MAKARAU
JA:
This
is an appeal against the whole judgment of the High Court handed down
on 20 March 2019, quashing the charges that the first and second
respondents were facing in an ongoing criminal trial before the third
respondent and, acquitting them on all the charges.
Background
Facts
The
facts giving rise to this appeal are common cause. The first and
second respondents appeared before the third respondent, a Regional
Magistrate, facing four counts as follows:
1.
Two counts of contravening section 136 of the Criminal Law
(Codification and Reform) Act [Chapter 9.23], fraud;
2.
One count of contravening section 5(1)(a)(ii) of the Exchange Control
Act [Chapter 22.05]; and
3.
One count of contravening section 5(1)(a)(i) of the Exchange Control
Act [Chapter 22.05].
They
pleaded not guilty and at the same time excepted to the charges as
not disclosing the alleged offences or any other offence.
Relying
on the provisions of section 146 of the Criminal Procedure and
Evidence Act [Chapter 9.07], the third respondent found that the
charges captured the essential averments and allegations required by
law. Accordingly, he ruled against the exception which he dismissed.
Unhappy
with the ruling, the first and second respondents approached the
court a quo on review, seeking an order setting aside the decision of
the third respondent and substituting it with one upholding the
exception, quashing the charges and acquitting them on all the
charges. They raised one ground of review. They alleged that the
third respondent's decision to dismiss the exception was grossly
unreasonable and patently contrary to law such that no reasonable
judicial officer who had applied his mind to the facts of the matter
would have reached the same decision.
The
application for review was opposed.
In
opposing the application, the appellant argued in the main that this
was not a proper case for the court a quo to exercise its discretion
to review unterminated proceedings in a lower court.
Pending
determination of the review, the first and second respondents applied
to the court a quo for an order staying the proceedings before the
third respondent.
By
an order issued on 31 December 2018, the application was granted in
respect of the fourth count only with trial in respect of the
remaining three counts ordered to continue. It was the opinion of the
court granting the interdict that the first and second respondents
had no prospects of success on review in respect of the remaining
counts.
Dismissing
the opinion of the court granting the interdict as not binding on it,
the court a quo granted the application as indicated above. The
decision a quo as a basis for granting the application in the manner
that it did, the court a quo found as follows:
“It
is therefore clear that the second respondent misdirected himself
when he dismissed the exception because he dealt with an issue that
was not before him. He decided whether the charges disclosed an
offence or not yet what he had been asked to adjudicate upon was
whether the facts as stated in the Outline of the State Case
disclosed any offence or not. This misdirection in my view goes to
the root of the matter. Having found that there was a misdirection
what is left for the court to decide is whether if the court had
decided the correct issue the court would have arrived at the same
findings……”
Thus,
the ratio of the decision a quo was the finding that the third
respondent misdirected himself when he dismissed the exception
because he dealt with an issue that was not before him. As a result
of this alleged misdirection, the court a quo felt at large to
substitute its own discretion for that of the third respondent, which
it proceeded to do.
Dissatisfied
with the acquittal of the first and second respondents, the appellant
noted this appeal, having obtained leave in terms of section 44(6) of
the High Court Act.
Preliminary
Objections
At
the hearing of the appeal, the first and second respondents objected
to the notice of appeal as being fatally defective. In addition, they
contended that the appellant had abandoned the appeal by failing to
file heads of argument within the time set by the Registrar.
The
court reserved its ruling on the objections before requiring the
parties to address it on the merits of the appeal. I now determine
the preliminary objections.
The
first and second respondents objected to the form and content of the
notice of appeal. It was spiritedly argued on their behalf that the
notice of appeal was fatally defective as it did not comply with any
of the Appeal Rules of this Court. Central to this argument was the
question whether the appeal was a criminal or civil appeal in which
event it had to conform to either the Supreme Court Rules 1979 on
Criminal Appeals or the Supreme Court Rules 2018 on Civil Appeals.
It
is not necessary for the purposes of ruling on the preliminary
objections that I resolve the question whether appeals such as the
one in casu are criminal in nature, deriving their colour from the
subject matter, or are civil, following, the nature of the
proceedings a quo. This is so because appeals by the
Prosecutor-General are specifically provided for and solely governed
by section 44 of the High Court Act with section 45 providing that
the time limits for the filing of such appeals are to be provided for
in terms of rules of court enacted for the purpose.
The
point to make and note is that such appeals are not conjoined to or
made part of or subject to either civil or criminal appeal rules.
Section 44 of the High Court Act as read with section 45 makes
separate provisions for these appeals. I regard them as appeals sui
generis. Notwithstanding that we have had the procedure for years, no
rules providing for such appeals have been made. I suggest in passing
and respectfully so, that it is highly desirable that such rules be
enacted without any further delay. It being common cause that there
are no rules governing appeals by the Prosecutor - General in terms
of section 44 of the High Court Act, it is idle to suggest that the
appellant's appeal was fatally defective for want of complying with
the rules.
I
am satisfied that the appellant complied with the specific provision
of the law enjoining him to note the appeal after obtaining leave
from a judge of this Court.
The
draft notice of appeal was attached to and formed an integral part of
the application for leave to appeal that was granted by this court.
It was on the basis of this notice of appeal that the judge in
chambers was able to form the opinion that the intended appeal had
merit and prospects of success.
For
the avoidance of doubt, it is my finding that the notice of appeal in
this matter cannot be and is therefore not deficient or defective as
alleged. This is so because there is no yardstick to measure it by in
that there are no rules that specify what form it should have taken
and what content it should have. It was considered as part of the
application for leave to appeal that was duly granted.
I
further draw comfort from the admitted fact that the respondents did
not suffer any prejudice as a result of the notice of appeal having
been filed in the form that it was.
Regarding
the objection that the appellant' heads were not filed within the
timeframe set by the Registrar, it is common cause that the appellant
did file some heads within the stipulated time frame, which heads
have since been supplemented to a large extent as they did not
address the appeal suitably and adequately.
To
hold that no heads were filed in the circumstances would be to
substantially raise the bar on the quality of heads to be filed
before this Court, a requirement that may be ahead of its times and
may deny the majority of litigants access to justice.
I
rule against the preliminary objections which I dismiss.
I
now turn to the merits of the appeal.
The
Appeal
In
the main, the appellant argued that the court a quo erred in
interfering with unterminated criminal proceedings in a case where
there were no exceptional circumstances warranting such interference
and particularly where the trial had commenced and evidence was being
led before the subordinate court.
In
addition, the appellant raised three other grounds attacking the
court a quo's finding to the effect;
(i)
that the facts alleged in the outline of the State case did not
disclose an offence;
(ii)
that the facts of the matter gave rise to a civil matter only to the
exclusion of criminal proceedings; and
(iii)
that the second respondent ought not to have been charged in his
personal capacity.
The
Issue
The
sole issue that arises in this appeal is whether the court a quo
erred by interfering with the unterminated proceedings before the
third respondent.
The
Law
The
general rule on when a superior court may interfere with the
unterminated proceedings of a lower court was settled in
Attorney-General v Makamba 2005 (2) ZLR 54 (S) where MALABA JA (as he
then was) had this to say at 64 C:
“The
general rule is that a superior court should interfere 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
settling the rule thus, the court referred to the South African case
of Ishmael & Ors v Additional Magistrate Wynberg & Anor 1963
(1) SA 1 (A) where it was similarly observed that a superior court
should be slow to intervene in unterminated proceedings in a court
below and should confine the exercise of its power to those cases
where grave injustice might otherwise result or where justice by
other means may not be obtained.
Thus,
put conversely, the general rule is that superior courts must wait
for the completion of the proceedings in the lower court before
interfering with any interlocutory decision made during the
proceedings.
The
exception to the rule is that only in rare or exceptional
circumstances where the gross irregularity complained of goes to the
root of the proceedings, vitiating the proceedings irreparably, may
superior courts interfere with on-going proceedings.
The
rationale for the general rule may not be hard to find.
If
superior courts were to review and interfere with each and every
interlocutory ruling made during proceedings in lower courts,
finality in litigation will be severely jeopardised and the efficacy
of the entire court system seriously compromised. Further, it is not
every irregular and adverse interlocutory ruling or decision that
amounts to an irreparable miscarriage of justice. Some such lapses
get corrected or lose import during the course of the proceedings.
And in any event, as observed by STEYN CJ in Ishamel & Ors v
Additional Magistrate Wynberg & Anor (supra), it is not every
failure of justice which amounts to a gross irregularity justifying
intervention before completion of trial. Most can wait to be
addressed on appeal or review after final judgment.
Analysis
Whilst
the general rule on when a superior court may interfere in ongoing
proceedings in a lower court was common cause to the parties, the
court a quo appeared to have been oblivious of the correct approach
to adopt in the matter. Instead of finding a reason for departing
from the general rule as settled in the authorities and legal texts,
the court a quo was content to find that the third respondent had
misdirected himself by dealing with an issue that was not before him
as a basis for interfering with the on-going trial of the first and
second respondents.
The
decision of the court a quo cannot be saved.
The
court a quo fell into grave error in one or two respects;
(i)
Firstly, the court a quo did not adopt the correct approach of when
to exercise its review powers in ongoing proceedings, which approach
has been discussed above. It did not establish those rare or
exceptional circumstances in the matter that called for its
intervention and which circumstances could not wait until the trial
was completed. The first and second respondents had in fact indicated
in their founding affidavit that such circumstances would be advanced
at the hearing of the matter. If these circumstances were indeed
revealed to the court a quo, they did not form part of its reasoning
and more importantly, the basis of its decision to grant the
application. The net result was that the court a quo did not find as
it ought to have, that this was a rare case in which the irregularity
complained of was not only gross but vitiated the proceedings
irreparably before it interfered with the on- going trial. Instead,
the court a quo proceeded on the wrong footing. It found a
misdirection on the part of the third respondent, a finding that was
neither material nor adequate to justify its interference. This is so
even if the alleged misdirection was conceded to by the appellant.
The
power of the court a quo to interfere with on-going proceedings is
not conferred upon the court by the consent of the parties. Even
where the parties agree as in casu that there had been a misdirection
by the lower court, this did not absolve the court a quo from
judiciously assessing whether this was a proper case for it to
interfere and not to allow the proceedings in the lower case to run
their full course. Had the court a quo done this it would have found
that this was clearly not a proper case for interfering with the
unterminated proceedings before the third respondent.
(ii)
Secondly, and in any event, the first and second respondents having
raised a specific ground of review, the court a quo was duty bound to
make a finding on the alleged gross irregularity.
There
was thus a wide and patent disconnect between the ground alleged in
the application for review and the ratio of the decision a quo. The
first and second respondents had alleged irrationality in the
interlocutory decision, which allegation the court a quo did not
determine, let alone advert to in its judgment.
It
is therefore my finding that the court a quo erred in interfering
with the unterminated criminal proceedings before the third
respondent. It erred by failing to make a finding that the ground of
review raised by the first and second respondents had been proved and
that having been so proved, it brought out a miscarriage of justice
that not only went to the root of the matter and vitiated the entire
proceedings but could not wait to be redressed after the completion
of the trial. More particularly, the court a quo erred in taking the
wrong approach in the matter.
Disposition
The
appeal must be allowed and the judgment of the court a quo set aside.
The trial of the first and second respondent before the third
respondent must proceed.
This
being an appeal by the Prosecutor-General in terms of section 46 of
the High Court Act, it is just and equitable that each party be made
to bear its own costs of this appeal.
In
the result, I make the following order:
1.
The appeal is allowed with each party bearing its own costs.
2.
The judgment of the court a quo is set aside and is substituted with
the following:
“1.
The application for review is dismissed with each party bearing its
own costs.
2.
The trial of the second and third respondents under case number
CRB114-5/18 before the third respondent is ordered to proceed.”
GWAUNZA,
DCJ: I agree
MAVANGIRA
JA: I agree
National
Prosecution Authority, appellant's legal practitioners
Manase
and Manase, 1st and 2nd respondent's legal practitioners
