Remigio Nenzou v The Honourable Regional Magistrate Chivasa N.O. and The Prosecutor General of Zimbabwe N.O.

### Preamble
1
HH 35-21
HC 7415/20
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REMIGIO NENZOU

versus

THE HONOURABLE REGIONAL MAGISTRATE CHIVASA NO

and

THE PROSECUTOR GENERAL OF ZIMBABWE NO

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 21 December, 2020 and 28 January 2021

Urgent Chamber Application

W Madzimbamuto, for the applicant

R Chikosha, for the respondents

MANGOTA J: Litigants are discouraged from taking advantage of the court’s intention to develop the jurisprudence of the law of review of proceedings of inferior courts and tribunals by making every effort to sneak onto the roll of urgent matters applications which do not meet the requirements of urgency. A fortiori when they, for some unspecified reasons, refrain from filing their urgent applications in terms of the law which relates to applications of the mentioned nature. They should not, in other words, read a case and, without applying their mind to it, entertain the view that the circumstances of that case, the dictum of the court in particular, suit the circumstances of their own case. Their reading of the law should enable them to come to grips with the law which is applicable to their case.

The remarks which I made in the foregoing paragraphs fit neatly into the circumstances of this application wherein the applicant filed an urgent chamber application on 11 December, 2020. I received it on 14 December, 2020. I went through it. I formulated the view that it did not meet the requirements of urgency. I made my views known to the applicant through the minute which I addressed to him on 16 December, 2020. He wrote on the same date seeking my indulgency for audience to address me on the issue of urgency.

Because I could not hear the applicant alone, I set the application down for hearing at 10 a.m. of 21 December, 2020. Both the applicant and the second respondent made submissions in support of the view which each held on the issue of urgency.

The first respondent was not in attendance. The position which he took is understandable. He is a judicial offer. He could not, therefore, be seen to appear to be defending his position given that the proceedings which he conducted were the subject of review.

In turning the application down as I did, I remained alive to the fact that Order 33 of the High Court Rules, 1971 has no provision for a chamber, let alone an urgent, application for review. I held the view, which I still hold, which is to the effect that an application for review cannot be mounted on the basis of an urgent chamber application, but on the basis of a court application as is provided in rr 256 and 257 of the rules of court. It was/is my understanding that an application for review of proceedings of an inferior court or tribunal could not be filed on the basis of a chamber, but on that of a court, application.

It was, accordingly, my view that the applicant’s application was improperly before me, was fatally defective and should not, therefore, be entertained.

I raised the above matter with counsel for the applicant during submissions. His crispy response was that the application was not filed in terms of Order 33 of the High Court Rules, 1971. It was, according to him, filed in terms of the common law as provided for under s 171 of the Constitution of Zimbabwe as read with the High Court Act. He made every effort to persuade me to go along with his line of thinking. He referred me to not less than six (6) case authorities which he said supported the position which he took of the application.

Counsel for the second respondent maintained a clear and straightforward position. He stated to the contrary. He insisted that the application which did not comply with Order 33 of the rules of court was so fatally defective that it should not have been allowed to see the light of day. He moved me to strike the application down with costs.

The applicant rested his application on three matters. These are:

(a)	the common law;

(b)	section 171 of the Constitution  - and

(c)	some provisions of the High Court Act.

He did not specify the aspect of the common law which applied to his application. He, in fact, stated that the application was in terms of the common law as provided for under section 171 of the Constitution. His statement in the mentioned regard was misplaced. He was not suggesting that the common law was provided for in the Constitution of Zimbabwe and even if it was, the constitution does not spell out how urgent applications for review are to be dealt with.

The constitution is a stand-alone piece of legislation which is divorced from what he calls the common law. The common law, whatever the same was meant to convey, could not, therefore, be provided for in the Constitution of Zimbabwe. His statement in respect of the first part of his application was, therefore, devoid of meaning.

Section 171 of the Constitution, in terms of which he asserted that he filed his urgent chamber application, states the obvious. It confers power on the court to hear and determine all civil and criminal proceedings throughout Zimbabwe as well as to supervise magistrates courts and other subordinate courts and/or to review their decisions. Simply put, the section talks of the inherent jurisdiction of this court and nothing more than that.

Whilst the applicant did not specify the provisions of the High Court Act which he relied upon in filing his application, those were left to be understood from a reading of Kadungure v Makwande N.O & Anor, HH 800/18, an urgent criminal review, upon which he placed great reliance. The cited case made reference to ss 26 and 27 of the High Court Act which sections respectively make provisions for:

the review powers of this court - and

the grounds for the review.

It is pertinent to observe that neither s 171 of the constitution nor s 26 and 27 of the

High Court Act addresses the issue of whether or not an application for review of the proceedings of the inferior court can be filed on a certificate of urgency let alone as a chamber application. Both pieces of legislation are silent on that aspect of the same. All they do is to show that the court has inherent jurisdiction to hear and determine civil and criminal matters in the length and breadth of Zimbabwe as well as to review the proceedings of inferior courts. These matters are of common knowledge. They would not, therefore, assist the applicant’s submissions which are to the effect that he can file a chamber application through the urgent chamber book for review of the proceedings of the first respondent.

Kadungure v Makwande which the applicant made reference to was not so much

concerned with the issue of filing a chamber application for review more than it concerned itself with the power and ability of the court to review criminal proceedings of the magistrate’s court including bail proceedings and decisions. Kadungure’s case, which was brought on a certificate of urgency, did not deal with the issue of whether or not the applicant could or can file an urgent chamber application for review. None of the parties who made submissions in the case ever reverted to the stated matter. Nor did the court raise or deal with that matter mero motu. No reliance should therefore be placed on Kadungure v Makwande in support of the proposition which is to the effect that the applicant can file an urgent chamber application for review.

Gwaradzimba N.O v Guarton AG SC 10/15 was the Supreme Court’s effort to develop the law of review of proceedings of inferior courts by superior courts. It asserts that Order 33 of the rules of court does not enjoy a monopoly over the grounds on which interference with an order or proceedings of an inferior court or tribunal may be justified. It states that the High Court Act and Order 33 of the High Court rules do not rule out review proceedings which are brought in terms of any other law such as those which are brought in terms of the Administrative Justice Act.

To the extent that applications for review may be brought before the court outside Order 33 of the High Court rules, 1971 the applicant’s reference to the case may be relevant. The short coming of his submission, however, is that Gwaradzimba’s case does not address the issue of whether or not an application which is filed outside Order 33 may be brought on a certificate of urgency and as a chamber, as opposed to a court, application. The case laid emphasis on the point that even where the application for review is filed under such a law as the Administrative Justice Act, the same should meet the requirements of an ordinary court application. The stated matter, therefore, destroys the case of the applicant to a point of no return.

In Gonye v Mtombeni N.O and 400 Others, HH 356/17 to which the applicant made reference, Makoni J (as she then was) made some very incisive remarks. She stated at p 3 of the cyclostyled judgment that:

“..........an applicant seeking a review must approach this court by way of court application unless, it is proceeding in terms of any other law other than r 256. It is incumbent upon such applicant to state clearly in terms of which law it is proceeding under in filing the application for review right at the outset....” [emphasis added].

It cannot be suggested that the applicant stated clearly the law in terms of which he filed his application. He referred to the common law as provided for in the Constitution of Zimbabwe as read with the High Court Act. That statement, raises more questions than it provides answers to the mind of the inquisitive. It is vague and meaningless.

The cases of Chiyangwa v The State, Da Canha and Anor v Gakanje N.O. and Anor and that of Chikusvu v Mahuve which appear under the respective case numbers HH 21/05, HH 6/16 and HH 100/15 were referred to me by the applicant not for any specific purpose. All they show is that they were reviewed by the court when they had been filed on the basis of a certificate of urgency. None of the three cases, it was conceded, addresses the issue which is the subject of these proceedings. The cases do not, therefore, assist the applicant at all.

Even if it were to be accepted, for argument’s sake, that this current is an urgent chamber application for review which the applicant filed not in terms of Order 33 but in terms of a law which falls outside the realms of the Order, the draft order which the applicant filed would remove it from urgent chamber applications and place it squarely into the area of an ordinary application. It could not be an urgent chamber application whose order is final in nature. Reference is made in this regard to pages 194-195 of the record.

I reiterate that the observations which I made when the application was placed before me on 14 December, 2020 still apply. It is that the application does not meet the requirements of urgency. It is, accordingly, struck off the roll of urgent applications with costs.

Kajokoto & Company, applicant’s legal practitioners

National Prosecuting Authority, 2nd respondent’s legal practitioners