He was sentenced to twelve days imprisonment.
The first respondent is the Commissioner General of the Zimbabwe Republic Police, who is being sued in his official capacity as the Head of the Zimbabwe Republic Police.
The second respondents are the Co-Ministers of Home Affairs, being sued in their capacity as the Ministers responsible for the Zimbabwe Republic Police.
The third respondent is the officer in charge of Chikurubi Detention Barracks, where the applicant will be lodged for twelve days if he is to serve the sentence imposed on him by the fourth respondent.
The fourth respondent is the officer who tried, convicted, and sentenced the applicant to twelve days imprisonment.
The applicant was convicted by the fourth respondent on allegations that he had sought and obtained a bribe of US$500, and stolen a plasma television from a suspect he had arrested and was about to lodge in police cells. He was charged under section 35 of the schedule to the Police Act, which provides as follows:
“Acting in an unbecoming or disorderly manner or in any manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police Force.”
He was convicted and sentenced to twelve days imprisonment.
The suspect, and another witness, gave evidence at the trial leading to the conviction of the applicant.
In this application, the applicant alleges that the fourth respondent did not warn himself about the dangers of convicting on the evidence of accomplice witnesses. He also alleged, that, the fourth respondent did not warn the accomplices before they testified.
He further alleges that he is being exposed to double jeopardy as he is also being charged for the same acts under the Magistrate's Court.
He further complains that the sentence imposed by the fourth respondent induces a sense of shock.
Counsel for the applicant submitted that section 35(1) of the Police Act [Chapter 11:10] requires the trial under the Police Act to closely comply with the procedure followed in the courts of Zimbabwe. It provides as follows:
“(1) The proceedings before or at any trial by a board of officers or an officer in terms of this Act, shall, as near as may be, be the same as those prescribed for criminal cases in the courts of Zimbabwe.”
The intention of the legislature is clear.
The tribunal or trial officer must, as nearly as is possible, comply with the rules of evidence and procedure as is done in the courts of Zimbabwe. Where the tribunal or trial officer significantly departs from the procedure set for criminal proceedings in the courts of Zimbabwe the proceedings may be set aside on review.
The test applied on reviewing proceedings is whether or not the proceedings are in accordance with real and substantial justice.
That may be satisfied if a record reveals statements made by the accused admitting having done what is alleged or other things tending to support the conviction. In other words, errors, on the part of the prosecuting authority, may, if they do not go to the root of the proceedings, affect its being held to be in accordance with real and substantial justice.
A stay of sentence must therefore only be granted if the record shows prospects of success, which can only be properly assessed from the totality of the proceedings.
In this case, the applicant has not placed the record of proceedings before the court. In fact, the applicant said nothing about it in his founding affidavit.
Counsel for the applicant tried to explain from the bar, but, an application must stand or fall on the papers filed.
The applicant's failure to place the record before this court makes it impossible for this court to assess the applicant's prospects of success on review as the standard of assessment on review must comply with the proviso to section 34(3) of the Police Act, which provides as follows:
“Provided that no conviction or sentence shall be quashed or set aside by reason of any irregularity or defect in the record or proceedings unless the Commissioner considers that a miscarriage of justice has actually occurred.”
The alleged irregularities cannot, therefore, in the absence of information from the record showing that a miscarriage of justice actually occurred, persuade the court to stay the execution of sentence. The standard of review, set by the legislature for the Commissioner, must be applicable to the review of those proceedings by this court....,.
The applicant filed this urgent application seeking an order staying his imprisonment for twelve days as ordered by the fourth respondent. He seeks the stay of his imprisonment pending the review of his case. He says he is taking the proceedings on review before the High Court and seeks the stay of the sentence pending review.
He does not state that he has already filed a review, nor does he state the review case number. There is nothing on the record to show that the application for review has been filed.
Counsel for the applicant complains that he is facing difficulties in obtaining the judgment and record of proceedings.
If that is true, he can initiate other forms of review....,.
Section 29(4) of the High Court Act [Chapter 7:06]...,, provides as follows:
“(4) Subject to rules of court, the powers conferred by subss (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 of any inferior court or tribunal 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 29(4) of the High Court Act gives this court, or a judge of this court, wide review powers.
It allows a judge to call for and review any proceedings of an inferior court or tribunal it becomes aware of and forms the view that they are not in accordance with real and substantial justice. The judge is empowered to call for and review any proceedings - even those he may hear about through the press, or a letter, or any other source of complaint or information.
This procedure can however not be used to review these proceedings because the applicant claims to have filed an application for review.
His legal practitioners must be allowed to represent him and seek justice for him. The courts should not be seen to be championing the cause of a legally represented applicant.
That is why trials in the Magistrate's Courts, in which the accused is represented by a legal practitioner, are not subject to an automatic review....,.
The record of proceedings has not been placed before the court. The sentence cannot be stayed without assessing the applicant's prospects of success on review.
There is no proof that the applicant is seriously pursuing a review of the proceedings: what would happen if the sentence is stayed but the application for review is not filed?
I cannot therefore grant a stay of the execution of a sentence when there is no proof that an application for the review of the proceedings has been filed.
