There can be no doubt that while it is a necessary feature of every adversarial system of justice that there should be a higher court in the hierarchy of the courts to correct judicial errors - that procedure should not be abused: see Mukwemu v Magistrate Sanyatwe N.O. and Another ...
There can be no doubt that while it is a necessary feature of every adversarial system of justice that there should be a higher court in the hierarchy of the courts to correct judicial errors - that procedure should not be abused: see Mukwemu v Magistrate Sanyatwe N.O. and Another 2015 (2) ZLR 417 (H)…,.
As a superior court, this court must be careful not to usurp the authority of the lower court to try criminal matters and conclude them one way or the other. Doing so will render nugatory the criminal jurisdiction of that court as flood gates may be opened for accused persons to frustrate criminal prosecutions....,.
In my view, attacking a judgment on the ground that it is not supported by evidence would be a matter of appeal as opposed to review....,.
An applicant, like the present applicant, who seeks to have an interlocutory decision set aside in unterminated proceedings, on the grounds that the court has made a wrong decision in the proper discharge of its adjudicating function, adopts the wrong procedure. The correct one should be to appeal.
Therefore, to the extent, that, generally, an appeal is entertained only after conviction, such a premature approach to a superior court will not succeed....,.
On the aspect of gross irregularity entitling this court to intervene in the middle of the trial, the words of STEYN CJ, in Ismail and Others v Additional Magistrate, Wynberg and Another 1963 (1) SA 1 (A)…, are apposite;
“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.'”
