This is an application for review arising from the
applicant's trial in the Magistrates Court before Magistrate Mahwe sitting at
Harare.
The applicant appeared before the trial magistrate charged
with contravening section 43(2) of the Shop Licences Act [Chapter 14:17]. The
section criminalizes the unlawful use of another's shop licence with the
intention to deceive.
The applicant is alleged to have unlawfully, with the
intention to deceive, used a licence belonging to Florence Sowah Nana to run a
shop through a company called The Grace Corner Trading (Pvt) Ltd. The applicant
denied the charge and the matter proceeded to trial. The applicant's complaint
is that during the course of the trial the magistrate improperly admitted an
uncertified copy of a CR14 form contrary to the provisions of section 275, 276
and 277 of the Criminal Procedure and Evidence Act [Chapter 9:07].
He now seeks stay of the proceedings pending a review of
the magistrate's ruling on the grounds of gross irregularity and unlawfulness.
It is trite that judges are always hesitant and unwilling
to interfere prematurely with proceedings in the inferior courts and tribunals.
In the ordinary run of things, inferior courts and tribunals should be left to
complete their proceedings with the superior courts only coming in when
everything is said and done at that level. In Masedza & Ors v Magistrate
Rusape and Another 1998 ZLR 36, this
court held that:
“The power of the High Court to review the proceedings in
the Magistrates Courts is exercisable even where the proceedings in question
have not yet terminated. However, it is only in exceptional circumstances
that the Court will review a decision in an interlocutory decision before the
termination of the proceedings. It will do so only if the irregularity is gross
and if the wrong decision will seriously prejudice the rights of the litigant,
or the irregularity is such that justice might not, by other means, be attained.”…,.
During the hearing, it dawned on me that if the facts were
as articulated by counsel for the applicant the matter could easily be resolved
by withdrawing the uncertified document to be produced by a competent officer
from the Deeds office. Counsel for the applicant agreed to that proposal. I
then postponed the matter to enable him to file a substitute draft order in
terms of Rule 240 which provides that:
“240. Granting
of Order
(1) At the conclusion of the hearing or thereafter, the
court may refuse the application or may grant the order applied for, including
a provisional order, or any variation of such order or provisional order,
whether or not general or other relief has been asked for, and may make such
order as to costs as it thinks fit.
[Subrule amended by S.I.25 of 1993 and S.I.33 of 1996]
(2) Where the court grants a provisional order under
subrule (1), Rule 247 shall apply, mutatis
mutandis, to the provisional order as though it were granted following a
chamber application.”
Counsel for the applicant then filed a draft order in the following terms:
“WHEREUPON after reading documents filed of record and
hearing counsel,
IT IS ORDERED THAT
(a) The uncertified copy of a CR14 Form (Companies record
6664/2006) admitted by Respondent as an exhibit in CRB No.12070/14 be removed
from the Magistrates Court record and shall not be admitted as an exhibit.
(b) If the State wishes to produce a CR Form (Companies
Record form 6664/2006 as an exhibit, it shall do so through the Registrar of
Companies who shall produce a dully certified or examined copy.”
The net effect of the above Draft Order is to substantially
alter or reverse the alleged trial magistrate's order admitting the disputed
document. The alteration of the trial magistrate's order amounts to an
effective review of the proceedings before him. The proviso to section 29(5) of
the High Court Act [Chapter 7:06] requires the concurrence of another judge
before one can alter the magistrate's decision or ruling….,.,
In any case, the matter is not urgent because the dismissal
of this application will not leave the applicant without a remedy. Review and
appeal are remedies that are still at the applicant's disposal when everything
is said and done in the Magistrates Court. I can therefore perceive no
irretrievable prejudice if the matter is allowed to progress to finality before
the first respondent.
In the result, it is accordingly ordered that
the application be and is hereby dismissed with no order as to costs.
