Urgent
Chamber Application
MAFUSIRE
J:
This
is an urgent chamber application. The applicant seeks a provisional
order for a stay of the criminal trial against him in the
Magistrate's Court pending the determination of his application for
review which is pending in this court.
The
applicant was charged with fraud as defined in section 136 of the
Criminal Law (Codification and Reform) Act, [Cap 9:23]. It was
alleged that he had unlawfully misrepresented that he was the new
owner or director of a certain company the original owners and
directors of which had emigrated. The applicant was alleged to have
fraudulently drawn up certain company documents and filing them with
the Registrar of Companies.
The
prejudice was said to have been caused to the good reputation and
good administration of the Registrar of Companies.
At
the close of the State case the applicant applied for a discharge in
terms of section 198(3) of the Criminal Procedure and Evidence Act,
[Cap 9:07] (the CP & E Act). The application was based on alleged
glaring defects in the charge and the evidence led.
The
application was refused. That was on 22 May 2013.
On
9 July 2013 the applicant filed the application for review
challenging the magistrate's decision to put him on his defence.
On
16 July 2013 the trial magistrate, who in these proceedings is cited
as the second respondent, filed an opposing affidavit. He simply
stated that the application was opposed in its entirety and that the
review application could not stop the continuation of the trial.
Reference was made to the Supreme Court case of Attorney-General v
James Chafungamoyo Makamba SC74/04, a judgment of ZIYAMBI JA a copy
of which the magistrate apparently intended to attach. However, he
inadvertently attached the cyclostyled judgment by CHEDA JA in the
other Supreme Court case of Attorney–General v James Chafungamoyo
Makamba SC41/04.
On
18 July 2013, the applicant applied to the magistrate for a stay of
the trial pending the determination of the review application. That
application was also refused. The magistrate ruled that he would not
stop the proceedings unless an order to that effect was obtained from
this court. He directed that the trial would continue on 14 August
2013.
On
24 July 2013 the applicant filed this urgent chamber application. The
interim relief sought was that the trial proceedings in the
Magistrate's Court be stayed pending the determination of the
application for review.
I
heard the application on 1 August 2013. Both parties were agreed that
the matter was urgent. After argument I reserved judgment.
In
his application the applicant has made an analysis of the evidence
given against him up to the close of the State case. He has concluded
that none of the State witnesses incriminated him in any way. In
particular, the witness from the Registrar of Companies had actually
exonerated him. The fraud allegation is predicated on the alleged
prejudice to the Registrar of Companies. The applicant says that the
only evidence that seemed to have influenced the magistrate in his
decision was the hearsay evidence of the investigating officer who
apparently was under pressure from a disgruntled former employee of
the “stolen” company.
The
applicant expressed concern that the magistrate's conduct would
inevitably lead to a miscarriage of justice in that in his ruling
dismissing the application for discharge at the close of the State
case he had put the applicant on his defence to “clear” his name.
This, according to the applicant, was an irregular reversal of the
onus of proof. It was now the applicant who was to prove his
innocence. This was a clear violation of the presumption of
innocence. Given the inadequate evidence led by the State up to the
time of the closure of its case, the magistrate's decision to put
the accused person on his defence was so outrageous in its defiance
of logic that no sensible person having applied his mind would have
arrived at it. It was unprocedural for a court to facilitate the
State to bolster its case by the defence evidence.
That,
in summary, is applicant's argument for the review application.
The
urgent application was meant to stop the resumption of the criminal
trial on the 14 August 2013. It was contended that the review
application would be rendered academic if the trial went ahead. At
the hearing the second respondent opposed the application on the
basis that superior courts normally refrain from interfering in
uncompleted proceedings. It was submitted that there was no danger of
an irreparable harm or of a miscarriage of justice.
The
trial should be allowed to proceed without interference. If at the
end of it the applicant is aggrieved by the outcome he can always
appeal. To allow such an application would open the flood gates. Any
accused person unhappy with the exercise of discretion by a
magistrate in dismissing an application for discharge at the close of
the State case would always rush to this court. That would seriously
interfere with the smooth administration of justice.
Strong
reliance was placed by the respondents on the Supreme Court decision
by ZIYAMBI JA in the James Makamba case SC74/04 aforesaid.
However,
I find that that judgment dealt with a different issue. Other than
the remark by the Supreme Court that the High Court had found
justification “… for the unusual course of interfering in an
uncompleted trial…” I do not think the case is relevant. It dealt
with the position where a judge, in exercising review powers in terms
of the High Court Act, [Cap 7: 06] would need the concurrence of
another judge before he or she could set aside or alter the
proceedings of an inferior court or tribunal.
The
classical position is that generally a superior court does not
encourage the bringing of uncompleted proceedings for review.
In
Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), this
court, UCHENA J, said at p325C–D:
“Generally
this court does not encourage the bringing of unterminated
proceedings for review. There are, however, circumstances which may
justify the reviewing of unterminated proceedings. This means this
court will not lightly stay proceedings pending review. An
application of this nature can only succeed if the application for
review has prospects of success.” (emphasis added).
Thus,
it is not the position that no review or interference is competent at
all unless the proceedings in the inferior court have been completed.
In
the Matapo case above, for instance, this court interfered in the
middle of the trial in the Magistrate's Court where it was
satisfied that the magistrate's refusal to recuse himself would
render his proceedings a nullity as the accused person's grounds
for seeking recusal had merit. The learned judge went on to state:
“The
probability of the proceedings being a nullity justifies the stopping
of the proceedings pending a determination of their validity by the
reviewing court. It would be prejudicial to the accused, and a waste
of time and resources, for the trail court to carry on with a trial
which is likely to be declared a nullity.
In
Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA, as he
then was, stated at p64B–D:
'The
general rule is that a superior court should intervene in uncompleted
proceedings of the lower courts only in exceptional circumstances of
proven gross irregularity vitiating the proceedings and giving rise
to a miscarriage of justice which cannot be redressed by any other
means or where the interlocutory decision is clearly wrong as to
seriously prejudice the rights of the litigant.'” (emphasis
added)
In
exercising review powers, superior courts restrain themselves from
unnecessarily interfering with the exercise of judicial discretion of
the inferior courts or tribunals. Unless the exercise of discretion
by the inferior court or tribunal was injudicious or so grossly wrong
as to amount to a miscarriage of justice, the superior court will let
the decision pass even though it might itself have come to a
different decision.
It
is not every wrong decision by the inferior court that warrants
interference.
In
the Makamba case above MALABA JA, at p 64D – E, quoted with
approval the remarks of STEYN CJ in the case of Ismail & Ors v
Additional Magistrate, Wynberg & Anor 1963 (1) SA 1 (A):
“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.”
In
this application Mr Uladi submitted that the applicant was not
without a remedy. He could appeal any adverse decision against him.
He could always choose to exercise his constitutional right to remain
silent and thereby obviate the danger of self-incrimination.
However,
Mr Magwaliba for the applicant urged that the applicant's situation
should be deemed as one of those exceptional cases contemplated by
the law and that for the applicant to exercise the right to silence
would hardly be satisfactory since in terms of section 199 of the CP
& E Act, such conduct could invite an adverse inference against
him.
Naturally
I do not, at this stage, have to decide the review application or
consider the applicant's prospects of success in much greater
detail. But I must of necessity consider the merits of that
application and assess the prospects of success before I can be able
to pass judgment in this application.
Section
198(3) of the CP & E Act which governs discharges at the close of
the State case reads:
“198
Conduct of trial
(1)
…………………………………………………………………………..
(2)
……………………………………………………………………………
(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” (emphasis added).
Thus
a court has no discretion.
It
was noted by the Supreme Court in State v Kachipare 1998 (2) ZLR 271
(S) that unlike its precursor, namely section 188(3) of [Cap 59]
which used “may” as opposed to “shall”, in the current
section 198(3) a court must acquit at the close of the State case
where:
(i)
there is no evidence to prove an essential element of the offence;
(ii)
the court must acquit where there is no evidence on which a
reasonable court, acting carefully, might properly convict;
(iii)
the court must acquit where the evidence on behalf of the State is so
manifestly unreliable that no reasonable court could safely act on
it.
It
was also noted in that judgment that unlike South Africa, in this
country there is no longer any controversy as to whether a court may
properly refrain from exercising its discretion in favour of the
accused, if at the close of the case for the prosecution it has
reason to suppose that the inadequate evidence adduced by the State
might be supplemented by defence evidence1.
See also State v Kuruneri HH59/07 and State v Morgan Tsvangirai &
Ors HH119/03.
Section
198(3) opens with the words:
“If
at the close of the case for the prosecution the court considers that
…”
In
my view there should be no difficulty for the Review Court where the
magistrate does in fact consider that there is no evidence adduced by
the State at the close of its case but goes on to refuse the
discharge application opting to hear the defence evidence. That
decision would be contrary to the law. The difficulty arises, in my
view, where the magistrate, despite glaring deficiencies in the State
evidence, nonetheless fails to consider that there is no evidence
linking the accused to the crime.
Plainly,
the question whether at the close of the State case there is, or
there is no evidence that the accused committed the offence charged
is one of fact. It is a misdirection where the trier of facts sees
facts that are completely absent or fails to see facts that are so
patently conspicuous.
I
have briefly considered the application for review that is pending in
this court, and in particular the record of proceedings in the
Magistrate's Court. I have also considered the magistrate's
judgment dismissing the application for discharge. I think that there
is every likelihood that the Review Court might find that that there
was a serious misdirection so gross as to warrant interference with
the trial even before it is completed.
To
begin with, it is curious that the charge is about the prejudice said
to have been suffered, not by the original owners of the company in
question; not by the other company with which a tribute agreement was
entered into and consummated, but by the Registrar of Companies whose
reputation and good administration was said to have been tarnished.
Nobody
else but the State, through the police and the disgruntled former
employee, seemed to complain.
As
pointed out before, the witness from the Registrar of Companies had
nothing against the applicant. None of the rest of the witnesses,
except perhaps the investigating officer and the former employee, had
anything against the applicant. The investigating officer testified
on his investigations and on the witnesses that he had assembled. He
had no independent knowledge of the fraud himself. All the witnesses
that he had assembled, other than the former employee, said nothing
incriminatory of the applicant. Even that former employee merely
alleged that he once worked for the company in question and that he
was informed that it had not been sold.
That
is hardly evidence of fraud against the applicant.
At
the hearing of the urgent chamber application Mr Uladi for the
respondents submitted that the second respondent must have considered
that the evidence of the witness from the firm of Chartered
Accountants that used to audit the books of the “stolen” company
had been relevant to the charge and that therefore the accused had to
be put on his defence.
However,
all that the witness from the firm of Chartered Accountants said was
that she had not seen any company resolutions in which the applicant
had been appointed a director of the company.
In
my view, even if that evidence was relevant, it was of no value to
the offence charged.
The
Review Court might find that the directive by the second respondent
that the applicant be put on his defence to “clear” his name was
irregular. It may have amounted to a shifting of the onus to the
applicant to prove his innocence when there was probably no shred of
evidence of the commission of the offence at the close of the State
case. In reality, the applicant was probably being asked to clear his
name against mere suspicions by the investigating officer and those
urging him on.
The
Review Court might find that there was a failure by the second
respondent to see that at the close of the State case there was in
reality no evidence of the commission of the offence with which the
applicant was charged and therefore that there was a gross
misdirection.
The
Review Court might find that all the criteria for discharge at the
close of the State case as set out in the Kachipare case and others
were in fact satisfied.
It
is necessary to weigh the balance of convenience between the need for
a judicial officer to manage his or her court by, for instance,
insisting on the continuation of a scheduled hearing in the interests
of justice and the efficient administration of justice, against
fairness and the delivery of quality justice.
In
the Matapo case above UCHENA J stated as follows:
“I
entirely agree with HARMS JA's comments3
on the judicial officers' responsibilities in the management of
cases that come before them for trial or preparation for trial. I
would only add that this equally applies to magistrates who in fact
preside over more cases than judges. The need for firm control of
proceedings is called for, as a supine approach will result in
avoidable backlogs. The need for efficient court management by
judicial officers must, however, give in to the delivery of quality
justice, which must be seen to be done. In short, a judicial officer
must be firm and fair, allowing genuine applications for
postponement, and turning down those made for dilatory purposes.”
I
am satisfied that the application for review has strong merit. The
balance of convenience favours the postponement of the trial to allow
the review application to be heard.
I
am of the view that the magistrate's dismissal of the discharge
application was not about an injudicious exercise of discretion
because such discretion is not available. It was about his failure to
consider that there was no evidence led by the State when it closed
its case linking the accused to the offence. The magistrate seems to
have seen something but which in reality was non-existent. He failed
to see that such evidence as was led either exonerated the accused or
was harmless to him. That failure, in my view, was so gross as to
warrant interference. The applicant is entitled to an opportunity to
present his application for review for real relief than for academic
purposes. If I do not grant the interim relief the review application
will just become one for academic purposes. At any rate the matter
will be ventilated and canvassed more fully on the return day. In the
meantime I grant the interim order sought as follows:
Pending
the determination of this matter on the return day, the trial
proceedings in the Magistrate's Court under CRB R874/12 are hereby
stayed.
Mahuni
& Mutatu applicant's legal practitioners
Civil
Division of the Attorney–General's Office, respondents' legal
practitioners
1.
At p276G–H
2.
At p329–330
3.
In Take & Save Trading CC & Ors v Standard Bank of South
Africa Ltd 2004 (4) SA 1 (SCA) at 4-5
