that he says exists in the essential elements that are provided for in the two provisions regarding the existence and finding of the requisite mens rea on the part of a co-perpetrator to a crime. [69] I therefore find it pertinent to discuss the above submissions in the light of the provisions in the Criminal Law Code that are concerned with the question of joint perpetrators. I start with the definition of joint perpetrator as provided in s 195. It states as follows: “‘co-perpetrator’ means a person referred to in subsection (1) of section one hundred and ninety-six;” [70] In turn s 196, now repealed, provided as follows: “196 Liability of co-perpetrators (1) Subject to this section, where: (a) two or more persons knowingly associate with each other with the intention that each or any of them shall commit or be prepared to commit any crime; and (b) any one of the persons referred to in paragraph (a) (“the actual perpetrator”) commits the crime; and (c) any one of the persons referred to in paragraph (a) other than the actual perpetrator (“the co-perpetrator”) is present with the actual perpetrator during the commission of the crime; the conduct of the actual perpetrator shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator. (2) If the State has established that two or more accused persons— (a) were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or (b) engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged; and that they were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime, then it shall be presumed, unless the contrary is shown, that— (c)they knowingly associated with each other for a criminal purpose; and (d) the crime actually committed— (i) was the crime for the commission of which they associated with each other; or (ii) was, if not the specific crime for the commission of which they associated with each other, a crime whose commission they realised was a real risk or possibility. (3)If any accused person referred to in subsection (2) who is not the actual perpetrator of the crime— (a) does not discharge the burden mentioned in subparagraph (i) or (ii) of paragraph (d) of subsection (2), his or her liability as the co-perpetrator of the crime shall not differ in any respect from the liability of the actual perpetrator, unless he or she satisfies the court that there are special circumstances peculiar to him or her or to the case (which circumstances shall e recorded by the court) why the same penalty as that imposed on the actual perpetrator should not be imposed on him or her; or (b) discharges the burden mentioned in subparagraphs (i) and (ii) of paragraph (d) of subsection (2), he or she shall be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory. (4) Where there is a dispute between or among two or more accused persons referred to in subsection (1) as to the identity of the actual perpetrator (which dispute cannot be resolved by reference to the evidence that is available to the State) the burden of proving that any particular accused person did not actually perpetrate the crime shall rest with that person. (5) If any of the accused persons referred to in subsection (4) fails to discharge the burden there referred to and the actual perpetrator is not identified, the accused person or persons concerned shall be liable for punishment as if he or she or each of them was the actual perpetrator. (6) It shall not be necessary to prove that there was a prior conspiracy to commit the crime for the commission of which a person is associated with another person or other persons in order for a court to find that any person is liable as a co-perpetrator of any crime. (7) A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.”(the emphasis is mine) [71] As indicated in the body of the judgment of the trial court, the applicant was present at the scene of the crime. He was one of the persons who went to the farm run by the police in Gletwin where the murder took place. He admitted to have gone there to participate in a robbery. The facts as established by the State reveal that he was the assigned driver; they went there in the early hours of the morning; they cut a hole in the fence through which they accessed the premises; the security guard on duty was threatened; the deceased was shot three times and died on the spot and the applicant drove the vehicle that transported the accused persons from the scene of crime. [72] On a proper and careful construction of the provisions of s 196 above, there can be no doubt that the applicant was correctly found guilty of murder as a co-perpetrator. In accordance with the provisions of ss (2) and (3), it is presumed that he must have realised a murder was likely to be committed during or result from the conduct they embarked on in order to facilitate the robbery they set out commit. The submissions by counsel on his behalf that if the court a quo had considered the provisions of s 196 above he would have been acquitted are therefore without merit. [73] The conclusions that I come to can be borne out by the findings of the High Court in the trial itself. The court went to great lengths in explaining how the accused persons appearing before it should be found guilty of murder. It is common cause that by the time the matter came to trial, one of the persons responsible for shooting the deceased had died. The applicant and the other three were participants in the enterprise. The issue that the High Court had to wrestle with and determine was the extent of their participation and, as a consequence thereof, whether they could be held criminally liable for the death of the deceased in the absence of evidence that they shot him. The High Court reasoned as follows: “Given the evidence of the accused persons and the state witnesses the court is to come up with a determination of whether or not on the day in question the accused acting with common purpose and in concert killed the deceased with actual or constructive intentions. The state was tasked with the onus of proving beyond reasonable doubt the cause or connection between Clever Ndlovu’s shooting of the deceased and the four accused persons. If there is such a link then the accused ought to be found guilty. In the reverse if there is no link between the shooting by Clever Ndlovu and the accused persons then the accused ought to be acquitted. To come up with a disposition of necessity it is important to pay attention to the accused persons’ line of argument as presented in evidence. Even if one was to stretch the argument of participation or assistance by co-perpetrators and accomplices before and during commission of the crime, all the four accused fall within the ambit in the sense that co-perpetrators are defined in s 196 of the Criminal Law Codification and Reform Act. Clearly one has to be present with the actual perpetrator during the commission of the crime, or one has to be in the immediate vicinity of the crime in circumstances that implicate one directly or indirectly. The commission of the offence and that one knowingly associates with the actual perpetrator with an intention each or one of them or all to commits or perpetrates to commit the crime actually committed. The actions of the actual perpetrator would be deemed to be the conduct of every perpetrator. In casu therefore the accused set out with common purpose to go and commit an armed robbery at Gletwin Farm. Accused one was there to give assistance in committing the crime. Accused four was there to bind the guards and keep guard. Accused two provided transport and was there in the vicinity. Accused three was there right inside at the commission of the crime and they cannot be held not liable for the conduct of Clever Ndlovu who pulled the trigger and killed the deceased during the course of commission of the disrupted armed robbery. Each of the accused had agreed to play a role in the unlawful enterprise. There is nothing from the evidence which shows that any of them dissociated themselves from the significant participation and aid they had rendered for materialisation of the unlawful enterprise. In the case of State v Woods and Anor 1993 (2) ZLR 258 it was held that conspirators who had rendered significant assistance to the actual perpetrators of murder are guilty of murder as accomplices even though they were not present at the scene of murder. This is obviously because of the obvious pivotal role played in the unlawful enterprise, as in the present case.” [74] I now must consider the contention by the applicant that the effect of substituting s 196 with s 196A by the Supreme Court was a violation of his right to a fair trial. It is his argument that the provision came into effect after the commission of the offence and his conviction for murder and therefore would not or should not have been considered applicable or relevant for purposes of determining his guilt. It reads as follows: “196A Liability of co-perpetrators (1) If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realization of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator. (2) The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they— (a) were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or (b) were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or (c) engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged. (3) A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.”(my emphasis) [75] A close scrutiny of the highlighted provisions would tend to show that, whilst not replicating word for word the provisions of the repealed s 196, the substance of both provisions is identical. In order to fit into the definition of a co-perpetrator an accused person must have been present with the actual perpetrator or within the immediate vicinity. The accused must have knowingly associated with the actual perpetrator with the intention to commit the crime. Where they associated together in any preparatory conduct resulting in the crime, or committed or engaged in any criminal behaviour as a team or a group prior to the crime committed, then it shall be deemed that the conduct of actual perpetrator is also that of the co-perpetrators. [76] I make the observation that as the law now stands, whilst s 195 makes reference to s 196(1), the pertinent provision dealing with co-perpetrators is in fact s 196A, which I have set out above. Apart from defining what a co-perpetrator is, it is worth noting that section 196A sets out the circumstances surrounding an offence that the State should establish where an accused person is charged as one of the persons implicated in the commission of a crime. It is critical to note that the required mens rea establishing the accused’s intention as regards the offence does not emanate solely from a consideration or construction of the provisions of s 196A. The section sets out what factors the State must establish that necessarily lead to a court finding that an accused person is a co-perpetrator of an offence. Thus, the trial court will only have regard to the provisions of s 196A where the State will have led evidence establishing that an accused person participated in the commission of an offence and that he or she had the requisite mens rea for the offence. Reference to s 196A comes where a court, faced with more than one participants in an offence is required to decide, on the proven facts, the role played by each of the accused persons appearing before it. In other words, s 196A (1) provides a guide to a court in coming to a conclusion as to the status of the multiple accused persons charged with an offence. It serves as a filter to the respective participation of co-accused persons and the roles that may be assigned to each one of them. It is not concerned with their respective or individual criminal intention. [77] The applicant has not identified the specific provisions, clauses or phrases or words in s 196A that he considers objectionable or prejudicial to his rights nor has he elaborated on how his fair trial rights were violated. Apart from the bald contention that s 196 A is presumptive, he has not found it necessary to set out those specific factors that differentiate it from s 196 before its repeal. It might be argued that the invocation of s 196A breached a provision of the Constitution relating to procedure. It becomes necessary that I address that question even if it is not relevant herein. Section 18(9) and (10) of the SIXTH SCHEDULE to the Constitution is pertinent. It provides that: “(9) All cases, other than pending constitutional cases, that were pending before any court before the effective date may be continued before that court or the equivalent court established by this Constitution, as the case may be, as if this Constitution had been in force when the cases were commenced, but— (a) the procedure to be followed in those cases must be the procedure that was applicable to them immediately before the effective date; and (b) the procedure referred to in subparagraph (a) applies to those cases even if it is contrary to any provision of Chapter 4 of this Constitution. (10)For the purposes of subparagraph (9)— (a) a criminal case is deemed to have commenced when the accused person pleaded to the charge; (b) a civil case is deemed to have commenced when the summons was issued or the application was filed, as the case may be.” [78] The above provision cannot be construed in isolation. I must then have reference to the Commentary on the Criminal Law Code by Professor Feltoe on the import behind the promulgation of s 196 and its subsequent amendments. The provisions of s 196 are discussed under the heading Co-perpetrators. He states that: -a co-perpetrator is a person other than the actual perpetrator. -who was present with the actual perpetrator during the commission of the crime; -and who knowingly associated with the actual perpetrator (and any other co-perpetrator) with the intention that each of them will commit or be prepared to commit the crime actually committed. [79] The learned author goes on to state that the section provides that where the requirements have been met, the conduct of the actual perpetrator will also be deemed to be the conduct of every co-perpetrator. According to Professor Feltoe, a person can be guilty as a co-perpetrator whether or not he or she contributes directly in any way to the commission of the crime by the actual perpetrator.1 [80] After a careful analysis of the facts proved and the law, the view I take is that the invocation of s 196A for s 188 did not breach procedural law. To that extent, there is no breach of the Constitution. It is clear that s 196 or s 196A of the Criminal Law Code is concerned with substantive as opposed to procedural law. It is a provision solely aimed at clarifying and putting into proper context the individual roles played by the participants to a crime where evidence has been led implicating them as participants. [81] To put this dispute into its proper context, regard must be had to the exact criminal charges that the applicants were facing initially. The charges are captured in the judgment of the trial court thus: “The four accused were arraigned before the courts on charges of murder. It is alleged that on 2 July 2010 and at Gletwin Farm Chishawasha Highlands Harare, the four accused or one or more of them unlawfully and with intention to kill caused the death of Edson Manhembe by shooting him three times once on his chest, cheek and stomach with a firearm thereby causing injuries from which the said Edson Manhembe died. All the four accused pleaded not guilty to the charge.” [82] Feltoe discusses the issue of presumptions where a person is an alleged co-perpetrator. He states that where two or more persons have associated together in any conduct that is preparatory to the conduct which resulted in the crime with which they were charged; or have engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime with which they were charged; and the person or persons were present in the vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime, the conduct of the actual perpetrator will be deemed to be the conduct of every co-perpetrator. Unless the accused persons can prove otherwise, the presence of all these features on a balance of probabilities will lead to a presumption that the accused persons knowingly associated with each other for a criminal purpose. [83] A judgment of the Supreme Court is inviolate due its nature as a final judgment. It is by operation of law not susceptible to challenge unless the criteria mentioned in Lytton & Denhere are met. A litigant wishing to challenge it must thus justify the breach of its status as a final judgment. In this endeavour, any litigant alleging that the court has violated an enshrined right must set out the facts showing a violation as explained in Lytton supra. But what does this entail, what must a litigant establish? The answer must be found in the meaning to be ascribed to the word “violate”. According to the Merriam-Webster Dictionary to violate is to: -break, disobey, infringe, contravene, act contrary to, transgress, disregard, trespass, encroach upon, trample on, invade, offend, fracture, flout, pass over, scorn, shrug off or ignore. [84] It is not in dispute that in the appeal itself the Supreme Court did not determine a constitutional matter. Even though there is an allegation of the Supreme Court having violated the applicant’s right to a fair trial under s 69(1) in applying s 196A ex post facto the commission of the offence, the applicant did not, either in his founding affidavit, the affidavit to the substantive application or in his arguments, both written and oral, motivate how the right was allegedly violated. It is not enough for a litigant to simply say that the court a quo violated his or her right to a fair trial in applying a law that came into being two years after the event. As was said by the Honourable Chief Justice Malaba in Lytton, supra, the facts must show how the judgment of the Supreme Court constitutes an infringement of an enshrined right. [85] In terms of the Constitution and s 26 of the Supreme Court Act [Chapter 7:13], both of which protect the finality and integrity of such judgment, a judgment of the Supreme Court, must only be set aside on good cause, even if there is an allegation that it violated an enshrined right. In terms of s 86 (3) of the Constitution the right to a fair trial cannot be derogated. That said however, a litigant is obliged to exercise care in ensuring that his application is pleaded with a reasonable degree of precision and detail. This principle was affirmed by the High Court of Kenya in Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272. The Court said the following: “We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” [86] In my view, the Supreme Court correctly held that the advent of the Criminal Law Code extinguished the application of the common law version of the doctrine of common purpose in our jurisdiction. The applicant did not set out the basis upon which the judgment should be impugned. The inescapable conclusion is that not only did the applicant fail to properly plead a case justifying the grant of leave on the premise that the right to a fair trial was violated, the argument as relates to the same was not presented to the Court. Even though it is beyond dispute that the Supreme Court substituted s 196 with s 196A, the applicant did not establish that this amounted to an infringement of a right. The argument presented to the Court was focused primarily on whether the provisions of s 196A were appropriate in finding that the applicant had the necessary mens rea to commit murder. The application of s 196A to the proven facts was completely consonant with the law. Section 196 had been repealed and replaced with s 196A. The Supreme Court had to have regard to the law to determine the applicant’s liability to the charge he was convicted of. In any event an examination of the two sections will show that s 196 was more stringent that the later provision. The repealed provision placed an onus on an accused person to rebut a presumption that he was not a co-perpetrator. This has been omitted is s 196A. Moreover, in assessing the prospects of success, the Court considers the relief that the applicant seeks in the substantive application if granted leave. The authors du Plessis, Penfold, and Brickhill in “Constitutional Litigation” 1 ed, (2013) 89 capture the rationale for this as follows: “Applicants should also clearly set out the relief sought. Of course, predictably, the court will not be inclined to grant direct access to an applicant who is unlikely to be successful on the substantive issues raised as to do so would waste judicial resources.” [87] I find that, which I must, regarding the right to a fair trial, save for the applicant’s bald assertion that the right enshrined under s 69(1) was violated by the judgment of the court a quo, there are no written or oral submissions demonstrating how the right was violated. The Supreme Court judgment being challenged by the applicant demonstrates that the grounds of appeal that were properly substantiated resulted in the judgment of the High Court being upheld only in part. Evidence that had been challenged was expunged. The conviction of murder with actual intent was set aside and substituted with one of murder with constructive intent. The penalty of death was also set aside. In the light of these findings, more was required of the applicant to demonstrate how his right under s 69(1) was infringed. [88] Even though the applicant seemed to be referring primarily to s 69(1) in the allegations he makes against the Supreme Court, it seems to me that the Court must also consider whether he has established a prima facie case on whether or not his rights under s 69(3) were violated. Even in this respect, the applicant has not set out any facts that may tend to show that he was denied access to the courts. The Supreme Court judgment being challenged by the applicant did not bar him from approaching the courts. If anything, the record demonstrates that the applicant was afforded the full right of access to the courts as his automatic appeal was heard by the Supreme Court in terms of the dictates of substantive and procedural law. [89] In light of the above, I am of the view that the application for direct access should be dismissed. This is because the intended application is an appeal against the decision of the Supreme Court. This Court does not ordinarily have the jurisdiction to entertain and determine an appeal against a decision of the Supreme Court where there were no constitutional issues, either for determination in the appeal or in its decision. Therefore, it stands to reason that the applicant has not demonstrated how the decision of the court a quo violates his rights. [90] It seems to me that there may be a further reason why direct access to this Court would not be in the interests of justice. Were such access to be granted, it would have the direct effect of interfering with the proceedings before the High Court. Such interference should not be countenanced in the absence of evidence of a gross irregularity or grave injustice in the proceedings or that justice might not by any other means be obtained. In terms of the current law, in the absence of the rare circumstances just referred to, the matter should be allowed to proceed to finality. Thereafter, the applicant would have the opportunity to deal with all the issues arising from the remittal of the matter to, and subsequent sentence imposed by, the High Court. DISPOSITION [91] In my view, premised on the matter as pleaded by the applicant and argued before the Court, the application for the grant of leave to access the Court directly does not enjoy any prospects of success. Accordingly, I find that it is not in the interests of justice for leave to be granted to the applicant to approach the Court directly. [92] In the result, I make the following order: The application for direct access to the Court is dismissed. There shall be no order as to costs. GARWE JCC : I Agree PATEL JCC : I Agree Tendai Biti Law legal practitioners for the applicant 1 At p 138 40 Judgment No. CCZ 6/24 Constitutional Application No. CCZ 48/23 40 Judgment No. CCZ 6/24 Constitutional Application No. CCZ 48/23 40 Judgment No. CCZ 6/24 Constitutional Application No. CCZ 48/23 REPORTABLE (4) EMMANUEL DOLOSI v (1) THE STATE (2) MINISTER OF JUSTICE AND PARLIAMENTARY AFFAIRS (3) THE ATTORNEY GENERAL OF ZIMBABWE CONSTITUTIONAL COURT OF ZIMBABWE GARWE JCC, GOWORA JCC & PATEL JCC HARARE: 24 June, 2024 & 27 May, 2025 T. Biti, for the applicant T. Mapfuwa, for the 1st respondent No appearance for the 2nd and 3rd respondents GOWORA JCC: This is an application for leave for direct access to the Constitutional Court. The application has been filed in terms of s 167(5) of the Constitution of Zimbabwe, 2013, (“the Constitution”) as read with r 21(2) of the Constitutional Court Rules, 2016 (“the Rules”). If granted leave to access the Court directly, the applicant intends to bring an application under s 85(1) (a) of the Constitution, seeking the setting aside of the judgment of the Supreme Court in Dolosi & Ors v The State SC 98/23 on the premise that it infringed two of his fundamental rights, namely the right to a fair trial and equal protection and benefit of the law which he says are guaranteed under ss 69(3) and 56(1) of the Constitution respectively. Although not referred to in specific terms, the applicant also appears to seek relief pursuant to an alleged violation of his right to a fair trial under s 69(1). Taking into account the provisions of s 69(3) and the contentions by the applicant as regards the alleged violations he seeks to impugn I will assume that the correct section in contention is s 69(1) and not s 69(3). FACTUAL BACKGROUND [2] The applicant is a male adult. He and four others were convicted of murder by the High Court on 30 June 2014. The death penalty was imposed upon them following the conviction resulting in an automatic appeal to the Supreme Court. At the time that the appeal in the court a quo was heard they were on death row. It is common cause that the Supreme Court set that sentence aside and remitted the to the High Court for sentence to be imposed afresh. At the hearing of this application, the applicant and his co-accused were awaiting sentence before the High Court. [3] The first respondent is the State represented by the National Prosecuting Authority. The second and third respondents are the Minister of Justice, Legal and Parliamentary Affairs, and the Attorney General of Zimbabwe, respectively, cited in their official capacities. Only the first respondent is represented before us. The second and third respondents did not participate in the proceedings. [4] In September 2010, the applicant, along with four other co-accused persons, was arrested and charged with murder. The allegations were that, during a robbery, the applicant and his co-accused had unlawfully and intentionally caused the death of one Edson Manhembe by fatally shooting him three times in his chest and stomach with a firearm. The robbery resulting in the death of the deceased occurred at a farm run by the Police known as Gletwyn Farm in Chishawasha, a suburb in Harare. [5] The applicant and his co-accused were duly arraigned before the High Court in September 2012 and, on 30 June 2014, they were convicted of murder with actual intent based on the doctrine of common purpose. They received the death penalty which sentence was subsequently set aside by the court a quo as aforementioned. [6] The imposition of a death penalty entitles an accused person to an automatic right of appeal before the Supreme Court against both the conviction and sentence. In casu, the appeal was heard by the Supreme Court on 25 March 2022. [7] In that appeal, the applicant denied that he was guilty of the murder. In his defence, in arguing against the conviction, the applicant successfully challenged the admissibility of the indications he had made following his arrest by the police. He submitted that these were not made freely and voluntarily as he had been assaulted and threatened by the police to make the same. He further contended that the High Court had wrongly convicted him of murder using the common purpose doctrine because he did not have the requisite mens rea to commit murder as his sole intention was to commit robbery at the farm. He further argued that he never intended to commit murder and did not have the means to do so. [8] In addition, the applicant contended that the High Court had, after convicting them of murder, erroneously applied repealed provisions of the Criminal Law (Codification and Reform) Act [Chapter 9:23], “the Criminal Law Code”, to sentence him and his co-accused to death. He argued that there were no aggravating circumstances warranting the imposition of the death penalty. [9] The Supreme Court rendered its judgment in the matter on 29 September 2023. It threw out the evidence on the indications made by the applicant and his co-accused. It found that there was inadequate rebuttal of allegations of ill-treatment and assault in the making of such indications. It further found that the accused persons had been denied legal representation during the process of making the indications in question. [10] The Supreme Court also found that the High Court had wrongly applied the common law doctrine of common purpose by relying on s 192 of the Criminal Law Code in convicting the applicant and his co-accused of murder with actual intent. Nevertheless, it went on to find that the applicant and his co-accused had associated with each other in an enterprise to rob the farm. As two of the co-accused were armed with firearms, the Supreme Court held that the applicant and his co-accused ought to have appreciated the real risk or possibility that these firearms would be used to overcome resistance and ought to have been aware of the consequences attendant upon the use of such weapons. Due to this, the court a quo held that the applicant and his co-accused were co-perpetrators who fell within the ambit of s 196A of the Criminal Law Code. [11] The Supreme Court, however, concluded that the applicant and his co-accused had not intentionally set out to kill any person and, in the circumstances, a conviction of murder with actual intent in terms of s 47(1) (a) of the Criminal Law Code could not be sustained. Consequently, the court set aside the conviction of murder with actual intent and substituted it with murder with constructive intent in terms of s 47(1) (b) of the Criminal Law Code. [12] Additionally, the Supreme Court held that the sentence of death had been imposed on the applicant and his co-accused at a time when the law providing for the death penalty had not come into operation. Consequently, the court set aside the sentence of death and remitted the matter to the High Court for the consideration and passing of an appropriate sentence in accordance with the law. This decision prompted the applicant to file this application seeking direct access to this Court. THE APPLICATION [13] In his founding affidavit, the applicant contends that the Supreme Court violated his rights to a fair trial and equal protection and benefit of the law under ss 56(1) and 69(1) of the Constitution respectively. The alleged violation of rights is said to have arisen from the Supreme Court’s finding that the record of proceedings showed that the post-mortem report on the cause of death of Edson Manhenga was produced by consent. [14] He further avers that the judgment of the Supreme Court should be set aside because he and his co-accused should have been acquitted once it was established that they had been tortured and assaulted by the police. This, so he alleges, was because the assaults constituted a serious breach of human rights that went to the root of the matter and vitiated the validity of the trial. [15] The applicant also alleges that the Supreme Court fundamentally infringed on his right to a fair trial by determining liability based on s 196A of the Criminal Law Code which only became law two years after their conviction in July 2016 following the promulgation of the General Laws Amendment Act No. 3 of 2016. [16] Additionally, the applicant contends that the Supreme Court erred in remitting the matter to the High Court for consideration and passing of an appropriate sentence in accordance with the law without defining the law that was to be used. The applicant contends that the failure to set out the guideline on which law was applicable infringed his right to a fair trial. [17] The applicant thus contends that it is in the interests of justice that he be granted direct access to the Court as his life is at stake as he is now on death row. He claims that the application raises constitutional questions related to the following: The effect on the legitimacy of a criminal trial where human rights abuses such as torture have been shown to exist. Whether a trial can be fair when the court has deliberately ignored a fundamental factual question. The fundamental question here being the fact that the medical chain of evidence was never established or proved in his trial before the High Court. Important issues related to the application of the doctrine of common purpose as defined in section 196 of the Code is consistent with the Constitution. What law should guide the High Court as regards an appropriate sentence where a matter is remitted to the High Court for resentencing in a case where a person was convicted on a charge of murder before the enactment of Act No. 3 of 2016? [18] The application is opposed by the State, the first respondent herein. The State argues that the Supreme Court, sitting as an appeal court, found that the evidence of indications led during the trial infringed the applicant’s rights to a fair trial and, as a consequence of such finding, expunged the evidence. Thus, the claim for relief based on tainted evidence does not hold water given the expungement from the record of the evidence in question. I must agree. [19] Further to the above, the respondent also argues that the Supreme Court found that the use of the common law principle of common purpose had been irregularly applied but reasoned that the trial court had properly referred to the provisions of section 192 of the Criminal Law Code to justify the conviction of the applicant and his co-accused. Thus, the respondent contends that the Supreme Court duly upheld and recognized the applicant’s rights to a fair trial and equal protection and benefit of the law and did not violate them as claimed. [20] In addition, the respondent avers that the application is frivolous and vexatious and amounts to an attempt to appeal to this Court on a non-cognizable violation of his fundamental rights by the Supreme Court arising from the manner the court a quo determined the automatic appeal from the High Court. It contends that the Supreme Court’s finding on the post-mortem report does not in any way infringe the applicant’s rights. It is, thus, the respondent’s position that it is not in the interests of justice to allow this application. Accordingly, the respondent prays for its dismissal. ARGUMENTS IN THIS COURT [21] Mr Biti, counsel for the applicant, submitted that the Supreme Court infringed the applicant’s right to a fair trial and that, where the conduct of a court is complained of, it is subject to an application for direct access. Mr Biti submitted further that the application was premised on four complaints against the Supreme Court. [22] The first complaint was that the finding by the Supreme Court that the medical chain of evidence had been submitted by consent violated the applicant’s rights. He argued that where one is charged with murder and there is no medical evidence adduced in proof of the death of the deceased, then the threshold of proof beyond a reasonable doubt would not have been met. [23] The Court engaged counsel on whether it was in dispute that the deceased had been shot on the day in question and had in fact died from the shots fired by one of the accomplices, and, further, whether any of the accused persons had questioned the cause of death. Counsel submitted that, although the cause of death was not in dispute, the onus to prove its case beyond a reasonable doubt rested on the State and it had failed to discharge that onus. [24] It is common cause that the cause of death had not been disputed during the trial. Based on the attitude adopted by the accused persons during the trial, the prosecution would have accepted that there would be little or no purpose served in proving that which was not in dispute. It is therefore only logical to conclude that, given this acceptance of the cause of death, the trial court would have found that the post-mortem report was produced in evidence by consent. It is, therefore, futile to raise before this Court an issue on the sufficiency of the State case which was more properly an issue for determination before the trial court. It is my considered view that the alleged complaint on the basis upon which the report was admitted into evidence does not raise any constitutional issue for determination by the Court. The Court, therefore, does not intend to detain itself on the issue or complaint as suggested by counsel. [25] The second complaint against the Supreme Court’s decision was that there was evidence that the applicant and his co-accused had been tortured during indications. Mr Biti suggested that once it had been established that the accused persons’ rights were violated, then the Court ought to have regarded it as going to the root of the charge entitling the accused persons to an acquittal. He further argued that the conclusion by the Supreme Court that there was evidence of torture warranted the setting aside of the entire trial proceedings and not just the trial within a trial. [26] Again, the above is not an issue that ought to detain the Court. The evidence on the indications was found by the Supreme Court to have been tainted by allegations of torture and ill-treatment. An added concern was that the accused persons had allegedly been denied access to legal representation during the process of making indications. As a consequence, the evidence was expunged from the record and the Supreme Court did not consider it during the determination of the appeal. In any event, the record shows that, in arguing the appeal before the court a quo, the applicant never suggested that the reliance by the trial court on the evidence in question had breached his rights to a fair trial effectively vitiating the same. Even though the evidence was expunged from the record, there was evidence aliunde linking the applicant to the offence. In his own words, he had gone to the farm as a driver. He was at the farm when the fatal shooting took place. [27] The Supreme Court determined the appeal solely premised on the sufficiency of the State case as to the guilt of the applicant and his co-accused. It was determined and resolved on that basis. No constitutional issues were raised in regard to the allegations of torture and the applicant cannot raise such in this application nor can he criticize the judgment of the court a quo on that premise. At no stage did the applicant submit before the court a quo that a permanent stay was warranted on account of the alleged torture. There was, therefore, no failure on the part of the court a quo to consider whether an enshrined right had been infringed during the trial before the High Court because this was not an issue before the court. [28] Mr Biti further submitted that the Supreme Court had wrongly convicted the applicant and his co-accused based on the provisions of s 196A of the Criminal Law Code which only came into effect in 2016, this notwithstanding the fact that the applicant and his co-accused had been convicted in 2014. He argued that, before the amendment, the provisions of s 196 incorporated, as an essential element of the offence, that an accused should have the requisite mental element to commit the offence in order to be found guilty as a co-perpetrator. This necessary mental element, he maintained, was absent in the amendment introduced in 196A wherein the mental element is presumptive. Mr Biti submitted that once it is accepted that the Supreme Court relied on the wrong section, then the difference between the two sections should be questioned. He further submitted that, as a result of the wrong application, the Supreme Court infringed the applicant’s right to a fair trial as enshrined in s 69(1) of the Constitution. [29] Lastly, Mr Biti, contended that the wide definition of common purpose under s 196 before the amendment is an infringement of the right to a fair trial. The import of this submission will be dealt with when discussing the relief sought in the draft order attached to the substantive application. [30] It was thus Mr Biti’s submission that the application has prospects of success. [31] In opposing the application, counsel for the respondent, Mr. Mapfuwa, suggested that the applicant was simply disputing the findings of the Supreme Court on non-constitutional issues. He submitted that the applicant should not be granted direct access as there are no constitutional matters in issue and that, as such, it is not in the interests of justice that direct access be allowed. Mr. Mapfuwa argued that all of the applicant’s grounds were predicated on factual findings by the Supreme Court. He submitted that the Supreme Court’s assessment of facts is not, and cannot be, a breach of the right to a fair trial. Accordingly, he prayed for the dismissal of the application for leave for direct access. ISSUES FOR DETERMINATION [32] When regard is had to the pleadings filed of record and the submissions by counsel in support of their clients’ respective positions, the issue emerging for determination by the Court is whether it is in the interests of justice that leave for direct access to the Court be granted. Arising from that consideration the Court must thereafter determine whether there are factors showing that the substantive application enjoys prospects of success if leave were to be granted. [33] Before delving into the substance of the dispute, however, a court seized with a dispute for its consideration and determination must satisfy itself that a matter placed before it has been pleaded properly. [34] In the substantive application attached to the application for leave, the applicant seeks that the Court issue an order in the following terms: 1. That the judgement of the Supreme Court in Emmanuel Dolosi, Kudzai Madziro, Leeroy Muteyera and Ronald Roorai Sambo v The State Judgment No. SC98-23 be and is hereby set aside on the basis that it is in breach of the Applicant's constitutional rights. 2. That the Applicant's conviction on the crime of murder by the High Court of Zimbabwe in June 2014 be and is hereby set aside. 3. Section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] be and is hereby declared unconstitutional and invalid. 4. There is no order as to costs. [35] A cursory examination of the draft order set out above will tend to show that the applicant has pleaded two distinct and disparate causes of action. The one seeks to impugn a judgment of the Supreme Court, whilst the other seeks an order of invalidity in respect of s 196 of the Criminal Code, itself the subject of dissent in the judgment sought to be impugned. This manner of pleading is imprecise and impermissible. [36] The manner in which the applicant pleaded its case is a cause for concern. The applicant seeks, in the same application, to have the judgment of the Supreme Court set aside and, consequent thereto, the preceding judgment of the High Court. The basis of the grievance is an alleged violation on the part of the Supreme Court of the rights of the applicant under s 69 (3) and 56(1) of the Constitution. This is relief premised on an alleged violation of rights under s 85. [37] In apparent contradiction thereof, the applicant additionally seeks, in the same draft order, a declaration of invalidity in respect s 196 of the Criminal Code. He has not alleged, either in specific terms or impliedly, that s 196 was inconsistent with the Constitution and, as a result, should be declared invalid. There is, on the papers, no allegation of the violation of a right in respect of s 196 nor is there any allegation as to which of his rights it has violated. A declaration of invalidity would be premised on s 175 of the Constitution. The draft order in this regard is clearly at odds with the allegations as set out in the affidavit. The cause of action as pleaded, both in the application requesting leave for direct access to the Court as well as the draft substantive application itself, is the alleged violation of his rights by the Supreme Court in the judgment rendered consequent to the appeal it heard, presumably premised on s 85(1)(a). [38] There is no separate cause of action specifically pleaded for a finding that any right has been violated pursuant to the arrest and prosecution of the applicant and his co-accused, resulting in a conviction as co-perpetrators. The High Court made reference to s 188 and s 196 of the Code in considering their participation in the murder and their criminal intent. The High Court then concluded that their actions were sufficient for them to be found guilty of murder with actual intent on the on the basis of the doctrine of common purpose. The Supreme Court, in determining the appeal, found them guilty as co-perpetrators under s 196A. Given the above, the reference by the applicant to s 196 is therefore misplaced. [39] In Zimbabwe Human Rights Association v Parliament of Zimbabwe and Ors CCZ 6/22, Patel JCC advanced the following: “In essence, what the applicant has purported to do is to proceed under two mutually exclusive provisions of the Constitution, viz. s 85 (1) and s 167 (2) (d). This course of action was pointedly frowned upon in Central African Building Society v Stone & Ors SC 15/21, at p. 17, para. 38, where Gwaunza DCJ observed that: ‘…. an application under s 85 of the Constitution should not be raised as an alternative cause of action …. . Section 85(1) is a fundamental provision of the Constitution and an application under it, being sui generis, should ideally be made specifically and separately as such.’” (my emphasis) See also Law Society of Zimbabwe v Parliament of Zimbabwe & Ors CCZ 10/23 [40] The above sentiments were reiterated by this Court, in Stone & Anor v Central African Building Society & Ors CCZ 5/24. Therein, the Court spoke to the sui generis nature of an application filed in terms of s 85(1) and the importance of it being made separately from any other cause of action. The Court indicated therein that the conflation of causes of actions was to be abhorred. The Court opined thus at pp 13-14, para 39: “In casu, it is evident that the applicants conflated the constitutional application under s 85 with a non-constitutional cause of action. The link between the two is impermissible in that, in conjunction with a declaration of invalidity, they sought a declaration that Exchange Control Directive No. R120/2018 be declared grossly unreasonable and ultra vires its enabling provision s 35 (1) of the Exchange Control Regulations, 1996. The latter did not envisage the enforcement of a fundamental right under s 85 (1) as pleaded in the founding affidavit establishing locus standi. I have no hesitation in stating that not only is this impermissible but the procedure adopted was grossly irregular.” [41] In my view, the relief sought in casu is defective in that a court cannot lawfully issue an order that contradicts itself. The declaration of invalidity sought in para 3 of the draft order, is not based on any cause of action pleaded by the applicant. The Supreme Court applied s 196A of the Code. The cause of action is an alleged violation of rights by the Supreme Court itself. He has not alleged that the provisions of s 196 applied by the court a quo to find him guilty of murder as a co-perpetrator constitute a violation of his rights under the Constitution. A draft order speaks to relief sought consequent to a cause of action properly pleaded and based on a dispute. Not only is there no cause of action pleaded in relation to the alleged invalidity of s 196, there is also no dispute that has been alleged requiring the declaration of invalidity sought in the draft order. [42] In light of the foregoing, it is my view the draft order is fatally defective. Whilst before this Court the applicant seeks an order granting him leave to directly approach the Full Court requesting the Court to set aside a judgment of the Supreme Court, paragraph 3 of the substantive order seeks an order of invalidity. Such an order does not require that an applicant obtain leave for direct access. The invalidity of s 196, if it is indeed invalid, should have been raised in the proceedings before the High Court and, as a consequence, referred to the Court in terms of s 175(4).It is also relief that may be granted by any other court, except the Supreme Court, subject only to the mandatory requirement that the order be confirmed by this Court. [43] It is a trite position of the law that the Supreme Court is the final court of appeal and that no decision of the Supreme Court shall be appealable unless the court determined a constitutional matter. The applicant accepts that the Supreme Court did not determine a constitutional issue. However, he seeks leave to attack the decision of the court a quo on the basis that the decision infringed his constitutionally protected rights, specifically, his fair trial rights. [44] The finality of the decisions of the Supreme Court is by operation of law. The Constitution says so in s 169(1) in clear and unambiguous language. Section 26 of the Supreme Court Act [Chapter 7:13] provides an additional shield to the final nature of those judgments and states that those judgments are not appealable. They can only be reversed by the Supreme Court itself in the exercise of its discretion if it considers that it is in the interests of justice to depart from a decided principle on a matter. This position was affirmed in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor 2018 (2) ZLR 743 (CC) where it was held as follows: “A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has the power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling, or opinion on a non-constitutional matter. The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”(Emphasis is mine.) See also Denhere v Denhere & Anor 2019 (1) ZLR 554 (CC), Mwoyounotsva v ZINWA CCZ 17/20 [45] It is settled that the courts, including the Supreme Court itself, are bound and obligated to protect the fundamental rights of the litigants appearing before them for the determination of their disputes. Where the Supreme Court fails to act in terms of the objective standards prescribed by the procedural and substantive laws governing its proceedings, such that it is disabled from rendering its decision, the validity of such decision, notwithstanding that it is final, may be challenged. Put differently, if the Supreme Court fails to comply with the requirements of the protection provided by the law of fundamental rights of the litigant, resulting in the violation or likelihood of the violation of a right, the final nature of a decision of the Supreme Court may be challenged as being invalid under s 85. APPLICATIONS FOR LEAVE FOR DIRECT ACCESS TO THE COURT [46] Applications for direct access to this Court are governed by r 21(3). That rule requires that an applicant show that it is in the interests of justice for leave to be granted. In turn, in determining whether it is in the interests of justice that leave be granted, the Court considers key factors, particularly those outlined in r 21(8), which factors are crucial in determining whether granting direct access is indeed in the interests of justice. Rule 21(8) provides that: “(8) In determining whether or not it is in the interests of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account— (a) the prospects of success if direct access is granted; (b) whether the applicant has any other remedy available to him or her; (C) whether there are disputes of fact in the matter.” [47] As a matter of principle in an application such as this, notwithstanding the above requirements set out in the rules, before a determination of whether it is in the interests of justice that leave be granted is made, the existence of a constitutional matter must be established in order for this Court to assume jurisdiction over the matter. In Moyo v Sergeant Chacha & Ors CCZ 19/17 at pg. 24, the Court said: “The making of an application alleging infringement of a fundamental human right or freedom does not necessarily mean that the issue for determination is violation of a fundamental human right or freedom enshrined in the Constitution. The Constitutional Court still has to satisfy itself that the issue for determination is a constitutional matter or an issue connected with a decision on a constitutional matter involving the interpretation, protection or enforcement of the constitutional guarantee of the fundamental human right or freedom.” (emphasis added) [48] Notwithstanding the vehement opposition from the respondent, I am unable to accept the contention that the applicant has not raised constitutional issues for determination. Although the matter has not been pleaded with the precision and clarity expected of matters coming before the Court, it is my view that the applicant has made out a sufficient cause of action for the jurisdiction of the Court to be triggered. See Meda v Sibanda & Ors 2016(2) ZLR 503(CC) [49] An applicant alleging that the Supreme Court has, contrary to its obligation under s 44 to of the Constitution to uphold and protect the rights of litigants, violated his rights must plead facts that unequivocally show an abdication of the court’s obligation under s 44 above. [50] In casu, the applicant acknowledges that the judgment of the Supreme Court was on a non-constitutional matter. However, the contention is that the Court has the requisite jurisdiction to determine the matter as the judgment of the Supreme Court infringed the applicant’s fundamental rights. [51] A litigant’s right to approach this Court on a non-constitutional matter on an allegation that a fundamental right or freedom has been violated was established in the case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor 2018(2) ZLR 743(CC) at 747H-748A: “Consideration of the relevant constitutional provisions supports the view that the validity of a decision of the Supreme Court in proceedings involving non-constitutional matters may be challenged on the ground that it has infringed a fundamental right or freedom enshrined in Chapter IV of the Constitution. The basis of the right of a party to the proceedings to challenge the validity of a decision of the Supreme Court in the circumstances is the Constitution itself. The right given to a litigant under s 85(1) of the Constitution to approach the Court for appropriate relief on the allegation stated is correlative to the constitutional obligation imposed on the Supreme Court as a body exercising public authority.” See also Fairclot Investments P/L v Augur Investments & Ors CCZ 16/24. [52] It therefore goes without saying that whilst it is permissible for a litigant to challenge a Supreme Court decision on a non-constitutional issue on the basis that it infringes their fundamental rights and freedoms, such litigant is expected to show that the impugned decision was a result of the Supreme Court’s failure to observe the objective standards set by the procedural and substantive laws governing the proceedings before it. This was underscored in Lytton supra at 755A-C as follows: “The facts must show that there is a real likelihood of the Court finding that the Supreme Court infringed the applicant’s right to judicial protection. The Supreme Court must have failed to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination. The failure to act lawfully would have to be shown to have disabled the court from making a decision on the non-constitutional issue. The theory of constitutional review of a decision of the Supreme Court in a case involving a non-constitutional matter is based on the principle of loss of rights in such proceedings because of the court’s failure to act in terms of the law, thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision. Arbitrariness and inconsistencies threaten the claim to judicial authority. The remedy under s 85(1) of the Constitution is not for the protection of fundamental rights and freedoms in the abstract. Concrete review requires that there be clear and sufficient evidence of the facts on the basis of which allegations of infringements of fundamental rights or freedoms are made.” [53] Perusal of the Supreme Court judgment in casu reflects that it made a finding that the High Court had wrongly applied the common law doctrine of common purpose as the doctrine had been codified. However, due to the concessions made by counsel for the applicant and his co-accused that the parties collectively had the intention to rob the farm, the Supreme Court held that their conduct fell within the ambit of s 196A of the Criminal Law Code. This was because they ought to have realized the risks and consequences of the possible use of the firearms carried by their associates in subduing any resistance to the robbery. [54] It is that decision that the applicant seeks to be set aside for allegedly breaching his fundamental rights to a fair trial and equal protection and benefit of the law. In terms of s 169(1) of the Constitution as read with s 26(1) of the Supreme Court Act [Chapter 7:13], a final decision of the Supreme Court on a non-constitutional matter cannot be wrong. Reference must be made to the case of Williams & Anor v Msipa N.O. & Ors 2010 (2) ZLR 552 (S) at 576C where the Court stated as follows: “A wrong judicial decision does not violate the fundamental right to the protection of the law guaranteed to a litigant because an appeal procedure is usually available as a remedy for the correction of the decision. Where there is no appeal procedure there cannot be said to be a wrong judicial decision because only an appeal court has the right to say that a judicial decision is wrong. See Maharaj v A G of Trinidad & Tobago (No. 2) (PC) [1979] AC 385 at 399 D–H; Boordman v Attorney General [1996] 2 LRC 196 at 205i–206b.” [55] Thus, whilst the Supreme Court substituted s 196A in place of the doctrine of common purpose in terms of which the trial court found the applicants and his co-accused guilty of murder premised under s 188 and 196 as co-perpetrators, can it be said that this was an error constituting a failure to act in accordance with the requirements of the law? In other words, can it be concluded authoritatively that the Supreme Court was disabled from making a proper decision on the non-constitutional issue before it, leading to a conclusion that there was infringement of the applicant’s rights to a fair trial and equal protection and benefit of the law? [56] The applicant submits that his application has prospects of success because the decision of the Supreme Court violates his rights to a fair trial and equal benefit and protection of the law enshrined in ss 56(1) and 69(1) of the Constitution. Whether there are prospects of success if direct access is granted. [57] The inquiry into the prospects of success of the application for direct access involves probing the merits to see if the applicant has an arguable case. In Dinha v The State CCZ 11-20, prospects of success were explained at pg. 6 as follows: “In assessing the prospects of success, the Court is tasked with assessing whether the applicant has established a prima facie case which justifies that he be given a day in court. More is required to be established than that there is a mere possibility of success. An applicant must show on a balance of probabilities that he or she or it has reasonable prospects of success and in doing so he or she or it must point to some fault or misdirection in the judgment him or her or it seeks to impugn.” (emphasis added) [58] Before this Court, the applicant has spent the greater part of his submissions attacking the Supreme Court’s findings on the medical evidence upon which he was convicted. This is clearly an attack on the factual findings made by the Supreme Court. The law is clear. A purely factual matter does not raise a constitutional issue. This was emphasized in Mukondo v The State CCZ 2-19 at pg. 6-7 as follows: “The question of whether or not the court a quo correctly assessed and evaluated the evidence before it is a factual matter that does not involve the interpretation, protection or enforcement of the Constitution. A contention that the court a quo did not take some evidence into account in reaching its decision cannot be used as a ground to allege that the applicant’s right to a fair trial, enshrined in s 69(1) of the Constitution, was violated. … No constitutional issue can arise from a contention that evidence was incorrectly assessed by the subordinate court. The Court does not assume jurisdiction when it is being called upon to reverse factual findings of the court a quo on non-constitutional issues.” [59] The gravamen of the other of the applicant’s claim is that it is in the interests of justice that he be granted direct access to the Court given the allegation that his life is at risk due to a death penalty imposed on him. The applicant is no longer on death row and he was not candid with the Court in making this particular averment. Thus, an argument premised on this contention cannot hold water as the death penalty was set aside by the Supreme Court on appeal. In setting aside the sentence of death, the court a quo remitted the matter to the High Court for the passing of an appropriate sentence. This is the source of the grievance on the part of the applicant. [60] The Supreme Court concluded that the applicant and his co-accused had been wrongly sentenced and it was well within the powers of the Supreme Court to remit the matter for proper sentencing. The application in casu is now interfering with that process. The applicant suggests that the order of remittal is a violation of his rights under s 69(3). He gives no details nor is he specific as to the manner of violation. In any event, if the applicant is not satisfied with the sentence that will be imposed on him when the matter is heard again before the High Court, he can still appeal to the Supreme Court challenging that decision. Such an avenue to approach the courts is still open to him. Thus, the applicant’s alleged violation of his s 69(3) right is unfounded. [61] In order to be granted relief on the basis that the right under s 56(1) of the Constitution has been violated, an applicant must prove that he or she was denied the same protection of the law which was afforded to others in the same situation – see Nkomo v Minister of Local Government, Rural & Urban Development & Ors CCZ 6/16. A failure in casu to demonstrate differential treatment means that the application for direct access cannot succeed as there is no basis for finding that the Supreme Court’s decision violated the applicant’s right in question. [62] The applicant has neglected to adequately articulate how his right to equal protection and benefit of the law as enshrined in s 56(1) was violated by the Supreme Court. That challenge lacks a crucial element. He has not shown how the decision by the Supreme Court has materially differed in substance from decisions accorded to other appellants appearing before the court on appeal or in similar cases. It was incumbent upon him to establish elements of discriminatory treatment against him by the Supreme Court as compared to other similarly situated individuals. He has not done this. [63] Lastly, the applicant contends that the Supreme Court’s application of s 196A instead of s 196 of the Criminal Law Code gives rise to a constitutional issue. He submits, through counsel, that the Supreme Court overlooked the fact that s 196A only became law in July 2016, following the enactment of the General Laws Amendment Act No. 3 of 2016, yet the crime he was convicted of had occurred six years earlier. As a consequence, the applicant contends that the Supreme Court had violated his rights as enshrined under s 69(1). [64] In the heads of argument and in oral submissions to the Court, the applicant suggested that the Supreme Court had infringed his right to a fair trial under s 69(1) by substituting s 188, under which he had been found to be guilty of murder as a co-perpetrator, with s 196A. The argument was that, as s 196A did not exist at the time of the alleged crime, the Supreme Court made an error in finding that the applicant possessed the requisite mens rea to commit murder. Counsel further argued that the Court should undertake a comparative examination of the provisions s 196 prior to the amendment of 2016 with s 196A in order to determine which of them was appropriate for establishing the mens rea necessary for a conviction based on participation in a crime by co-perpetrators in casu. [65] The allegations forming the complaint against the judgment of the Supreme Court are set out in the following manner, both in the application for leave as well as the substantive application itself. The applicant avers: “Moreover, and in any event, the Supreme Court applied section 196A of the Code and not section 196 of the Code. Section 196A of the Code only came into being in July of 2016 upon the enactment of Act No. 3 of 2016. The gross misdirection is an infringement of the applicant’s right to a fair trial as codified by s 69(1) of the Constitution. ………………………………………………………………………………………………………………………………………… Having established the above facts, the applicant wishes to challenge the unconstitutional conduct of the Supreme Court in arriving at the Judgement in SC 9/23” [66] A mere allegation of breach of constitutional rights without more does not entitle a litigant to approach this Court directly. It must be evident, from the facts set out in the affidavit, that the Supreme Court is guilty of some transgression. The applicant was duty bound to show that the court a quo had, in determining the matter before it, invaded some right or shrugged off one. He argued that the Supreme Court made an error in finding that the applicant possessed the requisite mens rea to commit murder. [67] It was his argument that the doctrine of common purpose requires mens rea and that in his case the mens rea is absent. It is suggested that the finding of the court a quo is wrong and ought to be set aside. Thus, the contention made is that, despite having set aside the finding of common purpose by the High Court, the Supreme Court itself proceeded to apply s 196A which deals with the same common purpose principles. By so doing, it is contended, the Supreme Court violated his right to a fair trial as enshrined in s 69(1) of the Constitution. He went on to suggest that the substitution of s 188 and s 196 with s 196A was a misdirection which constituted a violation of his right to a fair trial under s 69(1) of the Constitution. The applicant contends that the Supreme Court should have instead found him guilty on the basis of s 196. [68] In pursuing this argument, counsel for the applicant contended that if the court a quo had applied s 196 there would have been no conviction in respect of the applicant. Since it is the entire judgment that he seeks to have set aside, I must assume that this contention also refers to his co-accused. It was argued that s 196 placed an onerous burden on the State to establish mens rea, whereas s 196A is presumptive in finding the existence of mens rea on the part of an accused person. The criticism of the judgment is therefore based primarily on the disparities that he says exists in the essential elements that are provided for in the two provisions regarding the existence and finding of the requisite mens rea on the part of a co-perpetrator to a crime. [69] I therefore find it pertinent to discuss the above submissions in the light of the provisions in the Criminal Law Code that are concerned with the question of joint perpetrators. I start with the definition of joint perpetrator as provided in s 195. It states as follows: “‘co-perpetrator’ means a person referred to in subsection (1) of section one hundred and ninety-six;” [70] In turn s 196, now repealed, provided as follows: “196 Liability of co-perpetrators (1) Subject to this section, where: (a) two or more persons knowingly associate with each other with the intention that each or any of them shall commit or be prepared to commit any crime; and (b) any one of the persons referred to in paragraph (a) (“the actual perpetrator”) commits the crime; and (c) any one of the persons referred to in paragraph (a) other than the actual perpetrator (“the co-perpetrator”) is present with the actual perpetrator during the commission of the crime; the conduct of the actual perpetrator shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator. (2) If the State has established that two or more accused persons— (a) were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or (b) engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged; and that they were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime, then it shall be presumed, unless the contrary is shown, that— (c)they knowingly associated with each other for a criminal purpose; and (d) the crime actually committed— (i) was the crime for the commission of which they associated with each other; or (ii) was, if not the specific crime for the commission of which they associated with each other, a crime whose commission they realised was a real risk or possibility. (3)If any accused person referred to in subsection (2) who is not the actual perpetrator of the crime— (a) does not discharge the burden mentioned in subparagraph (i) or (ii) of paragraph (d) of subsection (2), his or her liability as the co-perpetrator of the crime shall not differ in any respect from the liability of the actual perpetrator, unless he or she satisfies the court that there are special circumstances peculiar to him or her or to the case (which circumstances shall e recorded by the court) why the same penalty as that imposed on the actual perpetrator should not be imposed on him or her; or (b) discharges the burden mentioned in subparagraphs (i) and (ii) of paragraph (d) of subsection (2), he or she shall be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory. (4) Where there is a dispute between or among two or more accused persons referred to in subsection (1) as to the identity of the actual perpetrator (which dispute cannot be resolved by reference to the evidence that is available to the State) the burden of proving that any particular accused person did not actually perpetrate the crime shall rest with that person. (5) If any of the accused persons referred to in subsection (4) fails to discharge the burden there referred to and the actual perpetrator is not identified, the accused person or persons concerned shall be liable for punishment as if he or she or each of them was the actual perpetrator. (6) It shall not be necessary to prove that there was a prior conspiracy to commit the crime for the commission of which a person is associated with another person or other persons in order for a court to find that any person is liable as a co-perpetrator of any crime. (7) A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.”(the emphasis is mine) [71] As indicated in the body of the judgment of the trial court, the applicant was present at the scene of the crime. He was one of the persons who went to the farm run by the police in Gletwin where the murder took place. He admitted to have gone there to participate in a robbery. The facts as established by the State reveal that he was the assigned driver; they went there in the early hours of the morning; they cut a hole in the fence through which they accessed the premises; the security guard on duty was threatened; the deceased was shot three times and died on the spot and the applicant drove the vehicle that transported the accused persons from the scene of crime. [72] On a proper and careful construction of the provisions of s 196 above, there can be no doubt that the applicant was correctly found guilty of murder as a co-perpetrator. In accordance with the provisions of ss (2) and (3), it is presumed that he must have realised a murder was likely to be committed during or result from the conduct they embarked on in order to facilitate the robbery they set out commit. The submissions by counsel on his behalf that if the court a quo had considered the provisions of s 196 above he would have been acquitted are therefore without merit. [73] The conclusions that I come to can be borne out by the findings of the High Court in the trial itself. The court went to great lengths in explaining how the accused persons appearing before it should be found guilty of murder. It is common cause that by the time the matter came to trial, one of the persons responsible for shooting the deceased had died. The applicant and the other three were participants in the enterprise. The issue that the High Court had to wrestle with and determine was the extent of their participation and, as a consequence thereof, whether they could be held criminally liable for the death of the deceased in the absence of evidence that they shot him. The High Court reasoned as follows: “Given the evidence of the accused persons and the state witnesses the court is to come up with a determination of whether or not on the day in question the accused acting with common purpose and in concert killed the deceased with actual or constructive intentions. The state was tasked with the onus of proving beyond reasonable doubt the cause or connection between Clever Ndlovu’s shooting of the deceased and the four accused persons. If there is such a link then the accused ought to be found guilty. In the reverse if there is no link between the shooting by Clever Ndlovu and the accused persons then the accused ought to be acquitted. To come up with a disposition of necessity it is important to pay attention to the accused persons’ line of argument as presented in evidence. Even if one was to stretch the argument of participation or assistance by co-perpetrators and accomplices before and during commission of the crime, all the four accused fall within the ambit in the sense that co-perpetrators are defined in s 196 of the Criminal Law Codification and Reform Act. Clearly one has to be present with the actual perpetrator during the commission of the crime, or one has to be in the immediate vicinity of the crime in circumstances that implicate one directly or indirectly. The commission of the offence and that one knowingly associates with the actual perpetrator with an intention each or one of them or all to commits or perpetrates to commit the crime actually committed. The actions of the actual perpetrator would be deemed to be the conduct of every perpetrator. In casu therefore the accused set out with common purpose to go and commit an armed robbery at Gletwin Farm. Accused one was there to give assistance in committing the crime. Accused four was there to bind the guards and keep guard. Accused two provided transport and was there in the vicinity. Accused three was there right inside at the commission of the crime and they cannot be held not liable for the conduct of Clever Ndlovu who pulled the trigger and killed the deceased during the course of commission of the disrupted armed robbery. Each of the accused had agreed to play a role in the unlawful enterprise. There is nothing from the evidence which shows that any of them dissociated themselves from the significant participation and aid they had rendered for materialisation of the unlawful enterprise. In the case of State v Woods and Anor 1993 (2) ZLR 258 it was held that conspirators who had rendered significant assistance to the actual perpetrators of murder are guilty of murder as accomplices even though they were not present at the scene of murder. This is obviously because of the obvious pivotal role played in the unlawful enterprise, as in the present case.” [74] I now must consider the contention by the applicant that the effect of substituting s 196 with s 196A by the Supreme Court was a violation of his right to a fair trial. It is his argument that the provision came into effect after the commission of the offence and his conviction for murder and therefore would not or should not have been considered applicable or relevant for purposes of determining his guilt. It reads as follows: “196A Liability of co-perpetrators (1) If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit it or the knowledge that it would be committed, or the realization of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator. (2) The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they— (a) were present at or in the immediate vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or (b) were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or (c) engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime for which they are charged. (3) A person charged with being a co-perpetrator of crime may be found guilty of assisting the actual perpetrator of the crime as an accomplice or accessory if such are the facts proved.”(my emphasis) [75] A close scrutiny of the highlighted provisions would tend to show that, whilst not replicating word for word the provisions of the repealed s 196, the substance of both provisions is identical. In order to fit into the definition of a co-perpetrator an accused person must have been present with the actual perpetrator or within the immediate vicinity. The accused must have knowingly associated with the actual perpetrator with the intention to commit the crime. Where they associated together in any preparatory conduct resulting in the crime, or committed or engaged in any criminal behaviour as a team or a group prior to the crime committed, then it shall be deemed that the conduct of actual perpetrator is also that of the co-perpetrators. [76] I make the observation that as the law now stands, whilst s 195 makes reference to s 196(1), the pertinent provision dealing with co-perpetrators is in fact s 196A, which I have set out above. Apart from defining what a co-perpetrator is, it is worth noting that section 196A sets out the circumstances surrounding an offence that the State should establish where an accused person is charged as one of the persons implicated in the commission of a crime. It is critical to note that the required mens rea establishing the accused’s intention as regards the offence does not emanate solely from a consideration or construction of the provisions of s 196A. The section sets out what factors the State must establish that necessarily lead to a court finding that an accused person is a co-perpetrator of an offence. Thus, the trial court will only have regard to the provisions of s 196A where the State will have led evidence establishing that an accused person participated in the commission of an offence and that he or she had the requisite mens rea for the offence. Reference to s 196A comes where a court, faced with more than one participants in an offence is required to decide, on the proven facts, the role played by each of the accused persons appearing before it. In other words, s 196A (1) provides a guide to a court in coming to a conclusion as to the status of the multiple accused persons charged with an offence. It serves as a filter to the respective participation of co-accused persons and the roles that may be assigned to each one of them. It is not concerned with their respective or individual criminal intention. [77] The applicant has not identified the specific provisions, clauses or phrases or words in s 196A that he considers objectionable or prejudicial to his rights nor has he elaborated on how his fair trial rights were violated. Apart from the bald contention that s 196 A is presumptive, he has not found it necessary to set out those specific factors that differentiate it from s 196 before its repeal. It might be argued that the invocation of s 196A breached a provision of the Constitution relating to procedure. It becomes necessary that I address that question even if it is not relevant herein. Section 18(9) and (10) of the SIXTH SCHEDULE to the Constitution is pertinent. It provides that: “(9) All cases, other than pending constitutional cases, that were pending before any court before the effective date may be continued before that court or the equivalent court established by this Constitution, as the case may be, as if this Constitution had been in force when the cases were commenced, but— (a) the procedure to be followed in those cases must be the procedure that was applicable to them immediately before the effective date; and (b) the procedure referred to in subparagraph (a) applies to those cases even if it is contrary to any provision of Chapter 4 of this Constitution. (10)For the purposes of subparagraph (9)— (a) a criminal case is deemed to have commenced when the accused person pleaded to the charge; (b) a civil case is deemed to have commenced when the summons was issued or the application was filed, as the case may be.” [78] The above provision cannot be construed in isolation. I must then have reference to the Commentary on the Criminal Law Code by Professor Feltoe on the import behind the promulgation of s 196 and its subsequent amendments. The provisions of s 196 are discussed under the heading Co-perpetrators. He states that: -a co-perpetrator is a person other than the actual perpetrator. -who was present with the actual perpetrator during the commission of the crime; -and who knowingly associated with the actual perpetrator (and any other co-perpetrator) with the intention that each of them will commit or be prepared to commit the crime actually committed. [79] The learned author goes on to state that the section provides that where the requirements have been met, the conduct of the actual perpetrator will also be deemed to be the conduct of every co-perpetrator. According to Professor Feltoe, a person can be guilty as a co-perpetrator whether or not he or she contributes directly in any way to the commission of the crime by the actual perpetrator.1 [80] After a careful analysis of the facts proved and the law, the view I take is that the invocation of s 196A for s 188 did not breach procedural law. To that extent, there is no breach of the Constitution. It is clear that s 196 or s 196A of the Criminal Law Code is concerned with substantive as opposed to procedural law. It is a provision solely aimed at clarifying and putting into proper context the individual roles played by the participants to a crime where evidence has been led implicating them as participants. [81] To put this dispute into its proper context, regard must be had to the exact criminal charges that the applicants were facing initially. The charges are captured in the judgment of the trial court thus: “The four accused were arraigned before the courts on charges of murder. It is alleged that on 2 July 2010 and at Gletwin Farm Chishawasha Highlands Harare, the four accused or one or more of them unlawfully and with intention to kill caused the death of Edson Manhembe by shooting him three times once on his chest, cheek and stomach with a firearm thereby causing injuries from which the said Edson Manhembe died. All the four accused pleaded not guilty to the charge.” [82] Feltoe discusses the issue of presumptions where a person is an alleged co-perpetrator. He states that where two or more persons have associated together in any conduct that is preparatory to the conduct which resulted in the crime with which they were charged; or have engaged in any criminal behaviour as a team or group prior to the conduct which resulted in the crime with which they were charged; and the person or persons were present in the vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime, the conduct of the actual perpetrator will be deemed to be the conduct of every co-perpetrator. Unless the accused persons can prove otherwise, the presence of all these features on a balance of probabilities will lead to a presumption that the accused persons knowingly associated with each other for a criminal purpose. [83] A judgment of the Supreme Court is inviolate due its nature as a final judgment. It is by operation of law not susceptible to challenge unless the criteria mentioned in Lytton & Denhere are met. A litigant wishing to challenge it must thus justify the breach of its status as a final judgment. In this endeavour, any litigant alleging that the court has violated an enshrined right must set out the facts showing a violation as explained in Lytton supra. But what does this entail, what must a litigant establish? The answer must be found in the meaning to be ascribed to the word “violate”. According to the Merriam-Webster Dictionary to violate is to: -break, disobey, infringe, contravene, act contrary to, transgress, disregard, trespass, encroach upon, trample on, invade, offend, fracture, flout, pass over, scorn, shrug off or ignore. [84] It is not in dispute that in the appeal itself the Supreme Court did not determine a constitutional matter. Even though there is an allegation of the Supreme Court having violated the applicant’s right to a fair trial under s 69(1) in applying s 196A ex post facto the commission of the offence, the applicant did not, either in his founding affidavit, the affidavit to the substantive application or in his arguments, both written and oral, motivate how the right was allegedly violated. It is not enough for a litigant to simply say that the court a quo violated his or her right to a fair trial in applying a law that came into being two years after the event. As was said by the Honourable Chief Justice Malaba in Lytton, supra, the facts must show how the judgment of the Supreme Court constitutes an infringement of an enshrined right. [85] In terms of the Constitution and s 26 of the Supreme Court Act [Chapter 7:13], both of which protect the finality and integrity of such judgment, a judgment of the Supreme Court, must only be set aside on good cause, even if there is an allegation that it violated an enshrined right. In terms of s 86 (3) of the Constitution the right to a fair trial cannot be derogated. That said however, a litigant is obliged to exercise care in ensuring that his application is pleaded with a reasonable degree of precision and detail. This principle was affirmed by the High Court of Kenya in Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272. The Court said the following: “We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” [86] In my view, the Supreme Court correctly held that the advent of the Criminal Law Code extinguished the application of the common law version of the doctrine of common purpose in our jurisdiction. The applicant did not set out the basis upon which the judgment should be impugned. The inescapable conclusion is that not only did the applicant fail to properly plead a case justifying the grant of leave on the premise that the right to a fair trial was violated, the argument as relates to the same was not presented to the Court. Even though it is beyond dispute that the Supreme Court substituted s 196 with s 196A, the applicant did not establish that this amounted to an infringement of a right. The argument presented to the Court was focused primarily on whether the provisions of s 196A were appropriate in finding that the applicant had the necessary mens rea to commit murder. The application of s 196A to the proven facts was completely consonant with the law. Section 196 had been repealed and replaced with s 196A. The Supreme Court had to have regard to the law to determine the applicant’s liability to the charge he was convicted of. In any event an examination of the two sections will show that s 196 was more stringent that the later provision. The repealed provision placed an onus on an accused person to rebut a presumption that he was not a co-perpetrator. This has been omitted is s 196A. Moreover, in assessing the prospects of success, the Court considers the relief that the applicant seeks in the substantive application if granted leave. The authors du Plessis, Penfold, and Brickhill in “Constitutional Litigation” 1 ed, (2013) 89 capture the rationale for this as follows: “Applicants should also clearly set out the relief sought. Of course, predictably, the court will not be inclined to grant direct access to an applicant who is unlikely to be successful on the substantive issues raised as to do so would waste judicial resources.” [87] I find that, which I must, regarding the right to a fair trial, save for the applicant’s bald assertion that the right enshrined under s 69(1) was violated by the judgment of the court a quo, there are no written or oral submissions demonstrating how the right was violated. The Supreme Court judgment being challenged by the applicant demonstrates that the grounds of appeal that were properly substantiated resulted in the judgment of the High Court being upheld only in part. Evidence that had been challenged was expunged. The conviction of murder with actual intent was set aside and substituted with one of murder with constructive intent. The penalty of death was also set aside. In the light of these findings, more was required of the applicant to demonstrate how his right under s 69(1) was infringed. [88] Even though the applicant seemed to be referring primarily to s 69(1) in the allegations he makes against the Supreme Court, it seems to me that the Court must also consider whether he has established a prima facie case on whether or not his rights under s 69(3) were violated. Even in this respect, the applicant has not set out any facts that may tend to show that he was denied access to the courts. The Supreme Court judgment being challenged by the applicant did not bar him from approaching the courts. If anything, the record demonstrates that the applicant was afforded the full right of access to the courts as his automatic appeal was heard by the Supreme Court in terms of the dictates of substantive and procedural law. [89] In light of the above, I am of the view that the application for direct access should be dismissed. This is because the intended application is an appeal against the decision of the Supreme Court. This Court does not ordinarily have the jurisdiction to entertain and determine an appeal against a decision of the Supreme Court where there were no constitutional issues, either for determination in the appeal or in its decision. Therefore, it stands to reason that the applicant has not demonstrated how the decision of the court a quo violates his rights. [90] It seems to me that there may be a further reason why direct access to this Court would not be in the interests of justice. Were such access to be granted, it would have the direct effect of interfering with the proceedings before the High Court. Such interference should not be countenanced in the absence of evidence of a gross irregularity or grave injustice in the proceedings or that justice might not by any other means be obtained. In terms of the current law, in the absence of the rare circumstances just referred to, the matter should be allowed to proceed to finality. Thereafter, the applicant would have the opportunity to deal with all the issues arising from the remittal of the matter to, and subsequent sentence imposed by, the High Court. DISPOSITION [91] In my view, premised on the matter as pleaded by the applicant and argued before the Court, the application for the grant of leave to access the Court directly does not enjoy any prospects of success. Accordingly, I find that it is not in the interests of justice for leave to be granted to the applicant to approach the Court directly. [92] In the result, I make the following order: The application for direct access to the Court is dismissed. There shall be no order as to costs. GARWE JCC : I Agree PATEL JCC : I Agree Tendai Biti Law legal practitioners for the applicant 1 At p 138 1 At p 138