DISTRIBUTABLE (53)

Judgment No. SC 74/04

Crim. Application No. 119/04

THE ATTORNEY-GENERAL v JAMES CHAFUNGAMOYO MAKAMBA

SUPREME COURT OF ZIMBABWE

HARARE, AUGUST 30, 2004

Before: ZIYAMBI  JA, In Chambers, in terms of s 44(6) of the High Court Act and s 13(1) of the Supreme Court Act

On 30 August 2004 I granted leave to the applicant to note an appeal against the judgment of the High Court setting aside a judgment of the regional magistrate’s court and acquitting the respondent on certain criminal charges. The following are my reasons for so doing.

The respondent (to whom I shall refer as “the accused”) was on trial before the regional court in Harare. Before the magistrate he pleaded “not guilty” to five charges of contravening s 5(1)(a)(i) of the Exchange Control Act [Chapter 22:05], as read with s 11(1)(a) of the Exchange Control Regulations, Statutory Instrument 109 of 1996.

Evidence was duly led in support of the State case against him and, at the conclusion of the State case, an application was made for the discharge of the respondent in terms of s 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], which provides as follows:

“198 (3) If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”

The learned regional magistrate, after considering the detailed submissions from both parties, dismissed the application for discharge and ordered that the accused be placed on his defence. The accused commenced his evidence and the matter was remanded to 29 July 2004 for continuation.

During the adjournment, the accused filed an application to the High Court for a review of the proceedings and for an order, inter alia -

(1) setting aside the judgment of the regional magistrate dismissing the application for discharge; and

(2) discharging the accused and acquitting him on all counts.

The application was upheld by the learned judge who presided over the matter. He found justification for the unusual course of interfering in an uncompleted trial in the following passage from Criminal Procedure in Zimbabwe by John Reid-Rowland at 26-11 where the author states:

“(4) Incomplete Proceedings

The High Court’s statutory powers of review can be exercised at any stage of criminal proceedings before an inferior court. However, in uncompleted cases this power should be sparingly exercised. It would only be appropriate to do so in those rare cases where otherwise grave injustice might result or justice might not be obtained. For example, if grave irregularity or impropriety occurred in the proceedings, it would be appropriate for the High Court to consider the matter. Generally, however, it is preferable to allow the proceedings to run to their normal completion and seek redress by means of appeal or review.”

He acquitted the accused on all charges and ordered his release from remand prison where he was detained pending the completion of his trial.

It is against this judgment that the applicant sought leave to appeal in terms of s 44(6) of the High Court Act [Chapter 7:06] (“the High Court Act”), which provides:

“(6) If the Attorney-General is dissatisfied with the judgment of the High Court in a criminal matter, whether in the exercise of its original or appellate jurisdiction or on review, including a review pursuant to s 57 of the Magistrates Court Act [Chapter 7:10] –

(a) on a point of law; or

(b) because it has acquitted or quashed the conviction of the person who was the accused in the case on a view of the facts which could not reasonably be entertained;

he may, with the leave of a judge of the Supreme Court, appeal against such judgment to the Supreme Court:

Provided that the person who was the accused in the case shall have the right, should he so desire, at his own expense to appear in person or to be legally represented or a judge of the Supreme Court may order that such person be legally represented in which event the expenses of such representation shall be defrayed out of moneys appropriated for the purpose by Act of Parliament.”

And also in terms of s 13(1) of the Supreme Court Act [Chapter 7:13], which provides:

“(1) Where the Attorney-General seeks the leave of a judge of the Supreme Court to appeal against the judgment of a court –

(a) on a point of law; or

(b) because it has acquitted or quashed the conviction of any person who was the accused in the case on a view of the facts which could not reasonably be entertained;

a judge of the Supreme Court may, in granting such leave or at any time thereafter, make such orders or give such directions as he thinks fit in order to secure the attendance before the Supreme Court of the person who was the accused in the case concerned, including orders or directions for the issue of a summons or warrant of arrest, and the granting of bail or taking of recognizances.”

In determining the matter, the learned judge purported to exercise powers of review. His powers are set out in the High Court Act. In terms of subpara (iii) of para (b) of subs 2 of s 29, he is empowered to set aside or correct the proceedings of any inferior court or tribunal or any part thereof:

“… or generally give such judgment or impose such sentence or make such order as the inferior court or tribunal ought in terms of any law to have given, imposed or made on any matter which was before it in the proceedings in question”.

However, this power can only be exercised if another judge of the High Court has agreed with the exercise of the power in that particular case. See the proviso to para (b) of subs (5) of s 29 of the High Court Act. The learned judge did not obtain the concurrence of another judge. He accordingly had no power to set aside the judgment of the regional magistrate.

For this reason it was clear to me that the learned judge had committed a gross irregularity which could only be corrected on appeal and I was satisfied, having regard to the urgency of the matter, that leave to appeal could be granted without prejudice to the respondent, since submissions from him would not alter the stark fact that the learned judge was not empowered to grant the order that he did.

The learned judge also found that the failure by the learned magistrate to discharge the respondent at the end of the State case constituted a gross irregularity justifying his interference. I take a different view. The learned magistrate made findings of fact on which the decision not to discharge was based. The learned judge could not, on review, enquire into the correctness of that finding as this is the province of an appeal court.

It was for the above reasons that, after reading the papers, I granted the order sought by the applicant.

Criminal Division of the Attorney-General’s Office, applicant’s legal practitioner

Chikumbirike & Associates, respondent's legal practitioners