It is not clear why, after noting the appeal, the record was referred to this court for review.

Whether the accused should be tried whilst they are out of custody or in custody, in terms of section 321 as read with section 322 of the Criminal Procedure and Evidence Act [Chapter 9:07], however, remains a live issue for determination by the appeal court. The appeal court's determination does not, in my view, affect this court's right to hear and determine the trial but only the accused's freedom while on trial. In dismissing the accused's objection to stand trial at this stage I was therefore not pre-empting the appeal court's decision. The decision whether or not to try the accused in this court was not an issue before the re-indicting magistrate. For that reason, the issue is not pending before the appeal court.

The appellant is the pastor of his own church based in Marlborough, Harare. He was convicted by the Harare Magistrates Court on 3 February 2014 of four counts of rape and one count of contravening section 26 of the Censorship and Entertainment Control Act [Chapter 10:04] i.e. possession of pornographic material.

He was sentenced to a term of 50 years imprisonment with 10 years suspended on condition of good behaviour. He has since appealed to the High Court against his conviction and sentence.

That appeal is pending.

The appellant also applied to the High Court, as a court of first instance, for bail pending appeal. His application was dismissed. He now appeals against that decision in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The court a quo found that the evidence of the complainants, in relation to three of the four counts of rape, was credible in material respects. The court also found that the complainants' reports of the alleged rapes were voluntarily made and that, although the delays in making those reports were lengthy, the reasons given for those delays were plausible. Moreover, the sentences imposed by the magistrate, in respect of the rape counts, were appropriate.

As regards the censorship offence, the court a quo found that the evidence adduced as to the possession of obscene material was sound and that the appellant had no lawful excuse for his possession of that material. However, the sentence imposed for that offence was probably defective as the magistrate had advanced no reasons for sentence on that count.

In the event, the court a quo held that the appellant generally had no prospects of success on appeal and dismissed his application for bail. The court also held that there had been no violation of his constitutional rights to liberty and a fair trial.

The principal ground of appeal herein is that the Magistrates Court did not properly analyse the evidence before it and that, therefore, the case, on appeal, was arguable. Moreover, this cursory analysis of the evidence violated the appellant's constitutional rights.

Additionally, the High Court erred in disregarding the effect of the magistrate's mistaken references to cases dealing with mentally defective victims of rape. The High Court also erred in finding plausible explanations for the inordinate delays in reporting the alleged offences. Again, the reports were made in circumstances showing a likelihood of their having been made in response to leading, inducing, or intimidating questions.

Having regard to all of the foregoing, the central issue for determination in this matter is whether the court a quo erred or misdirected itself in finding that there were no prospects of success on appeal from the decision of the Magistrates Court.

The test to be applied in this regard is relatively uncomplicated: Is the appeal “reasonably arguable and not manifestly doomed to failure?” See State v Hudson 1996 (1) SACR 431 (W).

The main point taken by counsel for the appellant is that the learned magistrate did not evaluate the evidence and assess the credibility of witnesses on the rape charges (Counts 3, 7, 8 and 9). He thereby erred in accepting the evidence of a single witness without adequate analysis in respect of each Count.

Count 3 relates to Precious Kapfumvuti (Precious).

Her evidence was that she was raped on several occasions during the period stretching from 2007 to 2013, having succumbed to the appellant's exercise of authority rather than physical force.

It is submitted, for the appellant, that, her assertion of having been subjected to indoctrination cannot be sustained. She understood the nature of the sexual acts that she engaged in and the appellant's influence could not have deprived her of the capacity to give her informed consent. Moreover, her explanation for having reported the alleged rapes at a late stage is totally unreasonable. She could have reported the matter to various people over the years and after she left the appellant's premises in 2013. It is further submitted that her misrepresentation of certain biblical passages that she relied upon while giving evidence in court rendered her veracity questionable.

In short, she willingly subjected herself, sexually, to the appellant as an integral part of worshipping him and then later changed her position after talking to others.

Counsel for the respondent submits that the appellant stood in the position of being a guardian over Precious Kapfumvuti. She received counselling and religious teachings from him, including the notion that a master could do as he willed with his servant. The subjective effect was that she believed what she was told by the appellant about his authority and that differences between them should not be taken to court for fear of her being placed in the hands of Satan. It is further pointed out that she did report her first rape to a fellow congregant but no assistance was forthcoming. Thereafter, she was always accompanied or guarded either by the appellant's principal wife or by his brothers. She therefore remained silent out of fear and eventually escaped after realizing that what the appellant was doing to her was wrong.

Count 7 pertains to Winnie Sakahuhwa (Winnie).

Counsel for the appellant submits that she was aware of the appellant's reputation before she went to stay with him in December 2011. Nevertheless, she allowed herself to be sexually intimate with him. In effect, she consented to sexual intercourse because of his authority and understood sex with him as being necessary to create a bond between them. Moreover, her account of one of their sexual encounters is physically improbable in terms of their respective bodily positions. She admits to having denied any sexual assault when queried by at least three other people and did not even confide in her mother after police investigations had commenced. Additionally, her mother's evidence does not corroborate that of Winnie Sakahuhwa and the former could not explain why the latter did not confide in her. Again, Winnie did not make any report to the representatives of Child Line who attended her school for counselling.

For the State, it is submitted that Winnie Sakahuhwa was warned by the appellant not to make any report because she would then be placed in the hands of Satan. She genuinely believed his teachings. She did not tell her mother anything about her sexual assaults because her mother suffered from hypertension and she did not want her to be over-stressed. Furthermore, she did not report her predicament to anyone else because the appellant claimed that the police belonged to him. She only reported the matter to the police after learning of his arrest and realising that he was not invincible.

Counts 8 and 9 relate to Hazvinei Samanyanga (Hazvinei).

As is correctly pointed out by counsel for the appellant, the court a quo entertained considerable doubt as to the propriety of the appellant's conviction on Count 9.

The learned judge found that it was possible that she may have been raped on the first occasion (Count 8) as her evidence was credible on that score. However, she appears to have acquiesced to sexual intercourse on the subsequent occasions (Count 9), having voluntarily returned to the appellant's residence during weekends.

Moreover, she spent several months in South Africa before reporting the matter to the police when they contacted her in connection with Precious Kapfumvuti.

These are matters that were not adequately interrogated by the Magistrates Court.

Counsel for the respondent submits that Hazvinei Samanyanga's evidence, on Count 8, shows that she was forcibly raped on the first occasion and that the appellant was correctly convicted on that Count. He concedes, however, that her conduct in respect of Count 9 was inconsistent with the absence of consent, particularly as she continually returned to the appellant's residence of her own accord.

Count 10 pertains to the appellant's unlawful possession of two obscene DVDs.

There is no doubt that the appellant was properly convicted on this Count.

At the hearing of this appeal, counsel for the appellant quite correctly abandoned the technical point raised in his heads of argument as to the propriety of inspecting the material in question after the appellant was arrested.

As regards the concurrent sentence of four (4) months imprisonment imposed by the learned magistrate, the court a quo highlighted the obvious misdirection of the magistrate in failing to provide any reasons for sentence.

In any event, as was accepted by counsel for the appellant, this misdirection has been rendered academic and irrelevant by the fact that the appellant has already served four (4) months in prison following his conviction on 31 January 2014.

As regards the credibility of witnesses, the general rule is that an Appellate Court should ordinarily be loathe to disturb findings which depend on credibility.

However, as was observed in Santam BPK v Biddulph (2004) 2 ALL SA 23 (SCA), a court of appeal will interfere where such findings are plainly wrong.

Thus, the advantages which a trial court enjoys should not be over-emphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.

In the instant case, the learned magistrate convicted the appellant on four out of the total nine counts of rape. He rejected the testimony of three complainants and acquitted the appellant in respect of the five counts pertaining to them.

With respect to the three complainants presently under consideration, his assessment of their credibility is not as detailed as might have been expected.

Nevertheless, I am not persuaded that any of his critical findings of credibility can be said to be manifestly wrong in light of the proven facts and probabilities of this case.

I am inclined to agree with the State that he correctly analysed the subjective effect of the appellant's behaviour and teachings on the complainants.

Admittedly, in so doing, he erroneously cited case authorities revolving around victims of rape who are mentally disordered or incapacitated and their capacity to consent to overtures and acts of sexual intercourse. However, as was correctly noted by the court a quo, the magistrate's reference to these cases was designed to show that the complainants were not freely consenting individuals.

His misquotation did not go to the root of the convictions and does not, in my view, constitute a fatal misdirection.

In the court a quo, the learned judge elaborated “the subjective nature of religious dogma” in more cogent terms.

To paraphrase and summarise his findings, the complainants were subjected to frequent indoctrination in the notions of total separation and submission to authority. They were not allowed to fraternise with their relatives and were conditioned to believe that matters of church should not be discussed with outsiders. The appellant displayed a pattern of predatory behaviour, characterised by rampant sexual perversion, manipulating and luring the complainants to accept and endure his deceptively benign patriarchal authority.

As was eloquently observed by Justice DOUGLAS in United States v Ballard 322 US 78 (1944), quoted by both of the courts below, religious doctrines and beliefs cannot be subjected to the rigours of legal proof.

I would take this sentiment further to opine, in the circumstances presented by this case, that the quasi-mystical force of religious dogma might overwhelm its conscripts and devotees to the point where it operates to vitiate and negate any meaningful consent to sexual abuse and exploitation by their spiritual masters.

Taking a broad conspectus of the facts and probabilities in casu, it appears to me that the complainants, having been enmeshed within the overpowering cocoon woven by the appellant, unwittingly succumbed to his sexual advances and predations. Thereafter, constrained by fear and misconception, they remained taciturn for several years and only reported their respective ordeals after appreciating the full nature of their sexual bondage.

To sum up, it must be accepted that there are certain deficiencies in the State case.

Nevertheless, I take the view that none of the grounds of appeal raised in this case is entirely sustainable.

Apart from the conviction on the second charge pertaining to Hazvinei Samanyanga (Count 9) and the sentence imposed in respect of the possession of obscene materials (Count 10), I am satisfied that the appellant has no prospects of success on appeal and that his appeal is doomed to failure.

In that event, he will remain subject to a prison term totalling 40 years, with a period to be determined suspended on condition of good behaviour.

The above conclusion does not necessarily end the matter.

An issue that was raised in the court a quo, but not addressed in its judgment, is the possibility of the appellant absconding in the event of being granted bail. I think it appropriate to deal with this aspect for the sake of completeness.

Counsel for the appellant submits that the appellant is unlikely to abscond because he has huge family responsibilities. Moreover, he is prepared to offer his main residence as security for bail.

Counsel for the respondent counters that the appellant will be induced to abscond by the presence of another charge of rape that is pending against him and because of the 40 years sentence imposed in respect of Counts 3, 7, 8 and 10.

I note that the pending charge arises from the same period but was deferred because the complainant in that matter had fallen pregnant. In any event, the appellant has denied that charge.

As was highlighted in Manyange v The State HH01-03, there is a clear distinction between the principles governing the grant of bail pending trial and those relating to bail pending appeal.

In the former situation, the presumption of innocence, which resides within the constitutionally guaranteed right to liberty, operates in favour of granting bail unless there are positive reasons for refusal.

In the latter situation, on the other hand, the presumption of innocence is inoperative because the accused is a convicted and sentenced offender. The accused must go further than showing that he has prospects of success on appeal. He must establish that there are positive grounds for granting bail and that the grant will not endanger the interests of justice.

In this regard, the public perception is an integral factor to be taken into account. Where the grant of bail would result in a public outcry, the courts should be slow to grant bail in order to safeguard the integrity of the justice delivery system: see Gardner v The State HH60-08.

The possibility of public outrage is something that I am not in a position to assess without any compelling evidence in that regard.

What is more significant in casu is that the appellant has not proffered any positive grounds for allowing him to proceed on bail.

The existence of a huge familial entourage, comprising 11 wives and 32 children, is a condition of his own making and does not really advance his claim to bail.

Moreover, he has failed to satisfactorily demonstrate his prospects of success on appeal.

Apart from this, there is nothing else to commend his right to liberty.

In my view, the prospect of a protracted prison term, coupled with his fresh experience of post-trial incarceration, affords abundant incentive for him to abscond.

In all the circumstances, I am amply satisfied that the appellant is not a good candidate for bail.

For all of the foregoing reasons, the appeal must fail and it is accordingly dismissed.

The first issue which exercised my mind is whether I can competently review both these matters as it were when the same matters were reviewed by this court. Would that not amount to reviewing the orders made by a fellow judge of similar jurisdiction?

After careful consideration I believe my conduct does not amount to reviewing the orders made by my fellow judges that the proceedings are in accordance with real and substantial justice. I am not at all interfering with the proceedings or the sentences confirmed on review. All I am doing, in my respectful view, is to further clarify what the orders entail in view of an administrative dispute which has arisen between the accused and the prison officials as to the exact length of the accused's prison term. I find no other possible route to resolve such a dispute.

I felt I did not have to concern myself too seriously with whether the applicant's amended grounds of appeal were proper or not, or whether I could grant condonation or not. For me, those were aspects for determination by the appeal judges.

Before me was a second application for bail pending appeal based on alleged changed circumstances.

The issue which arises in this matter is a novel one.

This matter was referred to this court by the learned Provincial Magistrate for Masvingo under cover of a minute dated 20^th July 2014. The said minute summarised the history of the matter and explained why the matter was being referred for review. In essence, the learned Provincial Magistrate wanted to be advised whether this matter is a partly heard matter. Two of the magistrates which had dealt with it had arrived at different conclusions. Further, the learned Provincial Magistrate inquired whether a fellow magistrate could competently go against the ruling of a fellow magistrate on the same point. Lastly, this court was asked to consider to order a trial de novo in the matter.

It is important to put into context these issues by dealing with the background facts of this matter.

The two female accused persons aged 23 years and 29 years respectively appeared before the magistrate, a Mr Mudzongachiso, at Masvingo on 4 July 2016 facing the charge of contravening section 57(1)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to dealing in dangerous drugs. They both pleaded not guilty to the charge.

The facts alleged were that on 12 April 2016 the police in Masvingo received a tip off that the two accused persons were in possession of dagga at Accused One's residence at No.19930 Chiremwaremwa Street, Rujeko 'C' in Masvingo. The police swiftly acted on this information and proceeded to the said house where they allegedly found both accused persons packing 130 cobs of dagga, 76 sachets of dagga and 31 twists of dagga which were contained in three 20 litre plastic containers and a black plastic bag. Both accused persons were arrested. The said dagga weighed 6,715kg with a street value of US$1,350=.

Both accused persons, who were represented by a Mr Shumba, pleaded not guilty to the possession of the said dagga found at the said house. They tendered a Defence Outline in which they implicated other tenants at this house whom they said were also present at the time of their arrest - especially one Edmore. They said it is surprising that the police decided to only arrest the two of them. When both accused persons appeared before Mr Mudzongachiso and pleaded not guilty to the charge Accused Two was pregnant and not feeling well. The trial, for that reason, could not proceed after the Defence Outline had been tendered and the certificate of weight of the dagga produced. The matter was postponed to 23 August 2016.

The matter never took off until both the prosecutor handling the matter and Mr Mudzongachiso transferred from Masvingo Magistrates Court. From the record of proceedings, other than the certificate of weight of the dagga produced, no other evidence had been led.

On an unspecified date, the matter was brought before another magistrate, Mr Mohamadi, at Masvingo for trial. The defence objected to proceeding with the matter indicating that it was improper for Mr Mohamadi to proceed with the trial since this was a partly heard matter before Mr Mudzongachiso. The State argued otherwise.

Both the State and the defence filed written submissions in support of their positions. The prosecutor relied on the case of Chipuza v Dzepasi HH487-15. The defence cited the cases of S v Sibanda SC169-06 and S v Dehwe 1987 (2) ZLR 231. The State argued that Mr Mohamadi should proceed with the trial. On the other hand, the defence argued that the matter should be referred to this court for the proceedings to be quashed and a trial de novo ordered.

Mr Mohamadi, after hearing counsel, found favour with the submissions made by the defence and ruled that the matter was a partly heard matter before Mr Mudzongachiso. He ruled that the matter should be placed before Mr Mudzongachiso who should proceed with the trial and that if that became impossible the matter could be referred to the High Court for the proceedings to be quashed and a trial de novo ordered.

When Mr Mudzongachiso came to Masvingo to deal with his other partly heard matters this matter was placed before him together with Mr Mohamadi's ruling on 14 June 2018. He did not find favour with Mr Mohamadi's ruling and declined to deal with the matter. Mr Mudzongachiso was of the view that this matter was not a partly heard matter and that any other magistrate at Masvingo Magistrates Court could deal with the matter. He proceeded to so endorse on the record.

This is what prompted the learned Provincial Magistrate to refer this matter to this court as earlier on explained.

The task before me is to decide whether this matter is a partly heard matter or not and what course of action to take. I was also asked to pronounce whether it was proper for Mr Mudzongachiso to overrule the decision of Mr Mohamadi.

In the matter of AG v Gavaza 1984 (2) ZLR 212 GUBBAY ACJ..., dealt with an interpretation of the then section 163(5) of the Criminal Procedure and Evidence Act [Chapter 59] which bears some similarity to the current section 180(6) of the current Criminal Procedure and Evidence Act and made the following remarks...,;

“But the ratio which emerges clearly from the judgment is that as soon as an accused has pleaded to a charge in a court properly constituted and appointed to try him, that court, and no other court, assumes jurisdiction and is seized with the trial. From that moment onward, and irrespective of whether any evidence in support of the charge has been placed before it, that court is obliged to conduct the trial to finality unless it becomes impossible for it do so.”

The learned Acting Chief Justice..., stated that the legislature had to intervene to deal with the problems arising from the provisions of the then section 163(5) of the Criminal Procedure and Evidence Act [Chapter 59].

The Legislature has answered to the call by the then Acting Chief Justice in the current section 180(6) of the Criminal Procedure and Evidence Act [Chapter 9:07] which provides as follows;

“180. Pleas

(1) Not relevant.

(2) Not relevant.

(3) Not relevant.

(4) Not relevant.

(5) Not relevant.

(6) Any person who has been called upon to plead to any 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 or otherwise, the trial may be continued before another judge or magistrate if no evidence has been adduced;

(ii) Where a plea of guilty has been recorded, the trial may be continued before another judge or magistrate if no evidence has been adduced or no explanation has been given or inquiry made in terms of paragraph (b) of subsection (2) of section two hundred and seventy-one.”…,.

In my view, the proviso to section 180(6) of the Criminal Procedure and Evidence Act [Chapter 9:07] is clear and invites no other interpretation.

In casu, both accused persons had pleaded not guilty before Mr Mudzongachiso who recorded their pleas of not guilty. The record shows that no evidence had been adduced by the State in support of the charge of contravening section 57(1)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. This means that the trial of both accused persons may be continued before another magistrate.

It was therefore incorrect for Mr Mohamadi to make a finding that this was a partly heard matter before Mr Mudzongachiso. In that vein, it was competent and proper for Mr Mohamadi, or any other magistrate, to proceed with the trial. All what had been produced was the accused persons' Defence Outline and a certificate of weight of the dagga. The State had not adduced any evidence. Any other magistrate may therefore continue with the trial and assess the credibility and demeanour of witnesses called. See S v Lance Kennedy HH70-17...,.

The last issue I have to consider is what course of action should Mr Mudzongachiso have taken.

While it is trite that a magistrate cannot overrule the decision of another magistrate it is folly to have expected Mr Mudzongachiso to go along with the decision of Mr Mohamadi which clearly flies in the face of the provisions of section 180(6)(1) of the Criminal Procedure and Evidence Act [Chapter 9:23].

The finding by Mr Mohamadi that this matter is a partly heard matter is clearly legally wrong. Mr Mudzongachiso could not have been expected to endorse a wrong decision, and, worse still, act upon it by complying with such a decision. It was well within Mr Mudzongachiso's rights to decline to implement a wrong decision at law. This does not at all mean that Mr Mudzongachiso reviewed Mr Mohamadi's decision or that he acted as an Appellate Court. He simply declined to act in accordance with a clearly wrong decision.

What other option would Mr Mudzongachiso have had other than declining to endorse a wrong decision?

Lastly, in the circumstances, I am not obliged to quash the proceedings and/or order a trial de novo. This trial should simply proceed before another magistrate of competent jurisdiction at Masvingo. For the avoidance of doubt, I shall however set aside the order or ruling by Mr Mohamadi.

It is accordingly ordered that;

1. The order or ruling by Mr Mohamadi be and is hereby set aside.

2. It is directed that the trial shall proceed before any other magistrate of competent jurisdiction at Masvingo Magistrates Court.

The appellant approached the court expressing disagreement with the Chinhoyi Magistrate Court judgement wherein the court ordered the appellants to be evicted from House Number 14317 Brundish, Chinhoyi.

It is apparent from the record of proceedings that the appellants and the respondent, at different times and for different purchase prices, purchased the house in question from the seller, one Solomon Mukwidza. The scenario envisaged by evidence is that of double sale.

The appellant raised eight (8) grounds of appeal.

(a) The learned magistrate erred in holding that the appellants were aware of the dispute between Phiona Moyo and Solomon Mukwidza before cession was effected.

(b) The learned magistrate erred in holding that the appellants deliberately ignored the court case that was pending before the Chinhoyi Magistrates Court between the respondent and the seller of the House 14317 Brundish, Chinhoyi.

(c) The learned magistrate erred in holding that the appellants were aware that House 14317 Brundish, Chinhoyi had been sold to a third party before taking occupation and making improvements.

(d) The learned magistrate erred in holding that the appellants had not extended that house in question from four to seven rooms.

(e) The learned magistrate erred in accepting the evidence of the Chamber Secretary of the Municipality of Chinhoyi despite its glaring inconsistencies.

(f) The learned magistrate erred in holding that cession of right, title and interest in the appellants names was improperly done, hence was null and void.

(g) The learned magistrate erred in holding that they were no appeal circumstances justifying the appellants in defeating the eviction proceeding.

At the hearing, the applicants counsel raised a legal issue that the judgement was a nullity, and, on that basis, the trial court's judgment ought to be set aside.

It is settled, a legal issue may be raised at any stage in an appeal.

The record of proceedings…, shows that the matter was heard before magistrate Gayikayi who recorded and heard viva voce evidence from witnesses for the plaintiff and defendant respectively. The magistrate left service and joined private practice before attending to writing and delivery of judgement. The parties subsequently agreed that another magistrate peruse the record and come up with judgment. Indeed, a magistrate attended to judgement and delivered a judgment which forms the subject of this appeal.

The legal issue raised is that the judgement by a magistrate who did not preside over the proceedings is a nullity, and, as such, it cannot stand.

Counsel for the respondent whereas conceding that ordinarily only the presiding magistrate ought to have assessed, analysed, and come up with judgment presented argument that in circumstances of this case the judgement was valid. He based his argument on the fact that the appellant is the one who initiated the request for a different magistrate to write and come up with a judgement. The parties agreed and acceded to having the judgment delivered, and, as such, it was not a nullity.

The question that begs of answer is whether or not by the agreement of parties would clothe a nullity to be legally binding

For a concise and precise answer to this question to come out one has to look at the rationale or basis of the settled position that the presiding magistrate ought to come up with judgement.

It is not in dispute that the trial magistrate, in coming up with a judgment, has to assess not only the evidence adduced but demeanour. It is a holistic assessment and analysis of evidence which leads the magistrate to choose which story carries the day. Credibility of witnesses is best tested by the person who observes and hears witnesses testify. A new magistrate, on simply reading the record, may not appreciate the unwritten aspects such as demeanor and thus might come up with a judgement prejudicial to either of the parties.

Once appreciative of the rationale behind the desire for the presiding magistrate to write judgment it becomes abundantly clear that an agreement by the parties does not have the effect of clothing a nullity to become valid. The fact that parties agree to an illegality does not change the complexion of an illegality to be legal.

I subscribe fully to the sentiments echoed by BARTLETT J in S v Likwenga and Ors 1999 (1) ZLR 498 wherein he quoted with approval GILLESPIE J's reasoning in S v Tsangaiza 1997 (2) ZLR 47. Both judges where of the opinion that where a magistrate retires or is incapacitated or recuses him/herself or becomes functus officio the proceedings are a nullity. The proceedings are deemed abortive and have to be started afresh before a different magistrate.

In situations where a magistrate will have transferred or resigned before completing a partly heard matter the correct and expedient approach is to utilise administrative remedies of recalling the magistrate to come in and complete the partly heard matters. Also, in the case of a resigned or retired magistrate, like in casu, again, administrative remedies of recalling and having the individual take the oath of office to finalise the partly head matter would cure the anomaly of delay of proceedings starting de novo.

Handing over record of proceedings for assessment of evidence and judgment before a new magistrate, albeit by consent of the parties, does not paint the proceedings a legality. There are obvious prejudices which are occasioned by not having a complete assessment of the matter.

It is my considered view that the fact that civil proceedings are party-driven does not make them any different from criminal proceedings. The Civil Court, just like the Criminal Court, is duty bound to appreciate full facts, evidence, and then assess. The court is the umpire and has to come up with the judgement and this duty is not on the parties to the proceedings.

It is clear, therefore, that a wrong procedure was adopted to come up with a judgment, and, as such, the judgment by a magistrate who did not preside over the hearing is invalid and thus a nullity. Having pointed out that there is no judgement before this court it is therefore not necessary to look into the grounds of appeal for there is, strictly speaking, nothing before the court since the court a quo judgment is a nullity.

In the premises the judgment of the court a quo must be set aside.

Accordingly it is ordered that;

1. The judgement of the court a quo be and is hereby set aside.

2. The matter is referred to the trial court for the original presiding magistrate to finalise the matter, or, in the event that the magistrate is not available, for trial de novo before another magistrate who has not dealt with the matter.

3. Each party is to bear its costs.

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 4^th 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.

This review judgment has been occasioned by the rather incomprehensible conduct by the learned Provincial Magistrate based at Masvingo Magistrates Court. It is difficult to understand as to why the learned Provincial Magistrate, with all his experience, would conduct himself as a loose cannon. The baffling thing is why he decided not to follow simple, straightforward, and clear instructions outlined in the Order granted by this court. What is unfortunate is that the learned Provincial Magistrate would want to make this court part of the patently injudicious antics.

The background facts in this matter are as follows;

The accused was arraigned before the learned Provincial Magistrate sitting at Masvingo on 6 April 2018 facing a charge of culpable homicide arising from a road traffic accident. The matter proceeded by way of trial as the accused pleaded not guilty to the charge.

The facts giving rise to the charge are that on 7 January 2018 the 49-year-old accused, at about 15:10hrs, was driving a public service vehicle, a Higer bus, registration number ABX 6489 along the Beit Bridge-Masvingo Road towards Masvingo and had 27 passengers on board. At about the 3km peg from Masvingo the accused was driving behind a DNC bus going in the same direction. In front of that DNC bus was also a small motor vehicle also travelling towards Masvingo. The accused decided to overtake both vehicles at an open curve with his vision clearly impaired. Unknown to the accused there was another bus belonging to Khaye Bus Company, registration number HD 77 HG GP, which had broken down near the 3km peg as it was also travelling towards Masvingo and was encroaching on to the Masvingo bound lane. There were triangle reflective signs placed near this bus to warn other motorists of the hazard. This prompted the small vehicle and the DNC bus in front of the accused to stop as there was a Land Rover Discovery, registration number AEB 0047, driven by Kudakwashe Jani, travelling in the opposite direction towards Beit Bridge.

The accused, in total disregard of basic road rules, and oblivious of this danger, proceeded to overtake both the DNC bus and the small vehicle which had stopped to allow safe passage of the Land Rover Discovery vehicle. The driver of the Land Rover vehicle, upon realising that a head on collision with the accused's bus was imminent, swerved to his far left and off the road but his valiant efforts were in vain as the accused, also in panic, swerved to the same direction. This resulted in a head on collision.

The accused's bus literally climbed over the Land Rover vehicle and dragged it for about 18 metres. The bus only stopped when its front axle was suspended in the air and its rear axle suspended in a ditch. Tragically, all the six (6) people in the Land Rover Discovery vehicle died. These were Kudakwashe Jani, Savanna Jani, Cecilia Mpalisa, Beatrice Mpalisa, Fungai Manyangadze and one Mahera. Three of them died on the spot and the other three on admission at Masvingo General Hospital. Fortunately, no one in the accused's bus was injured.

It is clear from these facts that the accused was negligent. This is so because the accused, inter alia, decided to overtake on a bend; was following too close to the DNC bus; was over speeding in an 80km zone without keeping a proper lookout, hence he failed to stop or act reasonably when the accident was imminent. The accused clearly disregarded other road users.

Despite his rather misplaced protestations the accused, who was legally represented during the trial, was properly convicted of the charge. The evidence against him was simply overwhelming and the facts simply did speak for themselves.

The only issue which may arise is whether the accused should have been charged of one (1) Count of culpable homicide or six (6) Counts of culpable homicide as six (6) people died, albeit arising from the same bad driving conduct.

This issue may be properly resolved after informed argument and is not the gist of this review judgment.

The accused was surprisingly sentenced to a fine of $1,000, or, in default of payment, to serve 6 months imprisonment with additional 6 months wholly suspended for 5 years on the usual condition of good behaviour.

Again, not surprising, the accused paid the fine. Further, the accused's licence was spared and the accused was only prohibited from driving any motor vehicle for 6 months !! Needless to say this sentence induces a sense of shock for its leniency.

Instead of simply allowing sleeping dogs to lie as it were the accused had the temerity to approach this court on appeal in respect of both the conviction and sentence. The accused even callously suggested that a fine of $400 was appropriate in this case.

The accused's sense of justice is warped to say the least and his lack of contrition is beyond measure.

This matter was set before my brother MAFUSIRE J and myself, on appeal, on 3 October 2018 for argument. Both my brother MAFUSIRE J and myself felt that grave injustice had been done in this case and eagerly wanted to hear what meaningful argument counsel for the accused would advance. Apparently, the State counsel…, as per the heads of argument filed of record, had also glossed over such grave injustice and simply submitted that the appeal in respect of both conviction and sentence lacked merit without dealing with other anomalies evident in this matter. This is precisely why we were both eager to hear what counsel for the accused would say.

For reasons yet to be explained, the accused's counsel decided not to turn up for the appeal hearing despite being properly served for the hearing.

One may simply suspect that the accused and his legal practitioner realised the folly of their decision to proceed with the appeal. Counsel for the State rightly applied to have the appeal dismissed for want of prosecution.

Be that as it may, we inquired from counsel for the State about the other anomalies in this matter and sought his views. This related to the manifestly lenient sentence, the failure by the trial court to make a clear finding of the accused's gross negligence, and the failure to impose mandatory sanctions provided for in terms of section 64 of the Road Traffic Act [Chapter 13:11] relating to cancellation of the accused's driver's licence and prohibition from driving commuter omnibus and heavy vehicles for life.

We pointed out to counsel for the State that his approach in this matter was perfunctory as he did not address these mundane issues. We thus inquired from counsel for the State as to the proper way forward. Counsel for the State agreed that this matter be remitted to the trial court to remedy the omissions of failure to comply with the provisions of the Road Traffic Act [Chapter 13:11].

Our view in this matter was that despite the manifestly lenient sentence which raised our judicial eyebrows we were hamstrung to increase the sentence as the accused was in default. Fairness and justice would demand that before such a drastic action could be taken, as provided for in section 38(4) of the High Court Act [Chapter 7:06] the accused should be heard.

Indeed, if the accused or his counsel were present we would have, without doubt, interfered with the substantive sentence of the court a quo by setting aside and substituting it with a custodial sentence of not less than two years.

This is informed by the fact that the accused was grossly negligent while driving a public service vehicle carrying passengers and totally disregarded road regulations causing the loss of six innocent lives without even being contrite. Be that as it may, we still felt that the accused could not escape the sanctions provided for in terms of section 64(3) of the Road Traffic Act [Chapter 13:11]. The provisions of section 65(6) of the Road Traffic Act [Chapter 13:11] should therefore be invoked.

In the result, we granted the following Order in default:

“In default

IT IS ORDERED THAT;

1. The appeal be and is hereby dismissed for want of prosecution. It is however noted that the sentence passed is manifestly lenient.

2. The matter be and is hereby remitted to the trial court for purposes of complying with the provisions of section 64 of the Road Traffic Act [Cap 13:11] relating to a proper order on prohibition and cancellation of the driver's licence.

3. That the degree of negligence is reckless and that the provisions of section 53 of the Road Traffic Act [Cap 13:11] should be invoked in the absence of special circumstances.

4. That counsel for the State be and is hereby directed to summon the appellant (the accused) within 14 days of granting of this order for purposes of complying with paragraphs (2) to (4) of this order.”

The drama in this matter continued.

We were pleasantly bemused when, on 8 October 2018, we received a letter from counsel for the State dated 4 October 2018 requesting a written judgment and full reasons thereof in respect of the Order we had granted. We responded the same day and politely reminded counsel for the State that we granted the Order for dismissal of the matter for want of prosecution after he had made the application for such an Order as the counsel for the appellant (accused) was in default and that the remittal of the matter to the trial Magistrate was for purposes of complying with the law relating to assessment of prohibition from driving motor vehicles and cancellation of the driver's licence in accordance with the provisions of section 64 of the Road Traffic Act [Chapter 13:11]. Further, we pointed out that we gave these brief reasons in the presence of counsel for the State himself and that we had directed him, as counsel for the State present, to ensure compliance with the Order or to give teeth to the Order as it were.

The accused was subsequently summoned and the brief notes by the learned Provincial Magistrate reflect that he protested that his legal practitioner was the author of his problems. Surprisingly, the learned Provincial Magistrate did not probe as to what the accused meant by this or why the accused was blaming his legal practitioner…,. Thereafter, the accused opted to proceed without legal representation.

The record of proceedings reflects the following;

“What special circumstances are explained to the accused and understood.

By Court

Do special circumstances exist in this case?

A. Yes, it was an accident. I did not think that such an accident was going to happen. This problem was caused by my lawyer. I have 3 wives and 11 children.

Findings

No special circumstances in this case.

Sentence altered as per Judge's request to imprisonment.

3 years imprisonment of which 6 months is suspended for 5 years on condition accused does not contravene section 51, 52, 53 of the Road Traffic Act or driving under influence of a drug for which upon conviction accused is sentenced to imprisonment without the option of a fine.

In addition, accused is prohibited from driving a motor vehicle, other than a commuter omnibus or a heavy vehicle, for a period of 2 years and is prohibited from driving a commuter omnibus or a heavy vehicle during his life time. Accused person's licence is declared cancelled. Further, the Clerk of Court is instructed to refund accused $1,000 within 7 days.

Accused to surrender his licence with the Clerk of Court within 7 days.” (sic)

It is indeed mind boggling as to how the learned Provincial Magistrate proceeded in this manner. A number of issues arise from this.

In terms of procedure, the learned Provincial Magistrate should have explained to the accused why he had been summoned and to read out the High Court order to the accused. Probably this was done but the record reflects otherwise.

The learned Provincial Magistrate was enjoined to fully and properly explain to the accused, who was now unrepresented, what special circumstances entail and the consequences arising from an absence of such special circumstances: See S v Manase 2015 (1) ZLR 160 (H) as per MUREMBA J.

The accused's right to a fair hearing, as enshrined in section 69 of the Constitution, cannot be taken lightly. As an experienced magistrate one would not expect the learned Provincial Magistrate to approach proceedings in such a cursory manner.

It is important to note that in the initial reasons for judgment, soon after the trial, the learned Provincial Magistrate had not specifically dealt with the factual finding in relation to the accused's degree of negligence other than simply mentioning, in passing, that the accused's degree of negligence was high (whatever that means). Again, there are a plethora of cases from this court dealing with this aspect. See S v Dzvatu 1984 (2) ZLR 136 (H); S v Mtizwa 1984 (1) ZLR 230 (H); S v Chaita & Ors. 2001 (2) ZLR 90 (H).

What is even worrying is that the trial prosecutor, while addressing the court in aggravation soon after the accused's conviction, specifically referred the learned Provincial Magistrate to the provisions of section 64 of the Road Traffic Act [Chapter 13:11]. Apparently, this still did not find traction with the learned Provincial Magistrate who simply proceeded to prohibit the accused from driving any class of motor vehicle for 6 months after imposing a fine of $1,000 - which sentence was manifestly lenient.

The major concern, however, is why, in purporting to comply with the Order of this court, the learned Provincial Magistrate decided to mislead the accused that this court had directed that the accused should be sentenced to a term of imprisonment.

He then proceeded to impose a sentence of 3 years imprisonment - without even asking the accused to show cause why such a sentence should not imposed.

In fact, it is difficult to appreciate why the learned Provincial Magistrate deemed it fit to deal with paragraph (1) of our Order which relates to the substantive sentence. That Order is crystal clear that the accused was to be summoned by the trial court for purposes of complying with paragraphs (2) to (4) of that Order and not paragraph (1). It is therefore disingenuous for the learned Provincial Magistrate to untruthfully suggest, let alone allege that this court ordered him to alter the accused's substantive sentence. As already said, the learned Provincial Magistrate simply decided to take leave of his senses and cause further confusion in this matter by embarking on a frolic of his own.

The learned Provincial Magistrate should have appreciated that he was now functus officio in relation to the substantive sentence he had imposed on the accused of a fine of $1,000. As a result, he could only competently revisit that sentence after being ordered to do so by this court and after this court had interfered with such a sentence and setting it aside. This court had clearly not done so for obvious reasons despite noting that a clear injustice had been occasioned by imposing a manifestly lenient sentence.

The effect of the conduct of the learned Provincial Magistrate is not only to taint the image of this court but to ignore all basic aspects of procedural law.

In essence, therefore, the accused now has two separate sentences on the same matter, one of a fine of $1,000 and the other of a custodial term of 3 years. Both sentences are extant. Such conduct is clearly improper and incompetent. This court is enjoined to correct such an anomaly by exercising its review powers to ensure that basic tenets of justice are adhered to.

This court is quite alive to the fact that the accused deserved a harsher penalty other than the fine initially imposed. However, as things stand, this court is unable to correct such an injustice in relation to the substantive sentence for reasons already stated.

What is proper in the circumstances is to now correct all these anomalies by setting aside the sentence of 3 years imprisonment imposed by the learned Provincial Magistrate, the order relating to prohibition from driving any motor vehicle for 6 months and the order in relation to the refund of $1,000.

The order in relation to prohibition from driving any motor vehicle other than and/or commuter omnibus or a heavy vehicle for 2 years and from driving a commuter omnibus or a heavy vehicle for life and the cancellation of the accused's driver's licence should be upheld.

In view of the aforementioned, we are still unable to certify the proceedings as in accordance with real and substantial justice in relation to the substantive sentence of a fine of $1,000 which sentence shall remain operational despite the misplaced endeavour by the learned Provincial Magistrate to alter that sentence improperly.

In the result, the following order is made;

IT IS ORDERED THAT;

1. The conviction of the accused be and is hereby confirmed.

2. The sentence of 3 years imprisonment of which 6 months imprisonment is suspended for 5 years on the usual conditions be and is hereby set aside.

3. The initial sentence imposed by the court a quo, of a fine of $1,000 or in default of payment 6 months imprisonment with additional 6 months imprisonment suspended for 5 years on condition accused does not negligently cause the death of another person arising from a road traffic accident be and is hereby reinstated.

4. The accused be and is hereby prohibited from driving any motor vehicle other than a commuter omnibus or a heavy vehicle for a period of 2 years and is prohibited from driving a commuter omnibus or a heavy vehicle during his lifetime.

5. The accused's driver's licence be and is hereby cancelled.

6. In relation to the substantive sentence of a fine of $1,000 or in default of payment 6 months imprisonment with additional 6 months wholly suspended, we are unable to certify that sentence as being in accordance with real and substantive justice and therefore we withhold our certificate.

7. The Registrar be and is hereby directed to bring this review judgment to the attention of the Chief Magistrate to ensure that the conduct of the learned Provincial Magistrate is not repeated.

The accused should again be recalled and advised of this outcome. If the accused pays the fine he should be released from prison forthwith.