THE State V Munobvanei Sesedzai AND Mhondiwa Nyamande

### Preamble
1
HH 748-18
CRB MRP 944-5/17
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THE STATE

versus

MUNOBVANEI SESEDZAI

and

MHONDIWA NYAMANDE

HIGH COURT OF ZIMBABWE

HUNGWE & WAMAMBO JJ

HARARE, 7 November 2018

Criminal Review

HUNGWE J: The two accused were charged with the offence of contravening s 72 (b) of the Magistrates Court Act, [Chapter 7:10]. The charge arose out of the following allegations.  On 4 September 2017 a messenger of Court attached certain items of property which belonged to or was under both accused’s possession or control. The property included motor vehicles. The Messenger of Court served the two accused with the appropriate notices of attachment as regarded by law.  When he reported to the accused’s premises to remove the property which was under judicial attachment, he established that the accused had removed the property.  The Messenger of Court made a Police report leading to their arrest.

The trial commenced before the Magistrate, Murehwa.  Both accused were represented.  Evidence was led and the State closed its case.  Mr Mugiya for the accused applied for the discharge of the two accused at the close of the State case in terms of s 198 (3) of the Criminal Procedure and Evidence Act [Chapter 9:23].  The magistrate dismissed the application for discharge, holding that a prima facie case had been made out in the State case warranting placing of the two on their defence.  Mr Mugiya was not done yet.  He requested that the record be placed before a judge of this court on review.  This can be gleaned not from the record of proceedings but from the tone of the letter addressed to the Registrar of this court by the Clerk of Court, Murehwa.  It states:

“May (you) please acknowledge the receipt of the above mentioned record which is being sent to your office for the purposes of review as requested by the accused’s legal practitioner.”

The effect of the request for a review of the decision dismissing the application for discharge was to stop the proceedings which were to proceed to the defence case as soon as the magistrate pronounced himself.

It is settled law that this court has inherent powers of review of any proceedings before an inferior court or tribunal. See section 29 of the High Court Act [Chapter 7:06].  That power of review can be exercised at any stage of criminal proceedings. However, in uncompleted cases, the court can only sparingly exercise this power in those exceptional cases where otherwise grave injustice might result, or justice might not be obtained. See Ndhlovu v Regional Magistrate, Eastern Division & Anor 1989 (1) ZLR 264 (H); S v Rose 2012 (1) ZLR 238 (H).

Where the magistrate performs his functions in a proper and regular manner, the High Court will not interfere.  The rationale behind this is that it is desirable that the merits of the matter be speedily dispensed of and that any decisions which are wrong in law be corrected in the ordinary way, by way of appeal.

In the instant case, the fact that the legal practitioner requesting the review of a decision has not formally filed any papers point to the suspicion that the request for a review was not made in good faith by the legal practitioner. Otherwise why is it that he has neither filed a formal civil application nor, at least formally, written to the Registrar of this court pointing out the reasons for his unusual request? A perusal of the register of reviews filed with this court shows a growing tendency whereby legal practitioners, in a criminal trial before the magistrate, seek to interdict those proceedings on the pretext of taking an interlocutory ruling by the trial court on review with this court.

The test as to when a superior court could intervene in unterminated proceedings has already been discussed above. A superior court having jurisdiction on review or appeal will be slow to exercise any such power, whether by mandamus or otherwise, and will only do so in rare cases where “grave injustice might otherwise result or where justice might not by other means be attained.” (See S v Rose supra @ p243D-E). There is no basis for the referral for review in the circumstances described by the Clerk of Court in the letter to the Registrar of this Court. Where a clerk in that court is unsure as to how to proceed in any matter placed before him by an applicant, it is prudent for the clerk to seek guidance from the magistrate at the station.  In the unlikely event that that the magistrate is similarly handicapped, I see nothing in the Rules of that Court as well as this Court, preventing the magistrate from seeking the guidance of this court. Such a route is provided in respect of the civil court duties of the clerk. There is no reason why the same cannot apply in respect of criminal process. Order 3 Rule 3 of the Magistrates Court Rules, 1980, permits the magistrate to undertake the duties of the Clerk of Court. By extension, if it is the duty of the clerk to place the record of proceedings before a judge of this court, then the magistrate is duty-bound, when he makes a request to a judge of this court, to do so in an appropriate manner. The magistrate must set out what the cause for that referral is, where it is made before the trial is terminated. He/she must point out the issues he or she wishes the reviewing judge to pronounce upon. Without that, the purpose of placing the record before the Judge on review is lost.

This is not a bona fide application for review because two months have passed without Mr Mugiya filing a formal application for the review in terms of Order 33 Rule 256 of the High Court Rules. In terms of the High Court Rules, 1971, such a review must be made within eight weeks of the decision subject of the review application. The period within which the application was to have been filed expired on 8 October 2018.  It would appear that the Rules exhibit a gap which may frustrate ongoing proceedings.  It will be useful for the Rules to be interpreted to reflect the urgency with which such review applications where they are justified, must be launched and finalized.

In the present matter, there is no basis for the bringing of the matter for review. The record of proceedings shows that the trial court correctly and properly carried out its functions. Finally, nowhere in this whole exercise were the views of the local prosecutor, or the National Prosecuting Authority sought or obtained. I could have requested the views of the Prosecutor-General in terms of section 29 of the High Court Act [Chapter 7:06], but in light of the above factors, I see no basis upon which a different view could arise. I find that any further reference to that office will unnecessarily protract the already stalled proceedings for no good cause. It needs to be emphasized that magistrates must not unnecessarily stay proceedings unless there is an issue whose determination by a superior court might finally determine the proceedings. A constitutional application might conceivably be brought midway. An appropriate way to stay an on-going trial would be by way of an application before the trial court. The court will then be in a position to determine whether or not to stay the proceedings pending the final determination of that issue placed before a superior court. In any other situation, case authority indicates that the only in exceptional circumstances would this court review an on-going trial. Such situations will be the exception rather than the rule.

In the absence of sound grounds suggesting a basis for interference by this court, the court a quo is therefore directed to proceed with the trial of both accused by putting them on their defences and concluding the trial as expeditiously as possible.

WAMAMBO J agrees………………………..

Mugiya & Macharaga, accused’s legal practitioners

National Prosecuting Authority, legal practitioners for the State