This
matter was referred for review by the court a
quo
with the following comments:
“This
matter came before me for trial de
novo
on the 4th
of July 2016. The matter was being dealt with by my brother
magistrate, Mr E Makomo, who recused himself at the close of the
State case because of reasons contained of record. The legal
practitioners of the accused argued that I could not deal with the
trial without the proceedings of my brother magistrate being set
aside by the High Court.
I
am in agreement with her argument after reading AG
v Gavaza
1984 (2) Zim 212 SC, which held that:
'as
a matter of practice, where the Judicial Officer is a magistrate the
proceedings are submitted for review by the High Court and a
declaration of nullity is made leaving the way open for a fresh trial
to be brought…,.'
In
light of the above, the record is placed before you for a declaration
of nullity so that a fresh trial may be heard.”
The
background to the matter is that the accused was charged on 15 June
2016 with contravening section 13(2) of the Labour Act [Chapter
28:01].
It
was alleged that the company withheld or unreasonably delayed paying
wages due to the complainant without the relevant Minister's
permission. The accused pleaded not guilty to the charge. The State
led evidence from the complainant and closed its case. The accused
applied for discharge at the close of the State case on the basis
that the State had failed to establish a prima
facie
case warranting the placement of the accused on its defence.
It
appears that before the trial magistrate had determined the
application for discharge, the complainant prepared a written
complaint against the prosecutors who had dealt with the matter and
the accused's legal practitioner. A copy of the complaint was
unceremoniously slipped under the trial magistrate's door despite
the fact that the complaint was not against him.
The
trial magistrate was concerned that the letter contained issues that
would compromise his impartiality. He consequently recused himself
before determining the application for discharge.
The
matter was reset for continuation on 4 July 2016 before a different
magistrate. The accused objected to the continuation of the trial
before the magistrate and applied for its removal from remand pending
the setting aside of the proceedings on review; hence the referral of
the matter on review.
The
accused relied on the provisions of section 180(6) of the Criminal
Procedure and Evidence Act [Chapter
9:07].
Section
180(6) of
the Criminal Procedure and Evidence Act
reads:
“Any
person who has been called upon to plead to an indictment, summons or
charge shall, except as is otherwise provided in this Act or in any
other enactment, be entitled to demand that he be either acquitted or
found guilty by the judge or magistrate before whom he pleaded:
Provided
that:
(i)
Where a plea of not guilty has been recorded, whether in terms of
section two hundred and seventy-two (272)
or otherwise, the trial may be continued before another judge or
magistrate if no evidence has been adduced;
(ii)…,.”
In
the present matter, evidence was adduced from the complainant before
the State closed its case.
The
accused would have been entitled to a verdict had the trial
magistrate not recused himself. The matter could therefore not
continue before another magistrate as rightly submitted by the
accused. The procedure that should be adopted under the circumstances
was discussed, as rightly noted by the new trial magistrate, in AG
v Gavaza
1984 (2) ZLR 212. In that case, the Supreme Court had the occasion to
discuss section 163(5) of the Criminal Procedure and Evidence Act
[Chapter
59],
which was similar to section 180(6) of the Criminal Procedure and
Evidence Act [Chapter
9:07].
Gubbay
ACJ…,
remarked…, that:
“The
position then which obtains is that section 163(5) of the Act
contemplates that the judicial officer before whom the accused has
pleaded remains available to hear the whole of the trial. If he
should become no longer available by reason of retirement,
resignation or discharge from the service, death, physical or mental
incapacity which is likely to persist for a considerable period, or
recusal, he becomes functus
officio.
The proceedings are aborted and become void. As a matter of practice,
where the judicial officer is a magistrate, the proceedings are
submitted for review by the High Court and a declaration of nullity
is made, leaving the way open for a fresh trial to be brought. See
also S
v Makoni & Ors
1975 (2) RLR 75; S
v Godfrey & Ors
G-S 100 1976.”
In
AG
v Gavaza
1984 (2) ZLR 212, there was no indication on record whether or not
any of the abortive events cited therein had occurred. However, the
ratio which emerges from the judgment is that recusal by the trial
magistrate is one such abortive event.
A
case in point, where the trial magistrate had recused
himself/herself, is Zackey
v Magistrate of Benoni & Anor
1957
(3) SA 12 where Williamson
J observed…, that:
“But
it seems to me that (a decision to recuse oneself) must amount to a
decision that the court has no jurisdiction to hear the matter. Once
that is decided, the court cannot be properly seized of the matter at
all, and all the proceedings before that court, prior to the
recusation being accepted, must logically become a nullity.”
In
S
v Gwala
1969 (2) SA 227…, Kennedy
AJP observed…, that:
“Clearly,
such officer becomes functus
officio
upon his recusal, and, the prosecutor desiring to proceed with the
case, it becomes necessary to have a completely new hearing. Equally
so, the death of a magistrate, his resignation or dismissal could
give rise to the opening of a case de
novo
against an accused person.”
See
S
v Tsangaizi
1997
(2) ZLR 247 (H).
The
reason why another magistrate cannot continue with a trial commenced
by another magistrate, and where evidence has been adduced, appears
to be that a trial magistrate must, in arriving at a determination,
consider, among other factors, the credibility of the witness(es).
The trial magistrate would, of necessity, be influenced by the
demeanour of the witness(es). Such a determination cannot, in my
view, be arrived at on the basis of evidence contained in the record
and adduced before another magistrate.
Whilst
it is difficult to comprehend the reason advanced by the trial
magistrate in the present matter for recusal where no impropriety was
levelled against him, the trial magistrate is now functus
officio.
It serves no purpose to dwell on the propriety of his decision, more
particularly where the recusal is not the issue for determination in
this review. The trial magistrate having recused himself, the trial
must proceed afresh.
It
is accordingly ordered that:
1.
The proceedings commenced before recusal be and are hereby quashed.
2.
The matter is remitted for trial de
novo
before the magistrate who referred the matter for review.
