Urgent
Chamber Application
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 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 CR 14 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
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 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.”
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 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.
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
