Richard Tambandini v Solomon Jenya N.O and The Attorney-General

### Preamble
1
HH 312-13
HC 11840/12
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RICHARD TAMBANDINI

versus

SOLOMON JENYA N.O

and

THE ATTORNEY-GENERAL

HIGH COURT OF ZIMBABWE

HUNGWE J

HARARE, 2 October 2013

Application for Review

HUNGWE J.	The applicant was on trial before the regional magistrate, Chinhoyi, for rape. He pleaded not guilty. Evidence was led against him. At the end of the case for the prosecution, an application for his discharge was made in terms of s 198(3) of the Criminal Procedure and Evidence Act, [Chapter 9:07], which provides as follows;

“198(3) 	If at the close for the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”

Both the prosecutor as well as the defence counsel made detailed submissions. The prosecutor’s submissions clearly favoured the applicant’s application for his discharge. Upon a careful consideration of the evidence led, the learned regional magistrate was unmoved by both counsel’s attitude towards the evidence against the applicant. He dismissed the application for discharge and ordered that the applicant be placed on his defence.

Unhappy with the decision, the applicant,on 11 October 2012, launched by notice of motion an application for review.

The respondents were served with the application the same day. The first respondent, without indicating his attitude, forwarded the transcription of the record of proceedings before him to the Registrar of this court, together with the court application for review drawn by applicant as an ordinary review in terms of s 57 of the Magistrates Court Act, [Chapter 7:10]. The transcribed record was placed before me on 29 August 2013. Upon perusal of the record I realised that the proceedings were uncompleted.  Whilst this position may not be disconcerting to the applicant, it certainly is so disconcerting to the due administration of justice that it cannot be countenanced. Applicant has managed to put his trial in abeyance by resort to an unusual procedure whereby he appeared so concerned with the manner his application was handled that the trial court believed he was genuine in his desire to prosecute the application. The state of the papers leaves me in no doubt that either the applicant had no intention to prosecute his application to its logical conclusion or he was totally unaware how to do so.

The High Court’s statutory powers of review can be exercised at any stage of criminal proceedings before an inferior court but in uncompleted proceedings this power is sparingly exercised. See: Ndhlovu v Regional Magistrate, Eastern Division & Another 1989 (1) ZLR 264 (H); Masedza & Ors v Magistrate, Rusape & Another 1998 (1) ZLR 36 (HC); Dombodzvuku & Another v Sithole N.O. & Another HH-174-2004; Attorney-General v Makamba SC 30/05; Jane Linda Rose v The State HH-71-12. If the applicant was minded to seek an order regarding the decision by the learned regional magistrate directing trial to proceed, then applicant would have drafted an order indicating exactly what relief he was seeking before this court as is required by the High Court Rules, 1971. He did not. His application for review therefore does not comply with the rules both in terms of form and content. It is well over a year since he filed it and therefore one would be forgiven to suspect that this application has been conveniently forgotten by its author. The appropriate remedy in light of all this is to order the continuation of trial before the learned regional magistrate. Should applicant remain dissatisfied with the final determination in that court he may still resort to his appeal right to secure appropriate relief.

I therefore make the following order:

“The application for review be and is hereby dismissed. The trial of the applicant before the court of the regional magistrate sitting at Chinhoyi, be and is hereby ordered to continue to final determination at times convenient to both the applicant and the respondents.”

MAVANGIRA J agrees.

Venturas & Samukange, legal practitioners for the applicant

Attorney General’s Office, legal practitioners for the respondents