Urgent
Chamber Application
MATHONSI
J:
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.
Although
this court's review power may be exercised to grant a mandamus even
before the termination of a case if there were gross irregularities
in the proceedings or it is apparent that justice might not be
attained, the general rule is that this court's power of review is
exercised only after termination of a criminal case.
The
applicant was arraigned before a provincial magistrate in Gwanda
charged with theft in contravention of s113(2)(c) of the Criminal Law
Code [Chapter 9:23] the allegations being that he stole a sum of
$70,533,34 belonging to the partnership of Enfund and N & S
Partnership proceeds from the sale of 43 stands belonging to the
partnership which were sold on behalf of the partnership by
Umzingwane Rural District Council and the money given to the
applicant.
It
is alleged that instead of using the money to purchase reticulation
pipes and pay plumbers laying the pipes on behalf of the partnership
the applicant used the money for other purposes.
The
applicant pleaded not guilty to the charge and in his defence outline
he stated that he received the proceeds of the sale of the stands in
his capacity as the Finance Director of the Partnership, he having
been one of the two partners, the other being Nicholas Masuku who is
the complainant in the matter. The latter was the operations
director.
The
money was to be used for, among other things, fuel and oils, pipes
for servicing, casual wages, repairs and maintenance of equipment as
well as office expenses.
When
he received the money he used it for that purpose.
He
therefore disputed stealing the money and maintained that some of the
money was actually collected and used by the complainant.
Indeed
evidence led on behalf of the state showed that the complainant is
the one who received the sum of $2,400-00 in count 3 which he says he
used to pay wages.
The
complainant's gripe was that the applicant had not properly
accounted for the rest of the money.
At
the close of the case of the prosecution the applicant made an
application for discharge in terms of s198(3) of the Criminal
Procedure and Evidence Act [Chapter 9:07] which enjoins the trial
court to discharge an accused person at that stage where there is no
evidence to prove an essential element of the offence; there is no
evidence on which a reasonable court, acting carefully, might
properly convict or the evidence adduced on behalf of the state is so
manifestly unreliable that no reasonable court could safely act on
it. See S v Kachipare 1998 (2) ZLR 271 (S) 276 D-E; Attorney General
v Bvuma and Another 1987 (2) ZLR 96 (S) 102 F-G; Attorney General v
Mzizi 1991 (2) ZLR 321 (S) 323B; Attorney General v Tarwirei 1997 (1)
ZLR 575 (S) 576G; S v Tsvangirai and others 2003 (2) ZLR 88 (H).
The
applicant's counsel submitted that there was “no iota of
evidence” linking him to the commission of the offence and that
putting him to his defence would amount to bolstering the state case
unable to stand on its own. The evidence of the state was manifestly
unreliable that no reasonable court acting reasonably could safely
rely on it. The requirements of theft had not been satisfied. As the
state had failed to establish a prima facie case the trial court was
required to acquit by virtue of the peremptory provisions of s198(3)
of the Criminal Procedure and Evidence Act [Chapter 9:07].
In
response counsel for the state conceded that the money forming the
subject of the charge belonged to the partnership of both the
applicant and the complainant. He also conceded that he was entitled
to a discharge in respect of count 3 relating to the money which the
complainant admitted having collected and used.
The
learned provincial magistrate would have none of it.
In
his determination of the application for a discharge at the close of
the state case he surprisingly did not address the usual question of
whether the evidence adduced for the state had established a prima
facie case for which the accused person could be called upon to
answer. Instead he reasoned thus:
“In
a partnership like the one entered into by accused and the
complainant, the property they acquire through such partnership
belongs to both of them jointly and not individually unless duly
apportioned. If one of the partners uses the property for whatever
purpose, the other partner should be appraised fully and timeously.
If the property or money is used for the benefit of the project, both
parties need to know and agree.
In
this case complainant is entitled to know how the proceeds of the
sale of the 43 stands was spent. Accused has a duty to explain
satisfactorily to his partner. For accused to give a verbal
explanation how the money was used is not enough. Accountability and
transparency on the use of such money is required.
Complainant
has the right to know.
Also
the argument that accused was the owner of the proceeds of the sale
of the 43 stands and therefore could not steal such is, to use the
word used by the defence, nonsensical. The proceeds belonged to the
partnership and not an individual. Accused could therefore steal this
money though he was a [partner] if the other partner did not approve
of his taking.
To
discharge accused without having fully explained to the complainant
how the proceeds of the sale of the 43 stands at this stage would
amount to a gross miscarriage of justice.
As
I said earlier on, for accused to say I paid wages with this money, I
bought fuel and oils or other equipment without documentary evidence
to prove accountability is clearly not adequate and does not suffice.
Accountability on the use of these funds was required.
Complainant
is entitled to know.
There
is nothing civil about this case at this stage.”
So
the applicant was put to his defence not because the state had proved
the essential elements of the theft as provided for in the law, or,
put it another way, not because the state had established a prima
facie case, but merely because, as a partner in a partnership of
himself and the complainant, he was required to account to his
partner how the money he received was applied. The applicant has now
taken that decision on review in HC1699/16 and as the respondents are
agitating to proceed with the trial on 23 August 2016, he has filed
this urgent application for stay of the criminal proceedings pending
the review.
Mr
Nkomo for the applicant pointed to a number of misdirections in the
decision but highlighted the failure by the magistrate to acquit the
applicant even in count 3 where the state conceded that the money in
that count was received by the complainant and applied for other
purposes.
If
the complainant did not commit an offence so did the applicant.
Above
all this points to the fact that the court did not deal with the
application at all but merely dismissed it for no reason.
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 exercised 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.”
In
that case the Supreme Court went on to quash the decision of the High
Court on review substituting an acquittal where the Regional
Magistrate had refused an application for discharge at the close of
the state case. It remitted the matter for continuation of trial.
In
Masedza and Others v Magistrate Rusape and Another, supra, DEVITTIE J
was confronted with a similar situation as obtaining in the present
case as the applicants had sought a stay of criminal proceedings
which were not complete to enable them to pursue a review application
against the decision of the trial magistrate refusing an application
for recusal. The following appear at 37F-G of that judgment:
“In
determining the power of a superior court to intervene in
unterminated criminal proceedings a distinction must be drawn between
an appeal and a review.
Herbstein
& van Winsen, Civil Practice of the Supreme Court of South Africa
4ed p932 explain the distinction:
'The
reason for bringing proceedings under review or appeal is usually the
same, to have the judgment set aside. Where the reason for wanting
this is that the court came to a wrong conclusion on the facts or the
law, the appropriate procedure is by way of appeal. Where, however,
the real grievance is against the method of the trial, it is proper
to bring the case on review.
The
first distinction depends, therefore, on whether it is the result
only or rather the method of the trial which is to be attacked.
Naturally, the method of trial will be attacked on review only when
the result of the trial is regarded as unsatisfactory as well.
The
giving of a judgment not justified by the evidence would be a matter
of appeal and not a review, upon this test.
The
essential question in review proceedings is not the correctness of
the decision under review but its validity.'
Where,
in unterminated proceedings an interlocutory decision is sought to be
set aside on grounds that the court has made a wrong decision in the
proper discharge of its functions the appropriate procedure is by way
of appeal. The general principle is that an appeal will be
entertained only after conviction.” (The underlining is mine)
The
court dismissed the urgent application for stay of criminal
proceedings because the recusal application had no merit.
See
also Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357; S v
John 2013 (2) ZLR 154 (H).
What
is clear therefore is that this court will only exercise its review
jurisdiction to intervene in unterminated criminal proceedings where
the irregularity is gross or where it is such that an injustice might
not be attained by other means.
In
the present case the provincial magistrate was asked to determine an
application for a discharge of the applicant at the close of the
state case.
Considerations
in such an application centre around the existence of a prima facie
case for which the accused person is called upon to answer. Where no
such case exists the accused person is entitled to an acquittal.
I
must however pause there a while and mention that at the moment I am
not sitting in judgment over the review application. The present
assignment however requires me to take a peep into that application
to see whether it is worth staying proceedings for, a process which
involves the exercise of a discretion.
It
would be an injudicious exercise of a discretion were I to stay
unterminated criminal proceedings where the court is unlikely to
exercise its review powers in favour of the applicant.
I
have quoted the judgment of the provincial magistrate above to
demonstrate that he appears to have allowed his mind to wander off
the field of discourse. In the end he did not address the application
before him at all.
In
criminal proceedings it is a salutary principle of our law that the
accused person bears no onus to prove anything.
The
trial court appears to want him to come to court and account to the
complainant how he used the money that he received. Yet it is common
cause that he was entitled to receive the money and was also entitled
to use it.
This
lends weight to the argument that this may well be a civil dispute
where no criminal case may have been established.
It
is also common cause that the dispute between the parties was also
pending in this court as a civil matter in HC1722/12 and that the
parties signed an agreement resolving the same dispute.
In
my view the reasoning of the magistrate in response to the
application for discharge goes beyond mere faultiness or otherwise of
the decision. It also relates to the method of the trial, where an
accused person is put to his defence not because a prima facie case
has been established but merely to account to his partner.
It
is prejudicial to an accused person to perpetuate a trial for that
reason.
In
light of that I am prepared to exercise my power to interfere with
the criminal proceedings even though unterminated in order to afford
the applicant the opportunity to explore a review of the validity of
that decision.
As
stated in Mukwemu v Magistrate Sanyatwe N.O and Another HH765/15 (as
yet unreported), it is a necessary feature of every system of
adversarial administration of justice that there should be a higher
court in the hierarchy to correct judicial errors.
What
the trial court did in this matter in requiring the applicant to
render an account equates to what confronted MAFUSIRE J in S v John,
supra where the accused person was put to his defence in order to
“clear” his name.
In
the result the provisional order is hereby granted in terms of the
draft order.
Messrs
R. Ndlovu and Company, applicant's legal practitioners
National
Prosecuting Authority, 2nd respondent's legal practitioners
