The Constitutional Court (ConCourt) has ordered the continuation of a criminal trial at the Harare Magistrates’ Court of a Mabvuku man, Pensari Sandisseque, who was arrested in September last year on allegation of possessing and dealing in cocaine.
BY CHARLES LAITON
Sandisseque (40) had caused his trial to be halted after filing a constitutional application challenging the State’s decision to produce WhatsApp evidence of several messages of cocaine transactions contained in his phone.
The ConCourt, however, said the application was not properly before the court given that the magistrate who is seized with the trial had already made a determination and ordered the State to furnish copies of the witnesses’ statements to the suspect’s lawyers.
“The court made a decision and there was no need for a referral of the matter to this court,” Justice Elizabeth Gwaunza, who was leading the bench, said. “By consent, the matter is struck off the roll.”
In his heads of argument, prosecutor Edmore Nyazamba had opposed the application, arguing the police officers acted lawfully when they seized Sandisseque’s phone upon reasonable suspicion that he had been using it to commit offences.
“It is not in the public interest that such evidence be excluded. To reject admission of the evidence will defeat the purpose of the law which protects public health, public morals, public safety and the general public interest,” he said.
During the hearing, Sandisseque’s lawyer, Gwinyai Mharapara, conceded that given the court’s position, there was no constitutional challenge and requested the court to strike the matter off the roll.
According to the court papers, the incident leading to Sandisseque’s arrest occurred on September 20 last year when drug section detectives received information that he was dealing in drugs and using a motorcycle to transport cocaine to his clients.
Acting on the information, the detectives waylaid Sandisseque at Belgravia shopping centre, where he arrived and parked his motorcycle behind a fast foods restaurant.
The State alleges when Sandisseque parked his motorcycle, the detectives approached him and identified themselves and explained the purpose of their presence, but at that juncture two plastic sachets containing cocaine fell out of his jacket’s pocket.
The State further alleges a body search was conducted whereupon eight similar sachets were recovered with a total street value of over $760.