The State v Christopher Muzvaba

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HH 360-13
CRB 5451/13
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THE STATE

versus

CHRISTOPHER MUZVABA

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 23 October 2013

Review Judgment

MATHONSI J: The accused person was arraigned before a magistrate at Harare facing 2 counts of fraud in breach of s 136 of the Criminal Law (Codification and Reform) Act [Cap 9:23], one count of using a motor vehicle without the owner’s consent in violation of s 57(1)(b) of the Road Traffic Act [Cap 13:11] and one count of theft of trust property in violation of s 113(2)(d) of [Cap 9:23]. He pleaded not guilty to all the charges.

At the close of the State case, the accused person, who was represented by a legal practitioner, applied for a discharge in terms of s 198(3) of the Criminal Procedure and Evidence Act [Cap 9:07] arguing that the State had failed to prove a prima facie case against him upon which he could be put to his defence. The trial magistrate ruled in his favour. The operative part of the magistrate’s judgment reads:-

“In the result, the State in respect of all 4 counts has not established a prima facie case. The accused is hereby found not guilty and acquitted in respect of all 4 counts.

However, the Toyota Hiace with registration numbers AAZ 4136, together with its engine, rear and front lights, gear box and 4 x size 15 tyres intact is and are to be released and delivered to the complainant Greta Geza forthwithly (sic), without conditions attached.

This order is in terms of s 61 of the Criminal Procedure and Evidence Act [Cap 9:07]”.

The accused was aggrieved by the order for the release of the motor vehicle to the complainant and, through his legal practitioner, requested that the matter be referred to a judge for review. In his statement, the accused submitted that the request was being made in terms of s 57(1) of the Magistrates’ Court Act [Cap 7:10].

I must say that the trial magistrate has really made a meal out of that in his response to the request for review to the extent of even submitting what appears to be heads of argument in support of his decision. I can assign no other name to the lengthy submissions which he made under the title “Trial Magistrate’s Response to Grounds for Review in terms of s 57(2)(b) of the Magistrate Court Act [Cap 7:10]”, than to say they are heads of argument. This is because the magistrate took a lot of time making submissions to defend his decision with expressions like;

“The request for review in terms of s 57(1)(ii)(a) of the Magistrates Court Act [Cap 7:10] itself is incompetent and incurably bad at law”.

…….

“Accused cannot exercise a right of lien and raise it in criminal allegations”.

“The request for review was supposed to be made in terms of s 61(4) of the Criminal Procedure and Evidence Act [Cap 9:07] and not in terms of s 57(1)(ii)(a) Court Act [Cap 7:10]”.

While the magistrate’s interpretation of the law is correct, he cannot be seen to review his own decision. Judicial officers must always be careful in discharging their duties not to give an impression that they have more interest in the matter than merely adjudicating in the duel between the opposing parties. The remarks which I have cited above, and there is more in the record, are not consistent with the dispassionate manner in which judicial officers are expected to discharge their duties.

Once a request has been made for reference of a matter to review whether it be under s 57 of the Magistrates Court Act or under any other law, as long as the trial magistrate has competently recorded the proceedings in a complete manner, he should simply facilitate the conveyance of the record to the reviewing judge and do no more. To my mind, the trial magistrate oversteps his mandate if he takes to defending his decision in an effort to influence the review process.

The accused’s counsel may have erroneously stated that the request for review was being made in terms of s 57 of the Magistrates Court Act, which is a fact because such request for review can only be made where the trial court has sentenced an accused person, but the fact remains that the accused was entitled to request a review even where the decision had been made in terms of s 61 of the Criminal Procedure and Evidence Act. Section 61(4) of that Act makes reference to the suspension of any order pending any appeal or review.

Be that as it may, the decision to order the release of the motor vehicle to the complainant was made in terms of s 61 (1) of the Criminal Procedure and Evidence Act [Cap 9:07] which provides:

“Subject to this Act and except as otherwise provided in any other enactment under which any matter shall or may be forfeited, the judge or magistrate presiding at criminal proceedings may, at the conclusion of the proceedings, unless the article is further required as an exhibit at a trial, make an order that any article referred to in s 60 or produced in evidence -

if the person from whose possession it was obtained may lawfully possess such article, be returned to that person; or

if the person from whose possession it was obtained is not entitled to the article or may not lawfully possess the article, be returned to any other person entitled thereto, if  such person may lawfully possess the article; or

if no person is entitled to the article or if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State”.

The section reposes upon a trial court the discretion to proceed in terms of 3 available

options set out therein. It is common cause that the motor vehicle and the parts which formed the subject of the criminal prosecution of the accused were produced in evidence and therefore in the custody of the court. At the conclusion of the trial the magistrate found the accused not guilty and acquitted him but concluded that he was not entitled to possess the articles. His view was that the complaint was the one entitled to possess them. In the exercise of his discretion, the magistrate proceeded in terms of s 61(1)(b) to release the articles to the complainant.

In my view, the magistrate was entitled to order the release of the articles to the complainant. I do not agree with the submissions made by the accused person that the issue of whether or not the motor vehicle should be returned to the owner was not before the trial court. The motor vehicle was firmly in the custody of the court after being produced as evidence. Not only was the court seized with the issue, it was also enjoined to issue a disposal order in respect of the exhibits. It did, albeit in favour of the complainant, and it was equipped with sufficient evidence to make that order after evidence had been placed before it. I also do not agree that no reasons were given for that decision because the reasons are there in the record. With a little bit of industry directed at perusal of the record, counsel for the accused person would have disabused himself of that notion, it being completely unfounded. I conclude therefore that there was no misdirection on the part of the trial court in the disposal of the exhibits.

Accordingly, the application for review is hereby dismissed and the proceedings are confirmed.

Baera & Company, applicant’s legal practitioners

Attorney-General’s Office, respondent’s legal practitioners