MAKONI
JA:
After
hearing counsel in this matter we dismissed the appeal with no order
as to costs and indicated that our reasons would follow in due
course. Below are the reasons for judgement.
On
17 May 2019 the appellants approached the court a
quo,
on a certificate of urgency, seeking an order staying the criminal
trial in S
vs Robert Gumbura
and eight others, CRB 4105-13/15, pending the determination of a
review application filed in HC4098/19.
The
basis for the application was that the appellants had applied for
discharge at the close of the state case, before the trial
magistrate. The application was dismissed. The appellants then filed
an application for review in the High Court. The respondents
intimated that they would proceed with the trial notwithstanding the
pendency of the review. The first respondent, who is the trial
magistrate, refused to postpone the matter in the absence of an order
by the High Court staying the trial.
In
their founding affidavits, the applicants averred that they had very
reasonable prospects of success in HC4098/19. They invited the court
a
quo
to have regard to the papers in HC4098/19. They contended that none
of the witnesses had connected the appellants to the alleged
offences.
On
the initial set down date of the application a
quo,
counsel for the second respondent requested for the record of the
criminal proceedings as it was not attached to the application. The
matter was postponed to 27 May 2019 to enable the appellants to
provide the record.
On
27 May 2019, the appellants provided the court with the ruling made
by the first respondent in dismissing the application for discharge
at
the close of the state case. The matter was then heard on the basis
of the ruling.
The
application was dismissed.
It
was the finding of the court a
quo
that the appellants did not have prospects of success in the
application for review. It opined that the first respondent gave a
fully reasoned ruling outlining the basis why he believed the state
had established a prima
facie
case. The first respondent further pointed out the evidence that
linked the appellants to the offence.
The
court a
quo
further found that there was no irreparable harm to be suffered by
appellants if the trial proceeds. It also found that there were
alternative remedies. Additionally it found that the balance of
convenience favoured that the trial proceed as it was loath to
interfering with unterminated proceedings of a lower court as this
would be unwarranted in the circumstances of this case.
Aggrieved
by the decision, the appellants filed the present appeal on the
following grounds:
“1.
The learned judge in the court a
quo
improperly exercised his discretion and erred in law in refusing to
stay the appellants' trial in the magistrates court pending the
determination of the appellants' review
application
in HC4098/19 in that the learned judge's decision is so outrageous
in its defiance of logic or common sense that no reasonable judge
applying his or her mind to the facts could ever have reached such a
decision.
2.
Having found that the appellants had established a prima
facie
right, the learned judge in the court a
quo
wrongly applied the remaining requirements of 'irreparable harm',
'alternative remedy' and 'balance of convenience', thereby
reaching an invalid decision.
3.
The judgment of the court a
quo
is unconstitutional and null and void in that in refusing to stay the
appellants' trial in the magistrate's court pending the
determination of the appellants' review application in HC4098/19,
the judgment violates the right to a fair trial protected by s69 of
the Constitution.
4.
The judgment of the court a
quo
is unconstitutional and null and void in that in refusing to stay the
appellants' trial in the magistrates court pending the
determination of the appellants' review application in HC4098/19,
the judgment violates the right to have a case reviewed by a higher
court protected by s70, as read with s69, of the Constitution.”
Mr
Madhuku's
main
arguments for the appellants were based on grounds 1 and 2. Grounds 3
and 4 were alternative arguments. He made the following submissions.
It
was a misdirection on the part of the court a
quo
to fail to grant
the
only course available to the appellants. It would not make sense for
the trial to proceed because once it goes ahead there will be no
alternative remedy. He relied on the authority of S
v Kachipare
1998 (2) ZLR 271 (S) for this proposition.
An
application for stay of a trial pending review can only be refused on
one ground, namely that the pending review would predictably fail.
The
court a
quo
ought to have delved into the pending review application to determine
whether or not it could be said to be frivolous, or an abuse of
court. The court a
quo
did not test the learned magistrate's ruling against the evidence
led by the state. It merely relied on the reasons given by the
magistrate for its ruling. It then simply says “a peep into the
review application shows no prospects of success.” It did not give
any reasons for arriving at that conclusion.
The
court a
quo
further
misdirected itself on the law in respect of the requirements of
irreparable harm, alternative remedy and balance of convenience.
It
wrongly said that the alternative remedy is the same thing as
irreparable harm. It failed to appreciate that there will be
irreparable harm if a person who ought to have been discharged at the
close of the state case is put to his defence. It did not take into
account the law in S
v Kachipare (supra)
regarding alternative remedies. It further did not show any prejudice
that could have been suffered by the state if a temporary stay of
prosecution is granted.
On
the alternative arguments, Mr Madhuku
submitted that the standard he proposes is that a stay of a criminal
trial, before the magistrate's court, must be automatic on the mere
filing of a review application in the High Court. His basis for the
proposition is that on a proper reading of the essential components
of the right to a fair trial in terms of s86(3) of the Constitution,
which right cannot be derogated from, a stay should be granted on
the mere filing of such an application.
Ms
Kachidza
for
the second respondent made the following submissions.
The
appellants failed to avail the record of proceedings from the
magistrates court, notwithstanding that the second respondent
demanded that the record be availed and they were given an
opportunity to do so. The court a
quo
proceeded on the basis of the ruling availed
to
it. It cannot therefore be attacked for not testing the evidence led
against the ruling.
The
court a
quo
considered the review application and the ruling by the magistrate
and found that there were no prospects of success on review. It
properly exercised its discretion and gave reasons for its decision.
The
court a
quo
addressed all the elements of an interim
interdict.
It found that there was no irreparable harm if the trial were to
proceed as the appellants would have remedies at the end of the trial
by way of review or appeal.
It
addressed the issue of prospects of success and found that none
existed.
It
also addressed the issue of balance of convenience and found that it
must be on guard against applications meant to derail proceedings in
the lower courts particularly those attacking interlocutory decisions
in unterminated proceedings.
Although
the appellant raised four grounds of appeal only two issues arise for
determination in this matter.
1.
Whether or not the court a
quo
improperly applied its discretion and wrongly applied the law in
refusing to grant the interdict sought.
2.
Whether or not the judgment of the court a
quo
is unconstitutional in that in refusing to grant the interdict it
violated the right to a fair trial as protected by s69 and the right
to have a case reviewed by a higher court as protected by s70 and s69
of the Constitution.
THE
LAW
The
remedy sought by the appellants was a temporary interdict. The
prerequisites for such an interdict are trite and are set out in
Setlogelo
v Setlogelo
1914 AD 221.
In
examining whether the above prerequisites exist, the court exercises
its discretion and it must do so judiciously and rationally. The
test for irrationality was stated by Lord Diplock
in CCSU
v Minister for the Civil Service
(1984)
3 All ER 935 at 951a as follows:
“By
'irrationality' I mean what can by now be succinctly referred to
as 'Wednesbury unreasonableness'… it applies to a decision
which is so outrageous in its defiance of logic or of accepted moral
standards that no sensible person who had applied his mind to the
question to be decided could have arrived at it. Whether a decision
falls within this category is a question that judges by their
training and experience should be well equipped to answer, or else
there would be something badly wrong with our judicial system.”
See
also Barros
and Anor v Chimphonda
1999 (1) ZLR 6 (S) 58 at 62f-63A and Charuma
Blasting and Earthmoving Services (Pvt) Lltd v Njainjai and Others
2000
(1) ZLR 85 (S).
Whether
or not the court a
quo
improperly exercised its discretion in refusing to stay appellants'
trial pending the determination of the review
The
appellants are challenging the judge a
quo's
exercise of his or her discretion in refusing to grant the temporary
interdict. Their basis for the challenge is that, the court a
quo's
decision is so outrageous in its defiance of logic or common sense
that no reasonable judge applying his or her mind to the facts could
ever have reached such a decision. This has been referred to as the
'Wednesbury unreasonableness'.
The
question to be determined is whether the judgment of the court a
quo
meets the Wednesbury test.
Before
addressing the Wednesbury principle,
it
is
trite
that an appellate court is slow to interfere with the exercise of
discretion by the lower court. This position was well captured in the
case of Charuma
Blasting and Earthmoving Service (Pvt) Ltd v Njainjai & Ors
2000 (1) ZLR 85 (S) where the court held that:
“….
An appeal court will generally not interfere with the exercise of a
judicial discretion by the lower court. However, the appeal court is
entitled to substitute its discretion for that of the lower court
where the lower court's exercise of its discretion was based on an
error, such as where it has acted on a wrong principle, or it took
into account extraneous or irrelevant matters or did not take into
account relevant considerations or it was mistaken about the facts.”
Further,
in Barros
& Anor v Chimphonda
1999 (1) ZLR 58 (S) at p62F-63A, it was held that:
“The
attack upon the determination of the learned judge that were no
special circumstances for preferring the second purchaser above the
first one which clearly involved the exercise of judicial discretion,
see Farmers'
Co-operative Society (Reg). v Berry
1912 AD 343 at 350 may only be interfered with on limited grounds.
These grounds are firmly entrenched. It is not enough that the
appellate court considers that if it had been in the position of the
primary court, it would have taken a different course. It must appear
that some
error has been made in exercising the discretion. If the primary
court acts upon a wrong principle, if it allows extraneous or
irrelevant matters to guide or affect it, if it mistakes the facts,
if it does not take into account some relevant consideration, then
its determination should be renewed and the
appellate court may exercise its own discretion in substitution,
provided always it has the materials for so doing.” (My
underlining)
The
answer should be in the negative.
In
the exercise of its discretion, the judge
a quo
was alive to the principles applicable in such matters which are that
it is undesirable to interfere with unterminated proceedings of a
lower court.
It
is settled law that a superior court will not readily interfere with
unterminated criminal proceedings of a lower court except in
exceptional circumstances. These include instances where grave
injustice would occur if the superior court does not intervene and
where there is gross irregularity resulting in a miscarriage of
justice.
One
such instance is where there is a probability of the proceedings
being a nullity.
“It
would be prejudicial to the accused, and a waste of time and
resources, for the trial court to carry on with a trial likely to be
declared a nullity.” See Matapo
& Ors v Bhila NO 7
Anor 2010 (1) ZLR 321 (H) at 325 F.
The
task of assessing whether or not unterminated criminal proceedings
ought to be stayed involves the exercise of discretion. Thus, the
decision to stay unterminated proceedings will be interfered with if
it has not been exercised judiciously.
In
Achinulo
v Moyo N.O & Anor
2016 (2) ZLR 416, the court granted an order for the stay of
unterminated criminal proceedings pending review where the
applicant's application for discharge had been improperly dismissed
by the lower court. The court made several pertinent remarks. At 416C
it stated:
“A
superior court should always be slow to intervene in unterminated
proceedings of an inferior court and will ordinarily not sit in
judgment over a matter that is before the court below except
in very rare situations where a grave injustice would occur if the
superior court does not intervene”.
Further
down at 419C –F it said:
“I
have said that this Court will not interfere in unterminated
proceedings except where there is gross irregularity resulting in a
miscarriage of justice. That is the point made by MALABA
JA (as
he then was) in Attorney
General v Makamba
2005 (2) ZLR 54 (S) 64C-E where the learned appeal judge said:
'The
general rule is that a superior court should intervene in uncompleted
proceedings of the lower court 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
Ismail
and Others v Additional Magistrate, Wynberg and Another
1963 (1) SA 1 (A) STEYN CT at page 4 said:
'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.'
See
also Ndlovu
v Regional Magistrate, Eastern Division and Another
1989 (1) ZLR 264 (H) at 269C, 270G; Masedza
and Others v Magistrate, Rusape and Another
1998 (1) ZLR 36 (H) at 41C.'”
See
also Prosecutor
General v Intratreck & Chivago
&
Ors
SC
59/2019.
From
the above authorities it can be noted that the remedy to stay
unterminated criminal proceedings is an extra-ordinary remedy and is
granted in instances where a
grave injustice would occur if the superior court does not intervene.
Each
case has to be determined on its own facts.
The
court's decision in refusing or granting the stay of proceedings
can be interfered with where it is found that its discretion was not
exercised judiciously and rationally.
The
question to ask is whether continuation of the trial in this matter
would result in a grave injustice.
A
close reading of the ruling rendered by the first respondent confirms
the finding of the judge
a quo
that there were no prospects of success in the review application.
The judge
a quo
went into great detail in assessing the evidence linking the
applicants to the offence.
The
applicants attack the judge
a quo
on the basis that he or she did not test the evidence led against the
ruling of the first respondent.
Such
an attack is unwarranted for the reason that the applicants were
quite happy to proceed with the matter despite the absence of a full
record which record they were given an opportunity to avail. They
failed to do so.
Kachipare's
case supra
does not take the appellant's case further.
In
considering whether, the defence case having been proceeded with and
the charge found proved, the verdict should be set aside on appeal on
the ground that the appellant ought to have been discharged at the
close of the case for the prosecution and after examining a number of
South African authorities Gubbay CJ (as he then was) at p279 C-D
stated;
“It
is to be noted that subs(3) of s198 gives the accused person no right
of appeal against a refusal to discharge. Only the Attorney- General
under subs(4) may, with the leave of a judge of the Supreme Court,
exercise the right of appeal, if dissatisfied with a decision given
in terms of subs(3). However, the express grant to an accused may
have been considered unnecessary by the legislature as s44(a) of the
High Court Act [Chapter
7:06]
permits a person convicted in a criminal trial, held by the High
Court, to appeal as of right to the Supreme Court against such
conviction on any ground of appeal which involves a question of law
alone. The refusal of a discharge upon consideration of whether the
evidence was such that a reasonable man, acting carefully, might
properly convict, involves a question of law. See Attorney-General
v Mzizi supra at 323B; du Toit et al, Commentary on the Criminal
Procedure Act sect
178.”
Further
down at p280 E-H and p281A he stated;
“However,
it is unnecessary to consider whether to adopt the reasoning of the
courts in South Africa, attractive and commendable though it is. For
in a situation like the present, this Court is enjoined to have
regard to s12(2) of the Supreme Court Act [Chapter
7:13].
Proceeding
on the premise that the learned judge committed an irregularity in
refusing to discharge the appellant at the close of the case for the
prosecution, the question is whether it appears, in the words of
section 12(2), 'that a substantial miscarriage of justice has in
fact resulted.'
Put
simply, whether the court hearing the appeal considers on the
evidence (and credibility findings, if any) unaffected by the
misdirection or irregularity, that there is proof of guilty beyond a
reasonable doubt. If it does so consider, and the onus is on the
State to satisfy it, then there is no resultant miscarriage of
justice. See S v Strydon supra at 367F; S v Ngara 1987 (1) ZLR 91 (S)
at 97B-C.
It
follows that if the totality of the evidence allows of no reasonable
possibility of the appellant's innocence in the crime, the
irregularity in failing to discharge her at the close of the case for
the prosecution will be of no consequence and is to be ignored by
this Court.”
As
can be noted from the above the door is not shut on an accused person
whose application for discharge is refused. He can still appeal in
terms s44 of the High Court Act [Chapter
7: 09]
against the entire judgment.
Although
he or she can no longer sustain the ground in respect of dismissal of
his or her application for discharge, this Court is enjoined to have
regard to s12(2) of the Supreme court Act [Chapter
7;13].
The section provides:
“(2)
Notwithstanding
that the Supreme Court is of the opinion that any point raised might
be decided in favour of the appellant, no conviction or sentence
shall be set aside or altered unless it appears to that court that a
substantial miscarriage of justice has in fact resulted.”
In
terms of the above section this Court can set aside or alter a
conviction if it appears to it that a substantial miscarriage of
justice has occurred.
From
the above analysis it is clear that the applicants had to establish a
basis for the court a
quo
to interfere with unterminated proceedings. This they did not do.
Having
made that finding it follows that the applicants had no prospects of
success in the review. The court a
quo's
reasoning cannot be faulted. The applicants had alternative remedies.
Turning
now to the alternative arguments addressing grounds 3 and 4, the
appellants had this to say in para 15 of their heads of argument;
“The
two grounds are alternative arguments. It is respectfully submitted
that on a proper reading of the essential component of the right to a
fair trial, a stay of trial in the magistrates court must be
automatic on the mere filing of a review application in the High
Court. This is so because in terms of section 86(3) of the
Constitution, the right to a fair trial cannot be derogated from.”
That
is all they said in respect of the alternative argument.
Mr
Madhuku,
in his submissions before the court, did not elaborate on the point
any further.
In
my view the alternative arguments were half-heartedly raised with no
serious intention of obtaining relief from them. I will not make a
determination with regards to the alternative argument as it was not
properly ventilated.
It
is for the above reasons that we dismissed the appeal.
GWAUNZA
DCJ: I
agree
Lovemore
Madhuku Lawyers,
the
applicants' legal
practitioners
Civil
Division of the Attorney-General's Office,
1st
respondent's legal practitioners
National
Prosecuting Authority,
for the 2nd
respondent
