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, has a right have the case reviewed by a higher court.

Automatic review

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...”: 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 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 knowledge and experience; he is there to assist as far as he is able in the administration of justice; and to ensure that X receives fair treatment.”

In Mutero & Ors HH-424-14 it was pointed out that judges of the High Court have a constitutional duty to supervise the magistrate’s courts and other subordinate courts. That supervision is confined to how they should apply substantive and procedural law, and can be done through review and appeal judgments. This ensures that there is no interference with their decision making process. Administrative supervision is the responsibility of the administrative structure within and outside the magistracy. It is imperative to ensure that the review system, which is aimed at providing a curb on any misdirected or arbitrary exercise of power, is administered efficiently and speedily. A magistrate should not live in fear of reviewing judges, constantly looking over his shoulder, but should regard the reviewing judge as the second member of a two man team. 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.

Need for urgency

In Mutero & Ors HH-424-14 it was pointed out that the High Court and all who deal with the submission of criminal review records from lower courts must always remember that reviews must be dealt with urgently. Section 57 of the Magistrates Court Act requires magistrates to submit reviews for scrutiny or review within one week of the determination of the proceedings. Section 58(3)(b) of the Act requires regional magistrates to refer cases they are in doubt of to the registrar of the High Court as soon as possible. Section 57(4) requires the Registrar to lay the review records before a judge in chambers “with all convenient speed”. These requirements apply with equal force to cases which are referred for review in terms of s 29(4) of the High Court Act. Once the need for review is identified, the record of proceedings must urgently be called for by the judge or be urgently referred to the registrar by the referring officer or person. The registrar must, as he should do in the case of normal reviews, “with convenient speed” place the record of proceedings, before a judge for review. Such records call for urgent attention because the convicted persons will already have been prejudiced because their cases will not have been referred for review in terms of s 57. They will already have suffered delays.

The High Court automatically reviews all criminal cases decided in the magistrates courts where accused have been sentenced to terms of more than 12 months imprisonment or fines exceeding level 6. See s 57(1) of MCA.

The procedures for forwarding of documents for automatic review are set out in Barnjum 1995 (2) ZLR 438 (H)

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.

If the case is being taken on appeal then it will not be subject to review. The case of a person who was legally represented at his trial 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 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.

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 lawyer should have taken the legal practitioner should have taken the matter on appeal.  

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 so wishes, to append his 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.

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 the case of 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 that of 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. See also White 1992 (1) ZLR 22 (H).

In Kawareware 2011 (2) ZLR 281 (H) In 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.

For the purposes of both s 58(3) MCA and s 29(2) HCA, “real and substantial justice” is 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 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 features to look out for in scrutinising or review proceedings 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;
• 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.

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 CL 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.

If the judge decides that the proceedings before the magistrate were not in accordance with real and substantial justice, he 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 him of some other offence than that of which he 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 unhappy 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.

Review before completion of proceedings

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H) the court held that generally the High Court does not encourage the bringing of uncompleted proceedings for review. There are, however, circumstances which may justify the reviewing of such proceedings. This means that the court 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 HCA 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. Ordinarily the High Court’s power of review is exercised only after termination of the criminal case, but the court is entitled to exercise that power before the termination of the case, if there is a gross irregularity in the proceedings. It is, however, a power that is sparingly exercised. 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.

Remittal to trial court

A matter may be remitted be to the trial court if it did not consider mandatory issues that it must have had regard to. In Mhona & Anor HB-56-05, the two accused were bus drivers who had been convicted, in separate trials, of negligent driving. They were sentenced to a fine and were prohibited from driving for 6 months. The legislation requires that, unless the court that there are special circumstances justifying a shorter period, a bus driver who is convicted of negligent driving must be prohibited from driving for at least two years. There was no enquiry carried out by magistrate on the existence of special circumstances and thus there was no finding in this regard. Held: there is no other specific situation, apart from s 29(5)(b) HCA in which a reviewing court may remit a case to the trial court for sentence, but the court’s wide powers to remit the case to the trial court, with instructions about the further proceedings to be had in the case, would entitle it, in appropriate circumstances, to confirm the conviction entered by the magistrate but send the case for sentence to be passed afresh, in the light for example, of further evidence which the magistrate is instructed to hear. Accordingly, the matter would be remitted to the trial court for the magistrate to impose sentence afresh, having regard to the mandatory provisions regarding prohibition.

Procedure on summary committal

It is the duty of the magistrate committing person for contempt summarily to ensure that the record is sent for review: Musa 1997 (2) ZLR 149 (H). This is because the magistrate would have been, the judge, complainant, and prosecutor in the matter and it is important that the exercise of such powers be immediately checked otherwise there will be untold abuse.

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 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 58(3)(b)A of MCA.

The regional magistrate has no power on review to order a magistrate to reconsider a decision made. That power can only be exercised by the High Court on remittal: Chimukuche 1997 (1) ZLR 533 (H).

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.

Failure by trial magistrates to comply with time limits

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 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.

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 has a reasonable excuse.

Submission for review of non-reviewable cases

A magistrate who entertains doubt as to the propriety of his conviction of X in a case which is not subject to automatic review may submit the case for review to the High Court.

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 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: Stokie 1980 ZLR 280 (GD).