Review and scrutiny systems
The system of review is there to ensure “that every accused person who obtains a sentence of some severity automatically enjoys an independent investigation of his conviction and sentence by a senior judicial officer who is enjoined to satisfy himself that the proceedings meet the requirement of being in accordance with substantial justice...” Address to Magistrates Forum by A. Gubbay
The High Court automatically reviews all criminal cases decided in the magistrates courts where X have been sentenced to terms of more than of 12 months imprisonment or fines in excess of level 6: s 57(1) of MCA.
A regional magistrate will scrutinise all decisions in the magistrates courts, except those handed down by regional magistrates, where accused have been sentenced to more than 3 months but not more than 12 months imprisonment or to a fine exceeding level 4 but not exceeding level 6: s 58 MCA.
The provisions of the Magistrates Court Act regarding the submission of the record of a case for automatic review or scrutiny are mandatory. Failure to comply could result in proceedings being interfered with on review: Bhanke & Ors HH-123-02.
However a case will not go for review or scrutiny where it is being taken on appeal. Also in the case of a person who was legally represented at his trial the case will only go on review if, within three days of the magistrate’s determination, his lawyer requests the clerk of court to forward the case for review or for scrutiny. Such a request must be in writing and must be accompanied by a brief statement of the reasons for the request. The magistrate who decided the case is entitled, if he so wishes, to append his remarks to the record which is being forwarded for review or for scrutiny.
In Nyathi HB-90-03 the judge decided that, other than in exceptional cases, the accused is not allowed to use the review procedure to attack the conviction. Normally the accused must lodge an appeal if he is arguing that the conviction was wrong. In the present case X had been convicted and sentenced to a term of imprisonment. The proceedings had been confirmed on review. His legal practitioner sought to bring the matter on review again. He attacked the conviction and, in addition, submitted that the proceedings were defective. He alleged that the magistrate had not allowed the accused to secure legal representation. The accused had wished to secure the services of a particular practitioner, but the practitioner died before the trial began. It was also alleged that the magistrate had not granted a postponement to enable a defence witness to be called. The court held that the legal practitioner should have taken the matter on appeal.
If the judge decides that the proceedings before the magistrate were not in accordance with real and substantial justice, he will certify accordingly. The main powers of the judge on review are to
- alter or quash the conviction;
- reduce or set aside the sentence or order the trial court to substitute a different sentence from that imposed by the trial court;.
- set aside or correct the proceedings or give such judgment or impose such order as the trial court ought to have given, imposed or made;
- remit the case back to the trial court to hear further evidence Mhona & Anor HB-56-05;
- convict him of some other offence than that for which he was convicted.
- substitute imprisonment for a fine unless the enactment under which the person was convicted does not permit the imposition of a fine; or
- impose a more severe sentence than that imposed except in relation to a legally represented person or a company where the lawyer or company requested the matter to be forwarded on review.
s 29(2) HCA.
Where a magistrates court has erroneously set a lower period of community service than set out in the guidelines, a court on review may not increase the period to what it ought to have been, as that would amount to an increase in sentence: Binga HH-196-02.
Regional magistrates must scrutinise such cases as soon as possible after receiving them. If satisfied that the proceedings were in accordance with real and substantial justice, the regional magistrate will so endorse it. However, if he doubts that they were in accordance with real and substantial justice, he must forward the case to the registrar of the High Court who will lay it before a judge: s 63A MCA.
Review of incomplete proceedings
In A-G v Makamba S-30-05 the Supreme Court stated that the general rule is that a superior court should intervene in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.
In Dombodzvuku & Anor v Sithole NO & Anor HH-174-04 when arraigned on charges of corruption, the applicants excepted to the charge, claiming that they were not public officers in terms of the relevant legislation. The presiding magistrate ruled against them. The magistrate’s ruling was brought on review. It was argued that the magistrate’s decision was grossly unreasonable and should be set aside. It was held that an incorrect interpretation of the law cannot be grossly unreasonable merely because it does not find favour with its attacker. The person attacking it must go further and show that, on the facts before the court, the decision reached defies all logic and is completely wrong. A different opinion of the law, clearly showing how it was arrived at, cannot be said to defy logic. It may be wrong but may not necessarily be unreasonable. There was nothing irregular in the decision by the magistrate to compel the court to use its review powers at this stage of the proceedings. The magistrate’s decision was arrived at after hearing argument from both counsel and it was a carefully considered decision. The decision represented the magistrate’s interpretation of the law and it could only be an incorrect decision and not an irregular one. Incorrect decisions are redressed by way of appeal.
In Attorney-General v Makamba S-74-04 it was held that a refusal by a magistrate to discharge the accused at the end of the State case, where that decision is based on findings of fact, is not a gross irregularity entitling the High Court to interfere on review. The correctness of findings of fact is a matter for an appeal court.
In Masedza v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (H) the High Court said it would have been prepared to review an interlocutory decision by a magistrate rejecting an application that he recuse himself had the application been well founded. It would have been prepared to do this despite the fact that the proceedings in the magistrate had not yet terminated.
Accused's statement regarding sentence
Whether or not a case is subject to automatic review, there is a procedure provided in ss 63(2a) and 66(1) MCA whereunder a person convicted by a magistrate may question the severity of the sentence imposed by submitting a statement to the High Court setting out why he considers his sentence to be unduly severe. The magistrate who imposed the sentence should send a full reply to this statement to the reviewing judge. Under this procedure X may only make representations about the sentence; he may not challenge his conviction. If he wishes to challenge the conviction he must appeal: Stockie 1980 ZLR 280.
Can review court take into account facts not placed before magistrate?
In Dlamini HB-3-90 the review court stated that it could not take into account facts which were not before the trial court when sentence was passed and which had not formally been placed before the review court by way of application to lead further evidence in regard to sentence.
The trial magistrate had imposed a sentence of imprisonment because he thought that X would be incapable of paying a fine. In this case the legal practitioner sought to place before the review judge a statement of X to the effect that at the time of his trial he was in a position to pay the maximum fine imposable under the statutory provision in question. The legal practitioner said that because of a misunderstanding, this information was only given to him after X had been sentenced. The legal practitioner requested that the sentence be reassessed in the light of this information.
On the other hand, in Mudarikwa HH-48-90, X had at the appeal made an offer of restitution. This offer was taken into account by the appeal court in deciding to suspend a portion of the prison sentence on condition of making restitution.
Cases where more than 12 months prison or fine in excess of level 6.
No review if case going on appeal & only reviewed in case where X was legally represented at trial if his lawyer requests that case be forwarded for review.
On review High Court judge checks that proceedings in accordance with real and substantial justice. If it is not, may quash or alter conviction, set aside or correct the proceedings or give such judgment or make such order as magistrate ought to have given, imposed or made.
Noting of appeal can be deferred pending outcome of automatic review.
Applies where between 3 months and 12 months prison or a fine between level 4 &6.
No scrutiny if going on appeal & only scrutinised in case where X legally represented at trial if lawyer requests that case be forwarded for scrutiny.
Scrutiny by regional magistrate who checks that proceedings in accordance with real and substantial justice. If has doubts that it is, will refer case to High Court.
Bail pending review
Where a person applies for bail after conviction and his case is subject to review, a magistrate within whose area of jurisdiction he is in custody may grant him bail pending the review of the case: s 123(1)(b)(i) CPEA. It must also be noted that the powers of a magistrate to grant bail are limited in relation to convictions for offences falling under the Third schedule. Section 123 (1) (b) (iii) proviso (iii) provides that the power to admit to bail is subject to the Attorney- General’s consent.