Application
for review of un-terminated proceedings
HUNGWE
J: This
is an application for an order declaring the applicant not guilty and
acquitting her after a review of the proceedings leading to her
conviction. The matter was placed before me as an ordinary court
application although the proceedings in the Magistrate's Court are
not yet concluded in that she has not yet been sentenced. There are
certain deficiencies to which I shall later return. The question
raised in this application is whether this court has power to
intervene in unterminated criminal proceedings in the exercise of its
inherent powers of review. In order to answer this question it is
important to draw a distinction between an appeal and a review.
Herbstein
& van Winsen Civil Practice of the Supreme Court of South Africa
4ed p 932 explain the distinction:
“The
reason for bringing proceedings under review or appeal is usually the
same, to have the judgment set aside. Where the reason for wanting
this is that the court came to a wrong conclusion on the facts or the
law, the appropriate procedure is by way of appeal. Where, however,
the real grievance is against the method of the trial, it is proper
to bring the case on review. The first distinction depends,
therefore, on whether it is the result only or rather the method of
trial which is to be attacked. Naturally, the method of trial will be
attacked on review only when the result of the trial is regarded as
unsatisfactory as well. The giving of a judgment not justified by the
evidence would be a matter of appeal and not a review, upon this
test. The essential question in review proceedings is not the
correctness of the decision under review but its validity.”
It
will be useful for purposes of this decision for me to summarise the
law that is applicable.
The
power of a superior court to review the proceedings of an inferior
court covers various stages in a criminal proceeding before an
inferior court, that is, prior to conviction, after conviction but
before sentence, and after sentence has been passed by an inferior
court.
Part
IV of the High Court of Zimbabwe Act, 1981 enumerates the High
Court's statutory powers of review. Section 26 provides that, subject
to the provisions of the Act and any other law, the High Court has
review powers over all proceedings and decisions of all inferior
courts of justice, tribunals and administrative authorities. Section
27(1) provides that subject to the provisions of that Act and any
law, the grounds of review are absence of jurisdiction, bias and
gross irregularity in the proceedings or decision. Section 27(2)
provides that nothing in that particular section shall affect the
provisions of any other law relating to review of inferior courts,
tribunals or authorities. Section 29(1)(b) provides that for purposes
of reviewing any criminal proceedings the High Court may hear any
evidence in connection with the proceedings. Section 29(2) states
that if on review of any criminal proceedings the High Court
considers that the proceedings are not in accordance with real and
substantial justice it has the power to do various things, including
the power to alter and quash the conviction or to set aside or
correct the proceedings or "generally give such judgment or make
such order as the inferior court or tribunal ought, in terms of any
law, to have given, imposed or made on any matter which was before it
in the proceedings in question." Section 29(3) specifically
provides that no conviction or sentence shall be quashed or set aside
in terms of section 29 by reason of any irregularity or defect on the
record of proceedings unless the High Court considers that a
substantial miscarriage of justice has actually occurred. Section
29(4) states that, subject to the rules of court, the powers under
section 29(1) and (2) may be exercised whenever it comes to the
notice of the High Court that any criminal proceedings are not in
accordance with real and substantial justice, notwithstanding that
such proceedings are not the subject of an application to the High
Court or have not been submitted to the High Court for review.
It
is clear from the foregoing that the statutory powers of review under
the High Court of Zimbabwe Act, 1981, can be exercised at any stage
of criminal proceedings before an inferior court.
Further,
the authorities indicate that this court has an inherent power of
review. In Rascher
v
Minister of Justice 1930 TPD
810
at 820 KRAUSE J said:
"...
a wrong decision of a magistrate in circumstances which would
seriously prejudice the rights of a litigant would justify the Court
at any time during the course of the proceedings in interfering by
way of review...
The
above principles were laid down in a civil case, and they would apply
with greater force where the proceedings are of a criminal nature and
a miscarriage of justice might result in the circumstances from a
wrong decision of the magistrate or where the rights of an accused
person are seriously affected thereby."
In
Ginsberg
v
Additional
Magistrate of Cape Town
1933 CPD 357 at 360 GARDINER JP observed:
"Now,
as a rule, the Court's power of review is exercised, only after
termination of the criminal case, but I am not prepared to say that
the Court would not exercise that power... before a termination of a
case, if there were gross irregularity in the proceedings."
In
Wahlhaus v
Additional
Magistrate, Johannesburg & Anor
1959
(3) SA 113 (A) at 119-120 OGILVIE THOMPSON JA (as he then was) said:
"It
is true that, by virtue of its inherent power to restrain
illegalities in inferior courts, the Supreme Court may, in a proper
case, grant relief - by way of review, interdict or mandamus -
against the decision of a magistrate's court given before
conviction...
This,
however, is a power which is to be sparingly exercised. It is
impracticable to attempt any precise definition of the ambit of this
power; for each case must depend upon its own circumstances. The
learned authors of Gardiner and Lansdowne (6 ed Vol 1 p 750) state:
'While
a superior court having jurisdiction on review or appeal will be slow
to exercise any power, whether by mandamus or otherwise, upon the
unterminated course of proceedings in a court below, it certainly has
the power to do so, and will do so in rare cases where grave
injustice might otherwise result or where justice might not by other
means be attained... In general, however, it will hesitate to
intervene, especially having regard to the effect of such a procedure
upon the continuity of proceedings in the court below, and to the
fact that redress by means of review or appeal will ordinarily be
available.'
In
my judgment, that statement correctly reflects the position in
relation to unconcluded criminal proceedings in the magistrates'
courts. I would merely add two observations. The first is that, while
the attitude of the Attorney-General is obviously a material element,
his consent does not relieve the Superior Court from the necessity of
deciding whether or not the particular case is an appropriate one for
intervention. Secondly, the prejudice, inherent in an accused's being
obliged to proceed to trial, and possible conviction, in a
magistrate's court before he is accorded an opportunity of testing in
the Supreme Court the correctness of the magistrate's decision
overruling a preliminary, and perhaps fundamental, contention raised
by the accused, does not per se necessarily justify the Supreme Court
in granting relief before conviction."
In
Ellis
v
Visser
& Anor
1956
(2) SA
117
(W) at 120-122 MURRAY J (as he then was) considered Ginsberg v
Additional Magistrate of Cape Town (supra) and observed that the
learned JUDGE-PRESIDENT in that case dealt with a case in which the
trial magistrate tried the accused in his absence in circumstances
where such trial was not permitted. The learned JUDGE-PRESIDENT said
this was one of the exceptional and unusual cases where the trial
magistrate had acted with gross irregularity and had not discharged
the functions entrusted to him. GARDINER JP's view was that where a
trial magistrate performs his functions in a proper and regular
manner the Superior Court would not interfere. Referring to Rascher v
Minister of
Justice
(supra),
MURRAY J indicated that as far as what KRAUSE J had said was
concerned, if that meant that any wrong decision by a trial
magistrate on a point of law was given in the course of a criminal
trial was subject to immediate interference by the superior Court he
would hold that he did not agree with that. MURRAY J went on to state
at 123-124:
"Even
assuming that I have the discretion to interfere in exceptional cases
I see no reason whatsoever for using that discretion in the
applicant's favour, and see considerable reason against exercising my
discretion in the applicant's favour...
The
grounds counsel asked me to consider were really this:
That
the title to prosecute is a sine qua non and the applicant would be
subject to hardship if the case was allowed to proceed further, and
that there would be repetition of matters which would cause him to be
involved in publicity of an extremely undesirable character from his
point of view. It was also pointed out that he would be put to costs
and that he was not certain that he would be able to recover from the
prosecutor if acquitted. It was also pointed out that the case would
be a protracted one and that there would be claims on the applicant's
time as a result of this.
I
cannot see that, in regard to these matters, the applicant is in any
worse position or suffers any greater hardship than any person who is
prosecuted and eventually acquitted.
...There
are a number of objections which may be taken apart from
embarrassment in a case against an accused person; there are special
pleas….and there are matters of exception or objections to the plea
and the indictment presented. All of these matters can be decided and
are decided by the magistrate. If the applicant's contention in this
case is correct, then in every one of these cases where a decision is
taken by a magistrate there would be just as much reason as in the
present case for the accused person to claim that this matter must be
decided in
limine
without awaiting the results of the merits of the case. The result
would, I think, create chaos - one envisages a succession of
appeals….whereas it is desirable that the actual merits should be
speedily disposed of; and any decisions which are wrong in law should
be corrected in the ordinary way by way of appeal, as there can be no
miscarriage of justice, no abuse of process of the Court if the
ordinary procedure is followed."
Mr
Chikumbirike,
for the applicant, submitted that by virtue of section 26 of the High
Court of Zimbabwe Act 1981, this court has power of review to quash a
conviction before the resumption of the proceedings for sentencing
and that section 29(4) enables this court to intervene at any stage
of the proceedings of an inferior court to correct injustice which is
brought to its notice. But the power of this court under section 26
is specifically made subject to the provisions of that Act, and, as
already mentioned, section 27 provides the grounds of review are an
absence of jurisdiction, bias and gross irregularity in the
proceedings or the decision. None of the foregoing grounds are
alleged by the applicant as the basis for this Court's review. The
applicant urged this court to hold that the decision arrived at in
the interpretation of the Gold Trade Act is “irregular” so as to
make that decision liable to be set aside on review. Mr Chikumbirike
was at pains to convince this court that the proceedings are indeed
liable to be reviewed before sentence is passed because to allow the
sentencing of the applicant would result in an injustice.
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.”
On
the other hand section 29(2) and (4) provides that when any criminal
proceedings are not in accordance with real and substantial justice
this court may alter or quash the conviction or set aside the
proceedings. However, section 29(3) states that no conviction shall
be quashed or set aside by reason of any irregularity or defect in
the record of proceedings unless substantial miscarriage of justice
has actually occurred.
What
is permitted is intervention by this court that is so gross that it
is incapable of correction by way of ordinary review or appeal; or
where it is unconscionable to wait the conclusion of the proceedings
before seeking redress in the normal way. It seems to me that such
instances will be rare.
In
S
v Hutchings
supra
this court interfered prior to sentencing for the purpose of quashing
an erroneous conviction brought to its attention by the trial
magistrate. While in S
v Sibanda
HB-139-88 this court, after the proceedings had, as far as conviction
and sentence were concerned, been confirmed, decided to set aside the
proceedings on the basis of an irregularity that had occurred in a
guilty plea having been recorded as a result of undue influence.
McComb
v
Assistant
Resident Magistrate & Attorney-General
1917 TPD 717 was a case where the magistrate had refused to allow
certain questions to be put to a State witness. The matter was
postponed in order to allow an application to be made for a mandamus
that the magistrate allows the questions. This is what the court said
at 718:
“Moreover,
as pointed out by my brother GRWGOROWSKI, if the court is called upon
to intervene whenever a magistrate disallows a question in
cross-examination, it might protract the hearing of the case
indefinitely. After having got the court's ruling on the question,
when the matter comes up before the magistrate again, the attorney
may wish to put other questions which the magistrate deems wholly
irrelevant and the magistrate may disallow them, and an application
may again be made to this court for a mandamus to compel the
magistrate to allow the questions. That only shows how undesirable it
is for the court, in the absence of good reasons, to intervene in the
middle of (or rather, as in this case, at the beginning) of criminal
proceedings upon an application of this nature.''
In
the present matter, the record shows that when an application was
made by the trial magistrate for the adjournment of the proceedings
pending a review of his decision convicting the accused, the trial
magistrate quite rightly refused to stop the proceedings until after
sentence. For some reasons which do not appear on record the matter
did not proceed to sentence. Later these review proceedings were
initiated. It was now represented on the applicant's papers that
the trial court had stopped the proceedings in order for the review
process to get under way. This is incorrect. The fact is that all the
authorities confirm that the reason why a review of unterminated
proceedings is not countenanced is to avoid creating situation such
as here where proceedings are unnecessarily interrupted. In light of
the above, the “decision” which it is sought to bring on review
can properly be brought on appeal or review after the proceedings are
fully concluded. In any event I see no basis to think that the
magistrate's interpretation was wrongly arrived at, if that is the
basis of bringing a review of the decision.
It
has come to my attention that in all probability the presiding
magistrate may not be available to sentence the accused. In terms of
the Magistrate Court Act [Cap
7:06]
this matter may be placed before another magistrate for sentence. In
the result therefore I dismiss the application for review and order
that the matter be placed before another magistrate for sentencing of
the applicant.
Chikumbirike
& Associates,
applicant's legal practitioners
