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 ...
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 v 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 the 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 loathe 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 section 69 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 section 70, as read with section 69 of the Constitution.”
Counsel for the appellants main arguments 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 1998 (2) ZLR 271 (S) 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, counsel for the appellants 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 section 86(3) of the Constitution, which right cannot be derogated from, a stay should be granted on the mere filing of such an application....,.
Turning now to the alternative arguments addressing grounds 3 and 4, the appellants had this to say in paragraph 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.
Counsel for the appellants, 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.
