SECTION 12 – AUTOMATIC REVIEW AND SCRUTINY | Zimbabwe Legal Information Institute

Reid-Rowland 26-3 – 26-13

Constitutional provisions

Section 70(5) of the Constitution provides that a person who has been tried and convicted of an offence has the right, subject to reasonable restrictions that may be prescribed by law, to have the case reviewed by a higher court.

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 or her 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...”: taken from an address to the Magistrates Forum by Chief Justice Gubbay. The Chief Justice went on to say in this address:

“ In a society such as ours where the overwhelming majority of persons standing trial in the magistrates courts are members of the less favoured section of the community, and on the whole unrepresented, it is imperative to ensure that the review system, which is aimed at providing a curb upon any misdirected or arbitrary exercise of power, is administered efficiently and speedily.”

He then pointed out that the magistrate:

“ should not live in fear of the reviewing judge and constantly be looking over his or her shoulder, but should rather regard the reviewing judge as the second member of a two-man team. The reviewing judge is not there to criticize, to nit-pick or to show off his or her knowledge and experience; he or she is there to assist as far as he or she is able in the administration of justice; and to ensure that the accused person receives fair treatment.”

Purpose of review system

The system of automatic review is there to ensure “that every accused person who obtains a sentence of some severity automatically enjoys an independent investigation of his or her 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...”

This is taken from an address to the Magistrates Forum by Chief Justice Gubbay. The Chief Justice went on to say in this address:

He then pointed out that the magistrate:

“ …should not live in fear of the reviewing judge and constantly be looking over his or her shoulder, but should rather regard the reviewing judge as the second member of a two-man team. The reviewing judge is not there to criticize, to nit-pick or to show off his or her knowledge and experience; he or she is there to assist as far as he or she is able in the administration of justice; and to ensure that the accused person receives fair treatment.”

In S v Mutero & Ors HH-424-14 it was pointed out that the reviewing judge is not there to criticise or nit-pick or show off his knowledge; he is there to assist, as far as he is able, in the administration of justice and to ensure that accused persons receive fair treatment. The review system complies with s 165(3) of the Constitution, as it ensures judicial independence for magistrates by only allowing High Court judges, who are senior judicial officers, to confirm or correct on review or appeal a magistrate’s work, at the end of the proceedings, though in exceptional cases a judge can review proceedings before they are finally determined. The judge’s supervisory and review powers creates a buffer between a magistrate’s judicial work and the supervisory role of purely administrative supervisory structures. Section 164 ensures that a magistrate’s work is only interfered with by a constitutionally designated officer, exercising constitutionally conferred powers.

Review different to appeal

In S v Maphosa HH-323-13 the court pointed out that the essential difference between review and appeal procedure is that where the grievance is that the judgment or order of the magistrate is not justified by the evidence, and there is no need to go outside the record to ventilate the particular grievance, then the more appropriate procedure to follow for relief is by way of appeal. An election to appeal confines the legal practitioner to matters reflected in the record of proceedings.

Where issues are raised challenging the propriety of the proceedings of an inferior tribunal and the facts which have to be proved in order to support these issues do not appear as established on the face of the record, the proceedings should be by way of review. In this event, the applicant would, by way of affidavit, bring under review other matters which do not appear ex facie the record.

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 or she 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 case is being taken on appeal then it will not be subject to review.

Real and substantial justice

The review judge has to decide whether the proceedings of the magistrate were in accordance with real and substantial justice. For the purposes of both s 58(3) MCA and s 29(2) HCA, “real and substantial justice” is the judicious exercise of judicial authority by the trial court to ensure that it satisfies in the main the essential requirements of the law and procedure. Failure to comply with minor requirements, minor mistakes and immaterial irregularities, should not, however, result in a scrutinising or reviewing judicial officer’s refusal to certify proceedings as being in accordance with real and substantial justice. The critical consideration is whether the proceedings broadly satisfy the requirements of justice.

The main matters which the High Court will consider in a review case are:

the correctness of the charge preferred;
the agreed facts or State and defence outlines;
compliance with statutory requirements in taking a plea of guilty or in conducting a trial where the accused pleads not guilty;
compliance with the requirements for ensuring that an accused who is not legally represented is given a fair trial;
the acceptance or proof of the facts on which the charge is based;
the assessment of evidence i.e matching of the law and the accepted or proved facts;
the trial court’s reasons for judgment;
the correctness or otherwise of the conviction; and
the justifiability of the charge or sentence.

Legally represented persons and companies

The case of a person who was legally represented at his or her trial will only go on review if, within three days of the magistrate’s determination, his or her lawyer requests the clerk of court to forward the case on review. With a case involving a company, again the matter will only go on review if, within three days of the magistrate’s determination, a representative of the company requests the clerk of court to forward the matter on review.

Procedure for forwarding cases for review

The clerk of court at the magistrates court must forward to the Registrar of the High Court the records of all cases which are subject to automatic review: With cases which have been mechanically recorded, the magistrate’s handwritten notes must be forwarded. s 57(1) MCA.

In Musa 1997 (2) ZLR 149 (H) the record was sent for review some three months later, and two months after the accused had been committed to prison. The magistrate blamed the clerk of court for the delay. The court held that the responsibility for forwarding the record was the magistrate’s, not the clerk of court, and the magistrate’s excuse was a lame one. The magistrate was required to submit the record without delay; this he did not do, with the result that the accused would have served his sentence before the record reached the High Court.

It is essential that magistrates strictly comply with the time limits which are laid down for sending cases for review and for scrutiny. These limits are prescribed so that mistakes can be corrected as soon as possible. The review judge may decide to set aside the conviction and the sentence imposed. Yet if there have been long delays in submitting it for review, the whole of the sentence may already have been served. This is obviously grossly unfair. Or the review, the judge may substantially reduce a period of imprisonment but because the referral for review process has been badly delayed, X has already served a far longer period of imprisonment than the review court decided was appropriate. Only by strict compliance with the prescribed time limits can such gross injustices be avoided.

In Manyami HB-36-90, the High Court emphasised that magistrates must send cases on review within the prescribed periods. This was particularly important when queries have been raised about cases by scrutinising magistrates.

In White HH-1-92, the court said it is imperative that records are submitted for scrutiny or review within one week as required by law. Magistrates who are dilatory and fail to comply with this requirement are failing in their duty. By the time this case reached the High Court, X had already served a prison sentence imposed by the magistrate. X was a 20-year-old first offender and the High Court decided that he should have been fined and not imprisoned. The delay in submission of the case for review had therefore led to X serving a prison term when he should not have gone to prison at all.

In a recent review case the judge went so far as to order that an inquiry be held to ascertain the reasons for non-compliance with the time limits and serious delays in referring the case for review. The judge recommended that the official responsible should be charged with misconduct unless he or she has a reasonable excuse.

In Maimba HH-293-14 the court pointed out that unless reasons are given for a judgment, it is impossible to determine how the ultimate conclusion was reached and whether it was reached on a proper reasoned basis. The need for this is clear. The trial court cannot just make arbitrary decisions based on mere caprice, whim or casting of lots. A clear thought process, based on evidence adduced, should be evident. A judgment must be reasoned and the reasons for reaching a verdict must not only be stated but clear. Failure to give reasons for judgment is a gross irregularity. What is required is a complete and meaningful judgment touching all material evidence led during the trial. Magistrates should always bear in mind that in criminal trials the giving of reasons for conviction is a very important part of the trial, the purpose of which is to avoid creating the impression that the decision is arbitrary or capricious. For a magistrate not to record what he considered amounts to gross irregularity, which will usually result in a conviction being set aside on appeal or review, although the conviction may still be upheld if the evidence on record supports it.

It would be disingenuous for a trial magistrate, when asked by a reviewing judge to provide detailed reasons for the conviction, to suggest that he had been asked to manufacture another judgment or that he could not comply because he was functus officio. The purpose for criminal review is to assess if proceedings are in accordance with real and substantial justice. The judge cannot properly discharge that function where meaningless judgments, devoid of any analysis or assessment of evidence on record, are routinely conveyed to judges who are then expected not to only read the evidence on record but to analyse it as well.

Review before completion of proceedings

Generally the High Court discourages the bringing of uncompleted proceedings in the magistrates courts on review. See Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H) and John HH-242-13

There are, however, circumstances which would justify bringing the matter on review before the completion of the proceedings. This would be the case where there has been a gross irregularity in the proceedings. In S v John HH-242-13 the court said that in weighing the balance of convenience between the need for a judicial officer to manage his court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of quality justice, the balance favoured the postponement of the trial to allow the review application to be heard.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H) the court said it will not lightly stay proceedings pending review. An application of this nature can only succeed if the application for review has prospects of success. It would be prejudicial to the accused, and a waste of time and resources, for the trial court, to carry on with a trial which is likely to be declared a nullity.

In Rose HH-71-12 the court stated that the statutory powers of review under ss 26, 27 and 29 of the High Court Act can be exercised at any stage of criminal proceedings before an inferior court. In any event, the High Court has inherent powers of review. A wrong decision of a magistrate in circumstances which would seriously prejudice the rights of a litigant would justify the court at any time during the course of the proceedings in interfering by way of review. This principle would apply with greater force in criminal proceedings, where a miscarriage of justice might result from a wrong decision of the magistrate or where the rights of an accused person are seriously affected thereby. While the attitude of the Attorney-General is obviously a material element, his consent does not relieve the High Court from the need to decide whether or not the particular case is an appropriate one for intervention. In addition, the prejudice inherent in the accused being obliged to proceed to trial, and possible conviction, in a magistrate’s court before he is accorded an opportunity of testing in the High Court the correctness of the magistrate’s decision overruling a preliminary, and perhaps fundamental, contention raised by the accused, does not in itself necessarily justify the High Court in granting relief before conviction.

Under s 29(4) HCA, the High Court could set aside a conviction on the grounds of irregularity if a substantial miscarriage has actually occurred. It could do this after conviction but before sentence. The irregularity would, however, have to be so gross that it is incapable of correction by way of ordinary review or appeal. The High Court could also interfere where it would be unconscionable to await the conclusion of the proceedings before seeking redress in the normal way.

In John HH-242-13 the applicant was charged with fraud. At the close of the State case the applicant applied for a discharge. The application was based on the alleged glaring defects in the charge and the evidence led. The application was refused and some weeks later the applicant filed an application for review, challenging the magistrate’s decision to put him on his defence. Shortly after that, applicant applied for a stay of the trial pending the determination of the review application. That application was also refused, the magistrate ruling that he would not stop the proceedings unless an order to that effect was obtained from the High Court. The applicant then filed an urgent chamber application, seeking a stay of the trial proceedings in the magistrates court, pending the determination of the application for review.

The court stated that superior court will normally intervene 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 so clearly wrong as to seriously prejudice the rights of the litigant.

A court must acquit at the close of the State case where (a) there is no evidence to prove an essential element of the offence; (b) there is no evidence on which a reasonable court, acting carefully, might properly convict; or (c) where the prosecution evidence is so manifestly unreliable that no reasonable court could safely act on it. The question whether at the close of the State case there is, or there is no, evidence that the accused committed the offence charged is one of fact. It is a misdirection where the trier of facts sees facts that are completely absent or fails to see facts that are patently conspicuous. The magistrate, despite glaring deficiencies in the State evidence, nonetheless failed to consider that there was no evidence linking the accused to the crime. There was thus every likelihood that the review court might find that that there was a misdirection so gross as to warrant interference with the trial before it was completed. The review court might also find that the directive by the magistrate that the applicant be put on his defence to “clear” his name was irregular and amounted to a shifting of the onus to the applicant to prove his innocence.

Issues relating to sentence

As regards sentence on review the judicial officer must not interfere with the sentence merely because on the ground that he or she would have passed a somewhat different sentence from that imposed. If the sentence complies with the relevant principles even if it is more severe than the reviewer would have imposed, the court will not interfere with the discretion of the sentencing court.

With regard to sentence, since the codification of our criminal law, all sentences are provided for in the Criminal Law Code or in the statute which creates the crime charged. All the reviewing or scrutinizing judicial officer should do is check whether the sentence suits the offence and the offender, within the range of sentences provided for in the Code or other statute. He must also check the trial court’s reasons for sentence to determine whether or not the correct sentencing principles were applied in passing sentence. Where a crime was committed under common law before codification, the judicial officer should be guided by precedents in similar cases. In all cases, the scrutinising or reviewing judicial officer should bear in mind the trial court’s sentencing discretion, and not interfere unless the sentence imposed induces a sense of shock or unless the trial court misdirected itself in a manner which warrants the intervention of the reviewing judge.

Where the sentence for the offence for which X has been convicted is below the reviewable limit, but a suspended sentence has to be brought into operation, then the total of the two sentences will determine whether the proceedings are subject to automatic review.

Where an accused is charged and convicted under separate summonses relating to different charges and where the aggregate sentence imposed falls within reviewable range, all such summonses should be sent for review in the same way as if the convictions had appeared as separate counts on a single summons. This also applies to separate admission of guilt forms.

The requests to forward the matter on review 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 or she so wishes, to append his or her remarks to the record which is being forwarded on review. The Registrar of the High Court must ensure that these cases are submitted as soon as possible to a judge in chambers.

Steps where proceedings not accordance with real and substantial justice

If the judge decides that the proceedings before the magistrate were not in accordance with real and substantial justice, he or she will certify accordingly and the main powers of the judge are to:

alter or quash the conviction;
reduce or set aside the sentence or order of the trial court to substitute a different sentence from that imposed by the trial court but it may not substitute imprisonment for a fine unless the enactment under which the person was convicted does not permit the imposition of a fine;
impose a more severe sentence than that originally 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;
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;
convict X of some other offence than that of which he or she was convicted.

s 29(2) HCA.

Review at the instance of complainant

In Prandini 2010 (1) ZLR 354 (H) the court pointed out that an dissatisfied complainant may seek a review of an acquittal notwithstanding that the Attorney-General may appeal against the acquittal in terms of s 61 MCA or s 38A HCA. In terms of s 29(4) HCA, the review powers conferred by s 29(1) and 29(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. Such proceedings may be initiated by a complainant who asks the court to declare that an acquittal was not in accordance with real and substantial justice. On review of an acquittal the High Court has two options. The first is to confirm the proceedings if they meet the procedural and substantive legal requirements. The second is to decline to confirm the proceedings if they fall short of the requisite standards of justice. However, s 29 does not authorize the High Court to convict an accused person on review where the trial magistrate intended to acquit.

Scrutiny by regional court

The regional magistrates court 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 clerk of court must forward all such cases to the regional magistrates court within a week of the determination in the case. However, cases going on appeal will not be forwarded. If X was legally represented or was a company, the matter will only be forwarded if, within three days of the determination, the lawyer or company representative respectively requests in writing that the case be forwarded.

Regional magistrates must then 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 or she doubts that they were in accordance with real and substantial justice, he or she must forward the case to the registrar of the High Court who will lay it before a judge: s 58(3)(b)A of MCA.

In S v Kawareware 2011 (2) ZLR 281 (H) when scrutinising criminal proceedings terms of s 58(3)(a) of the Magistrates Court Act, all the scrutinising regional magistrate is required to do is to satisfy himself that the proceedings are in accordance with real and substantial justice. If they are, he should certify them. If he is in doubt, he should refer them for review by a judge of the High Court. A judge of the High Court reviewing criminal proceedings of an inferior court is required by s 29(2) HCA to determine whether or not the proceedings are in accordance with real and substantial justice. If they are, he should confirm the proceedings. If they are not, he can withhold his certificate, alter or quash the conviction, or reduce or set aside the sentence as the circumstances of the case may require.

Submission for review of non-reviewable cases

In terms of s 64(4) of MCA, a magistrate who entertains doubt as to the propriety of his or her conviction of X in a case which is not subject to automatic review may submit the case for review to the High Court.

White letters

The reviewing judge or scrutinising magistrate may seek clarification or comment on aspects of judgments from the magistrates who tried the cases. These queries are contained in what are known as “white letters”.

Each point raised by the reviewer or scrutiniser must be dealt with in the reply from the trial magistrate and responses should be sent promptly.

Accused’s statement regarding sentence

Whether or not a case is subject to automatic review, there is a procedure provided for in s 59 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 or she considers his or her 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 or she may not challenge his or her conviction. If he or she wishes to challenge the conviction he or she must appeal: Stokie 1980 ZLR 280 (GD).

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SECTION 12 – AUTOMATIC REVIEW AND SCRUTINY

Constitutional provisions