This is an appeal against a decision of the High Court in terms of which the
appellant's discharge by the magistrate at the close of the State case was set
aside and the matter remitted to the magistrate for continuation of trial.
The background to this matter
is that the appellant was arraigned before
the Regional Magistrate at Gweru, on a charge of bribery, as defined in
section 170 of the Criminal Law (Codification
and Reform) Act [Chapter 9:23], alternatively,
extortion, as defined in section 134 of the same Act. She pleaded not guilty. The State led its evidence, and, after the
closure of the State case, the defence
made an application for the discharge of the appellant. The application was
granted by the Regional Magistrate who found the appellant not guilty and
acquitted her.
The Chief Law Officer in the Attorney General's Office
wrote a letter to the Registrar of the High Court in Bulawayo requesting;
(a) That the record of proceedings be placed before the
reviewing judge for consideration;
(b) That the decision by the magistrate be set aside; and
(c) That the trial be ordered to start afresh before a
different magistrate.
In a review judgment, in HB21-10, the High Court held that
the trial magistrate had misdirected herself in discharging the appellant at
the close of the State case in circumstances where the State had proved a prima
facie case against the appellant. It made the following order:
“1. The discharge of the accused at the end of the State
case be and is hereby set aside.
2. The matter is
referred back for the continuation of the trial.”
An application was made to the High Court, sitting at
Harare, by the appellant's legal practitioners, seeking the setting aside of
the judgment in HB21-10. The application is said to have been dismissed on the
basis that it ought to have been made in Bulawayo.
The appellant was subsequently arrested and brought before
the Gweru Magistrates Court on 2 October 2012 where a trial de novo was commenced before a different
magistrate and prosecutor. These fresh proceedings were then set aside
subsequent to an urgent chamber application that was filed with the High Court.
Thereafter, a judge of the High Court granted condonation for the late noting,
by the appellant, of an appeal against the judgment in HB21-10. The appellant
further states, in her heads of argument, that her prosecution before yet
another magistrate, sitting at Gweru, has been stayed pending the determination
of this appeal whilst she is on remand. The full circumstances of this
allegedly pending trial are, however, not clear on the papers.
The appellant now appeals against the High Court decision
in HB21-10 on the following grounds:
1. The Honourable Court a quo erred and grossly misdirected itself in assuming jurisdiction in a
matter that it did not have jurisdiction over.
2. The Honourable Court a quo erred in treating a letter from the Attorney General's Office as
an application for review when it did not comply with the law and proceeded to
review the matter when, in fact, there was no service on the appellant and in
the absence of any submissions from her.
3. The Honourable
Court erred and grossly misdirected itself in overruling the findings of fact
of the trial magistrate, Mrs Pise, sitting at Gweru Magistrates Court, when
there were no allegations by the State of any gross misdirection on the facts by Mrs Pise which could have warranted the
Court's interference.
The appellant prays for the appeal to be allowed with costs
and for the order of the High Court in HB21-10 to be set aside and substituted
with an order that:
“The appellant remains acquitted, as per the ruling of Her
Worship Mrs Pise under Case Number CRB 571/09.”
The grounds of appeal raise one central issue. The issue is
whether the High Court has jurisdiction to intervene in the circumstances of
this case.
The appellant submitted that the only recourse that was
open to the respondent was an appeal in terms of section 198 of the Criminal
Procedure and Evidence Act [Chapter 9:07]. That section reads, in relevant
part, as follows:-
“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.
(4) If the
Attorney General is dissatisfied with a decision of a Magistrate in terms of
subsection (3), he may, with the leave of the Judge of the High Court, appeal
against the decision to the High Court.”
It was the appellant's submission that the State could only
act in terms of the above section, and, consequently, that the court a quo proceeded to assume authority in
circumstances where it did not have the authority to do so as the letter that
was written by the respondent was not in accordance with the said section 198(4)(b) of the Criminal Procedure and
Evidence Act [Chapter 9:07].
In response, the respondent submitted that the provisions
of section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07] do
not preclude the State from seeking a review of proceedings in terms of section
29 of the High Court Act [Chapter 7:04]. The respondent further submitted that
the High Court has inherent powers of review in terms of section 29 of the High
Court Act [Chapter 7:06]. Furthermore, that in terms of section 29(4) of the
High Court Act [Chapter 7:04], the High Court, or a judge thereof, may exercise
such review powers whenever it comes to its or his or her notice that any
criminal proceedings of any inferior court are not in accordance with real and
substantial justice.
Section 29(4) of the High
Court Act [Chapter 7:06]
provides:
“Powers on
review of criminal proceedings
(1)…,.
(2)…,.
(3)…,.
(4) Subject to rules of court, the powers conferred by
subsections (1) and (2) may be exercised whenever it comes to the notice of the
High Court, or a judge of the High Court, that any criminal proceedings are not
in accordance with real and substantial justice, notwithstanding that such
proceedings are not the subject of an application to the High Court and have
not been submitted to the High Court, or the judge, for review.”…,.
Section 198(4) of the Criminal Procedure and Evidence Act
[Chapter 9:07] provides that if the Attorney General is not satisfied with the
decision of a magistrate, he may, with the leave of a judge of the High Court,
appeal against the decision to the High Court.
That the Attorney General was dissatisfied appears to be
obvious from a reading of the papers.
However, the letter written by, or on behalf of, the
Attorney General to the Registrar of the High Court, Bulawayo, does not purport
to be an appeal to the High Court as envisaged in section 198(4) of the
Criminal Procedure and Evidence Act [Chapter 9:07]. The letter does not seek to
institute or trigger an appeal procedure. It specifically seeks a review by a
judge of the High Court of the proceedings before the magistrate at Gweru. The
letter, having come to the attention of the judge of the High Court, the proceedings in issue came “to the notice of
the High Court or a judge of the High Court”, and, once that happens, section
29(4) of the High Court Act [Chapter 7:06] empowers the High Court, or a judge
thereof, to exercise review powers.
The powers conferred by section 29(4) of the High Court Act
[Chapter 7:06] are exercised “subject to rules of court.”
The court is not aware of, nor was the court's attention
drawn to, any Rule of this court in terms of which such review powers ought not
to have been exercised in casu.
Furthermore, section 29(4) of the High Court Act [Chapter
7:06] specifically provides that such review powers may be exercised
notwithstanding that such proceedings are not the subject of an application to
the High Court and have not been submitted to the High Court or the judge for
review. The Act does not prescribe the form of the notice. The manner in which
the proceedings come to the attention of the High Court or a judge of the High
Court is not regulated and is thus of no relevance. The fact is that there was
sufficient and legitimate cause for the High Court to invoke its powers under section
29(1) and (2) of the High Court Act
[Chapter 7:06].
The High Court thus properly assumed jurisdiction on the
basis of the alleged gross irregularity.
The Attorney General's letter to the High Court Registrar
states, in part:
“In discharging the accused at the close of the State case,
the magistrate erroneously applied the wrong test. She made reference to the
fact that an accused's guilt has to be proved beyond reasonable doubt. She also
made reference to the State's failure to call witnesses i.e the prosecutor and
the investigating officer in the case in which the State witness was an
accused. However, the State is not compelled to call a potentially hostile witness.”
The letter further states:
“The trial court had committed a fundamental misdirection in deciding that a State witness was not
worthy of belief by accepting the version put by the accused in cross
examination as evidence.”
The above factors set out by the Attorney General pointed
to an irregular decision and laid the basis for review. There was therefore
nothing amiss in the judge, or the High Court, reviewing the proceedings or
decision that had come to his or its notice. The magistrate adjudged the State
case against the threshold of proof beyond a reasonable doubt when she ought to
have asked the question whether a prima facie case had been established. The magistrate also fell into error in
accepting the version put forward by the appellant during cross-examination of
State witnesses. For these reasons, the Attorney General contended that the
decision to discharge the appellant was irregular and warranted the
interference of the High Court by way of review. No other provision of this Act,
or any other law, that would preclude the exercise of review powers in terms of
section 29 of the High Court Act [Chapter 7:06], by a judge of the High Court
or by the High Court itself has been brought to our attention. The fact that
the proceedings, or decision, came to their notice by way of a letter authored
by, or on behalf of, the Attorney General is of no consequence insofar as the
exercise of the said review powers is concerned.
For the above reasons, the appeal has no merit. The court a
quo properly assumed jurisdiction.
Section 29(2)(b)(iii) of the High Court Act [Chapter 7:06]
becomes pertinent. It provides:
“29 Powers on review
of criminal proceedings
(1)…,.
(2) If, on a
review of any criminal proceedings of an inferior court or tribunal, the High
Court considers that the proceedings -
(a)…,.
(b) Are not in
accordance with real and substantial justice, it may, subject to this section -
(i)…,.; or
(ii)…,..; or
(iii) Set aside or correct the proceedings of the
inferior court or tribunal, or any part thereof, or generally give such
judgment or impose such sentence or make such order as the inferior court or
tribunal ought in terms of any law to have given, imposed or made on any matter
which was before it in the proceedings in question; or…,.” …,.
Section 29(2)(b)(iii) of the High Court Act [Chapter 7:06]
gives the High Court power to correct any part of proceedings of an inferior
court or tribunal.
In casu, the High Court corrected the part of
the proceedings before the Regional Magistrate in terms of which she granted
the application for discharge at the close of the State case. It did so for reasons indicated earlier in
this judgment. The court a quo was
correct in so setting aside the discharge of the appellant by the Regional
Magistrate. It also correctly
referred the matter back to the Magistrates' Court for continuation of the trial.
The trial that was commenced before another magistrate at
Gweru, on 2 October 2012, would not have been properly commenced in the face of
the judgment in HB21-10, which was then extant. In terms of that judgment, the
proceedings before the Regional Magistrate were remitted for continuation
before the same court. It therefore
follows that the fresh proceedings were irregular and were properly set aside.
If it is true that there were further proceedings before yet another magistrate
at Gweru, such proceedings would also be irregular.
In the result, it is ordered as follows:
1. The appeal is hereby
dismissed.
2. For the avoidance of doubt, the order in HB21-10 stands.
