Lincoln Tafadzwa Ushamba v The State

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1
HH 264-2012
HC 6508/12
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LINCOLN TAFADZWA USHAMBA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 21 June 2012

Urgent Chamber Application:

Ex Tempore Judgment

S Ushewokunze, for the applicant

A Mashamba, for the respondent

MATHONSI J:  The applicant seeks a provisional order in the following:

“TERMS OF FINAL ORDER SOUGHT

It be and is hereby ordered that:

Provisional order granted in this matter be and is hereby confirmed;

The order of the court a (sic) Harare Magistrates’ Court in CRB 4041/12 dismissing the applicant’s exception to the criminal charges levelled against him in terms of s 7 of the Children’s Act be and is hereby set aside;

The charges pressed by the respondent in the Harare Magistrates’ Court in CRB 4041/12 be and are hereby quashed; and

There be no order as to costs.

INTERIM RELIEF GRANTED

It be and is hereby ordered that:

Pending the return date, criminal proceedings against the applicant in the Harare Magistrates Court in CR 4041/12 be and are hereby stayed.”

Clearly therefore this is an application for the review of the decision of a magistrate sitting as a criminal court. Mr Ushewokunze insists that there is no other application that they will make as this is the review application that they are making.

The applicant was arraigned before a magistrate facing a charge of contravening s 7 of the Children’s Act [Cap 9:23] it being alleged that on 5 March 2012 at German School Society, he, being a parent or guardian of a child unlawfully and intentionally failed to collect the child from school after the child had knocked off.

The applicant is the father of the minor child, Khloe whom he fathered with one Damson Zuwa out of wedlock. The said child stays with its mother but in June 2011, the applicant applied for, and obtained an order of the Magistrates’ Court granting him certain rights of access to the child.

The mother of the child delivered the child to school on 5 March 2012 before proceeding on a journey out of town. She asked the applicant to collect the child after school as she was away and unable to do so. The applicant refused to do so for one reason or the other. When the school closed and no one appeared to collect the child, the school authorities telephoned the applicant asking him to come and collect the child from school. He failed to do so resulting in the issue being referred to the Social Welfare Department.

Subsequently, the applicant was charged under the Children’s Act, aforesaid. At the commencement of the trial the applicant excepted to the charge on the basis that he had no rights over the child in terms of the law given that the child was born out of wedlock and the section under which he was charged creates criminal liability against a parent or guardian, which he is not.

The magistrate dismissed the exception resulting in the applicant bringing this urgent application seeking a review of the magistrate’s decision. The application is fraught with procedural irregularities.

A party bringing review proceedings to the High Court must do so in terms of Order 33 of the High Court of Zimbabwe Rules, 1971. Rule 256, which is of peremptory effect provides:

“Save where any law otherwise provides, any proceedings to bring under review the decision or proceedings of any inferior court or of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions, shall be by way of court application directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairman of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected.”

The present application has not been brought by “court application” and is certainly not in Form 29 of the High Court Rules. In addition, it is not “directed and delivered” to the magistrate who made the decision. The magistrate has not been cited. Only the State is cited in the application.

Rule 257 provides:

“The court application shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.”

The grounds for review have not been set out clearly and the inclusion of what may be perceived as grounds on Form 29 B does not come anywhere near complying with rule 257 of the rules of court.

Rule 260 requires the preparation and submission of the record of proceedings being brought on review. This has not been done. The applicant has only attached a hand written copy of part of the record. This falls foul of the relevant rule.

Mr Ushewokunze, says that if there has been any failure to comply with the Rules, I should condone that. I don’t understand that to be an application for condonation. I cannot condone when no application has been made.

In all circumstance, this application is ill-conceived and suffers still-birth by reason of procedural defects. It is therefore not necessary for me to go to the merits of the matter.

Accordingly the application is dismissed.

Machinga & Partners, applicant’s legal practitioners

Attorney General’s Office, respondent’s legal practitioners