[39] In [1986] 1 SCR 863,919, para [145], another Canadian case, the v The Queen concept of security of the person was said to encompass protection against: subjection to the vexations and vicissitudes of a pending criminal “overlong accusation” which include: of the accused, loss of privacy, stress and anxiety “stigmatisation resulting from a multitude of factors including possible disruption of family, social life and work, legal costs, uncertainty as to outcome and sanction. These forms of prejudice cannot be disregarded nor minimised when assessing the reasonableness of delay.”” THERE MUST BE GOOD REASON FOR A STAY TO BE GRANTED [40] A further general principle that must be in mind in a case of this nature is that, whilst each case must be decided on its merits, the grant of a permanent stay is an exceptional remedy 2009 – Clipsal Australia (Pty) Ltd v Gap Distributors (Pty) Ltd (3) ALL SA 491 (SCA); 2010 (2) SA 289 (SCA). [41] In [2010] VSCA 100, the Supreme Court of Victoria (Australia) Wells v Queen accepted that it is only in an exceptional or extreme case that a court would grant a permanent stay on the basis that such proceedings constituted an abuse of process and that the test to be applied is: in all the circumstances, the continuation of the proceedings would “’whether, involve unacceptable injustice or unfairness’, or whether the continuation of the proceedings be unfairly and unjustifiably oppressive’ as to would ‘so constitute an abuse of process”. [42] The power to stay proceedings permanently may be exercised: either the foundation of the prosecution or the bringing of the accused “where to justice is tainted with illegal action or gross violation of the rights of the individual making it unacceptable for justice to embark on its course” - ICC 01/04-01/06-772, (Appeals Decision) para 30-31, The Prosecutor v Thomas (International Criminal Court), 14 December 2006. Lubanga Dyilo
[39] In v The Queen [1986] 1 SCR 863,919, para [145], another Canadian case, the concept of security of the person was said to encompass protection against: “overlong subjection to the vexations and vicissitudes of a pending criminal accusation” which include: “stigmatisation of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors including possible disruption of family, social life and work, legal costs, uncertainty as to outcome and sanction. These forms of prejudice cannot be disregarded nor minimised when assessing the reasonableness of delay.”” THERE MUST BE GOOD REASON FOR A STAY TO BE GRANTED [40] A further general principle that must be in mind in a case of this nature is that, whilst each case must be decided on its merits, the grant of a permanent stay is an exceptional remedy – Clipsal Australia (Pty) Ltd v Gap Distributors (Pty) Ltd 2009 (3) ALL SA 491 (SCA); 2010 (2) SA 289 (SCA). [41] In Wells v Queen [2010] VSCA 100, the Supreme Court of Victoria (Australia) accepted that it is only in an exceptional or extreme case that a court would grant a permanent stay on the basis that such proceedings constituted an abuse of process and that the test to be applied is: “’whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness’, or whether the continuation of the proceedings would be ‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process”. [42] The power to stay proceedings permanently may be exercised: “where either the foundation of the prosecution or the bringing of the accused to justice is tainted with illegal action or gross violation of the rights of the individual making it unacceptable for justice to embark on its course” - ICC 01/04-01/06-772, (Appeals Decision) para 30-31, The Prosecutor v Thomas Lubanga Dyilo (International Criminal Court), 14 December 2006.
CCZ%2013-15%20-%20MUTSINZE%20vs%20%20THE%20ATTORNEY%20GENERAL%2C%20ZIMBABWE.docx