On 28 April 2009, I granted a provisional order and gave brief reasons for my decision. One of the parties has requested full reasons. These are the full reasons.

This matter has a bit of history which I propose to highlight.

The applicant was appearing in a criminal trial before the first respondent, a senior magistrate in Kwekwe, charged with contravening section 3(3) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. On 26 March 2009 the trial commenced before the first respondent. During the lunch break, the applicant fell ill and ended up at a Dr. Dondo's rooms. After lunch, the applicant's legal practitioner, after being informed of this development, went to explain to the court. She applied that the matter be stood so that she could rush to Dr. Dondo's clinic to investigate.

The first respondent stood down the matter for thirty (30) minutes.

The legal practitioner rushed to the doctor's rooms but failed to locate the applicant. She went to explain this to the first respondent's court. On arrival, the first respondent issued a warrant of arrest of the applicant.

The legal practitioner later came to know that the applicant been referred to a specialist in Bulawayo, a Dr. Cohen. In Bulawayo, the applicant was, instead, attended to by another specialist, a Dr. G.P.Pretorius, who recommended that the applicant “rest for two weeks.”

In short, the applicant has produced these medical reports which evince that he was diagnosed with hypertension requiring two (2) weeks bed rest.

On 2 April 2009, the applicant, under HC502/09, filed with this court an urgent application for stay of the aforesaid criminal proceedings in the Kwekwe Magistrates Court. Simultaneously, he filed a court application for review of the same proceedings, under HC503/09. KAMOCHA J directed that the respondents under HC502/09 (these are, incidentally, the same respondents in this matter) be served for a hearing on 7 April 2009 at 0900 hours. In compliance with the above directive, on 6 April 2009, the applicant's legal practitioner served the respondents with court papers in both cases under HC502/09 and HC503/09, together with a notice of set down setting the matter for 7 April 2009.

On the same day, i.e. 6 April 2009, the applicant's legal practitioner was picked up by one Inspector Sibanda, of Kwekwe Central Police, on allegations of defeating, or obstructing, the course of justice. The allegations were that she filed with this court, under HC502/09 and HC503/09, applications, notwithstanding her knowledge that the applicant was under a warrant of arrest, without first of all bringing him to court for cancellation of the warrant of arrest.

This arrest was at the behest of the first respondent, after he was served with papers under HC502/09 and HC503/09, and the notice of set down.

The legal practitioner was in police custody from 1530 hours to 1930 hours.

It seems that the first respondent's complaint was only reduced to writing on 7 April 2009 according to the Kwekwe Magistrates' Court date stamp next to the first respondent's signature.

The applicant's legal practitioner eventually appeared before KAMOCHA J on 7 April 2009, who granted a provisional order staying proceedings in the Kwekwe criminal court pending finalization of proceedings in this court.

The applicant's legal practitioner eventually appeared before a Gweru Magistrates' Court who refused to place her on remand.

On 16 April 2009, after the applicant had been certified fit by the doctor, his legal practitioner took him to Kwekwe Magistrates' Court for cancellation of the warrant of arrest. The Clerk of Court approached the first respondent for the record of proceedings as the latter had it in his possession. The Clerk of Court informed the legal practitioner that the first respondent said the warrant of arrest could not be dealt with since the proceedings in the matter had been stayed by this court under HC502/09.

The legal practitioner requested audience with the first respondent, in the company of a local public prosecutor, one Zashure. The first respondent maintained the position that as the court had stayed proceedings in the matter, the warrant of arrest could not be dealt with. The legal practitioner requested that the matter be dealt with by the other magistrate at the station since the first respondent was an interested party to the proceedings following his abovementioned complaint to the police against her.

The first respondent refused.

She enquired whether the first respondent would instruct the police to stay the arrest as well, but the first respondent declined.

The legal practitioner took the applicant to the police station and explained the circumstances pertaining to the warrant of arrest. She also approached the public prosecutor and the Chief Magistrates' Office about the matter – all in vain. All she got was sympathy and no clarity, or undertaking, that the warrant of arrest's operation was suspended as well. The applicant's fear is that he may be arrested and incarcerated up till this court either confirms or discharges the provisional order under HC502/09.

Counsel for the applicant argued that I deal with the warrant of arrest issued by the first respondent and cancel it in these proceedings. I am not going to consider whether this is legally possible.

This issue will be rendered unnecessary if this court, under HC503/09, orders that the first respondent recuse himself from the proceedings.

It is against this background that I felt that the best interests of justice will be served by the suspension of the operation of the warrant of arrest pending determination of the substantive issues.

Counsel for the respondents did not oppose the granting of the provisional order, per se. What he submitted was that I make an order that the first respondent be granted leave to deal with the issue of the warrant of arrest only, i.e. the stay of proceedings under HC502/09 should not apply to the issue of the warrant of arrest.

On the 18^th June 2009 this matter was heard before me in chambers. After hearing both counsel I dismissed the application and undertook to give my reasons later. These are they.

The allegations, as presented by the State, are that the applicant was charged with stock theft. He pleaded not guilty, but, was convicted and the matter was postponed to the 21 May 2009 for sentence by consent of both counsel.

The historical background of this matter is that the applicant first appeared in court before the first respondent on the 27^th April 2009. He was remanded in custody to the 7^th May 2009. He was unrepresented at the time. He was further remanded to the 14^th May 2009 for trial. On his appearance on the 14^th May 2009 he was being represented by Miss N Ndlovu. His legal practitioner applied for a postponement in order to enable her to prepare for the trial. The application was granted and the matter was postponement to the 21^st May 2009. On the trial date, counsel for the applicant failed to appear in court in the morning resulting in the matter being adjourned to 12:15pm. She, again, did not appear then and the trial proceeded in her absence. Upon enquiry as to the whereabouts of his legal practitioners, it is said the applicant professed ignorance and stated that he had last seen and spoken to her on the 14^th May 2009 when she applied for bail.

It is the first respondent's evidence, in her affidavit, that at that stage she came to the conclusion that the applicant was then unrepresented and allowed the trial to commence.

On the 28^th May 2009, the applicant's legal practitioners appeared in court and some misunderstanding between the first, second respondent, on one hand, and herself, on the other, took place. The misunderstanding was on the basis that the first respondent should not have allowed the trial to continue on the 21^st May 2009 in her absence. This was despite the fact that she had not communicated her failure to attend either to the Public Prosecutor or to the first respondent. The argument then spilled into the court, but, the matter was then postponed to the 19^th June 2009 after judgment had been handed down and the applicant was convicted. After conviction, the applicant's legal practitioner asked for a postponement to the 19^th June 2009 in order to prepare for sentence. However, instead of preparing for sentence, she filed an application for review on the 11^th June 2009 and this urgent application on the 12^th June 2009. 

I express no opinion about these activities and I will only deal with the urgent chamber application.

The applicant has argued that the proceedings that were due on the 19^th June 2009 should stop as they were likely to result in him being sentenced to a mandatory imprisonment term. It is further his contention that in the event that the sentence is passed he will suffer serious prejudice.

In order to determine this matter it is unavoidable to visit the application for review as it is the reason for this application. In his application for review, the applicant averred that he was denied the right to defend himself in terms of section 18(3)(d) and (e) of the Constitution of Zimbabwe. He further argued that as a result of such denial his rights to a fair trial as guaranteed under section 18(2) and 18(a) of the Constitution of Zimbabwe were infringed….,. The applicant contends that should the hearing proceed; he would not have been accorded a fair trial. It is, indeed, his constitutional right to a fair trial. I agree with him as the law is clear in that respect. In Nhari v Public Service Commission 1999 (1) ZLR 513 (S)…, GUBBAY CJ stated:-

“It is, to my mind, a matter of considerable importance, both in the interests and administration of justice, that every person who enjoys the fundamental right to be represented by a legal practitioner before a court or other adjudicating authority established by law should be accorded every opportunity of putting his or her case clearly and succinctly to such body. Almost invariably that function can only be performed properly when it is presented by a person trained and experienced in law.”

I find that the applicant and her legal practitioner were aware of the 21^st May 2009 as a trial date, but, the legal practitioner chose not to attend and did not communicate her failure to the first or second respondents. That failure was deliberate as the reason given is unconvincing.

In view of her conduct, it cannot be said that the applicant was denied a fair trial when his legal practitioner wilfully defaulted. After all, her request for a postponement was to enable her to “prepare” mitigation before sentence.

This is a matter which came as an unopposed matter in which the applicant sought to set aside the second respondent's decision that the trial of the applicant continue to the defence case in a criminal trial. Further, that the applicant be discharged at the close of the State's case.

The brief background of the matter is this.

On 11 September 2013, at around 16:30 hours, the applicant was in charge at a roadblock along Kirkman Road, Mabelreign, Harare. The applicant was observed by the informant, one Fiona Hlomani, a senior police officer who was checking roadblocks along Kirkman Road. The informant observed the accused person receiving something from an unidentified motorist. The informant then stopped and interrogated the accused person as to what was happening. The accused is alleged to have thrown down seven dollars she had received from the motorist. It is alleged that the accused picked up the money and handed it over to Motion Manekera, a commuter omnibus driver. The accused was searched by the informant and was found with a road service permit belonging to Freerain Enterprises of Number 7 Seville Close Glen Lorne.

It is from the above set of facts that the applicant had a charge of criminal abuse of duty as a Public Officer as defined in section 174(1)(9) of the Criminal Law Codification and Reform Act [Chapter 9:23] laid against her. 

Evidence was led from the arresting detail who stated she observed the accused person being handed money by a motorist who sped off. It was Fiona Hlomani's further evidence that the accused person shouted “mandibata” (meaning you caught me) when the second witness got to her. This was not disputed. The first witness refuted the applicant's defence that the $7= was his. Further, the applicant was found with excess money which she did not account for.

At the close of the State case the defence applied for discharge. 

The basis for the application was that the State witnesses were not reliable as they had proffered contradictory evidence. Our law provides for a discharge at the close of the State case if the court considers that there is no evidence that the accused committed the offence. Section 198 of the Criminal Procedure and Evidence Act [Cap 9:07] reads:

“198 Conduct of Trial

(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.”

It is trite from the above that discharge is justified;

(i) Where there is no evidence on which a reasonable court might convict. See Rutterboldt 1956 SA 722 & Attorney General v Mzizi 1991 ZLR 321 (S)…,.

(ii) The evidence adduced by the prosecution is so manifesty unreliable that no reasonable court could safely act on it. See S v Hurtlebury & Anor 1985 1 ZLR 1…, per McNALLY…,.; S v Malinger & Ors 1993 4 SA 479; S v Kachipone 1998 2 ZLR 271 (S).

(iii) There is no evidence to prove an essential element of the offence. See S v Ruzani 1984 ZLR 334 (4) and Attorney General v Bvuma & Anor 1987 (2) ZLR 96 (SC)…,.

The trial court has a discretion to discharge or continue with the trial. However, the most important factor is that the discretion must be exercised judiciously. It seems to me that the magistrate judiciously exercised her discretion and this court will not interfere with that discretion as a prima facie case was made against the applicant.

In light of the above, the following decision is made.

The record of proceedings in this matter has been placed before me by the Provincial Magistrate Masvingo under cover of a minute with the following comments;

“Please place this record of proceedings before a High Court Judge with the following request.

The accused was arraigned before Mr P Mapiye at Masvingo Magistrates Court. The trial progressed till judgment stage and the accused defaulted before it was handed down. He was arrested through a warrant of arrest. However, the trial magistrate left service before handing down judgement. We therefore request that the proceedings be reviewed with a request for trial de novo.”

While this court has inherent jurisdiction to review and regulate the proceedings of lower tribunals, it is always important, in my view, for proper facts to be stated when submitting records to the court for purposes of review. I make this point because it is clear to me that the learned Provincial Magistrate who wrote the referral minute seemed not to have appraised himself with the status of the proceedings he was referring to this court. It is incorrect that this matter had progressed till judgement stage. While it may be true that the accused defaulted court as alleged (this is not apparent in this record of proceedings), it is not true that this matter had reached the stage where judgement could be passed. The correct position is that the State had led evidence from three witnesses. The State case had not been closed and the accused was yet to give evidence. I am surprised why this learned Provincial Magistrate did not at least appraise himself of the record of proceedings. This misrepresentation could also have been avoided if the learned Provincial Magistrate has first referred this matter to the other interested party, the Prosecutor General (the Attorney General) for their input on the status of the matter.

The correct facts of the matter are that the accused and an accomplice (who still appear to be at large, one Rangarirai Pakachena) were arraigned before Mr Mapiye at Masvingo Magistrate Court on 5 November 2008 facing a charge of contravening section 114(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] – stock theft. It is alleged that on 1 October 2008, at Mavhorondiya Village, Chief Zimuto, Masvingo the accused and his accomplice or one of them stole two cows belonging to Shumirai Mudakureva valued then at Zimbabwean $600= million.

The facts alleged are that both the accused and the complainant reside in the same Mavhorondiya Village, Chief Zimuto, Masvingo. It is alleged that on 29 August 2008, the accused approached one Maramba who owns a butchery in Mucheke, Masvingo and offered to supply him with beef. It is alleged that Maramba alerted the police who proceeded to set up a trap. It is further alleged that on 1 October 2008, the accused and his accomplice stole the complainant's two cows after which the accused approached the police for a stock card clearance and permit to drive the two cows whilst his accomplice drove the cows to Gonyohori abattoir. The accused's accomplice was arrested at the abattoir with one cow as the other had escaped. The accused was arrested at Maramba's butchery awaiting payment for the two cows. Both cows were recovered. When the trial commenced, Accused One was represented by Mr Bhunu and his accomplice appeared in person. They both pleaded not guilty. Accused One admitted offering to sell two beasts to Maramba but insisted that the beasts were his and that he was arrested before he had completed the transaction. The accomplice admits driving two beasts to Gonyohori abattoir where he was arrested and said this was on Accused One's instructions.

The record of proceedings shows that three witnesses, the complainant, Shumirai Mudakureva, Godwin Maramba and the Investigating Officer, Chidhakwa, gave evidence and the proceedings were adjourned. The reason is not clear, neither is the date. The accused is alleged to have defaulted the court thereafter and was re-arrested sometime in 2012. Meanwhile, the trial magistrate, Mr Mapiye, left service. The date is not given in the referral minute.

It is on this basis that I am being requested to quash these proceedings and order trial de novo.

In the case of S v Tsangazi 1997 (2) ZLR 247 (H), GILLESPIE J examined the various scenarios where incomplete criminal proceedings may be set aside and trial de novo ordered either due to the incapacity or unavailability of the judicial officer dealing with the matter. I believe it is important for guidance purposes to summarise the various scenarios and the appropriate action to be taken.

a) Where a judicial officer dies or is incapacitated, the incomplete proceedings are a nullity and the matter may be commenced afresh. The reason is that the judicial officer is incapable of bestowing a verdict and neither can the accused successfully demand for one. I may venture to add that, in my view, in such a scenario it may not be necessary for the High Court to set aside such incomplete proceedings although for procedural expedience and completeness such an order may be sought.

b) Where a judicial officer recuses himself or herself or he or she becomes functus officio. In such circumstances, it is then necessary for the State, through the Prosecutor, if it wishes to continue with the matter, to have a new hearing.

c) Where the judicial officer or magistrate is transferred from the station before completing the criminal proceedings he or she is not disqualified from continuing with that case. All what is required is for the necessary administrative steps to be taken like mobilising financial resources and necessary authority to vest him or her with the jurisdiction to exercise his/her powers in that District or Province. Such a judicial officer may also continue with the matter on the basis of implied jurisdiction.

d) The power to set aside incomplete proceedings on account of transfer of the judicial officer and to order trial de novo may only be properly exercised by this court on application by one of the interested parties on notice to the other. This is so because such a matter is not available for automatic review.

The circumstances of the matter in casu are that the trial magistrate left the service before the criminal proceedings had been completed. In the case of S v Tsangazi 1997 (2) ZLR 247 (H)…, GILLESPIE J referred to the case of S v Gwala 1996 (2) SA 227 (N) in what I believe the question of what proper course of action this court can take was answered. It was stated that;

“Clearly, such an officer becomes functus officio upon recusal, and, the prosecutor desiring to proceed with the case, it becomes necessary to have a completely new hearing. Equally so, the death of a magistrate, his resignation, or dismissal, would give rise to the opening of a case de novo against an accused person.”…,.

It is clear from the facts of this case that the trial magistrate left the service. It matters not whether it was by dismissal or resignation. The criminal proceedings are incomplete. It is therefore appropriate, in such circumstances, to have the proceedings set aside and commenced de novo before another magistrate. This is a very serious matter of stock theft which invites a mandatory term of 9 years imprisonment in the absence of special circumstances if the accused is convicted. I am cognisant of the fact that the offence was committed in 2008 and that it has been outstanding for 5 years. The accused is clearly to blame for this delay. I also believe there would be considerable delay incurred if the trial magistrate (assuming he is available) is to be recalled and clothed with the necessary jurisdiction to finalise the matter and this is prejudicial to the accused.

I am therefore satisfied that I can properly set aside these incomplete proceedings. Accordingly, I make the following order;

1. The proceedings in CRB MS 2520-21/08 be and are hereby set aside.

The applicant was jointly charged with Norman Bvekwa, his legal practitioner, on a charge of fraud in contravention of section 136 of the Code. They pleaded not guilty. The State led evidence and closed its case. The applicant and his co accused applied for discharge at the end of the State's case. The representative of the second respondent opposed the application. The first respondent, in determining the applications, discharged the applicant's co-accused in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] but dismissed the applicant's application.

The applicant applied for the review of the first respondent's decision. That application is pending before this court. He thereafter faced the prospect of the trial continuing, on 29 April 2014, during the pendency of his review application. Attempts to get a postponement pending the determination of his review application failed.

He had no other option besides urgently applying for the stay of proceedings pending the determination of the review application.

The parties appeared before me for a hearing on 28 April 2014. Counsel for the respondents applied for a postponement to 30 April 2014. As that date was after the 29^th April 2014, when the trial was to continue, the parties, by consent, agreed to an order staying the proceedings till the determination of this application.

An application for stay of proceedings pending the review of a Magistrate's Court's decision, in terms of section 198(3) of the Code, depends on the prospects of success of the review application. If the review does not have prospects of success, the application for a stay of proceedings must fail.

It is trite that this court does not encourage applications for review before the criminal trial has come to an end. If, however, there is, in exceptional circumstances, evidence that the application for review is meritorious, such a review can be entertained. See the cases of S v Sibanda 1994 (2) ZLR 19 (HC) and S v Masedza & Ors v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (HC).

The applicant attacked the magistrate's decision on the grounds that it shifted the onus to prove his guilt from the prosecution to himself when he put him on his defence so that he can prove the genuiness of the instructions he gave to his legal practitioner with whom he had been jointly charged.

I must determine this application without prejudging the applicant's application for review. I should merely consider whether it is worth placing before the court for review or has prospects of success.

In terms of section 18(4) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the State bears the onus to prove an accused guilty beyond reasonable doubt. The accused therefore bears no onus to prove his innocence unless the Code or a statute places an onus on him. In this case, no onus has been placed on the accused. The words complained of are on page 170 of the record of proceedings where the trial magistrate said;

“On the other hand, Accused 2 maintains that the contents of that letter are true. In such circumstances, Accused 2 should prove that his instructions to Accused 1 are not false and were never intended to mislead anyone.”…,.

As already said, an accused person is not required to prove his innocence.

In its decision in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], the trial court is first and foremost required to make a finding that the State's evidence has established a prima facie case against the accused. It is that prima facie case that the accused can be put on his defence to answer.

In this case, it seems there may be prospects of success in the applicant's application for review.

I therefore find that the proceedings should be stayed pending the determination of the applicant's application for review. I therefore order that:-

1. The applicant's application for stay of proceedings in CRB10504/12 be and is hereby granted.

2. The proceedings are hereby stayed pending the determination of the applicant's application for review in HC3374/14.

The charge that the applicant was facing was framed like this:-

“CHARGE SHEET

The State versus FORCE NUMBER 054381 C/D J. RANK SERGEANT

(Hereinafter called the accused) appointed on 27/03/03 rate of pay…,.

The accused is ordered to appear before the court of an officer/board of officers at place DHQ WEST on the 24/12/12 at (time) 0800 hrs firstly to answer the charges of contravening paragraph 11 of the schedule to the police Act Chapter 11:10 “without good and sufficient cause, disobeying or refusing or committing or neglecting to carry out any order written or otherwise.”

In that upon (or about) in September 2010 and at (or near ZRP ENTUMBANE) the accused, being a member of the force, did wrongfully and unlawfully enrolled (sic) with the United College of Education in September 2010 for a Diploma in Education thereby disobeying provisions of Propol Bulawayo Radio number CRC 649/12 DATED 11/04/12 which stipulate that anyone seeking to pursue academic studies must have a clean record of service, amounting to 10 years and as well submit an application well in advance when seeking authority.”

The charge sheet was personally served on the applicant on 21 December 2012 by Chief Inspector Taduwa. The applicant indicated that he would conduct his own case. The summary of the State case read thus:

“Charge: contravening section 11 of the Schedule to the Police Act Chapter 11:10 “Without Good and sufficient cause, disobeying or refusing or omitting or neglecting to carry out any order written or otherwise.

FACTS

(1) The accused is a serving member of the Police Force at ZRP Entumbane. Accused is subject to Police disciplinary code.

(2) On the date unknown but in the month of September 2010, the accused enrolled with the United College of Education for a Diploma in Education without having followed the provisions of Propol Bulawayo Radio CRC 649/12 dated 11/04/12.

(3) The accused must not have been acted (sic) in the manner he did.”

The applicant attended the trial on the appointed date and time. When the State closed its case he applied for a discharge but the trial court was not prepared to entertain the application and attempted to force him to present his defence case. He alleged that the presiding officer even threatened to physically assault him if he insisted with his application for a discharge at that stage. That prompted him to file an ex parte application on a certificate of urgency to stop those proceedings and was granted a provisional order in case number HC578/13.

The applicant is now seeking an order in the following terms in his amended draft:

“It is ordered:-

(1) That the proceedings of the 9^th January 2013 be and hereby set aside.

(2) That after the setting aside of proceedings, no other proceedings on the same charge shall be instituted against the applicant.”

The applicant's complaint hinges on the charges that were preferred against him. He drew attention of the court to the charge sheet which alleged that he disobeyed the provisions of Propol Bulawayo Radio number CRC 649/12 dated 11 April 2012 which stipulates that anyone seeking to pursue academic studies must have a clean record of service amounting to 10 years service and as well submit an application well in advance when seeking authority.

The applicant enrolled with the United College of Education in September 2010. The said Propol Bulawayo Radio Signal number CRC649/12 was only formulated two years after he enrolled with the teacher training college and was published on 11 April 2012. It is very difficult to understand how the applicant could have been charged with disobeying provisions of the Propol Bulawayo Radio Signal number CRC 649/12 which did not exist at the time the applicant enrolled.

The applicant has alleged that the presiding officer had been instructed to convict at any costs. He therefore did not apply his mind to the case before him and was biased against the applicant. He based his allegations on the fact that a colleague of his, Sergeant Christopher Mabhunu, who appeared before an impartial presiding officer, Superintended Pilate Moyo, facing similar charges, was acquitted at the end of the State case. In acquitting him the presiding officer stated that:-

“(a) The radio signal had nothing to do with Sergeant Mabhunu since it was published after he had enrolled with the college.

(b) There was no such a charge in the Police Force.”

Section 11 of the Schedule to the Police Act [Chapter 11:10] which the applicant was alleged to have contravened provides as follows:

“(11) Without good and sufficient cause disobeying or refusing or committing or neglecting to carry out any lawful order, written or otherwise.”

Quite clearly, the lawful order which is disobeyed or refused or neglected to be carried out must be in existence at the time an officer is alleged to contravene the section. In fact, the lawful order must be written or otherwise at the time it is disobeyed or refused to be carried out without good and sufficient cause. The section makes no reference at all to future lawful orders written or otherwise.

The applicant was entirely correct when he submitted that there was no such provision at all in the Police Act [Chapter 11:10]. He was also not aware of any standing order to that effect. In any event, the charge sheet does not allege that he contravened any standing rule or order. It alleged that he contravened section 11 of the Schedule to the Police Act [Chapter 11:10]. There is no such standing rule in the Police Act [Chapter 11:10] and it was not produced in court.

It was submitted by the respondents that the charge preferred against the applicant was correct because he had violated standing rules. The evidence led in court had clearly showed how the offence had been committed. It was further submitted that the applicant had refused to be put on his defence on the basis that the synopsis had quoted a signal dated 2012 - a period of two years after he had commenced his teacher training course. The respondents concluded by claiming that the signal was just a reminder and that has been clearly stated in the evidence which was led in court.

These submissions are faulty.

Firstly, it would have been improper and irregular to charge the applicant with contravening section 11 of the Schedule to the Police Act [Chapter 11:10] but lead evidence relating to the contravention of standing rules at the trial. When counsel for the respondents was asked to produce the record of proceedings showing where it was clearly stated the signal was just a reminder and the evidence showing how the offence was committed he conceded he was unable to do so. He even said he did not have such record.

The applicant averred that he had written a letter on 10 July 2010, through his officer in charge, seeking permission to enrol with the United College of Education for a teacher training course commencing on 7 September 2010 to June 2013. When officers seek to communicate with the Officer Commanding Province by letter they write through their officer in charge who transmits the letter to the Officer Commanding Province. The applicant received no response to his request. His letter is filed of record as annexure “F”…., of the bound papers.

The applicant argued that he had good and sufficient cause to enrol for teacher training because he had been suspended from work without salary. He had to prepare for his future. He contended that during the entire period of his teacher training course he never absented himself from duty without official leave and was at school only when he was not at work. He, therefore, did not prejudice his employer in any way.

This court holds that there was no evidence to show that the applicant was absent from work without official leave thereby prejudicing the Police Force. Further, it is held that the charge preferred against the applicant was patently wrong and so was the synopsis of evidence and did not disclose any offence. Furthermore, it is held that the presiding officer, Superintendent Ndlovu, was partial when handling the applicant's case.

In the result, I would grant the order sought in terms of the amended draft…,.

The time-honoured common law principle that a superior court should be slow to intervene in ongoing proceedings in an inferior court, except in exceptional circumstances.

This principle is persuasively articulated as follows in the case of Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A);

This is an application for an order declaring the applicant not guilty and acquitting her after a review of the proceedings leading to her conviction. The matter was placed before me as an ordinary court application although the proceedings in the Magistrate's Court are not yet concluded in that she has not yet been sentenced….,.

The question raised in this application is whether this court has power to intervene in un-terminated criminal proceedings in the exercise of its inherent powers of review….,.

The authorities indicate that this court has an inherent power of review. In Rascher v Minister of Justice 1930 TPD 810…, KRAUSE J said:

"…, a wrong decision of a magistrate, in circumstances which would seriously prejudice the rights of a litigant, would justify the Court, at any time during the course of the proceedings, in interfering by way of review…,.

The above principles were laid down in a civil case and they would apply with greater force where the proceedings are of a criminal nature and a miscarriage of justice might result in the circumstances from a wrong decision of the magistrate or where the rights of an accused person are seriously affected thereby."

In Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357…, GARDINER JP observed:

"Now, as a rule, the Court's power of review is exercised only after termination of the criminal case, but, I am not prepared to say that the Court would not exercise that power…, before a termination of a case if there were gross irregularity in the proceedings."

In Wahlhaus v Additional Magistrate, Johannesburg & Anor 1959 (3) SA 113 (A)…, OGILVIE THOMPSON JA…, said:

"It is true that, by virtue of its inherent power to restrain illegalities in inferior courts, the Supreme Court may, in a proper case, grant relief - by way of review, interdict or mandamus - against the decision of a Magistrate's Court given before conviction…,.

This, however, is a power which is to be sparingly exercised. It is impracticable to attempt any precise definition of the ambit of this power for each case must depend upon its own circumstances. The learned authors of GARDINER and LANSDOWNE (6ed Vol 1, p750) state:

'While a superior court having jurisdiction on review or appeal will be slow to exercise any power, whether by mandamus or otherwise, upon the un-terminated course of proceedings in a court below, it certainly has the power to do so, and will do so in rare cases where grave injustice might otherwise result or where justice might not, by other means, be attained…,. In general, however, it will hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the court below and to the fact that redress by means of review or appeal will ordinarily be available.'

In my judgment, that statement correctly reflects the position in relation to unconcluded criminal proceedings in the Magistrates' Courts. I would merely add two observations. The first is that, while the attitude of the Attorney-General is obviously a material element, his consent does not relieve the superior Court from the necessity of deciding whether or not the particular case is an appropriate one for intervention. Secondly, the prejudice, inherent in an accused's being obliged to proceed to trial, and possible conviction, in a Magistrate's Court before he is accorded an opportunity of testing, in the Supreme Court, the correctness of the magistrate's decision over-ruling a preliminary, and perhaps fundamental, contention raised by the accused, does not per se necessarily justify the Supreme Court in granting relief before conviction."

In Ellis v Visser & Anor 1956 (2) SA 117 (W)…, MURRAY J…, considered Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357 and observed that the learned JUDGE-PRESIDENT in that case dealt with a case in which the trial magistrate tried the accused in his absence in circumstances where such trial was not permitted. The learned JUDGE PRESIDENT said this was one of the exceptional and unusual cases where the trial magistrate had acted with gross irregularity and had not discharged the functions entrusted to him. GARDINER JP's view was that where a trial magistrate performs his functions in a proper and regular manner the superior Court would not interfere. Referring to Rascher v Minister of Justice 1930 TPD 810, MURRAY J indicated that as far as what KRAUSE J had said was concerned, if that meant that any wrong decision by a trial magistrate on a point of law was given in the course of a criminal trial was subject to immediate interference by the superior Court he would hold that he did not agree with that.

MURRAY J went on to state…,:

“Even assuming that I have the discretion to interfere in exceptional cases I see no reason whatsoever for using that discretion in the applicant's favour, and see considerable reason against exercising my discretion in the applicant's favour…,.

The grounds counsel asked me to consider were really this:

That the title to prosecute is a sine qua non and the applicant would be subject to hardship if the case was allowed to proceed further and that there would be repetition of matters which would cause him to be involved in publicity of an extremely undesirable character from his point of view. It was also pointed out that he would be put to costs and that he was not certain that he would be able to recover from the prosecutor if acquitted. It was also pointed out that the case would be a protracted one and that there would be claims on the applicant's time as a result of this.

I cannot see that, in regard to these matters, the applicant is in any worse position or suffers any greater hardship than any person who is prosecuted and eventually acquitted.

…,. There are a number of objections which may be taken, apart from embarrassment, in a case against an accused person; there are special pleas…, and there are matters of exception or objections to the plea and the indictment presented. All of these matters can be decided, and are decided, by the magistrate. If the applicant's contention in this case is correct, then, in every one of these cases where a decision is taken by a magistrate there would be just as much reason as in the present case for the accused person to claim that this matter must be decided in limine without awaiting the results of the merits of the case. The result would, I think, create chaos - one envisages a succession of appeals…, whereas, it is desirable that the actual merits should be speedily disposed of and any decisions which are wrong in law should be corrected in the ordinary way by way of appeal, as there can be no miscarriage of justice, no abuse of process of the Court if the ordinary procedure is followed.”…,.

The test as to when a superior court could intervene in un-terminated proceedings has already been discussed above. A superior court, having jurisdiction on review or appeal, will be slow to exercise any such power, whether by mandamus or otherwise, and will only do so in rare cases where “grave injustice might otherwise result or where justice might not by other means be attained.”…,.

What is permitted is intervention by this court that is so gross that it is incapable of correction by way of ordinary review or appeal; or where it is unconscionable to wait the conclusion of the proceedings before seeking redress in the normal way. It seems to me that such instances will be rare….,.

McComb v Assistant Resident Magistrate & Attorney-General 1917 TPD 717 was a case where the magistrate had refused to allow certain questions to be put to a State witness. The matter was postponed in order to allow an application to be made for a mandamus that the magistrate allows the questions. This is what the court said at 718:

“Moreover, as pointed out by my brother GRWGOROWSKI, if the court is called upon to intervene whenever a magistrate disallows a question in cross-examination, it might protract the hearing of the case indefinitely. After having got the court's ruling on the question, when the matter comes up before the magistrate again, the attorney may wish to put other questions which the magistrate deems wholly irrelevant and the magistrate may disallow them, and, an application may again be made to this court for a mandamus to compel the magistrate to allow the questions. That only shows how undesirable it is for the court, in the absence of good reasons, to intervene in the middle of (or rather, as in this case, at the beginning) of criminal proceedings upon an application of this nature.''…,.

All the authorities confirm that the reason why a review of unterminated proceedings is not countenanced is to avoid creating situations such as here where proceedings are unnecessarily interrupted.

In Masedza & Ors v Magistrate Rusape & Anor 1998 (1) ZLR 36 DEVITTIE J observed that a higher court will intervene in unterminated proceedings of a lower court:

…,. The procedure adopted by the applicants would constitute an affront to the time honoured common law principle that a superior court should be slow to intervene in ongoing proceedings in an inferior court - except in exceptional circumstances.

This principle is persuasively articulated as follows in the case of Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A):-

“…, a superior court would be slow to exercise any power upon the unterminated course of criminal proceedings in a court below, but would do so in rare cases where grave injustice might otherwise result or where justice might not, by other means, be attained.”

I am satisfied the same principle applies with equal force to civil proceedings in a lower court.

Echoing the same sentiments in the recent case of Cuthbert Tapuwanashe Chawira & 13 Ors v Minister of Justice Legal and Parliamentary Affairs & 2 Ors CC03-17, this court, per BHUNU JCC, held as follows:

“Zimbabwe operates a self-hierarchical judicial system, where, in the ordinary run of things, cases start from lower courts progressing to the highest court of the land. Generally speaking, higher courts are loathe to intervene in un-terminated proceedings within the jurisdiction of the lower courts, tribunals or administrative authorities…,.

These sentiments find expression in the words of GUBBAY CJ in the leading case of Catholic Commission for Justice and Peace in Zimbabwe v A-G & Ors 1993 (1) ZLR 243 (S) at 250G, where the learned Chief Justice had this to say;

This is an application for review arising from the applicant's trial in the Magistrates Court before Magistrate Mahwe sitting at Harare.

The applicant appeared before the trial magistrate charged with contravening section 43(2) of the Shop Licences Act [Chapter 14:17]. The section criminalizes the unlawful use of another's shop licence with the intention to deceive.

The applicant is alleged to have unlawfully, with the intention to deceive, used a licence belonging to Florence Sowah Nana to run a shop through a company called The Grace Corner Trading (Pvt) Ltd. The applicant denied the charge and the matter proceeded to trial. The applicant's complaint is that during the course of the trial the magistrate improperly admitted an uncertified copy of a CR14 form contrary to the provisions of section 275, 276 and 277 of the Criminal Procedure and Evidence Act [Chapter 9:07].

He now seeks stay of the proceedings pending a review of the magistrate's ruling on the grounds of gross irregularity and unlawfulness.

It is trite that judges are always hesitant and unwilling to interfere prematurely with proceedings in the inferior courts and tribunals. In the ordinary run of things, inferior courts and tribunals should be left to complete their proceedings with the superior courts only coming in when everything is said and done at that level. In Masedza & Ors v Magistrate Rusape and Another 1998 ZLR 36, this court held that:

“The power of the High Court to review the proceedings in the Magistrates Courts is exercisable even where the proceedings in question have not yet terminated. However, it is only in exceptional circumstances that the Court will review a decision in an interlocutory decision before the termination of the proceedings. It will do so only if the irregularity is gross and if the wrong decision will seriously prejudice the rights of the litigant, or the irregularity is such that justice might not, by other means, be attained.”…,.

During the hearing, it dawned on me that if the facts were as articulated by counsel for the applicant the matter could easily be resolved by withdrawing the uncertified document to be produced by a competent officer from the Deeds office. Counsel for the applicant agreed to that proposal. I then postponed the matter to enable him to file a substitute draft order in terms of Rule 240 which provides that:

“240. Granting of Order

(1) At the conclusion of the hearing or thereafter, the court may refuse the application or may grant the order applied for, including a provisional order, or any variation of such order or provisional order, whether or not general or other relief has been asked for, and may make such order as to costs as it thinks fit.

[Subrule amended by S.I.25 of 1993 and S.I.33 of 1996]

(2) Where the court grants a provisional order under subrule (1), Rule 247 shall apply, mutatis mutandis, to the provisional order as though it were granted following a chamber application.”

Counsel for the applicant then filed a draft order in the following terms:

“WHEREUPON after reading documents filed of record and hearing counsel,

IT IS ORDERED THAT

(a) The uncertified copy of a CR14 Form (Companies record 6664/2006) admitted by Respondent as an exhibit in CRB No.12070/14 be removed from the Magistrates Court record and shall not be admitted as an exhibit.

(b) If the State wishes to produce a CR Form (Companies Record form 6664/2006 as an exhibit, it shall do so through the Registrar of Companies who shall produce a dully certified or examined copy.”

The net effect of the above Draft Order is to substantially alter or reverse the alleged trial magistrate's order admitting the disputed document. The alteration of the trial magistrate's order amounts to an effective review of the proceedings before him. The proviso to section 29(5) of the High Court Act [Chapter 7:06] requires the concurrence of another judge before one can alter the magistrate's decision or ruling….,.,

In any case, the matter is not urgent because the dismissal of this application will not leave the applicant without a remedy. Review and appeal are remedies that are still at the applicant's disposal when everything is said and done in the Magistrates Court. I can therefore perceive no irretrievable prejudice if the matter is allowed to progress to finality before the first respondent.

In HERBSTEIN & VAN WINSEN, Civil Practice of the Supreme Court of South Africa 4ed…, the difference between the remedy of appeal and that of review are explained as follows:

“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 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.”

The power of a superior court to review the proceedings of an inferior court covers various stages in a criminal proceeding before an inferior court. The stages are prior to conviction, after conviction but before sentence, and after sentence has been passed by an inferior court….,.

Part IV of the High Court of Zimbabwe Act [Chapter 7:06] enumerates the High Court's statutory powers of review. Section 26 provides that, subject to the provisions of the Act and any other law, the High Court has review powers over all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities. Section 27(1) provides that subject to the provisions of that Act and any law, the grounds of review are;

(i) Absence of jurisdiction;

(ii) Bias; and

(iii) Gross irregularity in the proceedings or decision.

Section 27(2) provides that nothing in that particular section shall affect the provisions of any other law relating to review of inferior courts, tribunals or authorities. Section 29(1)(b) provides that for purposes of reviewing any criminal proceedings, the High Court may hear any evidence in connection with the proceedings. Section 29(2) states that if, on review of any criminal proceedings, the High Court considers that the proceedings are not in accordance with real and substantial justice, it has the power to do various things, including the power to alter and quash the conviction or to set aside or correct the proceedings or "generally give such judgment or make such order as the inferior court or tribunal ought, in terms of any law, to have given, imposed or made on any matter which was before it in the proceedings in question." Section 29(3) specifically provides that no conviction or sentence shall be quashed or set aside in terms of section 29 by reason of any irregularity or defect on the record of proceedings unless the High Court considers that a substantial miscarriage of justice has actually occurred.

It is clear from the foregoing that the statutory powers of review under the High Court Act can be exercised at any stage of criminal proceedings before an inferior court.

Further, the authorities indicate that this court has an inherent power of review. In Rascher v Minister of Justice 1930 TPD 810…, KRAUSE J said:

“…., a wrong decision of a magistrate in circumstances which would seriously prejudice the rights of a litigant would justify the Court, at any time during the course of the proceedings, in interfering by way of review…,.

The above principles were laid down in a civil case, and they would apply with greater force where the proceedings are of a criminal nature and a miscarriage of justice might result in the circumstances from a wrong decision of the magistrate or where the rights of an accused person are seriously affected thereby.”

In Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357…, GARDINER JP observed:

“Now, as a rule, the Court's power of review is exercised only after termination of the criminal case, but, I am not prepared to say that the Court would not exercise that power…, before a termination of a case, if there were gross irregularity in the proceedings.”

See Wahlhaus v Additional Magistrate, Johannesburg & Anor 1959 (3) SA 113 (A).

This, however, is a power which is to be sparingly exercised. It is impracticable to attempt any precise definition of the ambit of this power; for each case must depend upon its own circumstances. The learned authors of GARDINER and LANSDOWNE (6ed Vol 1 p750) state:

'While a superior court having jurisdiction on review or appeal will be slow to exercise any power, whether by mandamus or otherwise, upon the unterminated course of proceedings in a court below, it certainly has the power to do so, and will do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained…,. In general, however, it will hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the court below, and to the fact that redress by means of review or appeal will ordinarily be available.'”

A review of an interlocutory decision was held, in the case of Masedza & Ors v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (H) to be possible and permissible. It was held that:

“…, however, it is only in exceptional circumstances that the court will review a decision in an interlocutory decision before the termination of the proceedings. It will only do so if the irregularity is gross and if the wrong decision will seriously prejudice the rights of the litigant or the irregularity is such that justice might not otherwise by other means be attained.”…,.

Having established that this court's review powers are wide-ranging and restricted only to the grounds of review, it follows that the two cases that we were referred to by counsel are not instructive in this matter, both of them being in regards to appeals against the decisions of the Commissioner General.

Let us suppose that this court's powers of appeal are not expressly ousted by the Police Act from decisions of Single Officers because the Police Act is silent and does not expressly oust the court's appellate jurisdiction. What of this court's review powers against decisions of Single Officers?

We come full circle and are guided by the numerous decided cases that limit this court's powers of review to exceptional circumstances in an interlocutory decision before the termination of the proceedings. In my view, the refusal to discharge at the close of the State case cannot, by any stretch of the imagination, be viewed as an irregularity which is gross. There is no serious prejudice to the rights of the litigant. It is not such an irregularity that 'justice might not otherwise by other means be attained'. The litigant will be put to its defence and not non-suited….,.

(a) Introduction

This was an urgent chamber application. The relief sought was poorly laid out in the draft order. But its essence was basically an interim interdict to bar the police board of enquiry [hereafter referred to as “the suitability enquiry board” or, in short, “the SEB”] from investigating the suitability or fitness of the applicant, a police constable, to remain a member of the force, or to retain his rank or salary.

The interdict was sought pending the determination of a certain review application that was filed in this court under case no HC392/17….,.

In the course of the hearing, and following several queries by myself, counsel for the applicant felt he needed to supplement the application by submitting certain other documents that he said had a material bearing on the merits. Counsel for the respondents had no objection.

This now is my judgment, after the submission of those further documents by counsel for the applicant.

(b) The Facts

The founding affidavit was frugal on detail. It had several gaps in the narrative. So having gleaned the several documents filed with this court, including the review application aforesaid, and following submissions at the hearing, I can say the factual matrix, in summary, was this;

The applicant had been nine [9] years in the police force when, in June 2017, he was charged and convicted by an internal disciplinary tribunal for contravening paragraph 35 of the Schedule to the Police Act [Chapter 11:10] as read with section 29 of the Police Act [Chapter 11:10].

Section 29 of the Police Act says a member who contravenes any provision of the Act, or an order made thereunder, or who commits an offence specified in the Schedule, shall be guilty of an offence and liable to a fine not exceeding level ten, or to imprisonment for a period not exceeding five years, or to both such fine and such imprisonment. The offence specified in paragraph 35 of the Schedule is acting in an unbecoming or disorderly manner, or in any manner prejudicial to good order or discipline, or reasonably likely to bring discredit to the police force.

The substance of the charge against the applicant, before the disciplinary tribunal, was that he had been manning a road block or check point with other colleagues when he wrestled with a member of the police anti-corruption unit who had swooped on them to conduct a search. In the process, the applicant had dropped some bond notes, Zimbabwe's current surrogate currency.

Upon conviction, the applicant was sentenced to fourteen [14] days imprisonment at the police detention barracks and to a fine of ten dollars [$10=]. He appealed. On 11 August 2017 the appeal was dismissed.

On 1 November 2017, the police convened the Suitability Enquiry Board (SEB). It was chaired by the first respondent herein, assisted by two other members. The SEB had until 1 December 2017 to submit its findings - but the proceedings never got off the ground. On five occasions the hearing was aborted. The developments were as follows:

(i)The hearing was scheduled to be held on 17 November 2017. The applicant pitched up but said he wanted to be represented by a lawyer. However, he said his legal practitioner, Mr Mugiya, was engaged elsewhere. Mr Mugiya would only be available on 1 December 2017. The SEB, citing its deadline to submit its findings, resisted a postponement. However, following the applicant's persistence, it reluctantly postponed the proceedings to 22 November 2017.

(ii) On 22 November 2017, the applicant insisted he wanted to be represented by his legal practitioner of choice and said he could not just switch to any other lawyer as had been suggested by the Suitability Enquiry Board (SEB). He stressed that Mr Mugiya could only be available on 1 December 2017. The proceedings were postponed to 1 December 2017.

(iii) On 1 December 2017 the applicant was represented by some other lawyer but from the same firm with Mr Mugiya. The lawyer raised several technical objections on the lawfulness of the SEB, particularly the manner it had been set up. The SEB dismissed the applicant's challenge and gave its reasons. The applicant asked for another postponement to 4 December 2017 to allow Mr Mugiya to take over. The record does not show whether or not it was explained why Mr Mugiya had not availed himself on that day.

(iv) On 4 December 2017, the fourth sitting, the applicant was represented by yet another legal practitioner who was not Mr Mugiya. The applicant produced a doctor's sick report. He had been awarded three days sick leave up to 16 December 2017. The matter was postponed to 18 December 2017. But, on 11 December 2017, the applicant filed the review application challenging the lawfulness of the Suitability Enquiry Board (SEB) and its decision to dismiss his challenge.

(v) On 18 December 2017, the fifth sitting, the applicant appeared. He produced the present urgent chamber application and argued against the hearing proceeding. The application had been filed on 15 December 2017. The proceedings were postponed to 9 January 2018. However, it seems they have since been left in abeyance altogether.

The applicant's arguments on the unlawfulness of the Suitability Enquiry Board (SEB), in my own words, are these:

(i) The second respondent, i.e. the Commissioner-General of Police [hereafter referred to as “the CGP”], is the only person empowered to convene the Suitability Enquiry Board (SEB). In the present case, it has been convened by an unknown person. As such, its deliberations, and all the resultant decisions by it, will be a complete nullity.

(ii) The order convening the SEB [which is some kind of charge sheet, indictment or summons] does not have the applicant's full record of service. Some four annual performance appraisals on himself [“APRs”] have been excluded. This robs the SEB of such vital information about his whole career as to disable it from making an informed decision.

(iii) In terms of some police internal circular, the Suitability Enquiry Board (SEB) is only convened after three [3] convictions. But, in his case, the SEB is being convened after only one conviction.