Scrutiny by regional magistrate

Where a magistrate (other than a regional magistrate) sentences a person to a period of imprisonment of more than three months but not exceeding 12 months, or to a fine of more than level 4 but not exceeding level 6, the clerk of the court must send the record of the case to a regional magistrate within one week after the sentence was imposed.  Where the person was convicted on two or more counts, it is the aggregate sentence imposed on him which determines whether or not the case must be sent for scrutiny.  The trial magistrate may include with the record any remarks he may wish to make.  Unless the trial magistrate orders otherwise, a transcript of the evidence is not sent;  the magistrate’s manuscript notes are sufficient.

A record will not be sent in the following cases:

• where the accused was represented by a legal practitioner or is a company;
• where the accused has requested that the case should be sent to the for review;
• where the accused has been fined in absentia in terms of section 356(1) of the (i.e. where he has paid a deposit fine).

A regional magistrate to whom a record is sent must consider it as soon as possible and, if satisfied that the proceedings in the case are in accordance with real and substantial justice, must endorse the record with a certificate to that effect.  If, however, he has any doubts about the proceedings he must forward the papers to the registrar of the High Court who will lay them before a judge for review.

Note that a regional magistrate has no power to alter or correct the proceedings of the magistrates court.

Automatic review by High Court

Where a magistrate (including a regional magistrate) sentences a person to a period of imprisonment of more than 12 months, or to a fine of more than level 6, the clerk of the court must send the record of the case to the registrar of the High Court within one week after the sentence was imposed.  This time-limit is important:  the High Court has frequently criticised magistrates for delays in sending records for review.  Where the accused person was convicted on two or more counts, it is the aggregate sentence imposed on him which determines whether or not the case must be sent on review.  As with scrutiny, the magistrate may include with the record any remarks he may wish to make.  Unless the trial magistrate orders otherwise, a transcript of the evidence is not sent;  the magistrate’s manuscript notes are sufficient.

If the accused is aggrieved by the sentence in a case that is subject to automatic review, he may deliver a statement to the clerk of the court, within three days after sentence was passed, setting out his reasons for considering the sentence excessive.  This statement must be sent on review with the record and must be taken into account by the reviewing judge.  The accused must be informed of his right to send a statement on review.

If the accused was represented by a legal practitioner, or is a company, the record will not be sent for review unless the legal practitioner or the company’s representative requests the clerk of court, in writing and with reasons and within three days after sentence was imposed, to send the record for review.  Similarly, where less than 12 months’ imprisonment or a fine of less than level 6 was imposed on the accused, he may request the clerk of court, in writing and with reasons and within three days after sentence was imposed, to send the record for a review of the sentence.

Purpose of review

The purpose of review is to ensure that every case in which a magistrate imposes a sentence of more than the limits prescribed in section 57(1) of the Magistrates Court Act [Chapter 7:10] is examined by a judge of the High Court, who must satisfy himself that the proceedings are in accordance with real and substantial justice.  It is a way of ensuring, albeit ex post facto, that unrepresented accused persons are treated fairly.

A review is not a re-trial nor is it an appeal.  The reviewing judge must be satisfied that the proceedings in the magistrates court were substantially just.  If there is evidence on which a reasonable court could have convicted, the reviewing judge will not interfere.  Even so, the powers of the High Court on review are very similar to the court’s powers on appeal.

Powers of judge on review

In terms of section 29 of the High Court Act [Chapter 7:06], if a judge on review considers that the proceedings of the magistrates court are in accordance with real and substantial justice, he will confirm the proceedings.

If, however, the judge does not consider the proceedings to be in accordance with real and substantial justice, he may:

• quash the conviction.A judgment based on fact will not be set aside unless there is no evidence to support it or the trial court acted on inadmissible evidence, or unless the evidence is such that, in the view of the reviewing judge, it does not prove the accused’s guilt beyond reasonable doubt.
• alter the conviction to one which the magistrate could and should have reached, considering the charge that was brought and the evidence that was, or should have been, accepted.Thus the reviewing judge may alter the conviction so that the accused is found guilty of a crime alleged as an alternative charge in the charge-sheet, or so that the accused is convicted of a permissible verdict to the crime charged.
• reduce or set aside the sentence or any order made by the magistrate ancillary to the sentence (e.g. forfeiture).A sentence of imprisonment may not be substituted for a fine, however, unless the enactment under which the accused was convicted does not provide for a fine, and generally the substituted sentence must not be more severe than that imposed by the magistrate.The exception to this is where the accused, who was represented by a legal practitioner in the magistrates court or is a company, requested that the proceedings be sent on review.
• correct or set aside the proceedings of the magistrate, or any part of the proceedings, and give whatever judgment or impose whatever sentence or make whatever order the magistrate ought to have given, imposed or made.
• remit the case to the magistrates court for trial afresh before a different magistrate, or for the hearing of further evidence, or for sentence to be imposed afresh.

Note that the power to alter or quash a conviction, and to alter the sentence, may not be exercised on automatic review unless another judge of the High Court has agreed to the alteration.

Note, too, that a judge should not quash or set aside a conviction or sentence on review because of an irregularity or other defect unless the judge considers that a substantial miscarriage of justice has actually occurred.  The object of this restriction is to prevent proceedings being set aside on petty, insubstantial technical grounds.  The test is whether there has been substantial prejudice to the accused.

Real and substantial justice

A scrutinising regional magistrate and a reviewing judge should only query or interfere in proceedings if he or she considers they are not in accordance with real and substantial justice.  The phrase “real and substantial justice” is not defined in the High Court Act or the Magistrates Court Act, and they defy precise definition.  Greenland J explained them in S v Chidodo & Anor 1988 (1) ZLR 299 (H) at 302 as follows:

“It seems clear from the words employed … that a judge (and regional magistrate) is required to make a value judgement on the question.  He must be satisfied that everything that transpired at the criminal trial conforms with the notions of justice that these words imply.  The words employed are individually and collectively very wide in ambit.  Notions of justice, being essentially abstract, are necessary as wide, as any textbook on jurisprudence will show. … What is to be considered just, depends on the norms and sense of values generally prevailing in society.”

Uchena J developed this in S v Kawareware 2011 (2) ZLR 281 (H):

“Real and substantial justice would … be the considerable judicious exercise of judicial authority by the trial court, which satisfies in the main the essential requirements of the law and procedure.  Failure to comply with minor requirements, minor mistakes and immaterial irregularities should, however, not result in the scrutinising or reviewing judicial officer’s refusal to certify proceedings as being in accordance with real and substantial justice.” (page 287E)

“The critical consideration is … whether the proceedings broadly satisfy the requirements of justice.” (page 288D)

The main features that scrutinising and reviewing judicial officers should look for in determining whether proceedings are in accordance with real and substantial justice are:

1. The correctness of the charge.
2. The agreed facts or State and defence outlines.
3. Compliance with statutory requirements in taking a plea of guilty or in conducting a trial where the accused pleads not guilty.
4. The acceptance or proof of the facts on which the charge is based.
5. The assessment of evidence, i.e. matching the law and the accepted or proved facts.
6. The trial court’s reasons for judgment.
7. The correctness or otherwise of the conviction.
8. The justifiability (i.e. appropriateness) of the charge or sentence.

Non-automatic Review

Automatic review is not the only form of review.  Under section 29(4) of the High Court Act [Chapter 7:06], whenever it comes to the notice of a judge of the High Court that criminal proceedings in a magistrates court are not in accordance with real and substantial justice, the judge can send for the record and exercise the same powers as if the proceedings had come on automatic review.  Under this section, a magistrate who is doubtful about the correctness of proceedings which are not subject to automatic review can send the record to a judge for review.

As stated above, if an accused was represented by a legal practitioner or is a company, the proceedings will not be sent for automatic review unless the legal practitioner or the company’s representative requests the clerk of court to send the proceedings for review.  The request must be made in writing within three days after the case was finalised.  Similarly, in cases where a sentence of less than 12 months’ imprisonment or a fine of less than level 6 was imposed, the accused may request the clerk of court to send the record for a review of the sentence.  Again, the request must be made in writing within three days after sentence was imposed.

Another way to bring a case on review to the High Court is by court application, asking the court to exercise its general powers of review on the ground of:

• absence of jurisdiction on the part of the magistrates court;
• interest in the case, bias, malice or corruption on the part of the person presiding over the magistrates court;or
• gross irregularity in the proceedings.

These grounds are set out in section 27 of the High Court Act [Chapter 7:06].  They are not as restrictive as they may seem, because section 27 begins with the words “Subject to … any other law” which suggests that another law could extend the grounds of review.  In fact the Constitution probably has, by requiring all trials to be fair, i.e. conducted according to notions of basic fairness and justice.

Such an application must be made within eight weeks after the proceedings were finalised, though this period may be extended for good cause shown.

Incomplete proceedings

The High Court has power to review criminal proceedings at any stage, but it is reluctant to review uncompleted proceedings unless a miscarriage of justice would result if the proceedings are allowed to continue to completion.

Bail pending review

A convicted person can be granted bail pending review.  The same principles apply to the granting of such bail as apply to bail pending appeal.