BHUNU J: 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 s 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 CR 14 form contrary to
the provisions of s 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 magistrates 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.” (My underlining)
Although the two
respondents were served with notices of this hearing, there was no response or
appearance to oppose. My initial gut feeling was that the matter was not urgent
because the applicant had a remedy at the end of the day regardless of the
outcome of the proceedings. Mr Gama
for the applicant vociferously argued that the matter was extremely urgent
because of the element of illegality in that the applicant was about to be
subjected to an illegal trial. I was therefore inclined to bend backwards and
granted him the indulgence to be heard on an urgent basis.
During the hearing it dawned
on me that if the facts were as articulated by Mr Gama the matter could easily be resolved by withdrawing the
uncertified document to be produced by a competent officer from the Deeds
office. Mr Gama agreed to that
proposal. I then postponed the matter to enable him to file a substitute draft
order in terms of r 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”
Mr Gama 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 CR 14
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 s 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.
It is trite and a matter
of elementary law that there can be no review of judicial proceedings without
the record of the proceedings which are the subject of review. There being no record of proceedings it is
virtually impossible to find fault with the trial magistrate's handling of the
matter. 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 the result it is
accordingly ordered that the application be and is hereby dismissed with no
order as to costs.
UCHENA J agrees …………………………………
Gama &
Partners, applicant's
legal practitioners
The Prosecutor General's Office, respondent's legal
practitioners
