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HHH242-13 - LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.

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Procedural Law-viz citation re party acting in an official capacity iro nominee officii.
Procedural Law-viz citation re party acting in an official capacity iro nominus officiae.
Procedural Law-viz citation re party acting in an official capacity iro non-officio.
Procedural Law-viz urgent chamber application re interim interdict pendente lite.
Procedural Law-viz urgent application re provisional order pendente lite.
Procedural Law-viz urgent chamber application re stay of proceedings pendente lite iro unterminated proceedings.
Procedural Law-viz urgent application re stay of proceedings pendente lite iro incomplete proceedings.
Procedural Law-viz urgent chamber application re urgency.
Procedural Law-viz rules of evidence re the right to remain silent iro self-incrimination.
Procedural Law-viz rules of evidence re the right to remain silent iro section 199 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Procedural Law-viz jurisdiction re judicial deference iro assessment of prospects on review.
Procedural Law-viz rules of construction re peremptory provisions iro use of the word "shall".
Procedural Law-viz rules of interpretation re mandatory provisions iro use of the word "shall".
Procedural Law-viz rules of evidence re hearsay evidence.
Procedural Law-viz rules of evidence re heresy evidence.

Review re: Unterminated or Incomplete Proceedings, Stay of Proceedings Pendente Lite and the Doctrine of Ripeness


This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.

The applicant was charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that he had unlawfully misrepresented that he was the new owner or director of a certain company - the original owners and directors of which had emigrated. The applicant was alleged to have fraudulently drawn up certain company documents and filing them with the Registrar of Companies. The prejudice was said to have been caused to the good reputation and good administration of the Registrar of Companies.

At the close of the State case, the applicant applied for a discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP & E Act). The application was based on alleged glaring defects in the charge and the evidence led.

The application was refused. That was on 22 May 2013.

On 9 July 2013, the applicant filed the application for review challenging the magistrate's decision to put him on his defence.

On 16 July 2013, the trial magistrate, who in these proceedings is cited as the second respondent, filed an opposing affidavit. He simply stated that the application was opposed in its entirety and that the review application could not stop the continuation of the trial. Reference was made to the Supreme Court case of Attorney-General v James Chafungamoyo Makamba SC74-04, a judgment of ZIYAMBI JA, a copy of which the magistrate apparently intended to attach. However, he inadvertently attached the cyclostyled judgment by CHEDA JA in the other Supreme Court case of Attorney–General v James Chafungamoyo Makamba SC41-04.

On 18 July 2013, the applicant applied to the magistrate for a stay of the trial pending the determination of the review application.

That application was also refused.

The magistrate ruled that he would not stop the proceedings unless an order to that effect was obtained from this court. He directed that the trial would continue on 14 August 2013.

On 24 July 2013, the applicant filed this urgent chamber application. The interim relief sought was that the trial proceedings in the Magistrate's Court be stayed pending the determination of the application for review.

I heard the application on 1 August 2013. Both parties were agreed that the matter was urgent. After argument, I reserved judgment.

In his application, the applicant has made an analysis of the evidence given against him up to the close of the State case. He has concluded that none of the State witnesses incriminated him in any way. In particular, the witness from the Registrar of Companies had actually exonerated him. The fraud allegation is predicated on the alleged prejudice to the Registrar of Companies. The applicant says that the only evidence that seemed to have influenced the magistrate in his decision was the hearsay evidence of the investigating officer who apparently was under pressure from a disgruntled former employee of the “stolen” company.

The applicant expressed concern that the magistrate's conduct would inevitably lead to a miscarriage of justice in that in his ruling dismissing the application for discharge at the close of the State case, he had put the applicant on his defence to “clear” his name.

This, according to the applicant, was an irregular reversal of the onus of proof.

It was now the applicant who was to prove his innocence. This was a clear violation of the presumption of innocence.

Given the inadequate evidence led by the State up to the time of the closure of its case, the magistrate's decision to put the accused person on his defence was so outrageous in its defiance of logic that no sensible person having applied his mind would have arrived at it. It was unprocedural for a court to facilitate the State to bolster its case by the defence evidence.

That, in summary, is the applicant's argument for the review application.

The urgent application was meant to stop the resumption of the criminal trial on 14 August 2013. It was contended, that, the review application would be rendered academic if the trial went ahead.

At the hearing, the second respondent opposed the application on the basis, that, superior courts normally refrain from interfering in uncompleted proceedings. It was submitted, that, there was no danger of an irreparable harm or of a miscarriage of justice. The trial should be allowed to proceed without interference. If, at the end of it, the applicant is aggrieved by the outcome he can always appeal. To allow such an application would open the flood gates. Any accused person unhappy with the exercise of discretion by a magistrate, in dismissing an application for discharge at the close of the State case, would always rush to this court. That would seriously interfere with the smooth administration of justice.

Strong reliance was placed by the respondents on the Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04 aforesaid.

However, I find, that, that judgment dealt with a different issue.

Other than the remark by the Supreme Court that the High Court had found justification “…, for the unusual course of interfering in an uncompleted trial…,.” I do not think the case is relevant.

It dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal.

The classical position is that, generally, a superior court does not encourage the bringing of uncompleted proceedings for review. In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), this court, UCHENA J, said…,:

“Generally, this court does not encourage the bringing of unterminated proceedings for review. There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review. An application of this nature can only succeed if the application for review has prospects of success.”

Thus, it is not the position that no review or interference is competent at all unless the proceedings in the inferior court have been completed.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), for instance, this court interfered in the middle of the trial in the Magistrates Court where it was satisfied that the magistrate's refusal to recuse himself would render his proceedings a nullity as the accused person's grounds for seeking recusal had merit.

The learned judge went on to state:

“The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the reviewing court. It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial which is likely to be declared a nullity.”

In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA…, stated…,:

“The general rule is that a superior court should intervene in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

In exercising review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion of the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

It is not every wrong decision by the inferior court that warrants interference. In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA, at p64D–E, quoted with approval the remarks of STEYN CJ in the case of Ismail & Ors v Additional Magistrate, Wynberg & Anor 1963 (1) SA 1 (A):

“It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion…,. A superior court should be slow to intervene in unterminated proceedings in a court below, and should, generally speaking, confine the exercise of its powers to 'rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.'”

In this application, counsel for the respondents submitted, that, the applicant was not without a remedy. He could appeal any adverse decision against him. He could always choose to exercise his constitutional right to remain silent and thereby obviate the danger of self-incrimination.

However, counsel for the applicant urged that the applicant's situation should be deemed as one of those exceptional cases contemplated by the law and that for the applicant to exercise the right to silence would hardly be satisfactory, since, in terms of section 199 of the Criminal Procedure and Evidence Act, such conduct could invite an adverse inference against him.

Naturally, I do not, at this stage, have to decide the review application or consider the applicant's prospects of success in much greater detail. But, I must, of necessity, consider the merits of that application and assess the prospects of success before I can be able to pass judgment in this application.

Section 198(3) of the Criminal Procedure and Evidence Act, which governs discharges at the close of the State case, reads:

“198 Conduct of trial

1….,.

2….,.

3. If, at the close of 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.”…,.

Thus, a court has no discretion.

It was noted by the Supreme Court in State v Kachipare 1998 (2) ZLR 271 (S), that, unlike its precursor, namely, section 188(3) of [Cap 59] which used 'may' as opposed to 'shall', in the current section 198(3) a court must acquit at the close of the State case where:

(i) There is no evidence to prove an essential element of the offence;

(ii) The court must acquit where there is no evidence on which a reasonable court, acting carefully, might properly convict;

(iii) The court must acquit where the evidence on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

It was also noted in that judgment, that, unlike South Africa, in this country, there is no longer any controversy as to whether a court may properly refrain from exercising its discretion in favour of the accused, if, at the close of the case for the prosecution it has reason to suppose that the inadequate evidence adduced by the State might be supplemented by defence evidence.

See also State v Kuruneri HH59-07 and State v Morgan Tsvangirai & Ors HH119-03.

Section 198(3) of the Criminal Procedure and Evidence Act opens with the words: “If at the close of the case for the prosecution the court considers that…,.”

In my view, there should be no difficulty for the Review Court, where the magistrate does in fact consider that there is no evidence adduced by the State at the close of its case but goes on to refuse the discharge application opting to hear the defence evidence.

That decision would be contrary to the law.

The difficulty arises, in my view, where the magistrate, despite glaring deficiencies in the State evidence, nonetheless fails to consider that there is no evidence linking the accused to the crime.

Plainly, the question whether, at the close of the State case, there is, or there is no evidence that the accused committed the offence charged is one of fact. It is a misdirection where the trier of facts sees facts that are completely absent or fails to see facts that are so patently conspicuous.

I have briefly considered the application for review that is pending in this court, and, in particular, the record of proceedings in the Magistrate's Court. I have also considered the magistrate's judgment dismissing the application for discharge.

I think that there is every likelihood that the Review Court might find that that there was a serious misdirection so gross as to warrant interference with the trial even before it is completed.

To begin with, it is curious that the charge is about the prejudice said to have been suffered, not by the original owners of the company in question; not by the other company with which a Tribute Agreement was entered into and consummated, but by the Registrar of Companies whose reputation and good administration was said to have been tarnished.

Nobody else but the State, through the police and the disgruntled former employee, seemed to complain.

As pointed out before, the witness from the Registrar of Companies had nothing against the applicant.

None of the rest of the witnesses, except perhaps the investigating officer and the former employee, had anything against the applicant.

The investigating officer testified on his investigations and on the witnesses that he had assembled. He had no independent knowledge of the fraud himself. All the witnesses that he had assembled, other than the former employee, said nothing incriminatory of the applicant. Even that former employee merely alleged that he once worked for the company in question and that he was informed that it had not been sold.

That is hardly evidence of fraud against the applicant.

At the hearing of the urgent chamber application, counsel for the respondents submitted, that, the second respondent must have considered that the evidence of the witness from the firm of chartered accountants that used to audit the books of the “stolen” company had been relevant to the charge and that therefore the accused had to be put on his defence.

However, all that the witness from the firm of chartered accountants said was that she had not seen any company resolutions in which the applicant had been appointed a director of the company.

In my view, even if that evidence was relevant, it was of no value to the offence charged.

The Review Court might find that the directive by the second respondent, that the applicant be put on his defence to “clear” his name was irregular. It may have amounted to a shifting of the onus to the applicant to prove his innocence when there was probably no shred of evidence of the commission of the offence at the close of the State case. In reality, the applicant was probably being asked to clear his name against mere suspicions by the investigating officer and those urging him on.

The Review Court might find, that, there was a failure by the second respondent to see that, at the close of the State case, there was, in reality, no evidence of the commission of the offence with which the applicant was charged and therefore that there was a gross misdirection.

The Review Court might find, that, all the criteria for discharge at the close of the State case, as set out in State v Kachipare 1998 (2) ZLR 271 (S) and others were in fact satisfied.

It is necessary to weigh the balance of convenience between the need for a judicial officer to manage his or her court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of quality justice.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), UCHENA J stated as follows:

“I entirely agree with HARMS JA's comments, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA), on the judicial officer's responsibilities in the management of cases that come before them for trial or preparation for trial.

I would only add that this equally applies to magistrates, who in fact preside over more cases than judges.

The need for firm control of proceedings is called for, as a supine approach will result in avoidable backlogs. The need for efficient court management by judicial officers must, however, give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes.”

I am satisfied that the application for review has strong merit.

The balance of convenience favours the postponement of the trial to allow the review application to be heard. I am of the view, that, the magistrate's dismissal of the discharge application was not about an injudicious exercise of discretion because such discretion is not available. It was about his failure to consider that there was no evidence led by the State when it closed its case linking the accused to the offence.

The magistrate seems to have seen something but which in reality was non-existent.

He failed to see that such evidence, as was led, either exonerated the accused or was harmless to him. That failure, in my view, was so gross as to warrant interference.

The applicant is entitled to an opportunity to present his application for review for real relief than for academic purposes. If I do not grant the interim relief, the review application will just become one for academic purposes. At any rate, the matter will be ventilated and canvassed more fully on the return day.

In the meantime, I grant the interim order sought as follows:

Pending the determination of this matter on the return day, the trial proceedings in the Magistrate's Court, under CRB R874/12, are hereby stayed.

Interim Interdict Pendente Lite and Stay of Execution re: Approach


This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.

The applicant was charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that he had unlawfully misrepresented that he was the new owner or director of a certain company - the original owners and directors of which had emigrated. The applicant was alleged to have fraudulently drawn up certain company documents and filing them with the Registrar of Companies. The prejudice was said to have been caused to the good reputation and good administration of the Registrar of Companies.

At the close of the State case, the applicant applied for a discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP & E Act). The application was based on alleged glaring defects in the charge and the evidence led.

The application was refused. That was on 22 May 2013.

On 9 July 2013, the applicant filed the application for review challenging the magistrate's decision to put him on his defence.

On 16 July 2013, the trial magistrate, who in these proceedings is cited as the second respondent, filed an opposing affidavit. He simply stated that the application was opposed in its entirety and that the review application could not stop the continuation of the trial. Reference was made to the Supreme Court case of Attorney-General v James Chafungamoyo Makamba SC74-04, a judgment of ZIYAMBI JA, a copy of which the magistrate apparently intended to attach. However, he inadvertently attached the cyclostyled judgment by CHEDA JA in the other Supreme Court case of Attorney–General v James Chafungamoyo Makamba SC41-04.

On 18 July 2013, the applicant applied to the magistrate for a stay of the trial pending the determination of the review application.

That application was also refused.

The magistrate ruled that he would not stop the proceedings unless an order to that effect was obtained from this court. He directed that the trial would continue on 14 August 2013.

On 24 July 2013, the applicant filed this urgent chamber application. The interim relief sought was that the trial proceedings in the Magistrate's Court be stayed pending the determination of the application for review.

I heard the application on 1 August 2013. Both parties were agreed that the matter was urgent. After argument, I reserved judgment.

In his application, the applicant has made an analysis of the evidence given against him up to the close of the State case. He has concluded that none of the State witnesses incriminated him in any way. In particular, the witness from the Registrar of Companies had actually exonerated him. The fraud allegation is predicated on the alleged prejudice to the Registrar of Companies. The applicant says that the only evidence that seemed to have influenced the magistrate in his decision was the hearsay evidence of the investigating officer who apparently was under pressure from a disgruntled former employee of the “stolen” company.

The applicant expressed concern that the magistrate's conduct would inevitably lead to a miscarriage of justice in that in his ruling dismissing the application for discharge at the close of the State case, he had put the applicant on his defence to “clear” his name.

This, according to the applicant, was an irregular reversal of the onus of proof.

It was now the applicant who was to prove his innocence. This was a clear violation of the presumption of innocence.

Given the inadequate evidence led by the State up to the time of the closure of its case, the magistrate's decision to put the accused person on his defence was so outrageous in its defiance of logic that no sensible person having applied his mind would have arrived at it. It was unprocedural for a court to facilitate the State to bolster its case by the defence evidence.

That, in summary, is the applicant's argument for the review application.

The urgent application was meant to stop the resumption of the criminal trial on 14 August 2013. It was contended, that, the review application would be rendered academic if the trial went ahead.

At the hearing, the second respondent opposed the application on the basis, that, superior courts normally refrain from interfering in uncompleted proceedings. It was submitted, that, there was no danger of an irreparable harm or of a miscarriage of justice. The trial should be allowed to proceed without interference. If, at the end of it, the applicant is aggrieved by the outcome he can always appeal. To allow such an application would open the flood gates. Any accused person unhappy with the exercise of discretion by a magistrate, in dismissing an application for discharge at the close of the State case, would always rush to this court. That would seriously interfere with the smooth administration of justice.

Strong reliance was placed by the respondents on the Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04 aforesaid.

However, I find, that, that judgment dealt with a different issue.

Other than the remark by the Supreme Court that the High Court had found justification “…, for the unusual course of interfering in an uncompleted trial…,.” I do not think the case is relevant.

It dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal.

The classical position is that, generally, a superior court does not encourage the bringing of uncompleted proceedings for review. In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), this court, UCHENA J, said…,:

“Generally, this court does not encourage the bringing of unterminated proceedings for review. There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review. An application of this nature can only succeed if the application for review has prospects of success.”

Thus, it is not the position that no review or interference is competent at all unless the proceedings in the inferior court have been completed.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), for instance, this court interfered in the middle of the trial in the Magistrates Court where it was satisfied that the magistrate's refusal to recuse himself would render his proceedings a nullity as the accused person's grounds for seeking recusal had merit.

The learned judge went on to state:

“The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the reviewing court. It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial which is likely to be declared a nullity.”

In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA…, stated…,:

“The general rule is that a superior court should intervene in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

In exercising review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion of the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

It is not every wrong decision by the inferior court that warrants interference. In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA, at p64D–E, quoted with approval the remarks of STEYN CJ in the case of Ismail & Ors v Additional Magistrate, Wynberg & Anor 1963 (1) SA 1 (A):

“It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion…,. A superior court should be slow to intervene in unterminated proceedings in a court below, and should, generally speaking, confine the exercise of its powers to 'rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.'”

In this application, counsel for the respondents submitted, that, the applicant was not without a remedy. He could appeal any adverse decision against him. He could always choose to exercise his constitutional right to remain silent and thereby obviate the danger of self-incrimination.

However, counsel for the applicant urged that the applicant's situation should be deemed as one of those exceptional cases contemplated by the law and that for the applicant to exercise the right to silence would hardly be satisfactory, since, in terms of section 199 of the Criminal Procedure and Evidence Act, such conduct could invite an adverse inference against him.

Naturally, I do not, at this stage, have to decide the review application or consider the applicant's prospects of success in much greater detail. But, I must, of necessity, consider the merits of that application and assess the prospects of success before I can be able to pass judgment in this application.

Section 198(3) of the Criminal Procedure and Evidence Act, which governs discharges at the close of the State case, reads:

“198 Conduct of trial

1….,.

2….,.

3. If, at the close of 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.”…,.

Thus, a court has no discretion.

It was noted by the Supreme Court in State v Kachipare 1998 (2) ZLR 271 (S), that, unlike its precursor, namely, section 188(3) of [Cap 59] which used 'may' as opposed to 'shall', in the current section 198(3) a court must acquit at the close of the State case where:

(i) There is no evidence to prove an essential element of the offence;

(ii) The court must acquit where there is no evidence on which a reasonable court, acting carefully, might properly convict;

(iii) The court must acquit where the evidence on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

It was also noted in that judgment, that, unlike South Africa, in this country, there is no longer any controversy as to whether a court may properly refrain from exercising its discretion in favour of the accused, if, at the close of the case for the prosecution it has reason to suppose that the inadequate evidence adduced by the State might be supplemented by defence evidence.

See also State v Kuruneri HH59-07 and State v Morgan Tsvangirai & Ors HH119-03.

Section 198(3) of the Criminal Procedure and Evidence Act opens with the words: “If at the close of the case for the prosecution the court considers that…,.”

In my view, there should be no difficulty for the Review Court, where the magistrate does in fact consider that there is no evidence adduced by the State at the close of its case but goes on to refuse the discharge application opting to hear the defence evidence.

That decision would be contrary to the law.

The difficulty arises, in my view, where the magistrate, despite glaring deficiencies in the State evidence, nonetheless fails to consider that there is no evidence linking the accused to the crime.

Plainly, the question whether, at the close of the State case, there is, or there is no evidence that the accused committed the offence charged is one of fact. It is a misdirection where the trier of facts sees facts that are completely absent or fails to see facts that are so patently conspicuous.

I have briefly considered the application for review that is pending in this court, and, in particular, the record of proceedings in the Magistrate's Court. I have also considered the magistrate's judgment dismissing the application for discharge.

I think that there is every likelihood that the Review Court might find that that there was a serious misdirection so gross as to warrant interference with the trial even before it is completed.

To begin with, it is curious that the charge is about the prejudice said to have been suffered, not by the original owners of the company in question; not by the other company with which a Tribute Agreement was entered into and consummated, but by the Registrar of Companies whose reputation and good administration was said to have been tarnished.

Nobody else but the State, through the police and the disgruntled former employee, seemed to complain.

As pointed out before, the witness from the Registrar of Companies had nothing against the applicant.

None of the rest of the witnesses, except perhaps the investigating officer and the former employee, had anything against the applicant.

The investigating officer testified on his investigations and on the witnesses that he had assembled. He had no independent knowledge of the fraud himself. All the witnesses that he had assembled, other than the former employee, said nothing incriminatory of the applicant. Even that former employee merely alleged that he once worked for the company in question and that he was informed that it had not been sold.

That is hardly evidence of fraud against the applicant.

At the hearing of the urgent chamber application, counsel for the respondents submitted, that, the second respondent must have considered that the evidence of the witness from the firm of chartered accountants that used to audit the books of the “stolen” company had been relevant to the charge and that therefore the accused had to be put on his defence.

However, all that the witness from the firm of chartered accountants said was that she had not seen any company resolutions in which the applicant had been appointed a director of the company.

In my view, even if that evidence was relevant, it was of no value to the offence charged.

The Review Court might find that the directive by the second respondent, that the applicant be put on his defence to “clear” his name was irregular. It may have amounted to a shifting of the onus to the applicant to prove his innocence when there was probably no shred of evidence of the commission of the offence at the close of the State case. In reality, the applicant was probably being asked to clear his name against mere suspicions by the investigating officer and those urging him on.

The Review Court might find, that, there was a failure by the second respondent to see that, at the close of the State case, there was, in reality, no evidence of the commission of the offence with which the applicant was charged and therefore that there was a gross misdirection.

The Review Court might find, that, all the criteria for discharge at the close of the State case, as set out in State v Kachipare 1998 (2) ZLR 271 (S) and others were in fact satisfied.

It is necessary to weigh the balance of convenience between the need for a judicial officer to manage his or her court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of quality justice.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), UCHENA J stated as follows:

“I entirely agree with HARMS JA's comments, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA), on the judicial officer's responsibilities in the management of cases that come before them for trial or preparation for trial.

I would only add that this equally applies to magistrates, who in fact preside over more cases than judges.

The need for firm control of proceedings is called for, as a supine approach will result in avoidable backlogs. The need for efficient court management by judicial officers must, however, give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes.”

I am satisfied that the application for review has strong merit.

The balance of convenience favours the postponement of the trial to allow the review application to be heard. I am of the view, that, the magistrate's dismissal of the discharge application was not about an injudicious exercise of discretion because such discretion is not available. It was about his failure to consider that there was no evidence led by the State when it closed its case linking the accused to the offence.

The magistrate seems to have seen something but which in reality was non-existent.

He failed to see that such evidence, as was led, either exonerated the accused or was harmless to him. That failure, in my view, was so gross as to warrant interference.

The applicant is entitled to an opportunity to present his application for review for real relief than for academic purposes. If I do not grant the interim relief, the review application will just become one for academic purposes. At any rate, the matter will be ventilated and canvassed more fully on the return day.

In the meantime, I grant the interim order sought as follows:

Pending the determination of this matter on the return day, the trial proceedings in the Magistrate's Court, under CRB R874/12, are hereby stayed.

Shareholding re: Allotment, Issue, Equity Transactions, Alienation or Disposal of Corporate Assets and Notifiable Mergers


This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.

The applicant was charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that he had unlawfully misrepresented that he was the new owner or director of a certain company - the original owners and directors of which had emigrated. The applicant was alleged to have fraudulently drawn up certain company documents and filing them with the Registrar of Companies. The prejudice was said to have been caused to the good reputation and good administration of the Registrar of Companies.

At the close of the State case, the applicant applied for a discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP & E Act). The application was based on alleged glaring defects in the charge and the evidence led.

The application was refused. That was on 22 May 2013.

On 9 July 2013, the applicant filed the application for review challenging the magistrate's decision to put him on his defence.

On 16 July 2013, the trial magistrate, who in these proceedings is cited as the second respondent, filed an opposing affidavit. He simply stated that the application was opposed in its entirety and that the review application could not stop the continuation of the trial. Reference was made to the Supreme Court case of Attorney-General v James Chafungamoyo Makamba SC74-04, a judgment of ZIYAMBI JA, a copy of which the magistrate apparently intended to attach. However, he inadvertently attached the cyclostyled judgment by CHEDA JA in the other Supreme Court case of Attorney–General v James Chafungamoyo Makamba SC41-04.

On 18 July 2013, the applicant applied to the magistrate for a stay of the trial pending the determination of the review application.

That application was also refused.

The magistrate ruled that he would not stop the proceedings unless an order to that effect was obtained from this court. He directed that the trial would continue on 14 August 2013.

On 24 July 2013, the applicant filed this urgent chamber application. The interim relief sought was that the trial proceedings in the Magistrate's Court be stayed pending the determination of the application for review.

I heard the application on 1 August 2013. Both parties were agreed that the matter was urgent. After argument, I reserved judgment.

In his application, the applicant has made an analysis of the evidence given against him up to the close of the State case. He has concluded that none of the State witnesses incriminated him in any way. In particular, the witness from the Registrar of Companies had actually exonerated him. The fraud allegation is predicated on the alleged prejudice to the Registrar of Companies. The applicant says that the only evidence that seemed to have influenced the magistrate in his decision was the hearsay evidence of the investigating officer who apparently was under pressure from a disgruntled former employee of the “stolen” company.

The applicant expressed concern that the magistrate's conduct would inevitably lead to a miscarriage of justice in that in his ruling dismissing the application for discharge at the close of the State case, he had put the applicant on his defence to “clear” his name.

This, according to the applicant, was an irregular reversal of the onus of proof.

It was now the applicant who was to prove his innocence. This was a clear violation of the presumption of innocence.

Given the inadequate evidence led by the State up to the time of the closure of its case, the magistrate's decision to put the accused person on his defence was so outrageous in its defiance of logic that no sensible person having applied his mind would have arrived at it. It was unprocedural for a court to facilitate the State to bolster its case by the defence evidence.

That, in summary, is the applicant's argument for the review application.

The urgent application was meant to stop the resumption of the criminal trial on 14 August 2013. It was contended, that, the review application would be rendered academic if the trial went ahead.

At the hearing, the second respondent opposed the application on the basis, that, superior courts normally refrain from interfering in uncompleted proceedings. It was submitted, that, there was no danger of an irreparable harm or of a miscarriage of justice. The trial should be allowed to proceed without interference. If, at the end of it, the applicant is aggrieved by the outcome he can always appeal. To allow such an application would open the flood gates. Any accused person unhappy with the exercise of discretion by a magistrate, in dismissing an application for discharge at the close of the State case, would always rush to this court. That would seriously interfere with the smooth administration of justice.

Strong reliance was placed by the respondents on the Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04 aforesaid.

However, I find, that, that judgment dealt with a different issue.

Other than the remark by the Supreme Court that the High Court had found justification “…, for the unusual course of interfering in an uncompleted trial…,.” I do not think the case is relevant.

It dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal.

The classical position is that, generally, a superior court does not encourage the bringing of uncompleted proceedings for review. In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), this court, UCHENA J, said…,:

“Generally, this court does not encourage the bringing of unterminated proceedings for review. There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review. An application of this nature can only succeed if the application for review has prospects of success.”

Thus, it is not the position that no review or interference is competent at all unless the proceedings in the inferior court have been completed.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), for instance, this court interfered in the middle of the trial in the Magistrates Court where it was satisfied that the magistrate's refusal to recuse himself would render his proceedings a nullity as the accused person's grounds for seeking recusal had merit.

The learned judge went on to state:

“The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the reviewing court. It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial which is likely to be declared a nullity.”

In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA…, stated…,:

“The general rule is that a superior court should intervene in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

In exercising review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion of the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

It is not every wrong decision by the inferior court that warrants interference. In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA, at p64D–E, quoted with approval the remarks of STEYN CJ in the case of Ismail & Ors v Additional Magistrate, Wynberg & Anor 1963 (1) SA 1 (A):

“It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion…,. A superior court should be slow to intervene in unterminated proceedings in a court below, and should, generally speaking, confine the exercise of its powers to 'rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.'”

In this application, counsel for the respondents submitted, that, the applicant was not without a remedy. He could appeal any adverse decision against him. He could always choose to exercise his constitutional right to remain silent and thereby obviate the danger of self-incrimination.

However, counsel for the applicant urged that the applicant's situation should be deemed as one of those exceptional cases contemplated by the law and that for the applicant to exercise the right to silence would hardly be satisfactory, since, in terms of section 199 of the Criminal Procedure and Evidence Act, such conduct could invite an adverse inference against him.

Naturally, I do not, at this stage, have to decide the review application or consider the applicant's prospects of success in much greater detail. But, I must, of necessity, consider the merits of that application and assess the prospects of success before I can be able to pass judgment in this application.

Section 198(3) of the Criminal Procedure and Evidence Act, which governs discharges at the close of the State case, reads:

“198 Conduct of trial

1….,.

2….,.

3. If, at the close of 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.”…,.

Thus, a court has no discretion.

It was noted by the Supreme Court in State v Kachipare 1998 (2) ZLR 271 (S), that, unlike its precursor, namely, section 188(3) of [Cap 59] which used 'may' as opposed to 'shall', in the current section 198(3) a court must acquit at the close of the State case where:

(i) There is no evidence to prove an essential element of the offence;

(ii) The court must acquit where there is no evidence on which a reasonable court, acting carefully, might properly convict;

(iii) The court must acquit where the evidence on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

It was also noted in that judgment, that, unlike South Africa, in this country, there is no longer any controversy as to whether a court may properly refrain from exercising its discretion in favour of the accused, if, at the close of the case for the prosecution it has reason to suppose that the inadequate evidence adduced by the State might be supplemented by defence evidence.

See also State v Kuruneri HH59-07 and State v Morgan Tsvangirai & Ors HH119-03.

Section 198(3) of the Criminal Procedure and Evidence Act opens with the words: “If at the close of the case for the prosecution the court considers that…,.”

In my view, there should be no difficulty for the Review Court, where the magistrate does in fact consider that there is no evidence adduced by the State at the close of its case but goes on to refuse the discharge application opting to hear the defence evidence.

That decision would be contrary to the law.

The difficulty arises, in my view, where the magistrate, despite glaring deficiencies in the State evidence, nonetheless fails to consider that there is no evidence linking the accused to the crime.

Plainly, the question whether, at the close of the State case, there is, or there is no evidence that the accused committed the offence charged is one of fact. It is a misdirection where the trier of facts sees facts that are completely absent or fails to see facts that are so patently conspicuous.

I have briefly considered the application for review that is pending in this court, and, in particular, the record of proceedings in the Magistrate's Court. I have also considered the magistrate's judgment dismissing the application for discharge.

I think that there is every likelihood that the Review Court might find that that there was a serious misdirection so gross as to warrant interference with the trial even before it is completed.

To begin with, it is curious that the charge is about the prejudice said to have been suffered, not by the original owners of the company in question; not by the other company with which a Tribute Agreement was entered into and consummated, but by the Registrar of Companies whose reputation and good administration was said to have been tarnished.

Nobody else but the State, through the police and the disgruntled former employee, seemed to complain.

As pointed out before, the witness from the Registrar of Companies had nothing against the applicant.

None of the rest of the witnesses, except perhaps the investigating officer and the former employee, had anything against the applicant.

The investigating officer testified on his investigations and on the witnesses that he had assembled. He had no independent knowledge of the fraud himself. All the witnesses that he had assembled, other than the former employee, said nothing incriminatory of the applicant. Even that former employee merely alleged that he once worked for the company in question and that he was informed that it had not been sold.

That is hardly evidence of fraud against the applicant.

At the hearing of the urgent chamber application, counsel for the respondents submitted, that, the second respondent must have considered that the evidence of the witness from the firm of chartered accountants that used to audit the books of the “stolen” company had been relevant to the charge and that therefore the accused had to be put on his defence.

However, all that the witness from the firm of chartered accountants said was that she had not seen any company resolutions in which the applicant had been appointed a director of the company.

In my view, even if that evidence was relevant, it was of no value to the offence charged.

The Review Court might find that the directive by the second respondent, that the applicant be put on his defence to “clear” his name was irregular. It may have amounted to a shifting of the onus to the applicant to prove his innocence when there was probably no shred of evidence of the commission of the offence at the close of the State case. In reality, the applicant was probably being asked to clear his name against mere suspicions by the investigating officer and those urging him on.

The Review Court might find, that, there was a failure by the second respondent to see that, at the close of the State case, there was, in reality, no evidence of the commission of the offence with which the applicant was charged and therefore that there was a gross misdirection.

The Review Court might find, that, all the criteria for discharge at the close of the State case, as set out in State v Kachipare 1998 (2) ZLR 271 (S) and others were in fact satisfied.

It is necessary to weigh the balance of convenience between the need for a judicial officer to manage his or her court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of quality justice.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), UCHENA J stated as follows:

“I entirely agree with HARMS JA's comments, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA), on the judicial officer's responsibilities in the management of cases that come before them for trial or preparation for trial.

I would only add that this equally applies to magistrates, who in fact preside over more cases than judges.

The need for firm control of proceedings is called for, as a supine approach will result in avoidable backlogs. The need for efficient court management by judicial officers must, however, give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes.”

I am satisfied that the application for review has strong merit.

The balance of convenience favours the postponement of the trial to allow the review application to be heard. I am of the view, that, the magistrate's dismissal of the discharge application was not about an injudicious exercise of discretion because such discretion is not available. It was about his failure to consider that there was no evidence led by the State when it closed its case linking the accused to the offence.

The magistrate seems to have seen something but which in reality was non-existent.

He failed to see that such evidence, as was led, either exonerated the accused or was harmless to him. That failure, in my view, was so gross as to warrant interference.

The applicant is entitled to an opportunity to present his application for review for real relief than for academic purposes. If I do not grant the interim relief, the review application will just become one for academic purposes. At any rate, the matter will be ventilated and canvassed more fully on the return day.

In the meantime, I grant the interim order sought as follows:

Pending the determination of this matter on the return day, the trial proceedings in the Magistrate's Court, under CRB R874/12, are hereby stayed.

Jurisdiction re: Judicial Deference iro Assessment of Prospects on Appeal, Review or Main Proceedings


This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.

The applicant was charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that he had unlawfully misrepresented that he was the new owner or director of a certain company - the original owners and directors of which had emigrated. The applicant was alleged to have fraudulently drawn up certain company documents and filing them with the Registrar of Companies. The prejudice was said to have been caused to the good reputation and good administration of the Registrar of Companies.

At the close of the State case, the applicant applied for a discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP & E Act). The application was based on alleged glaring defects in the charge and the evidence led.

The application was refused. That was on 22 May 2013.

On 9 July 2013, the applicant filed the application for review challenging the magistrate's decision to put him on his defence.

On 16 July 2013, the trial magistrate, who in these proceedings is cited as the second respondent, filed an opposing affidavit. He simply stated that the application was opposed in its entirety and that the review application could not stop the continuation of the trial. Reference was made to the Supreme Court case of Attorney-General v James Chafungamoyo Makamba SC74-04, a judgment of ZIYAMBI JA, a copy of which the magistrate apparently intended to attach. However, he inadvertently attached the cyclostyled judgment by CHEDA JA in the other Supreme Court case of Attorney–General v James Chafungamoyo Makamba SC41-04.

On 18 July 2013, the applicant applied to the magistrate for a stay of the trial pending the determination of the review application.

That application was also refused.

The magistrate ruled that he would not stop the proceedings unless an order to that effect was obtained from this court. He directed that the trial would continue on 14 August 2013.

On 24 July 2013, the applicant filed this urgent chamber application. The interim relief sought was that the trial proceedings in the Magistrate's Court be stayed pending the determination of the application for review.

I heard the application on 1 August 2013. Both parties were agreed that the matter was urgent. After argument, I reserved judgment.

In his application, the applicant has made an analysis of the evidence given against him up to the close of the State case. He has concluded that none of the State witnesses incriminated him in any way. In particular, the witness from the Registrar of Companies had actually exonerated him. The fraud allegation is predicated on the alleged prejudice to the Registrar of Companies. The applicant says that the only evidence that seemed to have influenced the magistrate in his decision was the hearsay evidence of the investigating officer who apparently was under pressure from a disgruntled former employee of the “stolen” company.

The applicant expressed concern that the magistrate's conduct would inevitably lead to a miscarriage of justice in that in his ruling dismissing the application for discharge at the close of the State case, he had put the applicant on his defence to “clear” his name.

This, according to the applicant, was an irregular reversal of the onus of proof.

It was now the applicant who was to prove his innocence. This was a clear violation of the presumption of innocence.

Given the inadequate evidence led by the State up to the time of the closure of its case, the magistrate's decision to put the accused person on his defence was so outrageous in its defiance of logic that no sensible person having applied his mind would have arrived at it. It was unprocedural for a court to facilitate the State to bolster its case by the defence evidence.

That, in summary, is the applicant's argument for the review application.

The urgent application was meant to stop the resumption of the criminal trial on 14 August 2013. It was contended, that, the review application would be rendered academic if the trial went ahead.

At the hearing, the second respondent opposed the application on the basis, that, superior courts normally refrain from interfering in uncompleted proceedings. It was submitted, that, there was no danger of an irreparable harm or of a miscarriage of justice. The trial should be allowed to proceed without interference. If, at the end of it, the applicant is aggrieved by the outcome he can always appeal. To allow such an application would open the flood gates. Any accused person unhappy with the exercise of discretion by a magistrate, in dismissing an application for discharge at the close of the State case, would always rush to this court. That would seriously interfere with the smooth administration of justice.

Strong reliance was placed by the respondents on the Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04 aforesaid.

However, I find, that, that judgment dealt with a different issue.

Other than the remark by the Supreme Court that the High Court had found justification “…, for the unusual course of interfering in an uncompleted trial…,.” I do not think the case is relevant.

It dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal.

The classical position is that, generally, a superior court does not encourage the bringing of uncompleted proceedings for review. In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), this court, UCHENA J, said…,:

“Generally, this court does not encourage the bringing of unterminated proceedings for review. There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review. An application of this nature can only succeed if the application for review has prospects of success.”

Thus, it is not the position that no review or interference is competent at all unless the proceedings in the inferior court have been completed.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), for instance, this court interfered in the middle of the trial in the Magistrates Court where it was satisfied that the magistrate's refusal to recuse himself would render his proceedings a nullity as the accused person's grounds for seeking recusal had merit.

The learned judge went on to state:

“The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the reviewing court. It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial which is likely to be declared a nullity.”

In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA…, stated…,:

“The general rule is that a superior court should intervene in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

In exercising review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion of the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

It is not every wrong decision by the inferior court that warrants interference. In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA, at p64D–E, quoted with approval the remarks of STEYN CJ in the case of Ismail & Ors v Additional Magistrate, Wynberg & Anor 1963 (1) SA 1 (A):

“It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion…,. A superior court should be slow to intervene in unterminated proceedings in a court below, and should, generally speaking, confine the exercise of its powers to 'rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.'”

In this application, counsel for the respondents submitted, that, the applicant was not without a remedy. He could appeal any adverse decision against him. He could always choose to exercise his constitutional right to remain silent and thereby obviate the danger of self-incrimination.

However, counsel for the applicant urged that the applicant's situation should be deemed as one of those exceptional cases contemplated by the law and that for the applicant to exercise the right to silence would hardly be satisfactory, since, in terms of section 199 of the Criminal Procedure and Evidence Act, such conduct could invite an adverse inference against him.

Naturally, I do not, at this stage, have to decide the review application or consider the applicant's prospects of success in much greater detail. But, I must, of necessity, consider the merits of that application and assess the prospects of success before I can be able to pass judgment in this application.

Section 198(3) of the Criminal Procedure and Evidence Act, which governs discharges at the close of the State case, reads:

“198 Conduct of trial

1….,.

2….,.

3. If, at the close of 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.”…,.

Thus, a court has no discretion.

It was noted by the Supreme Court in State v Kachipare 1998 (2) ZLR 271 (S), that, unlike its precursor, namely, section 188(3) of [Cap 59] which used 'may' as opposed to 'shall', in the current section 198(3) a court must acquit at the close of the State case where:

(i) There is no evidence to prove an essential element of the offence;

(ii) The court must acquit where there is no evidence on which a reasonable court, acting carefully, might properly convict;

(iii) The court must acquit where the evidence on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

It was also noted in that judgment, that, unlike South Africa, in this country, there is no longer any controversy as to whether a court may properly refrain from exercising its discretion in favour of the accused, if, at the close of the case for the prosecution it has reason to suppose that the inadequate evidence adduced by the State might be supplemented by defence evidence.

See also State v Kuruneri HH59-07 and State v Morgan Tsvangirai & Ors HH119-03.

Section 198(3) of the Criminal Procedure and Evidence Act opens with the words: “If at the close of the case for the prosecution the court considers that…,.”

In my view, there should be no difficulty for the Review Court, where the magistrate does in fact consider that there is no evidence adduced by the State at the close of its case but goes on to refuse the discharge application opting to hear the defence evidence.

That decision would be contrary to the law.

The difficulty arises, in my view, where the magistrate, despite glaring deficiencies in the State evidence, nonetheless fails to consider that there is no evidence linking the accused to the crime.

Plainly, the question whether, at the close of the State case, there is, or there is no evidence that the accused committed the offence charged is one of fact. It is a misdirection where the trier of facts sees facts that are completely absent or fails to see facts that are so patently conspicuous.

I have briefly considered the application for review that is pending in this court, and, in particular, the record of proceedings in the Magistrate's Court. I have also considered the magistrate's judgment dismissing the application for discharge.

I think that there is every likelihood that the Review Court might find that that there was a serious misdirection so gross as to warrant interference with the trial even before it is completed.

To begin with, it is curious that the charge is about the prejudice said to have been suffered, not by the original owners of the company in question; not by the other company with which a Tribute Agreement was entered into and consummated, but by the Registrar of Companies whose reputation and good administration was said to have been tarnished.

Nobody else but the State, through the police and the disgruntled former employee, seemed to complain.

As pointed out before, the witness from the Registrar of Companies had nothing against the applicant.

None of the rest of the witnesses, except perhaps the investigating officer and the former employee, had anything against the applicant.

The investigating officer testified on his investigations and on the witnesses that he had assembled. He had no independent knowledge of the fraud himself. All the witnesses that he had assembled, other than the former employee, said nothing incriminatory of the applicant. Even that former employee merely alleged that he once worked for the company in question and that he was informed that it had not been sold.

That is hardly evidence of fraud against the applicant.

At the hearing of the urgent chamber application, counsel for the respondents submitted, that, the second respondent must have considered that the evidence of the witness from the firm of chartered accountants that used to audit the books of the “stolen” company had been relevant to the charge and that therefore the accused had to be put on his defence.

However, all that the witness from the firm of chartered accountants said was that she had not seen any company resolutions in which the applicant had been appointed a director of the company.

In my view, even if that evidence was relevant, it was of no value to the offence charged.

The Review Court might find that the directive by the second respondent, that the applicant be put on his defence to “clear” his name was irregular. It may have amounted to a shifting of the onus to the applicant to prove his innocence when there was probably no shred of evidence of the commission of the offence at the close of the State case. In reality, the applicant was probably being asked to clear his name against mere suspicions by the investigating officer and those urging him on.

The Review Court might find, that, there was a failure by the second respondent to see that, at the close of the State case, there was, in reality, no evidence of the commission of the offence with which the applicant was charged and therefore that there was a gross misdirection.

The Review Court might find, that, all the criteria for discharge at the close of the State case, as set out in State v Kachipare 1998 (2) ZLR 271 (S) and others were in fact satisfied.

It is necessary to weigh the balance of convenience between the need for a judicial officer to manage his or her court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of quality justice.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), UCHENA J stated as follows:

“I entirely agree with HARMS JA's comments, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA), on the judicial officer's responsibilities in the management of cases that come before them for trial or preparation for trial.

I would only add that this equally applies to magistrates, who in fact preside over more cases than judges.

The need for firm control of proceedings is called for, as a supine approach will result in avoidable backlogs. The need for efficient court management by judicial officers must, however, give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes.”

I am satisfied that the application for review has strong merit.

The balance of convenience favours the postponement of the trial to allow the review application to be heard. I am of the view, that, the magistrate's dismissal of the discharge application was not about an injudicious exercise of discretion because such discretion is not available. It was about his failure to consider that there was no evidence led by the State when it closed its case linking the accused to the offence.

The magistrate seems to have seen something but which in reality was non-existent.

He failed to see that such evidence, as was led, either exonerated the accused or was harmless to him. That failure, in my view, was so gross as to warrant interference.

The applicant is entitled to an opportunity to present his application for review for real relief than for academic purposes. If I do not grant the interim relief, the review application will just become one for academic purposes. At any rate, the matter will be ventilated and canvassed more fully on the return day.

In the meantime, I grant the interim order sought as follows:

Pending the determination of this matter on the return day, the trial proceedings in the Magistrate's Court, under CRB R874/12, are hereby stayed.

Urgency re: Approach iro Time, Consequent and Remedial Alternative Considerations of Urgency


This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.

The applicant was charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that he had unlawfully misrepresented that he was the new owner or director of a certain company - the original owners and directors of which had emigrated. The applicant was alleged to have fraudulently drawn up certain company documents and filing them with the Registrar of Companies. The prejudice was said to have been caused to the good reputation and good administration of the Registrar of Companies.

At the close of the State case, the applicant applied for a discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP & E Act). The application was based on alleged glaring defects in the charge and the evidence led.

The application was refused. That was on 22 May 2013.

On 9 July 2013, the applicant filed the application for review challenging the magistrate's decision to put him on his defence.

On 16 July 2013, the trial magistrate, who in these proceedings is cited as the second respondent, filed an opposing affidavit. He simply stated that the application was opposed in its entirety and that the review application could not stop the continuation of the trial. Reference was made to the Supreme Court case of Attorney-General v James Chafungamoyo Makamba SC74-04, a judgment of ZIYAMBI JA, a copy of which the magistrate apparently intended to attach. However, he inadvertently attached the cyclostyled judgment by CHEDA JA in the other Supreme Court case of Attorney–General v James Chafungamoyo Makamba SC41-04.

On 18 July 2013, the applicant applied to the magistrate for a stay of the trial pending the determination of the review application.

That application was also refused. The magistrate ruled that he would not stop the proceedings unless an order to that effect was obtained from this court. He directed that the trial would continue on 14 August 2013.

On 24 July 2013, the applicant filed this urgent chamber application. The interim relief sought was that the trial proceedings in the Magistrate's Court be stayed pending the determination of the application for review.

I heard the application on 1 August 2013. Both parties were agreed that the matter was urgent.

Onus, Burden and Standard of Proof and Principle that He Who Alleges Must Prove re: Approach


This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.

The applicant was charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that he had unlawfully misrepresented that he was the new owner or director of a certain company - the original owners and directors of which had emigrated. The applicant was alleged to have fraudulently drawn up certain company documents and filing them with the Registrar of Companies. The prejudice was said to have been caused to the good reputation and good administration of the Registrar of Companies.

At the close of the State case, the applicant applied for a discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP & E Act). The application was based on alleged glaring defects in the charge and the evidence led.

The application was refused. That was on 22 May 2013.

On 9 July 2013, the applicant filed the application for review challenging the magistrate's decision to put him on his defence.

On 16 July 2013, the trial magistrate, who in these proceedings is cited as the second respondent, filed an opposing affidavit. He simply stated that the application was opposed in its entirety and that the review application could not stop the continuation of the trial. Reference was made to the Supreme Court case of Attorney-General v James Chafungamoyo Makamba SC74-04, a judgment of ZIYAMBI JA, a copy of which the magistrate apparently intended to attach. However, he inadvertently attached the cyclostyled judgment by CHEDA JA in the other Supreme Court case of Attorney–General v James Chafungamoyo Makamba SC41-04.

On 18 July 2013, the applicant applied to the magistrate for a stay of the trial pending the determination of the review application.

That application was also refused.

The magistrate ruled that he would not stop the proceedings unless an order to that effect was obtained from this court. He directed that the trial would continue on 14 August 2013.

On 24 July 2013, the applicant filed this urgent chamber application. The interim relief sought was that the trial proceedings in the Magistrate's Court be stayed pending the determination of the application for review.

I heard the application on 1 August 2013. Both parties were agreed that the matter was urgent. After argument, I reserved judgment.

In his application, the applicant has made an analysis of the evidence given against him up to the close of the State case. He has concluded that none of the State witnesses incriminated him in any way. In particular, the witness from the Registrar of Companies had actually exonerated him. The fraud allegation is predicated on the alleged prejudice to the Registrar of Companies. The applicant says that the only evidence that seemed to have influenced the magistrate in his decision was the hearsay evidence of the investigating officer who apparently was under pressure from a disgruntled former employee of the “stolen” company.

The applicant expressed concern that the magistrate's conduct would inevitably lead to a miscarriage of justice in that in his ruling dismissing the application for discharge at the close of the State case, he had put the applicant on his defence to “clear” his name.

This, according to the applicant, was an irregular reversal of the onus of proof.

It was now the applicant who was to prove his innocence. This was a clear violation of the presumption of innocence.

Given the inadequate evidence led by the State up to the time of the closure of its case, the magistrate's decision to put the accused person on his defence was so outrageous in its defiance of logic that no sensible person having applied his mind would have arrived at it. It was unprocedural for a court to facilitate the State to bolster its case by the defence evidence.

That, in summary, is the applicant's argument for the review application.

The urgent application was meant to stop the resumption of the criminal trial on 14 August 2013. It was contended, that, the review application would be rendered academic if the trial went ahead.

At the hearing, the second respondent opposed the application on the basis, that, superior courts normally refrain from interfering in uncompleted proceedings. It was submitted, that, there was no danger of an irreparable harm or of a miscarriage of justice. The trial should be allowed to proceed without interference. If, at the end of it, the applicant is aggrieved by the outcome he can always appeal. To allow such an application would open the flood gates. Any accused person unhappy with the exercise of discretion by a magistrate, in dismissing an application for discharge at the close of the State case, would always rush to this court. That would seriously interfere with the smooth administration of justice.

Strong reliance was placed by the respondents on the Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04 aforesaid.

However, I find, that, that judgment dealt with a different issue.

Other than the remark by the Supreme Court that the High Court had found justification “…, for the unusual course of interfering in an uncompleted trial…,.” I do not think the case is relevant.

It dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal.

The classical position is that, generally, a superior court does not encourage the bringing of uncompleted proceedings for review. In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), this court, UCHENA J, said…,:

“Generally, this court does not encourage the bringing of unterminated proceedings for review. There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review. An application of this nature can only succeed if the application for review has prospects of success.”

Thus, it is not the position that no review or interference is competent at all unless the proceedings in the inferior court have been completed.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), for instance, this court interfered in the middle of the trial in the Magistrates Court where it was satisfied that the magistrate's refusal to recuse himself would render his proceedings a nullity as the accused person's grounds for seeking recusal had merit.

The learned judge went on to state:

“The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the reviewing court. It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial which is likely to be declared a nullity.”

In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA…, stated…,:

“The general rule is that a superior court should intervene in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

In exercising review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion of the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

It is not every wrong decision by the inferior court that warrants interference. In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA, at p64D–E, quoted with approval the remarks of STEYN CJ in the case of Ismail & Ors v Additional Magistrate, Wynberg & Anor 1963 (1) SA 1 (A):

“It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion…,. A superior court should be slow to intervene in unterminated proceedings in a court below, and should, generally speaking, confine the exercise of its powers to 'rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.'”

In this application, counsel for the respondents submitted, that, the applicant was not without a remedy. He could appeal any adverse decision against him. He could always choose to exercise his constitutional right to remain silent and thereby obviate the danger of self-incrimination.

However, counsel for the applicant urged that the applicant's situation should be deemed as one of those exceptional cases contemplated by the law and that for the applicant to exercise the right to silence would hardly be satisfactory, since, in terms of section 199 of the Criminal Procedure and Evidence Act, such conduct could invite an adverse inference against him.

Naturally, I do not, at this stage, have to decide the review application or consider the applicant's prospects of success in much greater detail. But, I must, of necessity, consider the merits of that application and assess the prospects of success before I can be able to pass judgment in this application.

Section 198(3) of the Criminal Procedure and Evidence Act, which governs discharges at the close of the State case, reads:

“198 Conduct of trial

1….,.

2….,.

3. If, at the close of 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.”…,.

Thus, a court has no discretion.

It was noted by the Supreme Court in State v Kachipare 1998 (2) ZLR 271 (S), that, unlike its precursor, namely, section 188(3) of [Cap 59] which used 'may' as opposed to 'shall', in the current section 198(3) a court must acquit at the close of the State case where:

(i) There is no evidence to prove an essential element of the offence;

(ii) The court must acquit where there is no evidence on which a reasonable court, acting carefully, might properly convict;

(iii) The court must acquit where the evidence on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

It was also noted in that judgment, that, unlike South Africa, in this country, there is no longer any controversy as to whether a court may properly refrain from exercising its discretion in favour of the accused, if, at the close of the case for the prosecution it has reason to suppose that the inadequate evidence adduced by the State might be supplemented by defence evidence.

See also State v Kuruneri HH59-07 and State v Morgan Tsvangirai & Ors HH119-03.

Section 198(3) of the Criminal Procedure and Evidence Act opens with the words: “If at the close of the case for the prosecution the court considers that…,.”

In my view, there should be no difficulty for the Review Court, where the magistrate does in fact consider that there is no evidence adduced by the State at the close of its case but goes on to refuse the discharge application opting to hear the defence evidence.

That decision would be contrary to the law.

The difficulty arises, in my view, where the magistrate, despite glaring deficiencies in the State evidence, nonetheless fails to consider that there is no evidence linking the accused to the crime.

Plainly, the question whether, at the close of the State case, there is, or there is no evidence that the accused committed the offence charged is one of fact. It is a misdirection where the trier of facts sees facts that are completely absent or fails to see facts that are so patently conspicuous.

I have briefly considered the application for review that is pending in this court, and, in particular, the record of proceedings in the Magistrate's Court. I have also considered the magistrate's judgment dismissing the application for discharge.

I think that there is every likelihood that the Review Court might find that that there was a serious misdirection so gross as to warrant interference with the trial even before it is completed.

To begin with, it is curious that the charge is about the prejudice said to have been suffered, not by the original owners of the company in question; not by the other company with which a Tribute Agreement was entered into and consummated, but by the Registrar of Companies whose reputation and good administration was said to have been tarnished.

Nobody else but the State, through the police and the disgruntled former employee, seemed to complain.

As pointed out before, the witness from the Registrar of Companies had nothing against the applicant.

None of the rest of the witnesses, except perhaps the investigating officer and the former employee, had anything against the applicant.

The investigating officer testified on his investigations and on the witnesses that he had assembled. He had no independent knowledge of the fraud himself. All the witnesses that he had assembled, other than the former employee, said nothing incriminatory of the applicant. Even that former employee merely alleged that he once worked for the company in question and that he was informed that it had not been sold.

That is hardly evidence of fraud against the applicant.

At the hearing of the urgent chamber application, counsel for the respondents submitted, that, the second respondent must have considered that the evidence of the witness from the firm of chartered accountants that used to audit the books of the “stolen” company had been relevant to the charge and that therefore the accused had to be put on his defence.

However, all that the witness from the firm of chartered accountants said was that she had not seen any company resolutions in which the applicant had been appointed a director of the company.

In my view, even if that evidence was relevant, it was of no value to the offence charged.

The Review Court might find that the directive by the second respondent, that the applicant be put on his defence to “clear” his name was irregular. It may have amounted to a shifting of the onus to the applicant to prove his innocence when there was probably no shred of evidence of the commission of the offence at the close of the State case. In reality, the applicant was probably being asked to clear his name against mere suspicions by the investigating officer and those urging him on.

The Review Court might find, that, there was a failure by the second respondent to see that, at the close of the State case, there was, in reality, no evidence of the commission of the offence with which the applicant was charged and therefore that there was a gross misdirection.

The Review Court might find, that, all the criteria for discharge at the close of the State case, as set out in State v Kachipare 1998 (2) ZLR 271 (S) and others were in fact satisfied.

It is necessary to weigh the balance of convenience between the need for a judicial officer to manage his or her court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of quality justice.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), UCHENA J stated as follows:

“I entirely agree with HARMS JA's comments, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA), on the judicial officer's responsibilities in the management of cases that come before them for trial or preparation for trial.

I would only add that this equally applies to magistrates, who in fact preside over more cases than judges.

The need for firm control of proceedings is called for, as a supine approach will result in avoidable backlogs. The need for efficient court management by judicial officers must, however, give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes.”

I am satisfied that the application for review has strong merit.

The balance of convenience favours the postponement of the trial to allow the review application to be heard. I am of the view, that, the magistrate's dismissal of the discharge application was not about an injudicious exercise of discretion because such discretion is not available. It was about his failure to consider that there was no evidence led by the State when it closed its case linking the accused to the offence.

The magistrate seems to have seen something but which in reality was non-existent.

He failed to see that such evidence, as was led, either exonerated the accused or was harmless to him. That failure, in my view, was so gross as to warrant interference.

The applicant is entitled to an opportunity to present his application for review for real relief than for academic purposes. If I do not grant the interim relief, the review application will just become one for academic purposes. At any rate, the matter will be ventilated and canvassed more fully on the return day.

In the meantime, I grant the interim order sought as follows:

Pending the determination of this matter on the return day, the trial proceedings in the Magistrate's Court, under CRB R874/12, are hereby stayed.

Final Orders re: Composition of Bench iro Court Verdict, Incapacitation and Disagreements Between Presiding Officers


The Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04..., dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal.

Review re: Terminated or Complete Proceedings iro Approach, Review Jurisdiction, Powers, Grounds & Record of Proceedings


The Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04..., dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal....,.

In exercising review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion of the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

Review re: Composition of the Bench


The Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04..., dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal.

Onus, Burden and Standard of Proof re: Constitutional Right to Remain Silent


This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.

The applicant was charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that he had unlawfully misrepresented that he was the new owner or director of a certain company - the original owners and directors of which had emigrated. The applicant was alleged to have fraudulently drawn up certain company documents and filing them with the Registrar of Companies. The prejudice was said to have been caused to the good reputation and good administration of the Registrar of Companies.

At the close of the State case, the applicant applied for a discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP & E Act). The application was based on alleged glaring defects in the charge and the evidence led.

The application was refused. That was on 22 May 2013.

On 9 July 2013, the applicant filed the application for review challenging the magistrate's decision to put him on his defence.

On 16 July 2013, the trial magistrate, who in these proceedings is cited as the second respondent, filed an opposing affidavit. He simply stated that the application was opposed in its entirety and that the review application could not stop the continuation of the trial. Reference was made to the Supreme Court case of Attorney-General v James Chafungamoyo Makamba SC74-04, a judgment of ZIYAMBI JA, a copy of which the magistrate apparently intended to attach. However, he inadvertently attached the cyclostyled judgment by CHEDA JA in the other Supreme Court case of Attorney–General v James Chafungamoyo Makamba SC41-04.

On 18 July 2013, the applicant applied to the magistrate for a stay of the trial pending the determination of the review application.

That application was also refused.

The magistrate ruled that he would not stop the proceedings unless an order to that effect was obtained from this court. He directed that the trial would continue on 14 August 2013.

On 24 July 2013, the applicant filed this urgent chamber application. The interim relief sought was that the trial proceedings in the Magistrate's Court be stayed pending the determination of the application for review.

I heard the application on 1 August 2013. Both parties were agreed that the matter was urgent. After argument, I reserved judgment.

In his application, the applicant has made an analysis of the evidence given against him up to the close of the State case. He has concluded that none of the State witnesses incriminated him in any way. In particular, the witness from the Registrar of Companies had actually exonerated him. The fraud allegation is predicated on the alleged prejudice to the Registrar of Companies. The applicant says that the only evidence that seemed to have influenced the magistrate in his decision was the hearsay evidence of the investigating officer who apparently was under pressure from a disgruntled former employee of the “stolen” company.

The applicant expressed concern that the magistrate's conduct would inevitably lead to a miscarriage of justice in that in his ruling dismissing the application for discharge at the close of the State case, he had put the applicant on his defence to “clear” his name.

This, according to the applicant, was an irregular reversal of the onus of proof.

It was now the applicant who was to prove his innocence. This was a clear violation of the presumption of innocence.

Given the inadequate evidence led by the State up to the time of the closure of its case, the magistrate's decision to put the accused person on his defence was so outrageous in its defiance of logic that no sensible person having applied his mind would have arrived at it. It was unprocedural for a court to facilitate the State to bolster its case by the defence evidence.

That, in summary, is the applicant's argument for the review application.

The urgent application was meant to stop the resumption of the criminal trial on 14 August 2013. It was contended, that, the review application would be rendered academic if the trial went ahead.

At the hearing, the second respondent opposed the application on the basis, that, superior courts normally refrain from interfering in uncompleted proceedings. It was submitted, that, there was no danger of an irreparable harm or of a miscarriage of justice. The trial should be allowed to proceed without interference. If, at the end of it, the applicant is aggrieved by the outcome he can always appeal. To allow such an application would open the flood gates. Any accused person unhappy with the exercise of discretion by a magistrate, in dismissing an application for discharge at the close of the State case, would always rush to this court. That would seriously interfere with the smooth administration of justice.

Strong reliance was placed by the respondents on the Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04 aforesaid.

However, I find, that, that judgment dealt with a different issue.

Other than the remark by the Supreme Court that the High Court had found justification “…, for the unusual course of interfering in an uncompleted trial…,.” I do not think the case is relevant.

It dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal.

The classical position is that, generally, a superior court does not encourage the bringing of uncompleted proceedings for review. In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), this court, UCHENA J, said…,:

“Generally, this court does not encourage the bringing of unterminated proceedings for review. There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review. An application of this nature can only succeed if the application for review has prospects of success.”

Thus, it is not the position that no review or interference is competent at all unless the proceedings in the inferior court have been completed.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), for instance, this court interfered in the middle of the trial in the Magistrates Court where it was satisfied that the magistrate's refusal to recuse himself would render his proceedings a nullity as the accused person's grounds for seeking recusal had merit.

The learned judge went on to state:

“The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the reviewing court. It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial which is likely to be declared a nullity.”

In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA…, stated…,:

“The general rule is that a superior court should intervene in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

In exercising review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion of the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

It is not every wrong decision by the inferior court that warrants interference. In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA, at p64D–E, quoted with approval the remarks of STEYN CJ in the case of Ismail & Ors v Additional Magistrate, Wynberg & Anor 1963 (1) SA 1 (A):

“It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion…,. A superior court should be slow to intervene in unterminated proceedings in a court below, and should, generally speaking, confine the exercise of its powers to 'rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.'”

In this application, counsel for the respondents submitted, that, the applicant was not without a remedy. He could appeal any adverse decision against him. He could always choose to exercise his constitutional right to remain silent and thereby obviate the danger of self-incrimination.

However, counsel for the applicant urged that the applicant's situation should be deemed as one of those exceptional cases contemplated by the law and that for the applicant to exercise the right to silence would hardly be satisfactory, since, in terms of section 199 of the Criminal Procedure and Evidence Act, such conduct could invite an adverse inference against him.

Naturally, I do not, at this stage, have to decide the review application or consider the applicant's prospects of success in much greater detail. But, I must, of necessity, consider the merits of that application and assess the prospects of success before I can be able to pass judgment in this application.

Section 198(3) of the Criminal Procedure and Evidence Act, which governs discharges at the close of the State case, reads:

“198 Conduct of trial

1….,.

2….,.

3. If, at the close of 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.”…,.

Thus, a court has no discretion.

It was noted by the Supreme Court in State v Kachipare 1998 (2) ZLR 271 (S), that, unlike its precursor, namely, section 188(3) of [Cap 59] which used 'may' as opposed to 'shall', in the current section 198(3) a court must acquit at the close of the State case where:

(i) There is no evidence to prove an essential element of the offence;

(ii) The court must acquit where there is no evidence on which a reasonable court, acting carefully, might properly convict;

(iii) The court must acquit where the evidence on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

It was also noted in that judgment, that, unlike South Africa, in this country, there is no longer any controversy as to whether a court may properly refrain from exercising its discretion in favour of the accused, if, at the close of the case for the prosecution it has reason to suppose that the inadequate evidence adduced by the State might be supplemented by defence evidence.

See also State v Kuruneri HH59-07 and State v Morgan Tsvangirai & Ors HH119-03.

Section 198(3) of the Criminal Procedure and Evidence Act opens with the words: “If at the close of the case for the prosecution the court considers that…,.”

In my view, there should be no difficulty for the Review Court, where the magistrate does in fact consider that there is no evidence adduced by the State at the close of its case but goes on to refuse the discharge application opting to hear the defence evidence.

That decision would be contrary to the law.

The difficulty arises, in my view, where the magistrate, despite glaring deficiencies in the State evidence, nonetheless fails to consider that there is no evidence linking the accused to the crime.

Plainly, the question whether, at the close of the State case, there is, or there is no evidence that the accused committed the offence charged is one of fact. It is a misdirection where the trier of facts sees facts that are completely absent or fails to see facts that are so patently conspicuous.

I have briefly considered the application for review that is pending in this court, and, in particular, the record of proceedings in the Magistrate's Court. I have also considered the magistrate's judgment dismissing the application for discharge.

I think that there is every likelihood that the Review Court might find that that there was a serious misdirection so gross as to warrant interference with the trial even before it is completed.

To begin with, it is curious that the charge is about the prejudice said to have been suffered, not by the original owners of the company in question; not by the other company with which a Tribute Agreement was entered into and consummated, but by the Registrar of Companies whose reputation and good administration was said to have been tarnished.

Nobody else but the State, through the police and the disgruntled former employee, seemed to complain.

As pointed out before, the witness from the Registrar of Companies had nothing against the applicant.

None of the rest of the witnesses, except perhaps the investigating officer and the former employee, had anything against the applicant.

The investigating officer testified on his investigations and on the witnesses that he had assembled. He had no independent knowledge of the fraud himself. All the witnesses that he had assembled, other than the former employee, said nothing incriminatory of the applicant. Even that former employee merely alleged that he once worked for the company in question and that he was informed that it had not been sold.

That is hardly evidence of fraud against the applicant.

At the hearing of the urgent chamber application, counsel for the respondents submitted, that, the second respondent must have considered that the evidence of the witness from the firm of chartered accountants that used to audit the books of the “stolen” company had been relevant to the charge and that therefore the accused had to be put on his defence.

However, all that the witness from the firm of chartered accountants said was that she had not seen any company resolutions in which the applicant had been appointed a director of the company.

In my view, even if that evidence was relevant, it was of no value to the offence charged.

The Review Court might find that the directive by the second respondent, that the applicant be put on his defence to “clear” his name was irregular. It may have amounted to a shifting of the onus to the applicant to prove his innocence when there was probably no shred of evidence of the commission of the offence at the close of the State case. In reality, the applicant was probably being asked to clear his name against mere suspicions by the investigating officer and those urging him on.

The Review Court might find, that, there was a failure by the second respondent to see that, at the close of the State case, there was, in reality, no evidence of the commission of the offence with which the applicant was charged and therefore that there was a gross misdirection.

The Review Court might find, that, all the criteria for discharge at the close of the State case, as set out in State v Kachipare 1998 (2) ZLR 271 (S) and others were in fact satisfied.

It is necessary to weigh the balance of convenience between the need for a judicial officer to manage his or her court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of quality justice.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), UCHENA J stated as follows:

“I entirely agree with HARMS JA's comments, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA), on the judicial officer's responsibilities in the management of cases that come before them for trial or preparation for trial.

I would only add that this equally applies to magistrates, who in fact preside over more cases than judges.

The need for firm control of proceedings is called for, as a supine approach will result in avoidable backlogs. The need for efficient court management by judicial officers must, however, give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes.”

I am satisfied that the application for review has strong merit.

The balance of convenience favours the postponement of the trial to allow the review application to be heard. I am of the view, that, the magistrate's dismissal of the discharge application was not about an injudicious exercise of discretion because such discretion is not available. It was about his failure to consider that there was no evidence led by the State when it closed its case linking the accused to the offence.

The magistrate seems to have seen something but which in reality was non-existent.

He failed to see that such evidence, as was led, either exonerated the accused or was harmless to him. That failure, in my view, was so gross as to warrant interference.

The applicant is entitled to an opportunity to present his application for review for real relief than for academic purposes. If I do not grant the interim relief, the review application will just become one for academic purposes. At any rate, the matter will be ventilated and canvassed more fully on the return day.

In the meantime, I grant the interim order sought as follows:

Pending the determination of this matter on the return day, the trial proceedings in the Magistrate's Court, under CRB R874/12, are hereby stayed.

Rules of Construction or Interpretation re: Approach


This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.

The applicant was charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that he had unlawfully misrepresented that he was the new owner or director of a certain company - the original owners and directors of which had emigrated. The applicant was alleged to have fraudulently drawn up certain company documents and filing them with the Registrar of Companies. The prejudice was said to have been caused to the good reputation and good administration of the Registrar of Companies.

At the close of the State case, the applicant applied for a discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP & E Act). The application was based on alleged glaring defects in the charge and the evidence led.

The application was refused. That was on 22 May 2013.

On 9 July 2013, the applicant filed the application for review challenging the magistrate's decision to put him on his defence.

On 16 July 2013, the trial magistrate, who in these proceedings is cited as the second respondent, filed an opposing affidavit. He simply stated that the application was opposed in its entirety and that the review application could not stop the continuation of the trial. Reference was made to the Supreme Court case of Attorney-General v James Chafungamoyo Makamba SC74-04, a judgment of ZIYAMBI JA, a copy of which the magistrate apparently intended to attach. However, he inadvertently attached the cyclostyled judgment by CHEDA JA in the other Supreme Court case of Attorney–General v James Chafungamoyo Makamba SC41-04.

On 18 July 2013, the applicant applied to the magistrate for a stay of the trial pending the determination of the review application.

That application was also refused.

The magistrate ruled that he would not stop the proceedings unless an order to that effect was obtained from this court. He directed that the trial would continue on 14 August 2013.

On 24 July 2013, the applicant filed this urgent chamber application. The interim relief sought was that the trial proceedings in the Magistrate's Court be stayed pending the determination of the application for review.

I heard the application on 1 August 2013. Both parties were agreed that the matter was urgent. After argument, I reserved judgment.

In his application, the applicant has made an analysis of the evidence given against him up to the close of the State case. He has concluded that none of the State witnesses incriminated him in any way. In particular, the witness from the Registrar of Companies had actually exonerated him. The fraud allegation is predicated on the alleged prejudice to the Registrar of Companies. The applicant says that the only evidence that seemed to have influenced the magistrate in his decision was the hearsay evidence of the investigating officer who apparently was under pressure from a disgruntled former employee of the “stolen” company.

The applicant expressed concern that the magistrate's conduct would inevitably lead to a miscarriage of justice in that in his ruling dismissing the application for discharge at the close of the State case, he had put the applicant on his defence to “clear” his name.

This, according to the applicant, was an irregular reversal of the onus of proof.

It was now the applicant who was to prove his innocence. This was a clear violation of the presumption of innocence.

Given the inadequate evidence led by the State up to the time of the closure of its case, the magistrate's decision to put the accused person on his defence was so outrageous in its defiance of logic that no sensible person having applied his mind would have arrived at it. It was unprocedural for a court to facilitate the State to bolster its case by the defence evidence.

That, in summary, is the applicant's argument for the review application.

The urgent application was meant to stop the resumption of the criminal trial on 14 August 2013. It was contended, that, the review application would be rendered academic if the trial went ahead.

At the hearing, the second respondent opposed the application on the basis, that, superior courts normally refrain from interfering in uncompleted proceedings. It was submitted, that, there was no danger of an irreparable harm or of a miscarriage of justice. The trial should be allowed to proceed without interference. If, at the end of it, the applicant is aggrieved by the outcome he can always appeal. To allow such an application would open the flood gates. Any accused person unhappy with the exercise of discretion by a magistrate, in dismissing an application for discharge at the close of the State case, would always rush to this court. That would seriously interfere with the smooth administration of justice.

Strong reliance was placed by the respondents on the Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04 aforesaid.

However, I find, that, that judgment dealt with a different issue.

Other than the remark by the Supreme Court that the High Court had found justification “…, for the unusual course of interfering in an uncompleted trial…,.” I do not think the case is relevant.

It dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal.

The classical position is that, generally, a superior court does not encourage the bringing of uncompleted proceedings for review. In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), this court, UCHENA J, said…,:

“Generally, this court does not encourage the bringing of unterminated proceedings for review. There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review. An application of this nature can only succeed if the application for review has prospects of success.”

Thus, it is not the position that no review or interference is competent at all unless the proceedings in the inferior court have been completed.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), for instance, this court interfered in the middle of the trial in the Magistrates Court where it was satisfied that the magistrate's refusal to recuse himself would render his proceedings a nullity as the accused person's grounds for seeking recusal had merit.

The learned judge went on to state:

“The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the reviewing court. It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial which is likely to be declared a nullity.”

In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA…, stated…,:

“The general rule is that a superior court should intervene in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

In exercising review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion of the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

It is not every wrong decision by the inferior court that warrants interference. In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA, at p64D–E, quoted with approval the remarks of STEYN CJ in the case of Ismail & Ors v Additional Magistrate, Wynberg & Anor 1963 (1) SA 1 (A):

“It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion…,. A superior court should be slow to intervene in unterminated proceedings in a court below, and should, generally speaking, confine the exercise of its powers to 'rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.'”

In this application, counsel for the respondents submitted, that, the applicant was not without a remedy. He could appeal any adverse decision against him. He could always choose to exercise his constitutional right to remain silent and thereby obviate the danger of self-incrimination.

However, counsel for the applicant urged that the applicant's situation should be deemed as one of those exceptional cases contemplated by the law and that for the applicant to exercise the right to silence would hardly be satisfactory, since, in terms of section 199 of the Criminal Procedure and Evidence Act, such conduct could invite an adverse inference against him.

Naturally, I do not, at this stage, have to decide the review application or consider the applicant's prospects of success in much greater detail. But, I must, of necessity, consider the merits of that application and assess the prospects of success before I can be able to pass judgment in this application.

Section 198(3) of the Criminal Procedure and Evidence Act, which governs discharges at the close of the State case, reads:

“198 Conduct of trial

1….,.

2….,.

3. If, at the close of 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.”…,.

Thus, a court has no discretion.

It was noted by the Supreme Court in State v Kachipare 1998 (2) ZLR 271 (S), that, unlike its precursor, namely, section 188(3) of [Cap 59] which used 'may' as opposed to 'shall', in the current section 198(3) a court must acquit at the close of the State case where:

(i) There is no evidence to prove an essential element of the offence;

(ii) The court must acquit where there is no evidence on which a reasonable court, acting carefully, might properly convict;

(iii) The court must acquit where the evidence on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

Court Management re: Approach, Case Management, Postponement of Proceedings and Judicial Directives of the Court


It is necessary to weigh the balance of convenience between the need for a judicial officer to manage his or her court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of quality justice.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), UCHENA J stated as follows:

“I entirely agree with HARMS JA's comments, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA), on the judicial officer's responsibilities in the management of cases that come before them for trial or preparation for trial.

I would only add that this equally applies to magistrates, who in fact preside over more cases than judges.

The need for firm control of proceedings is called for, as a supine approach will result in avoidable backlogs. The need for efficient court management by judicial officers must, however, give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes.”

Urgent Chamber Application

MAFUSIRE J: This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.

The applicant was charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act, [Cap 9:23]. It was alleged that he had unlawfully misrepresented that he was the new owner or director of a certain company the original owners and directors of which had emigrated. The applicant was alleged to have fraudulently drawn up certain company documents and filing them with the Registrar of Companies.

The prejudice was said to have been caused to the good reputation and good administration of the Registrar of Companies.

At the close of the State case the applicant applied for a discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act, [Cap 9:07] (the CP & E Act). The application was based on alleged glaring defects in the charge and the evidence led.

The application was refused. That was on 22 May 2013.

On 9 July 2013 the applicant filed the application for review challenging the magistrate's decision to put him on his defence.

On 16 July 2013 the trial magistrate, who in these proceedings is cited as the second respondent, filed an opposing affidavit. He simply stated that the application was opposed in its entirety and that the review application could not stop the continuation of the trial. Reference was made to the Supreme Court case of Attorney-General v James Chafungamoyo Makamba SC74/04, a judgment of ZIYAMBI JA a copy of which the magistrate apparently intended to attach. However, he inadvertently attached the cyclostyled judgment by CHEDA JA in the other Supreme Court case of Attorney–General v James Chafungamoyo Makamba SC41/04.

On 18 July 2013, the applicant applied to the magistrate for a stay of the trial pending the determination of the review application. That application was also refused. The magistrate ruled that he would not stop the proceedings unless an order to that effect was obtained from this court. He directed that the trial would continue on 14 August 2013.

On 24 July 2013 the applicant filed this urgent chamber application. The interim relief sought was that the trial proceedings in the Magistrate's Court be stayed pending the determination of the application for review.

I heard the application on 1 August 2013. Both parties were agreed that the matter was urgent. After argument I reserved judgment.

In his application the applicant has made an analysis of the evidence given against him up to the close of the State case. He has concluded that none of the State witnesses incriminated him in any way. In particular, the witness from the Registrar of Companies had actually exonerated him. The fraud allegation is predicated on the alleged prejudice to the Registrar of Companies. The applicant says that the only evidence that seemed to have influenced the magistrate in his decision was the hearsay evidence of the investigating officer who apparently was under pressure from a disgruntled former employee of the “stolen” company.

The applicant expressed concern that the magistrate's conduct would inevitably lead to a miscarriage of justice in that in his ruling dismissing the application for discharge at the close of the State case he had put the applicant on his defence to “clear” his name. This, according to the applicant, was an irregular reversal of the onus of proof. It was now the applicant who was to prove his innocence. This was a clear violation of the presumption of innocence. Given the inadequate evidence led by the State up to the time of the closure of its case, the magistrate's decision to put the accused person on his defence was so outrageous in its defiance of logic that no sensible person having applied his mind would have arrived at it. It was unprocedural for a court to facilitate the State to bolster its case by the defence evidence.

That, in summary, is applicant's argument for the review application.

The urgent application was meant to stop the resumption of the criminal trial on the 14 August 2013. It was contended that the review application would be rendered academic if the trial went ahead. At the hearing the second respondent opposed the application on the basis that superior courts normally refrain from interfering in uncompleted proceedings. It was submitted that there was no danger of an irreparable harm or of a miscarriage of justice.

The trial should be allowed to proceed without interference. If at the end of it the applicant is aggrieved by the outcome he can always appeal. To allow such an application would open the flood gates. Any accused person unhappy with the exercise of discretion by a magistrate in dismissing an application for discharge at the close of the State case would always rush to this court. That would seriously interfere with the smooth administration of justice.

Strong reliance was placed by the respondents on the Supreme Court decision by ZIYAMBI JA in the James Makamba case SC74/04 aforesaid.

However, I find that that judgment dealt with a different issue. Other than the remark by the Supreme Court that the High Court had found justification “… for the unusual course of interfering in an uncompleted trial…” I do not think the case is relevant. It dealt with the position where a judge, in exercising review powers in terms of the High Court Act, [Cap 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal.

The classical position is that generally a superior court does not encourage the bringing of uncompleted proceedings for review.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), this court, UCHENA J, said at p325C–D:

“Generally this court does not encourage the bringing of unterminated proceedings for review. There are, however, circumstances which may justify the reviewing of unterminated proceedings. This means this court will not lightly stay proceedings pending review. An application of this nature can only succeed if the application for review has prospects of success.” (emphasis added).

Thus, it is not the position that no review or interference is competent at all unless the proceedings in the inferior court have been completed.

In the Matapo case above, for instance, this court interfered in the middle of the trial in the Magistrate's Court where it was satisfied that the magistrate's refusal to recuse himself would render his proceedings a nullity as the accused person's grounds for seeking recusal had merit. The learned judge went on to state:

“The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the reviewing court. It would be prejudicial to the accused, and a waste of time and resources, for the trail court to carry on with a trial which is likely to be declared a nullity.

In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA, as he then was, stated at p64B–D:

'The general rule is that a superior court should intervene in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.'” (emphasis added)

In exercising review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion of the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

It is not every wrong decision by the inferior court that warrants interference.

In the Makamba case above MALABA JA, at p 64D – E, quoted with approval the remarks of STEYN CJ in the case of Ismail & Ors v Additional Magistrate, Wynberg & Anor 1963 (1) SA 1 (A):

“It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion… A superior court should be slow to intervene in unterminated proceedings in a court below and should generally speaking confine the exercise of its powers to 'rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.”

In this application Mr Uladi submitted that the applicant was not without a remedy. He could appeal any adverse decision against him. He could always choose to exercise his constitutional right to remain silent and thereby obviate the danger of self-incrimination.

However, Mr Magwaliba for the applicant urged that the applicant's situation should be deemed as one of those exceptional cases contemplated by the law and that for the applicant to exercise the right to silence would hardly be satisfactory since in terms of section 199 of the CP & E Act, such conduct could invite an adverse inference against him.

Naturally I do not, at this stage, have to decide the review application or consider the applicant's prospects of success in much greater detail. But I must of necessity consider the merits of that application and assess the prospects of success before I can be able to pass judgment in this application.

Section 198(3) of the CP & E Act which governs discharges at the close of the State case reads:

“198 Conduct of trial

(1) …………………………………………………………………………..

(2) ……………………………………………………………………………

(3) If at the close of 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” (emphasis added).

Thus a court has no discretion.

It was noted by the Supreme Court in State v Kachipare 1998 (2) ZLR 271 (S) that unlike its precursor, namely section 188(3) of [Cap 59] which used “may” as opposed to “shall”, in the current section 198(3) a court must acquit at the close of the State case where:

(i) there is no evidence to prove an essential element of the offence;

(ii) the court must acquit where there is no evidence on which a reasonable court, acting carefully, might properly convict;

(iii) the court must acquit where the evidence on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

It was also noted in that judgment that unlike South Africa, in this country there is no longer any controversy as to whether a court may properly refrain from exercising its discretion in favour of the accused, if at the close of the case for the prosecution it has reason to suppose that the inadequate evidence adduced by the State might be supplemented by defence evidence1. See also State v Kuruneri HH59/07 and State v Morgan Tsvangirai & Ors HH119/03.

Section 198(3) opens with the words:

“If at the close of the case for the prosecution the court considers that …”

In my view there should be no difficulty for the Review Court where the magistrate does in fact consider that there is no evidence adduced by the State at the close of its case but goes on to refuse the discharge application opting to hear the defence evidence. That decision would be contrary to the law. The difficulty arises, in my view, where the magistrate, despite glaring deficiencies in the State evidence, nonetheless fails to consider that there is no evidence linking the accused to the crime.

Plainly, the question whether at the close of the State case there is, or there is no evidence that the accused committed the offence charged is one of fact. It is a misdirection where the trier of facts sees facts that are completely absent or fails to see facts that are so patently conspicuous.

I have briefly considered the application for review that is pending in this court, and in particular the record of proceedings in the Magistrate's Court. I have also considered the magistrate's judgment dismissing the application for discharge. I think that there is every likelihood that the Review Court might find that that there was a serious misdirection so gross as to warrant interference with the trial even before it is completed.

To begin with, it is curious that the charge is about the prejudice said to have been suffered, not by the original owners of the company in question; not by the other company with which a tribute agreement was entered into and consummated, but by the Registrar of Companies whose reputation and good administration was said to have been tarnished.

Nobody else but the State, through the police and the disgruntled former employee, seemed to complain.

As pointed out before, the witness from the Registrar of Companies had nothing against the applicant. None of the rest of the witnesses, except perhaps the investigating officer and the former employee, had anything against the applicant. The investigating officer testified on his investigations and on the witnesses that he had assembled. He had no independent knowledge of the fraud himself. All the witnesses that he had assembled, other than the former employee, said nothing incriminatory of the applicant. Even that former employee merely alleged that he once worked for the company in question and that he was informed that it had not been sold.

That is hardly evidence of fraud against the applicant.

At the hearing of the urgent chamber application Mr Uladi for the respondents submitted that the second respondent must have considered that the evidence of the witness from the firm of Chartered Accountants that used to audit the books of the “stolen” company had been relevant to the charge and that therefore the accused had to be put on his defence.

However, all that the witness from the firm of Chartered Accountants said was that she had not seen any company resolutions in which the applicant had been appointed a director of the company.

In my view, even if that evidence was relevant, it was of no value to the offence charged.

The Review Court might find that the directive by the second respondent that the applicant be put on his defence to “clear” his name was irregular. It may have amounted to a shifting of the onus to the applicant to prove his innocence when there was probably no shred of evidence of the commission of the offence at the close of the State case. In reality, the applicant was probably being asked to clear his name against mere suspicions by the investigating officer and those urging him on.

The Review Court might find that there was a failure by the second respondent to see that at the close of the State case there was in reality no evidence of the commission of the offence with which the applicant was charged and therefore that there was a gross misdirection.

The Review Court might find that all the criteria for discharge at the close of the State case as set out in the Kachipare case and others were in fact satisfied.

It is necessary to weigh the balance of convenience between the need for a judicial officer to manage his or her court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of quality justice.

In the Matapo case above UCHENA J stated as follows:

“I entirely agree with HARMS JA's comments3 on the judicial officers' responsibilities in the management of cases that come before them for trial or preparation for trial. I would only add that this equally applies to magistrates who in fact preside over more cases than judges. The need for firm control of proceedings is called for, as a supine approach will result in avoidable backlogs. The need for efficient court management by judicial officers must, however, give in to the delivery of quality justice, which must be seen to be done. In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes.”

I am satisfied that the application for review has strong merit. The balance of convenience favours the postponement of the trial to allow the review application to be heard.

I am of the view that the magistrate's dismissal of the discharge application was not about an injudicious exercise of discretion because such discretion is not available. It was about his failure to consider that there was no evidence led by the State when it closed its case linking the accused to the offence. The magistrate seems to have seen something but which in reality was non-existent. He failed to see that such evidence as was led either exonerated the accused or was harmless to him. That failure, in my view, was so gross as to warrant interference. The applicant is entitled to an opportunity to present his application for review for real relief than for academic purposes. If I do not grant the interim relief the review application will just become one for academic purposes. At any rate the matter will be ventilated and canvassed more fully on the return day. In the meantime I grant the interim order sought as follows:

Pending the determination of this matter on the return day, the trial proceedings in the Magistrate's Court under CRB R874/12 are hereby stayed.



Mahuni & Mutatu applicant's legal practitioners

Civil Division of the Attorney–General's Office, respondents' legal practitioners

1. At p276G–H

2. At p329–330

3. In Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA) at 4-5

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