application for review https://old.zimlii.org/taxonomy/term/10008/all en The State & Another v Machaya & 7 Others (HH 442-19, HC 2189/19 Ref HC 1994/19 CRB GWP 28/18, 214-216/18, 219/18, 1358/18 & 1359/18) [2019] ZWHHC 442 (10 June 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/442 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>JAISON MAX KORERAI MACHAYA</p> <p>and</p> <p>CECILIA CHITIYO</p> <p>and</p> <p>SHEPHERD MARWEYI</p> <p>and</p> <p>MATILDA MANHAMBO</p> <p>and</p> <p>CHISAINYERWA CHIBURURU</p> <p>and</p> <p>ETHEL MLALAZI</p> <p>and</p> <p>HONESTY MAGAYA</p> <p>and</p> <p>RHORY ANDREW SHAWATU</p> <p>versus</p> <p>THE STATE</p> <p>and</p> <p>SIBONGILE MSIPA – MARONDEDZE REGIONAL</p> <p>MAGISTRATE N.O</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 2 April, 2019 and 14 June 2019</p> <p> </p> <p> </p> <p><strong>Urgent Chamber application for stay of proceedings pending decision on review</strong></p> <p> </p> <p> </p> <p>A. <em>Muchadehama</em>, for the applicants</p> <p><em>E. Mavuto, </em>for the 1st respondent</p> <p> </p> <p> </p> <p>            CHITAPI J: This is an application for an order of stay of criminal proceedings pending before the second respondent. The order sought is in the mature of a provisional order returnable for confirmation on the return date. The provisional order and the final order sought are similar. On the return date the applicants simply want the court to confirm the provisional order.</p> <p>            “TERMS OF THE FINAL ORDER SOUGHT</p> <p>            IT IS ORDERED THT:</p> <ol> <li>Criminal proceedings against the Applicants under CRB-GWP 1253-4/18 be and are hereby stayed pending the outcome of the application for review in Case No. HC 1994/19</li> </ol> <p>INTERIM RELIEF GRANTED</p> <p>IT IS ORDERED</p> <ol> <li>Pending the confirmation or discharge of this provisional order, criminal proceedings against Applicant under CRB GWP 1253-5/18 be and are hereby stayed.</li> </ol> <p>            The provisional order is faulty. There is nothing new to confirm. Once the provisional relief is granted staying the continuance of criminal proceedings against the applicants pending the determination of their review applications, the effect of such an order is that the main relief will have been granted. To return to court for confirmation does not make sense because the court will be asked to simply repeat itself or endorse what it previously stated. This is a waste of time and amounts to an exercise in futility.</p> <p>            The error committed by the applicant’s legal practitioners in drafting the provisional order emanates from a failure to comprehend the purport of r 244 and 246 (2).</p> <p>            In the case <em>Balasore Alloys Ltd </em>v <em>Zimbabwe Alloys Ltd and Ors </em>HH 228/18, the court had occasion to discuss the purport of r 244 and 246 (2). I need to emphasize that there is nothing in the rules or in practice given the original jurisdiction of this court in all civil and criminal matters as given in s 171 (1) (a) of the Constitution to debar the court from granting a final order in an urgent application. The facts and circumstances of each case will inform the court as to the nature of the order to grant. However, in deference to the <em>audi alteram</em> <em>portem </em>rule, the court or judge if inclined to grant a final order would need to invite interested and affected parties to make any representations which they may wish to before the grant of the order. Rule 246 (2) covers situations in which the applicant has applied for a provisional order returnable to court. The provisional order is granted as prayed for or as varied. In order to protect affected parties from loss or damage which may be caused by the order, the court may order that the applicant provides such security as the judge may determine. Not all applications brought on an urgent basis are for a provisional order. For example an application for a spoliation order is not returnable to court for confirmation.</p> <p>            In <em>Samukeliso Mabhena </em>v <em>Edmund Mbangani</em> HB 57/18, Mathonsi J, disagreed with the applicants’ contention that there was nothing in the rules to preclude an applicant in an urgent application from seeking a final order. The learned judge referred to 246 (2) which obliges the judge to grant the provisional order as sought or as varied if the papers establish  a <em>prima facie </em>case. The learned judge further stated:</p> <p>“It is a well  established practice of this court that in an urgent application the court grants interim relief and not substantive or final relief. It does so because the rules do not call on applicant to prove its case but merely a <em>prima facie</em> case. In this regard, a practice has evolved wherein an urgent application is accompanied by a provisional order for the judge to consider granting interim relief. Tthe substantive or final relief is then considered on the return date of the provisional order.”     </p> <p> </p> <p>I am in agreement with the reasoning of Mathonsi J. It must however be noted that</p> <p>the learned judge was dealing with applications in which a provisional order would have been sought as provided for in r 246 (2). The point which I make however is that there is no rule which provides that every urgent application should be accompanied by a provisional order. Indeed r 244 is clear in this regard and provides that the judge to whom an urgent application is submitted “shall consider the papers forthwith”. The proviso to r 244 provides that the judge may direct that interested parties are invited to make representations on the urgency of the matter. (own underlining).</p> <p>            It however appears to me that another practice has evolved in this court whereby the respondents are as a matter of course served with urgent applications. They are then given the opportunity to address the judge not only on the urgency of the matter as postulated in the proviso to r 244 but are allowed to respond to the merits of the application. The return date is intended to allow the respondents time to respond to the application on the merits. Form 29C is clear in this respect. It presupposes that the respondents did not address the merits of the application. The respondent is given an opportunity to do so including being given leave to anticipate the return date in the event that the respondent can show good cause to justify that the matter be heard earlier than what the normal court time times allow.</p> <p>            What needs to be interrogated is a simple question. If the respondent addresses the merits of the urgent application as opposed to addressing only on the urgency of the application as provided for in r 244 is the judge not placed in a position to determine the matter on a balance of probabilities. The respondent in practice now usually responds on the merits on affidavit including annexing supportive or corroborative evidence. The judge would therefore be placed in a position to determine the urgent application on balancing the two sides and the probabilities taking into account the respondents’ response on the merits. Other than the absence a reply and of heads of arguments, which pleadings are sometimes filed by the parties by the time the application is dealt with, the urgent application in such a case would be no different from an ordinary application. I do not find any rationale for then not to make a final order in such circumstances. It is either, the judge must limit the respondent to only address on whether or not the application is urgent and leave the applicant to establish a <em>prima facie</em> case without rebuttal by the respondent, or if the respondent is allowed to address the merits, the application will have gone outside the ambit of r 244 in the proviso thereof and r 246 generally. I would therefore respectfully hold that where in an urgent application made in terms of r 244 rules 246, the respondent addresses the merits of the application thus placing the judge in a position to determine the application on a balance of probabilities after considering and weighting the applicant and respondents’ affidavits on the merits, the rationale for granting a provisional order returnable to court for argument falls away. One would not expect that the respondent will respond differently on the merits and certainly it would be improper to afford the respondent a second bite of the cherry and build further on the grounds for opposition on the merits. The respondent must take a position to either only address the issue of urgency as postulated in the proviso to r 244 and reserve addressing the merits for the return date in the event that the judge grants the provisional order or elect to address the merits as well, thereby compromising the right to again respond to the merits on the return day as it would cease to make sense to order parties to return to court.</p> <p>            Lastly on the above issue, r 4C provides for “Departures from rules and directions as to procedure”. In particular, rule 4C (b) provides that:</p> <p>“The court or a judge, may in relation to any particular case before it or him as the case may be -  </p> <ul> <li> </li> <li>Give such directions as to procedure in respect of any matter not expressly provided for in these rules as appears to it or him, as the case may be, to be just and expedient.”</li> </ul> <p> </p> <p>In my reading of rr 244, 246 and 247, there is no provision for the respondent in an</p> <p>urgent application brought in terms of the cited rules to address the merits of the application as in a fully-fledged opposed application. At best the judge before whom the application has been placed for consideration may exercise the discretion to invite the respondent as an interested party and indeed any other interested party “to make representations, in such manner and within such time as the judge may direct, as to whether the application should be treated as urgent.” Once the respondent addresses the merits beyond urgency, then, it must be held that such procedure is not expressly provided for in the rules. The judge is empowered to give directions as may be expedient in the interests of justice to best determine the application. In this regard parties are often asked to address the court on whether given that the respondent has utilized the opportunity given to address the merits, any purpose would be served by the issuance of a returnable provisional order or the judge simply either grants a final order or dismisses the application as the judge may determine.</p> <p>            In this application Mr <em>Mavuto</em> did not file any opposing papers. He however submitted that he was in a position to make oral argument and would dispense with the need to file a formal opposing affidavit. I asked Mr <em>Mavuto</em> whether he would be addressing the issue of urgency only as postulated in the proviso to r 244 or the merits as well. Mr <em>Mavuto</em> indicated that he would submit on the merits as well. When I sought the views of both Messrs <em>Mavuto</em> and <em>Muchadehama</em> whether if Mr <em>Mavuto</em> addressed the merits, there would be any need for the matter to return to court, counsel agreed that such need would not arise and that the determination I would make would be final. The hearing was convened on this understanding following which I reserved judgment. I advised counsel that I needed to consider the bulky record of proceedings and to also express my views in a judgment on the purport of rr 244, 246 (2) and 247 of the High Court Rules in relation to the granting of a provisional order where the respondent has argued the merits of the matter as opposed to granting a final order. In order to regulate what would become of the applicants’ trial in the interim I provisionally stayed its further continuance pending my judgment. For the reasons I have given on the propriety of granting a final order where the respondent has gone further to address the merits of the application as opposed to the urgency of it only, this judgment is final. I also note that even if I may be wrong in my interpretation of the applicable rules, counsel in any event agreed that I grant a final order.</p> <p>            The circumstances or background to this application is that the 8 applicants were charged with 23 counts of Criminal Abuse of Duty as defined in s 174 (1) of the Criminal Law (Codification &amp; Reform) Act, [<em>Chapter 9:23</em>]. The applicants during the period of the alleged commission of the offences, being January, 2005 to April, 2013 were said to be public officers in the employ of Government stationed in the Midlands Province. The first applicant was the Governor and Minister for Provincial Affairs, the second applicant the Provincial Administrator and the rest high ranking officials whose duties included State land allocations. The general thread of the charges preferred against them without singularising them was that they acted contrary to, or inconsistent with their duties as public officers for purposes of showing favour to a number of listed land developers, church and other organisations by unlawfully designing, approving lay out plans, allocating state land, disposing of commonage stands, processing survey instruction letters and processing valuation letters in regard to listed state land. In short, the applicants are alleged to have dealt in State land without the authority of the Minister of Local Government Public Works and National Housing who is presented in the state allegations as the “sole responsible authority for allocating state land.” The State land in question upon a perusal of the charges fell within the districts of Gweru, Zishavane and Shurugwi.</p> <p>            The applicants appeared before the Regional Magistrate at Gweru on 18 January 2019 to answer the charges. On that date, the trial did not commence. Counsel for the applicants applied for the trial to be postponed on account of them not having fully prepared for trial because the applicants had not been furnished with a number of State papers which counsel required to prepare for trial. At least one counsel Mr <em>B Dube</em> for second applicant was not available. There were about 5 counsels in all. A protracted and contested application for postponement followed. The second respondent relying on the case of <em>S</em> v <em>Ndabaningi Sithole</em> 1996 92) ZLR 593 in which the court held that the accused is entitled to witness statements in the police dockets ruled in favour of the applicants and ordered the prosecuting team to furnish applicants’ counsel with all information they required to adequately prepare their defences for trial. The trial was postponed to 4-8 March 2019 for trial commencement.</p> <p>            I must in passing express my disquiet at the manner that the trial was handled and in its to failure to take off. There was lack of pre-trial consultations between the State and defence counsel. In trials which are as involved as the one <em>in casu</em>, where there would be multiple charges and multiple accused persons, the prosecution and defence counsels should avoid having to meet for the first time on the day of trial. Pre-trial meetings at which the counsel would have discussed exchange of documents required for trial should have been convened. For counsel to appear on date of trial to seek a postponement on the basis that the State counsel did not supply counsel with a warned and cautioned statement or any other document on time speaks to a want of professionalism on the part of counsel. Equally, the prosecutor does not escape the criticism of unprofessionalism because it would be expected that prior to trial, the prosecutor would have requested the defence counsels to provide defence outlines if it was intended that the accused would testify or to indicate that accused will not testify or elect to remain silent. One wonders how without prior engagements amongst counsel, the prosecution would decide on which witnesses to call. A criminal trial is not a game of hide seek. The State must be open to the defence by advising of the evidence to be led and documents to be produced. Equally the defence should if it intends to lead evidence do likewise. A hide and seek approach is inimical to sound justice. The attitude or approach to case management whereby witnesses are called <em>en masse</em> only to be excused because their evidence is not considered necessary should be avoided not only because of the inconvenience it causes to the witnesses but bringing unnecessary witnesses to court causes financial prejudice to the <em>fiscus</em> since witness expenses are a charge on State funds. This happens when there is no pre-trial consultations. <em>In casu</em> two witnesses who had travelled from Harare travelled for nothing and had to go back. The witnesses included Ringson Chitsiko, permanent secretary. The practice of postponing trial due to poor planning and case management brings the criminal justice system into disrepute. The Regional Court is the highest court within the magistrates court system. Proceedings in that court should reflect the serious nature of the cases which are brought to that court. It should not be just another day in court for counsel and accused persons who appear in that court. In terms of s 171 (1) (b) of the Constitution, the High Court. “has jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions”. It is on the basis of the supervisory powers which this court has over the lower courts that I considered it appropriate to express a supervisor’s disquiet over human fault in causing this case not to commence.</p> <p>            Reverting to the conduct of the trial, when the matter resumed on 4 March, 2019, the defence counsel led by Mr<em> Muchadehama</em>, counsel for first and fifth applicants made an application for permanent stay of prosecution. Other counsel’s associated themselves with his submissions. The gist of the application was that the applicants fundamental rights would be infringed if the trial was allowed to continue. The applicants relied on s 85 of the Constitution as reads with s 167 A of the Criminal procedure and Evidence Act, [<em>Chapter 9:07</em>]. The latter section enjoins the court to investigate any delay in bringing an accused to trial or to complete proceedings where the delay appears unreasonable and where the delay could “cause substantial prejudice to the prosecution, to the accused or his or her legal representative, to a witness or other person concerned in the proceedings or the public interest. The provisions of s 167 A (2) lists a number of factors which the court must consider in the investigative process. Section 167 A (3) lists the nature of the orders which the court may grant in addition to any other appropriate order which the court may grant. One of the orders which the accused person may pray for as did the applicants in this case is that provided for in s 167 A (3) (b) (iii). In terms thereof the court may order “that the prosecution of the accused for the offence be permanently stayed.”</p> <p>            To support the application, the applicants argued that their right to a fair trial was being violated because they were only arrested in 2018 for offences allegedly committed in 2004. It was further contended on their behalf that some of the applicants were not even working in the Midlands Province in the period covered by the charges. Without going into detail on the application since it is the subject of a review case which is pending before this court, it suffices to note that the second respondent dismissed the application. The second respondent in a brief judgment reasoned that issues raised by the defence counsels were triable issues in which witnesses would have to testify. She ruled as follows in the operative part:</p> <p>            “…From the application by the defence counsels for the accused persons, the court is satisfied     that there is no constitutional question to be referred to the Constitutional Court for its    determination. Having stated the above reasons the court is satisfied that these applications by    the defence counsel for accused person is frivolous and vexatious. It has no merit and is done      to delay the trial proceedings in this case.</p> <p>            In the circumstances the application is hereby dismissed.”</p> <p> </p> <p>            I am constrained to state that there appears to be some confusion in the judgment because reference is made therein to the applicants having made application in terms of s</p> <p>167 A of the Criminal Procedure and Evidence Act. If that be so the question of referral of the matter to the Constitutional Court does not arise. The court acting in terms of s 167 A carries out an investigation on the delay and must give an appropriate order which in terms of s 167 A (3) would be subject to appeal by the Prosecutor General if it is in the nature of an order for a permanent stay of prosecution. I will however leave it at that being again mindful not to express comments or make finding which would materially impact on the review application still to be determined.</p> <p>            The applicants’ counsel consequent on the dismissal of their application next applied for a postponement of the case to allow them time to file applications in this court for review of the second respondents ruling and a concomitant application for stay of the continuation of the trial proceedings before the second respondent pending the determination of the review application. The latter application is the one before me and subject of this judgment. The application for postponement was opposed by the State counsel who argued that the applicants did not demonstrate that there were reviewable issues arising and that the applicants’ recourse was to note an appeal. It is however not necessary for me to delve into the further merits of what was argued before the second respondent because the second respondent in fact determined the application made before her and stayed the proceedings maybe unwittingly.</p> <p>            The second respondent in his ruling stayed the proceedings to allow for the filing of the application for review. In the ruling made on 5 March, 2019 which was Tuesday, the second respondent postponed the trial to “Thursday” which would be on the 7th March to allow the applicants’ counsel to, in the second respondent’s words, “show that he is doing something.” The short ruling states:</p> <p>            “BY COURT</p> <p>            Its okay that is why I said maybe for review at least he must give us something that (sic) to          show that he is doing something. If the one the urgent chamber application will take longer      there is no problem but as long as on Thursday he is back to show us that he has already         served the High Court with these applications for review that is what I want. Then if you are      agreeable that High Court is very busy or whatever then to agree on a date as long as there is proof they are doing something because we may say come back on the 14th then these guys          just abandon everything then at the end of it or it will us (<em>sic</em>) to blame. So Thursday review    stamped by the High court of the Registrar (<em>sic</em>) indicating that they are going to argue their          matter will be enough. Then we agree on the next date for their application for the stay</p> <p> </p> <p>            BY THE STATE</p> <p>            Yes your worship i do agree with you now. I understand. Thank you very much.”</p> <p> </p> <p>            The above captured what the second respondent had to say before she advised counsel that she would not be coming back for purposes of further remands. I assume  that she must have been seconded to deal with the case from another regional division.</p> <p>            The view I take of the matter is that the second respondent stayed the proceedings before her in order to allow the applicants’ to file for review of her decision. She gave time limits for the filing of the application. The applicants filed the application for review as indulged by the second respondent and the application is pending determination under case No. HC 1994/19. A court should not stay proceedings to allow for the filing of the review of its order unless it considers that the proposed review application enjoys some prospects of success. I have to assume that in staying the proceedings for that purpose by way of postponing the trial to allow for the filing of the review application, the second respondent considered that the proposed review application had merit. I am fortified in reasoning that the second respondent considered the merits of the proposed application for review because she stayed or postponed the trial after hearing full and protracted arguments by both the defence and State counsels on the issues which the Defence intended to argue on review. The magistrate was referred to case authorities which propound the undesirability of having this court interfere in on-going uncompleted proceedings in inferior courts save for special reasons where a miscarriage of justice would result see <em>Attorney General</em> v <em>Makamba</em> 2005 (2) ZLR 54 (S). She postponed the trial in full knowledge of what the superior court practice is in regard to review of ongoing proceedings.</p> <p>It must be observed that in terms of the provisions of ss 165 and 166 of the Criminal Procedure &amp; Evidence, the second respondent was within her powers to postpone or adjourn the pending criminal trial of the applicants if she considered it necessary or expedient to do so and to impose such terms as appeared to her proper in regard to the postponement of the trial and any further postponement thereafter. If as happened in this case, the second respondent postponed the trial of the applicants to allow them time to file a review application of the second respondent ruling, then so be it. It was within her powers to do so. It would not make sense nor would it be logical to reach any other conclusion than that the purport and effect of the second respondent’s decision was that the trial would only proceed consequent on the decision which would be passed on review.</p> <p>In my judgment, the filing of the present application for stay of proceedings may have been filed <em>ex abundanta</em> <em>cautela</em> by the applicants. It is however superfluous because the second respondent ordered a stoppage of the trial pending the filing of the review application. To then petition this court to further stay the same trial pending the determination of the review application was in the circumstances of this case unnecessary. Once the second respondent had dismissed the defence applications for a permanent stay of prosecution and/or referral to the Constitutional Court as happened, she should have ordered that the trial should proceed.  She was advised of the applicant’s desire to file for review and was requested for a postponement for the purpose of the filing of that application. The second respondent obliged. That was it. The order she made stands. The trial remains postponed until the review application is determined.</p> <p>Before I endorse the order which follows on my judgment, there is a matter which I must comment upon. This court has of recent been inundated with applications for review of uncompleted proceedings in the magistrates court. The filing of the applications has been viewed in some quarters as a ploy to delay trials or finalization of ongoing and pending trials. The filing of review applications at any stage of the criminal proceedings is permissible at law. It is part of due process in the application of the rules of procedure. The rule of law must be observed. What the courts have done is to adopt an attitude or approach which allows for and observes the need for the criminal justice to flow by not unnecessarily interfering in uncompleted proceedings. The rationale for the approach is legally sound. The inferior courts are established by law to determine cases placed before them to finality. The approach of this court should therefore be to respect the complete exercise of jurisdiction by those courts and to exercise review and appeal powers after the conclusion of the proceedings. There is a plethora of cases in this and other jurisdictions which provide that this court will not intervene in uncompleted proceedings save in exceptional circumstances where an injustice which cannot be redressed by other means in due course may otherwise result: See <em>Attorney General</em> v <em>Makamba (supra</em>); <em>Matapo &amp; Ors </em>v <em>Bhila N.O and Anor </em>2010 (1) ZLR 321 (H); <em>Dzinga Navhunjire</em> v <em>S </em>HH 169/17; <em>Ndlovu</em> v <em>Regional</em> <em>Magistrate, Eastern Division &amp; Anor</em> 1989 (1) ZLR 264, <em>Masedza &amp; Ors</em> v <em>Magistrate Rusape &amp;</em> <em>Anor</em> 1998 (1) ZLR 36 (H0, <em>Lee Waverly John</em> v <em>S &amp; Anor</em> HH 242/13, <em>Levi Nagura</em> v <em>Mazhanje &amp; Anor</em> HH 227/18, <em>Garikayi Mberikwazvo</em> v <em>Magistrate Kadoma &amp; Prosecutor General</em> HH 195/18.</p> <p>In South Africa the courts follow the same approach as in this jurisdiction in that superior courts will not interfere in unfinished proceedings of lower courts unless a grave injustice may result. See <em>S</em> v <em>Masiya &amp; Ors</em> 2013 (2) SACR 363 and <em>Motata</em> v <em>Nair N.O &amp; Another</em> 2009 (2) SA 595 (T) where it is stated as follows at para 9:</p> <p>“It is trite that as a general rule, a High Court will not, by way of entertaining an application for review, interfere with uncompleted proceedings in a lower court.”</p> <p> </p> <p>It follows that it is only in special or exceptional cases therefore that a departure from</p> <p>the general rule may be justified.</p> <p>            The next point which arises following up on the above is “if the High Court will only intervene in uncompleted proceedings as an exception” is the High Court holding on to or delaying the determination of the review application? The answer is no. A review brought by the accused is in the nature of a civil application. The rules relating to court applications apply in terms of the sequence and time limits for filing pleadings which are a prerequisite for the application to be heard. The rules of court are drafted in such a manner that the process of bringing a case to set down is party driven and not court driven. In other words, if an application is filed and parties do nothing about it, then it remains unactioned. The judge does not go about tracking an application and how the parties are managing it.</p> <p>No blame for should be attributed to the High Court where parties do nothing to further their cases because of the party driven nature of the litigation system. I want to suggest however that where a trial has been postponed or stayed pending a decision on review, the presiding magistrate should not just perfunctorily continue to postpone the trial pending a decision on review. The magistrate should actively enquire into and endorse on record the progress of the matter on review by enquiring of the accused and the prosecutor on the active steps being taken to have the review application determined. In this way the trial court will at least appreciate that the review application is being pursued.</p> <p>            The State prosecutors should in this regard also not be docile but should actively follow up on the application and place the applicant (accused) on his or her toes to prosecute the review application or have it dismissed. If I take for example the review application HC 1994/19 filed in this case, the application was filed on 11 March 2019. It was served on the State on the same date at the offices of the National Prosecuting Authority at 1610 hours. In terms of the rules of court, the State was supposed to file its notice of opposition and opposing affidavit and supporting documents within 10 days of service of the application. The 10 days expired on 25 March 2019. The notice of opposition and opposing affidavits were only filed on 8 April 2019. The delay in filing the opposing papers meant that another 10 day delay in processing the paper trial was added by the failure by the State to timeously file its opposing papers. The additional 10 days did not only mean the prolonging of the disposal of the matter. By not filing the opposing affidavit within the 10 working days of service, the State was automatically barred by reason of the provisions of Order 33 r 258 which provides that the provisions Order 32 which deals with court application other than for review, will apply to court applications for review. In terms of Order 32 r 233 (3), the State’s opposition is not properly before the court and in terms of Order 12 r 83 (a), the Registrar should not have accepted for filing the notice of opposition. As matters stand now, the review application is unopposed since the court cannot consider the opposing papers filled by the State as properly before it unless the bar is uplifted.</p> <p>            For their part, the applicants have not taken further steps to have the review application disposed of even though it is effectively unopposed. Under the circumstances the court has no power to order the applicants to set down their application for judgment. The State by reason of the bar operating against them cannot move for the dismissal of the application for want of prosecution. The trial magistrate can however review her order in which she postponed the trial to enable the applicants to prosecute their intended review application on the grounds that the application is not being prosecuted and that therefore the grounds on which the postponement was granted can no longer hold. Every postponement in any event must be based upon good grounds which merit that the court exercises judiciously its discretion to allow the postponement or any subsequent one. The system is therefore self-regulating if the trial courts monitor the progress of cases referred on review and require the accused to continue to justify further postponements and to explain why his or her review has not been concluded or determined. It is not sufficient for the trial magistrate to simply accept at face value the accused’s excuse that the review application is still pending before the High Court without much ado.</p> <p>            Lastly in regard to the bar in operation against the State, the record of review shows that the State followed up on the notice of opposition by filing on 7 May 2019 a notice of amendment to the notice of opposition. Again the Registrar should not have accepted the pleading until the bar had been uplifted. By filing a further pleading instead of applying for upliftment of bar I got the distinct impression that the State counsel may not be knowledgeable in civil procedure. I may be wrong in this apprehension but how does counsel think that pleadings can be filed outside of the court rules without condonation for non-compliance. These matters of capacitation of counsel in the National Prosecuting Authority in relation to understanding civil practice and procedure should not be swept under the carpet but addressed if an efficient criminal justice delivery system is to be realized. Short of this it will remain a mirage.</p> <p>            Having digressed to comment on the conduct of the State and defence counsels in regard to the review application itself and further given directions on the duty of the trial magistrate to monitor the progress of the review application since she postponed the trial to enable the applicants to bring her determination on review, I otherwise issue an order in relation to the application for stay of trial proceedings pending the decision of the review application HC 1994/19 as follows</p> <p>            1. Proceedings already stayed pending review by the trial court.   </p> <p>2. The application is struck off the roll with no order as to costs.</p> <p>3. Copy of this judgment must be availed to the Chief Magistrate and the Prosecutor General.</p> <p> </p> <p>   <em>Mbizo Muchadehama and Makoni, </em>applicants’ legal practitioners</p> <p><em>The National Prosecuting Authority, </em>1st respondent’s legal practitioners                               </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/442/2019-zwhhc-442.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34226">2019-zwhhc-442.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/442/2019-zwhhc-442.pdf" type="application/pdf; length=174515">2019-zwhhc-442.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review">application for review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/condonation-review">Condonation (Review)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/bulawayo-high-court/2018/93">Mbangani v Mabhena (HB 93-18, HC 3274/17) [2018] ZWBHC 93 (29 March 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2018/227">Nyagura v Tilda Mazhande N.O. &amp; Another (HH 227-18, HC 2938/18 REF CRB HREP 2287/18) [2018] ZWHHC 227 (25 April 2018);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Thu, 18 Jul 2019 09:38:33 +0000 admin 9364 at https://old.zimlii.org Matengu v The Independant Tribunal & 5 Others (HB 146/17, HC 1065/17) [2017] ZWBHC 146 (08 June 2017); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2017/146 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>REUBEN MATENGU</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE INDEPENDENT TRIBUNAL</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>HILDA MAKUSHA MOYO N.O.</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>MIDARD KHUMALO N.O.</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>LUCY MANHOKWE N.O.</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>THE MINISTER OF LOCAL GOVERNMENT,</strong></p> <p><strong>PUBLIC WORKS &amp; NATIONAL HOUSING N.O.</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>BULAWAYO CITY COUNCIL</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>BERE J</p> <p>BULAWAYO 18 MAY &amp; 8 JUNE 2017</p> <p> </p> <p><strong>Unopposed Application for Review</strong></p> <p> </p> <p><em>K. Ngwenya</em> for applicant</p> <p>            <strong>BERE J:</strong>         This application for review has been made in terms of sections 26, 27 and 28 of the High Court Act1 as read with section 114 (1) (c) of the Urban Councils Act.2</p> <p> </p> <ol> <li>Chapter 7:06</li> <li>Chapter 29:15</li> </ol> <p>            The background to this case can be summarised as follows: The applicant was a councilor for Ward 21, Bulawayo City Council. The allegations against the applicant were that after the applicant had acquired a residential stand with Bulawayo City Council he immediately sold it to a third part before he had even paid for it in contravention of clause 17 of the agreement of sale between himself and Bulawayo City Council.</p> <p>            In response to these allegations the applicant denied violating the clause in question and stated that he had acted above board in disposing of the stand in question.  The applicant’s position was that he sought for and obtained the authority of the Director of Housing for Bulawayo City Council before he sold the stand.</p> <p>The conduct of the applicant culminated in him being brought before an Independent Tribunal set up by the parent Ministry <em>viz</em> Ministry of Local Government, Public Works &amp; National Housing in order to deal with the allegations levelled against the applicant.</p> <p>Pursuant to the hearing that followed which consisted of <em>inter alia</em> the recording of <em>viva</em> <em>voce</em> evidence and the tendering of documentary exhibits, the Independent Tribunal found the applicant guilty of misconduct as a consequence of which the applicant was evicted from his position as a councilor of Bulawayo City Council.  The Independent Tribunal gave a thorough assessment of the evidence that was presented to it in order to support its findings.</p> <p>Aggrieved by the findings of the Tribunal, the applicant lodged this application for review.</p> <p>For some reason, despite having been duly served with this application for review all the respondents did not respondent to it resulting in this matter being set down for hearing on the unopposed roll.</p> <p>A closer look at the complaint being raised by the applicant in his review application is simply that the tribunal arrived at a decision which did not go down well with him.  In other words the applicant was aggrieved by the findings of the tribunal and not that there was any irregularity in the manner in which the decision was arrived at.</p> <p>Even during submissions in court, I put a pointed question to the applicant’s counsel who was quick to concede that his client (the applicant) was not alleging any irregularity in the manner the proceedings were conducted by the tribunal.  Counsel instead alleged that the application for review was prompted by what he termed as “gross unreasonableness” in the decision that was made against the applicant.</p> <p>This application in my view brings to the fore the need to recognize and maintain the distinction between review and appeal proceedings.  Quite often, litigants tend to confuse these two concepts.  The mere fact that the objectives of bringing an appeal or a review are basically the same i.e., to have the decision under attack set aside, does not on its own mean that these two concepts of our law are the same.  They remain miles apart and the distinction must always be observed to ensure that the correct remedial action is instituted.</p> <p>The position of the law in this regard is succinctly put by Herbstein and Van Winsen in the following:</p> <p>“The reason for bringing proceedings under review or an appeal is usually the same, viz to have the judgment set aside.  Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal.  Where, however, the real grievance is against the method of trial, it is proper to bring the case on review.  The first distinctions depend, therefore, on whether it is the result only rather the method of trial which is to be attacked.  Naturally the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well.  The giving of a judgment not justified by the evidence would be a matter of appeal and not review upon this test.  The essential question in review proceedings is not the correctness of the decision under review, but its validity.”3</p> <p> </p> <ol> <li>The Civil Practice of the High Courts of South Africa, Fifth edition Volume 2, published by Juta at p 1271</li> </ol> <p> </p> <p>            MAKARAU J (now JA) could not have put it in any better way in the case of <em>Dombodzuku</em> <em>and Anor</em> v <em>Sithole NO &amp; Anor</em>4 when she remarked:</p> <p>“As observed in <em>Oskil Properties</em> v <em>Chrman, Rent Control Board</em> 1985 (2) SA 234 (SEC), the onus resting upon a litigant to set aside the exercise of a discretion on grounds of unreasonableness is considerable.  In my view, the task is Herculean if it is an interpretation of the law by a judicial officer that is sought to be impugned as being unreasonable. An incorrect rendition 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.”4</p> <p>            I am quite aware that in the matter that I am seized with, the decision whose review has been sought was not a decision of a judicial officer but that of a quasi-judicial body in the form of a tribunal.  Despite this, I am certain the observations by the learned Judge in <em>Dombodzvuku (supra)</em> would apply with equal force.</p> <p>            I have had the privilege of going through the decision of the tribunal in the instant case.  The sound reasoning in that decision is unmistakable.  It involved what I would refer to as a thorough assessment of the material that was placed before the tribunal.  The logic or the reasoning process that the tribunal engaged in as it moved towards the determination of the matter is clearly laid out in the record of proceedings.  It is there for all to see.  The decision may be wrong (which sentiment I do not share) but clearly it is outside the purview of review.</p> <p>            It is noted in this case, and as has become customary in similar cases that in a desperate attempt to make an unreviewable case fit within the ampit of review proceedings the terms “grossly irregular” and “grossly unreasonable” are thrown into the body of the applicant’s founding affidavit.  But alas! A reading of the whole record of proceedings does not support this characterization of the proceedings.</p> <p> </p> <ol> <li>2004 (2) ZLR 242 (H) at 246B-C</li> </ol> <p>            The inevitable conclusion that I arrive at is that the applicant has used a wrong procedure to have the decision of the tribunal set aside.</p> <p>            The application is accordingly dismissed with costs.</p> <p> </p> <p><em>T.J. Mabhikwa &amp; Partners</em>, applicant’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2017/146/2017-zwbhc-146.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=18783">2017-zwbhc-146.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2017/146/2017-zwbhc-146.pdf" type="application/pdf; length=86501">2017-zwbhc-146.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-high-court">Appeal to High Court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review">application for review</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2001/222001">Urban Councils Act, 2015 [Chapter 29:15]</a></div></div></div> Fri, 13 Jul 2018 07:17:05 +0000 admin 8973 at https://old.zimlii.org Magodo & 2 Others v Chief Superintended Kezius Karuru (HH 276-18, HC 9742/17) [2018] ZWHHC 276 (16 May 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/276 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>LIBERTY MAGODO</p> <p>and</p> <p>TINEVIMBO MUZEZEWA</p> <p>and</p> <p>RICHARD BUZUZI</p> <p>versus</p> <p>CHIEF SUPERINTENDENT KEZIAS KARURU</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUZENDA J</p> <p>HARARE, 16 May 2018</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed Application for review </strong></p> <p> </p> <p><em>Ms K. Hutchings</em>, for the applicants</p> <p>Ms. N.L Mabasa, for the respondent</p> <p> </p> <p>              MUZENDA J: The three applicants are police details who were charged in terms of paragraph 35 of the Schedule to the Police Act [<em>Chapter 11:10</em>] as read with paragraph 29 (A) (iii) of the same Act which reads:</p> <p>            “Acting in an unbecoming or disorderly manner or in any manner prejudicial to good order or      discipline or reasonably likely to bring discredit to the Police Force.”</p> <p>           </p> <p>            The three appeared for hearing on the 21st November 2014 before a single officer, the respondent, Chief Superintendent Kezias Karuru. The State led evidence from four witnesses and closed its case. On the 20th March 2017 the applicants jointly moved the trial officer through an application for a discharge at the close of the prosecution case in terms of section 198 (3) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>]. The trial officer dismissed the application and ordered that the three be placed on their defence since the state had managed to prove a <em>prima facie</em> case against them. The trial officer in his ruling gave the applicants brief reasons for the dismissal of the application for discharge and indicated that he would provide detailed reasons after hearing the defence case in his final judgment. The applicants, then filed an urgent chamber application under case number HC 3198/17 for review on the same grounds outlined in this current application. Musakwa J ruled that the urgent chamber application brought by the three applicants was not urgent and he struck it off the roll of urgent chamber applications.</p> <p>            On the 19th October 2017 the three applicants filed this application seeking the following relief in the terms of the draft order attached to the application:</p> <p>            “1. The order of the court <em>a quo</em> is set aside and substituted with the following:</p> <p>            (a) the application for discharge at the close of the state case, be and is hereby granted,    1st, 2nd ` and 3rd accused be and are hereby acquitted.</p> <p> </p> <p>            Alternatively </p> <p> </p> <p>            2. First respondent be and is hereby directed to give reasons, for the ruling made on 7th April        2017 dismissing the application for discharge at the close of the state’s case within 10 days      of this order.</p> <p>            The application is opposed.</p> <p>            The following appears on the grounds for review</p> <p>            “(a) the decision of the respondent refusing to give reasons for dismissing applicants’      application for discharge at the close of the state’s case is grossly irregular.</p> <p>            (b) the respondent’s decision to refuse applicant’s access to the record of proceedings for purposes of seeking a review of the proceedings is grossly irregular.</p> <p>            (c) the respondent’s decision to dismiss the applicants’ application for discharge at the close of    the state’s case where there are inconsistencies in the state’s evidence is grossly irregular.”</p> <p> </p> <p>            These three grounds for review prominently appear in the applicant’s affidavits and paragraph 7 of first applicant’s founding affidavit contains the following extract.</p> <p>            “I refer this Honourable Court to page 53 of the record of proceedings where the following         transpired. Ruling application per discharge at close of state case……..</p> <p> </p> <p>            Having gone through the submissions by both defence and state counsel, as well as the record of proceedings, it is adjudged that the state has a <em>prima facie</em> case and the accused to be put to their          defence. A comprehensive reasoning for the ruling to be given in the judgment.</p> <p>            Court: While the state seems to concur that the reasons for the ruling be availed before we           proceed to the next stage of the trial. May parties be guided that the court has the right to hold    reasons for the main judgment as it has done where it may seem giving reasons at the moment is             not desirable. It suffices to say the state has a <em>prima facie</em> case and the accused have to respond to     the allegations. The requirement is that the court should provide reasons in the main       judgment as it has alluded to.”   [my emphasis].</p> <p> </p> <p>            The applicants’ further content that the trial’s action was grossly irregular for withholding his reasons for dismissing the application for discharge and cited section 68 (2) of the Constitution which provides thus:</p> <p>            “Section 62: any person whose right, freedom, interest or legitimate expectation has been            adversely affected by administrative conduct was the right to be given promptly and in       writing the reasons for the conduct.”</p> <p> </p> <p>            According to the applicants the duty by the trial officer to give reasons for this ruling is a Constitutional requirement and would also create an impression of fairness and improves the quality of decision making; unreasoned decisions are arbitrary and unfair, they alleged.</p> <p>            Section 27 of the High Court Act [<em>Chapter 7:06</em>] provides the grounds for review as follows:</p> <p>            “(1) Subject to this Act and any other law, the grounds on which any proceedings on        decision may be brought on review before the High Court shall be</p> <p>            (a) absence of jurisdiction on the part of the court, tribunal or authority concerned</p> <p>            (b) interest in the cause, bias, malice or corruption on the part of the person presiding over the      court or tribunal concerned or on the person presiding over the court or tribunal   concerned or on            the part of the authority concerned, as the case may be;</p> <p>            (c)gross irregularity in the proceedings or the decision”</p> <p>           </p> <p>            From the reading of the applicants’ papers it is clear and conspicuous that the applicants have brought this application under section 27 (c) that is on grounds of gross irregularity on the part of the trial officer.</p> <p>            Section 35 (1) of the Police Act provide as follows:</p> <p>            “the proceedings before or at any trial by board of officers or an officer in terms of this    Act,      shall be as near as may be, be the same as those prescribed for criminal cases in the courts of            Zimbabwe.”</p> <p> </p> <p>            In other words this is why the applicants utilized provisions of section 198 (3) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] in applying for a discharge of the applicants at the close of the state case.</p> <p>            Having outlined the law, it is now incumbent to analyse the grounds of review raised by the applicants. I will start with the second ground of review outlined by the applicants in their application.</p> <p> </p> <p>(a)        WHETHER RESPONDENTS DECISION TO REFUSE APPLICANT’S ACCESS TO    THE RECORD OF PROCEEDINGS FOR PURPOSES OF SEEKING A REVIEW OF            THE PORCEEDINGS IS GROSSLY IRREGULAR:</p> <p>            Paragraph 7 of the first applicant’s founding affidavit refers this court to page 53 of the record of proceedings. Pages 13 to 85 of the applicants’ application contain the entire record of proceedings which clearly shows that this ground of review is baseless and is accordingly disregarded by this court. The averment by the applicants are either misplaced or purely mischievous to allege that the respondent did not avail the record of proceedings yet they allude to it and went on to annex it to the application.</p> <p> </p> <p>WHETHER RESPONDENT’S REFUSAL TO GIVE REASONS FOR DISMISSING THE APPLICANTS’ APPLICATION FOR DISCHARGE AT THE CLOSE OF THE STATE CASE IS GROSSLY IRREGULAR</p> <p>            The reading of the record of proceedings shows that the respondent, did not refuse to give reasons for the dismissal of the application for discharge of the applicants at the close of the state case. Ms <em>K Hutchings</em> who appeared for the applicants on this application submitted that the respondent should have granted the application for discharge and the failure to do so by the respondent, the trial officer, were in contravention of real and substantial justice. She went on to attack the evidence adduced by the state and cited a number of case law authorities to support her submission. She reiterated the provisions of section 68 (2) of the Constitution and submitted that the failure by the trial officer was a fundamental breach of the applicants’ constitutional rights and went on to cite a host of South African case law authorities to support her submissions. She cited the matter of <em>Makawa and another</em> 1991 (1) ZLR 142 (5). <em>S</em> v <em>Kachipare</em> 1998 (2) ZLR 271 (5), <em>A.G.V Mzizi</em> 1991 (2) 321, <em>S</em> v <em>Tsvangirai</em> 2001 (2) ZLR 426 among others.</p> <p>            Ms <em>Mabasa</em> for the respondent argued that the proceedings brought by the applicant for this review were interlocutory in nature. There was no finality to them and the applicants had a lot of options open to them after the trial. She submitted that the respondent made a correct ruling and ordered the applicants to be put on their defence. She cited cases to the effect that failure to give reasons for a decision made does not violate the applicant’s right to a fair trial. I agree with  Ms <em>Mabasa</em>’s submission. The respondent did not refuse, to give reasons, he did, but indicated that detailed reasons would be furnished at the time of judgment. The question is did this amount to a procedural impropriety which would move this court to review the proceedings below? The procedural impropriety is a ground which covers not only failure to observe the rules of natural justice, but also failures to observe the procedural rules expressly laid down in the particular legislative instrument which confers the power in question.</p> <p>            This is one of the notorious cases where applicants hurriedly move disciplinary proceedings to be abandoned on grounds of rushing to the High Court for ‘review’. The applicants should have proceeded with the hearing and only after a ruling or judgment would they have brought the matter to this court using section 31 of the Police Act for review or appeal against the judgment of the trial officer.</p> <p>            In the matter of <em>Jani</em> v <em>Officer in Charge Mamina and others</em> HH 4289/15 the court held that:</p> <p>            “The High Court will only exercise its renew powers of unterminated proceedings in       exceptional cases where grave injustice might otherwise result or where justice might not   by any means be attained.”</p> <p> </p> <p>            See also <em>Albert Matapo and others</em> v <em>Magistrate Bhilla and the Attorney General</em> HH 84/2010 by Uchena J (as he then was). In <em>Haiti</em> v <em>Katiyo (N.O) and National Prosecuting Authority</em> HHC 6307/15 the court held that:</p> <p>            “The cardinal principle to observe is that the courts are reluctant to issue orders that in     effect   stall trial proceedings, unless the circumstances clearly require it.”</p> <p> </p> <p>            In <em>State</em> v <em>Rose</em> HH 71/12 the court held that the test when a superior court could intervene in unterminated proceedings is whether a grave injustice can be done to a litigant. A superior court however is usually slow to exercise its powers of review in such a matter whether by mandarmus or otherwise and will only do so in rare cases where justice might not by other means be obtained. The intervention can be done if the justice is so gross that it is incapable of correction by way of ordinary review or appeal or where it is unconscionable to wait for the conclusion of the proceedings before seeking review in the normal way.</p> <p>            If section 31 of the Police Act is properly utilized by police details who are subject of disciplinary proceedings. The High Court will not be inundated by review applications of incomplete trial proceedings. These applications of incomplete trial proceedings, interlocutory nature stretch the fiscus and inconvenience the litigants themselves. The applicants in this matter ought to have gone through the proceedings and thereafter utilized section 31 of the Police Act. I am not convinced by the applicants that this is one of the rare applications that the court can exercise its review powers on unterminated proceedings. Had the trial officer failed to provide the reasons for judgment at the end of trial, surely the applicants would have had excellent grounds for review.</p> <p> </p> <p>WHETHER THE DECISION TO DISMISS AN APPLCATION FOR DISCHARGE IS GROSSLY UNREASONABLE AND THAT IT BE SET ASIDE AND SUBSTITUTED WITH AN ORDER UPHOLDING THE APPLICATION FOR DISCHARGE.</p> <p>            This aspect/ground for determination is related to the relief being sought by the three applicants, where they pray that they be all acquitted at the close of the state case. Section 198 (3) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] provides as follows:</p> <p>            “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,       charge, or any other offence of which  he be convicted thereon, it shall return a verdict of not guilty.”</p> <p> </p> <p>            At the close of the prosecution case the state had led evidence from Charity Manyate, Dennis Manonge, the brother of the deceased and Nyaradzo Magodo, a passenger in deceased’s motor vehicle. All the three witnesses were eye witnesses and all three pointed to the applicants as responsible for the death of the deceased combi driver. It is not in dispute that deceased died from the injuries sustained in the melee between the applicants and the deceased. Witnesses saw the deceased being manhandled by the three applicants, falling and writhing in pain and asking for help from the three applicants who refused to assist him.</p> <p>            It is upon this background that the three applicants applied for their discharge at the close of the state case. The law on the application of section 198 (3) is settled but for purposes of this application it needs reiteration. In the matter of <em>State </em>v <em>Morgan Richard Tovangirai and others</em> HH 119 -2003 Garwe J (as he then was) summarised the oft stated principle as follows:-</p> <p>            “In terms of section 198 (3) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] where   at the end of the state case the court considers that there is no evidence that the           accused            committed the offence, it has no discretion but to acquit him.”</p> <p> </p> <p>            In particular the court must discharge the accused at the close of the case for the prosecution where:</p> <ul> <li>There is no evidence to prove an essential element of the offence.</li> <li>There is no evidence on which a reasonable court acting carefully, might properly convict.</li> <li>The evidence adduced on behalf of the state is so manifestly unreliable that no reasonable court could safely act on it.</li> </ul> <p> </p> <p>            Whilst it is settled that a court must acquit at the end of the state case, where evidence of the prosecution witness has been to manifestly unreliable that no reasonable tribunal could safely convict on it, such cases will be rare and would occur only in most <em>exceptional</em> cases where the witness’ credibility is so utterly destroyed that no part of his material evidence can possibly be believable.</p> <p>            See also <em>S</em> v <em>Kachipare </em>1998 (2) ZLR 271 (s) at page 276 B – F.</p> <p>            The trial officer ruled that there was a <em>prima facie</em> case for the applicants to put them to their defence having looked at the evidence of the prosecution witnesses, there is no procedural irregularity on his part. The decision he made is above reproach, the discretion he used was proper in this court’s view. The applicants ought to have testified and trial officer would have made a value judgment, in the whole matter. We are dealing with a procedure rather than substantive law and the answer to the question posed by the applicants is whether the trial officers decision to dismiss the applicants’ application for discharge at the close of the state’s case where there are inconsistencies in the state’s evidence is grossly irregular, is obviously in the negative. There is nothing grossly irregular about the procedure allowed by the respondent which would warrant this court to intervene by way of review.</p> <p>            Herbstein and Van Winsen: <em>Civil Practice of the Superior Court of South Africa</em>, <em>4th Edition</em> at p 93 wrote:-</p> <p>            “The reason for bringing proceedings under review or appeal is usually the same, to have the       judgment set aside. Where the reason of wanting that is that the court came to a           wrong   conclusion on the facts of the law. The appropriate procedure is by way of appeal where,           however, the real grievance is against the method of the trial, it is proper to bring the case on     review. The first distinction depends therefore on whether it is the result only or rather the        method of trial, which is to be attacked. Naturally, the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well. The giving of a judgment not justified by the evidence would be a matter of appeal and not review upon this test. The       essential question in review proceedings is not the correctness of the decision under review      but its validity” (my emphasis).</p> <p> </p> <p>            The applicants were legally represented and the record of proceedings is tainted with applications, interjections pulling of the state’s representative etc. this is purely uncalled for. It is trite that the Police Act equates proceedings before a disciplinary authority in the police to that of conventional courts but legal practitioners should not take advantage of police prosecutors by forcing them to make concessions which are not necessary not to toe the line of thinking of the legal practitioner. In this matter the decision by the legal practitioner to bring an application for review before the testimony of the applicants was hurriedly made. What was ideal in the circumstances was to lead the applicants into their defence whereafter if convicted the applicants would have resorted to section 34 of the Police Act which provides for options open to convicted officers of the police. Provisions of sections 31 – 34 of the Police Act, must be utilized more often than resorting to unnecessary applications for review for incomplete proceedings.</p> <p>            In this application, the applicants wants this court to order the acquittal of the three applicants at the close of the state case, in other words applicants apply that this court assume the role of trial officer, analyse the evidence of the state and announce a verdict without having the version of the applicants. As stated earlier in this judgment, such a course of action could be taken if the court finds fault on the side of the trial officer. This court did not find any, nor can it be said that the applicants managed to prove any ground to review such an action by a review court.</p> <p>            The trial court should be allowed to proceed with the trial and such completion of trial should be expedited.</p> <p>            Disposition </p> <p>            The application is dismissed with costs.</p> <p><em>Coghlan Welsh &amp; Guest</em>, applicants’ legal practitioners</p> <p><em>The Civil Division of the Attorney General’s office</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/276/2018-zwhhc-276.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27482">2018-zwhhc-276.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/276/2018-zwhhc-276.pdf" type="application/pdf; length=199551">2018-zwhhc-276.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/discharge-close-state-case">Discharge at close of State case</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review">application for review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interlocutory-decision-administrative">Interlocutory decision of administrative</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2010/84">Matapo and Others v Bhila and Another (HC 2794/10) [2010] ZWHHC 84 (13 May 2010);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1995/2">Police Act [Chapter 11:10]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item even"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 18 Jun 2018 13:47:24 +0000 admin 8919 at https://old.zimlii.org Shanje v Murehwa & 3 Others (HH 218-18, HC 9346/17) [2018] ZWHHC 218 (25 April 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/218 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>AARON SHANJE                                                                                                                   </p> <p>versus</p> <p>TICHARWA MUREHWA</p> <p>and<br /> THE MINISTER OF MINES AND MINING DEVELOPMENT N.O.</p> <p>and</p> <p>PROVINCIAL MINING DIRECTOR MANICALAND N.O.</p> <p>and</p> <p>KINGSTON MUDONHI</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA and MUZENDA JJ</p> <p>HARARE, 27 March 2018 and 25 April 2018</p> <p> </p> <p> </p> <p><strong>Opposed application for dismissal for want of prosecution</strong></p> <p> </p> <p><em>L. Uriri,</em> for applicant</p> <p><em>G.R.J. Sithole,</em> for the 1st respondent</p> <p><em>K. Warima,</em> for the 2nd and 3rd respondents</p> <p> </p> <p>            MWAYERA J: This is an application for dismissal of a matter for want of prosecution in terms of r 236(3) of the High Court Rules, 1971. The applicant sought to have first respondent’s application for review under case number HC 5172/14 dismissed. The second, third and fourth respondents are not opposed to the application. The first respondent is however opposing the application.</p> <p>            The background of the matter as discerned is as follows. The applicant Aaron Shanje and first respondent Ticharwa Murehwa had a mining dispute which was resolved by the second respondent in applicant’s favour. The applicant had argued before second respondent that the first respondent had encroached into the applicant’s mine. After the decision by second and third respondents, first respondent filed for review before this court which review, the applicant <em>in casu </em>is vehemently opposing.</p> <p>            In this application the applicant argues that he filed the current application on 6 October 2017 about four months after the first respondent had filed a chamber application for review under case no. HC 5172/14. The applicant contends that there must be finality in litigation and additionally to prevent the abuse of the court process.  The applicant further argued that the application for review filed by the first respondent was abuse and was made by the first respondent purely to extend the stay and continue mining the applicant’s mineral resources, with no intention of prosecuting the application for review. According to the applicant, the application for review was issued on 12 June 2017, but it was not immediately served on the respondents. The applicant contends further that the first respondent has not yet served the respondents in the matter for review. Even though the applicant concedes that the first respondent has filed an answering affidavit as well as Heads of Argument, the application for review can still not be set down because the first respondent has not as yet served the second and third respondents with the original court application, <em>Mr Uriri</em> for the applicant correctly pointed out that that r 236 bestows on this court wide discretion in an application of this nature.</p> <p>            The first respondent in his opposition states that after filing the review application on the 12 June 2017, all the parties were served on 21 June 2017. On 26 June 2017, he filed an urgent chamber application under case no. HC 5627/17 and that application was disposed of by Foroma J on 4 August 2017 and the judgement was in first respondent’s favour. The present applicant also filed a chamber application under case No. HC 7757/17 which application was disposed off on 11 October 2017 where the court issued an order binding both parties, hence since June 2017 both Applicant and first Respondent have been battling in the courts over the dispute and by the nature of the urgency of these matters first respondent had to put in abeyance the review application. Mr<em> G.R.J Sithole</em> argued that the first respondent has already filed the answering affidavit as well as the heads of argument and the matter of an application for review is now ready for hearing and finalisation.</p> <p>            The issue for determination by this court is whether the first respondent failed to act in expediting the prosecution of the review application to warrant the dismissal of such an application for want of prosecution in terms of r 236(3). This requires the court to look at the conduct of the first respondent and the explanation proferred by him.</p> <p>            The rules of this court provide in r 236 (3) and (4) that;</p> <p>            (3) “Within one month thereafter, the applicant has neither filed an answering        affidavit nor set the matter down for hearing, the respondent on notice to the      applicant may either</p> <p>                        (a) set the matter down for hearing in terms of r 223 or</p> <p>                        (b) make a chamber application to dismiss the matter for want of                                        prosecution and the judge may order the matter to be dismissed with costs or                     make such order on such terms as he thinks fit.</p> <p>            (4) Where the applicant has filed an answering affidavit in response to the respondent’s opposing affidavit but has not within one month thereafter set the       matter down for hearing the Respondent on notice to the applicant may either;</p> <p>                        (a) set the matter down for hearing in terms of R223, or</p> <p>                        (b) make a chamber application to dismiss the matter for want of                                        prosecution, and the judge may order the matter to be dismissed with costs                         or make such other order on such terms as he thinks fit.”</p> <p> </p> <p>            Rule 236 as amended by s 7 of the High Court (Amendment) Rules 2000 (number 35) was intended to ensure the expeditious prosecution of matters in the High Court. The Rule was deliberately designed to ensure that the court may dismiss an application if the principal litigant does not prosecute its case with due expedition. I think, however, as admitted by Mr <em>Uriri</em> in his submissions, the overriding consideration for the Judge is to exercise his or her discretion in such a manner as would give effect to the intention of the law maker. The primary intention of the lawmaker is to ensure that matters brought to the court are dealt with due expedition.</p> <p>             (See <em>Scotfin Limited</em> v <em>Mtetwa </em>2001 (1) ZLR 249 <em>per</em> Chinhengo J, <em>Gwasira </em>v <em>Sibanda</em> and others HH-298-17 PER Matanda-Moyo J)</p> <p>            The court has to look at the following in an application for this nature brought under r 236(3).</p> <ul> <li>The public interest in the expeditious resolution of disputes.</li> <li>The excuse given for the delay in prosecuting the matter.</li> <li>The availability of less drastic solution.</li> <li>The prejudice likely to be suffered by the other party.</li> </ul> <p> </p> <p>            (<em>Ordeco (Private) Limited  and others</em> v <em>Govere and others</em> HH-21-2117.)</p> <p>            In <em>Moan</em> v <em>Moon</em> HB 94/05 two more principles were added by the court</p> <ul> <li>That the party seeking relief must present a reasonable explanation of default and</li> <li>That on the merits the party has a<em> bonafide</em> case which prima facie carried some prospects of success.</li> </ul> <p>            The above analysis reflects that the paramount objective of Rule 236 is to ensure that    there is finality to the legal proceedings.</p> <p>            The following is common cause.  The application for review by the first respondent was issued in June 2017 and as at the date of hearing, the first respondent has since filed the answering affidavit as well as the heads of argument. There are two judgements in favour of the first respondent.  One by Foroma J under case No. HC 5627/17 and the other one by Phiri J under Case No. HC 7757/17 binding both applicant and first respondent. It has also been agreed by both counsel that R236 of the High Court Rules is to ensure that the court may dismiss an application if the principal litigant does not prosecute its case with due expedition. The court may instead of dismissing the application make such other order as it thinks appropriate. In terms of r 236 (3) or (4) the respondent has an option either to set the matter down for hearing in terms of r 223 or a chamber application of the nature as the one before me.  The court entertaining an application for dismissal for want of prosecution has a discretion either to dismiss the matter or to make such other order as he or she may consider to be appropriate in the circumstances.</p> <p>            What is in issue therefore is whether the applicant has proved his application on a balance of probabilities .</p> <p>            After issuing of the application for review by the first respondent, it is common cause that there were three applications made by the parties against each. One was at Mutare Magistrates Court and two at the High Court. The matter before Foroma J was appealed against by the applicant but in principle there are two orders to first respondent’s benefit or advantage and which orders remain extant.  Those orders come as a result of an assessment of prospects of success on a review application made by the first respondent which is pending before the High Court. The balance of convenience favours that since the first respondent has already filed the answering affidavit as well as heads the review application be prosecuted. The first respondent should serve the pleadings or process on the second to fourth respondents as <em>per</em> the rules but the second to the fourth respondents seem to be willing to abide by the outcome of the application. They had been included in the other applications heard by Foroma J and Phiri J where they are aware of the review application by the first respondent but have not expressed interest in the review application, it is the conduct of the third and fourth respondents which is subject to review yet none of them have shown interest in the review application. Whilst this observation may not be directly pertinent to the question at hand, they certainly fortify the aspect of prospects of success on the application for review for the first respondent.</p> <p>            In any event, I see no logic or reason in dealing with dismissal of the application for review of a matter whose pleadings are at most closed and awaiting a hearing date. Whereas it is important that there be finality to litigation the court in exercise of its discretion should not lose sight of the central aspect of ensuring that the interest of administration of justice is met.</p> <p>            The applicant contended that he is suffering prejudice because the first respondent is mining in his claim. This was but an averment which was never substantiated. The first respondent did not establish the basis for such, he has not shown that he had at one occasion extracted any mineral from the ground. However, the person who stands to suffer is the first respondent if the application for dismissal for want of prosecution is granted. He will forfeit the benefit of Foroma J’s order as well as part of Phiri J’s judgment. He will be removed from the mine and application for review will have adverse effects on his financial investments. The matter will not have been ventilated on merits.</p> <p>            In the result, the applicant’s position cannot be sustained. Its prayer for an order dismissing first Respondent’s application for review for want of prosecution is hereby dismissed and costs be in the cause of the application for review.</p> <p> </p> <p> </p> <p>MUZENDA J agrees---------------------------</p> <p><em>Machaya and Associates, </em>applicant’s legal practitioners<em>  </em></p> <p><em>Mvere Chikamhi Mareanadzo  </em>1st respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney, </em>2nd and 3rd respondent’s legal practitioners</p> <p>   </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/218/2018-zwhhc-218.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=27522">2018-zwhhc-218.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/218/2018-zwhhc-218.pdf" type="application/pdf; length=133249">2018-zwhhc-218.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-%E2%80%93-application">dismissal of – application for</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/chamber-application">chamber application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-review">application for review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/proceedings-brought-review">Proceedings brought on review</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/298">Gwasira v Sibanda &amp; Others (HH 298-17 HC 673/17) [2017] ZWHHC 298 (17 May 2017);</a></div></div></div> Thu, 24 May 2018 08:32:31 +0000 admin 8867 at https://old.zimlii.org S v Bvuto (HH 94-18, CA 156/16 Ref CRB MSH 32-40/16) [2018] ZWHHC 94 (03 August 2017); https://old.zimlii.org/zw/judgment/harare-high-court/2017/94-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>ARNOLD BVUTO                                                                                       </p> <p>versus                                                                                                 </p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>HUNGWE &amp; MUSHORE JJ</p> <p>HARARE, 3 August 2017</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p><em>J Makiseni,</em> for the appellants</p> <p>Mrs<em> F Kachidza, </em>for the respondent</p> <p> </p> <p>HUNGWE J:   The nine appellants were convicted on their own plea of guilty to contravening section 368 (2) as read with s 368 (4) of the Mines and Minerals Act, [<em>Chapter 21:05</em>] (“the Act”). They were each sentenced to the mandatory 2 years imprisonment. They appealed against conviction on the basis that they were convicted on a charge which was not supported by the facts admitted between them and the State.</p> <p>The facts agreed at trial are as follows. Police received information about the eight appellant’s activities at Lennox Gold Mine, Mashava, during the night of the previous day. That information indicated that the accused had illegally entered the gold mine and manually removed gold ore from an underground shaft. Acting on that information, the police proceeded to Lennox Gold Mine. They did not find the accused at the mine as, by then, they had removed their loot and loaded it into a hired private motor vehicle. Police intercepted the accused and stopped their motor vehicle at a tollgate on the Mashava-Zvishavane road. A search of the vehicle yielded three sacks of gold ore, a chisel and a hammer. The accused failed to produce any documentation permitting them to remove or possess gold ore. The police arrested the eight accused and charged them with contravening s 368 (2) of the Act. That section provides:</p> <p><strong>368 Prospecting prohibited save in certain circumstances</strong></p> <p>     </p> <p>      (1) Subject to subsections (2) and (3), no person shall prospect or search for any mineral, mineral  oil or natural gas except in the exercise of rights granted under a prospecting licence, exclusive prospecting order or special grant or unless he is the duly authorized representative of the holder of such licence, order or special grant and acting in the exercise of such rights.</p> <p>(2) No person shall prospect or search for any mineral, mineral oil or natural gas unless he is an approved prospector.</p> <p>      (3)……………………………………………….</p> <p>                    (4)………………………………………..    </p> <p>                     (5)………………………………………………”</p> <p> </p> <p> </p> <p> </p> <p>The accused pleaded guilty to the charge preferred by the State. Trial proceeded in terms of s 271(2) (b) of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>]<em>.</em> In canvassing the essential elements of that offence, the question was put:</p> <p> </p> <p>“Correct that on 26 /02/15 and at Lennox Mine you were searching or prospecting for gold.”</p> <p> </p> <p>The answer was in the positive for each accused. The next relevant question put was:</p> <p> </p> <p>“At the time of prospecting, were you holders of permit or licence authorizing you to  </p> <p>  prospect for the said mineral?”</p> <p> </p> <p>The answer was predictably in the negative. A conviction for each accused followed. They were each sentenced to the minimum mandatory two years imprisonment. The accused were unrepresented both at the time of arrest and at the trial until after the mandatory minimum sentence was imposed. The law imposes a positive duty on the presiding magistrate when recording a plea of guilty to ensure that the rights of such a person are carefully protected, respected and upheld.</p> <p>In <em>S </em>v<em> Dube &amp; Anor </em>1988 (2) ZLR 385 (SC) the court cautioned:</p> <p> </p> <p>“Where there is a plea of guilty, judicial officers must be careful not to regard every fact as proved just because it is admitted. Where the accused admits "possession" of a prohibited article, the court must establish just what the accused is admitting, possession being a difficult legal concept. A similar caution applies to the explanation of the charge and the elements of the offence. Section 255(3) of the Criminal Procedure and Evidence Act [Chapter 59] requires that the court's explanation, any statements by the prosecutor and the reply and statement by the accused be recorded. This record should be full. Where there is more than one accused person, each should be dealt with separately.</p> <p> </p> <p>In cases where the law provides a minimum penalty unless special circumstances exist, the accused should be told what the penalty is and the meaning of special circumstances. This should be done early in the trial. Allied to this enquiry is the broader one of whether the accused will have a fair trial. The court should consider whether the case is a complex one, from the point of view of such matters as -</p> <p>(a)        whether the ascertainment of the facts includes difficult legal concepts such as "possession", "consent" or "knowledge";</p> <p>                        (b)        whether the facts themselves are complex or difficult;  </p> <p>                        (c)        whether there is a need to prove "special reasons" or "special circumstances" to avoid a minimum sentence;</p> <p>                        (d)        whether a long prison sentence is likely to follow conviction.</p> <p>In such cases, the court should ask itself:</p> <p>(1)        even if the accused has pleaded guilty, whether it would nonetheless be appropriate to enter a plea of not guilty in terms of s 255A of the Criminal Procedure and Evidence Act;</p> <p>(2)        if the accused is unrepresented, whether it would be fair and appropriate to advise him of the complexities of the matter and to ask him if he has considered obtaining legal representation; and   </p> <p>(3)        if satisfied that the accused should have legal representation but cannot afford it, whether the court should certify that legal representation be provided under the Legal Assistance and Representation Act [<em>Chapter 66</em>]<em>.”</em></p> <p>           </p> <p>Similarly, in <em>S </em>v <em>Magore</em> 1996 (2) ZLR 88 (SC), the court held, that where an accused is not legally represented, and particularly where that person is uneducated and unintelligent, the court must be very careful to ensure that the accused fully understands the charge and all its essential elements and that he genuinely and unequivocally admits to the charge and its essential elements and to the facts alleged by the prosecution. <em>S </em>v <em>Chidawu </em>1998 (2) ZLR 76 (HC).</p> <p>When a trial court decides to proceed in terms of s 271 (2) (b) of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>]<em>,</em> where the accused is unrepresented, the duty of the court in safeguarding the rights of the suspects cannot be overemphasised. The reasons for this are manifold; first, the vast majority of criminal prosecutions in the magistrates’ court are against first offenders. Secondly, they appear in most cases on their own without legal representation. Thirdly, these suspects, in the majority of cases, are ignorant of the law as well as their rights. Fourthly, the overwhelming atmosphere of court proceedings induces in first time offenders a sense that an admission of the allegations will draw sympathy of the courts. In these circumstances, the magistrates becomes the primary bulwark defending the ignorant or the impoverished against the potential injustices that could visit the process through an excess of zeal or pressure of work. See <em>S </em>v<em> Tau</em> 1997 (1) ZLR 93 (H) @ p 99.</p> <p>            In <em>S </em>v<em> Machokoto</em> 1996 (2) ZLR 190 (HC) this court went further and observed that the essential elements must be explained in such a way as is calculated to inform the accused, if he is unrepresented, of the nature of the charge in sufficient clarity and detail as will suggest to him, in his knowledge of the matter, whether he has a defence to offer. This does not imply that the magistrate should suggest defences to the accused, but it should not be forgotten that, where the accused is unpresented the magistrate is the only source of independent assistance towards an understanding of the nature of his predicament. The fact that the accused wishes to plead guilty is not a reason to adopt a cursory approach in explaining the essential elements of the offence charged. On the contrary, it is necessary to ensure that the accused has applied his mind to the true import of the charge and is properly aware that nothing he may wish to say could constitute a defence.</p> <p>The caution sounded in these cases is especially relevant where the crime charged impacts some technical terms such as possession or similar concepts which a person lacking legal training would generally be aware of or familiar with. Where a crime merely involves possession or prospecting, the dangers of an incorrect plea of guilty are greater than usual because the accused person may not realise that his state of mind is very relevant. In such cases it is undesirable to charge the accused simply for prospecting or possession but reference should also be made to the penalty section of the relevant Act so as to alert the accused of the gravity of his or her predicament. See <em>S </em>v <em>Zvinyenge &amp; Other</em> 1987 (2) ZLR 42 (SC).</p> <p>The court, being the ultimate bulwark in defending the ignorant and or impoverished, must always recall the exhortation of s 70 (1) of the Constitution of Zimbabwe which provides:</p> <p> </p> <p><strong>70 Rights of accused persons</strong></p> <p>(1) Any person accused of an offence has the following rights—</p> <p>(<em>a</em>) to be presumed innocent until proved guilty;</p> <p>(<em>b</em>) to be informed promptly of the charge, in sufficient detail to enable them to answer it;</p> <p>(<em>c</em>) to be given adequate time and facilities to prepare a defence;</p> <p>(<em>d</em>) to choose a legal practitioner and, at their own expense, to be represented by that legal practitioner;</p> <p>(<em>e</em>) to be represented by a legal practitioner assigned by the State and at State expense, if substantial injustice would otherwise result;</p> <p>(<em>f</em>) to be informed promptly of the rights conferred by paragraphs (<em>d</em>) and (<em>e</em>).</p> <p>(<em>g</em>) to be present when being tried;</p> <p>(<em>h</em>) to adduce and challenge evidence;</p> <p>(<em>i</em>) to remain silent and not to testify or be compelled to give self-incriminating evidence;</p> <p>(<em>j</em>) to have the proceedings of the trial interpreted into a language that they understand;</p> <p>(<em>k</em>) not to be convicted of an act or omission that was not an offence when it took place;</p> <p>(<em>l</em>) not to be convicted of an act or omission that is no longer an offence;</p> <p>(<em>m</em>) not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits;</p> <p>(<em>n</em>) to be sentenced to the lesser of the prescribed punishments if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of sentencing.”</p> <p> </p> <p>Clearly, the appellants’ right to a fair hearing were prejudiced by the approach trial court adopted. The presumption of innocence was ignored as the court disregarded the fact that the charge was not proved by the facts relied upon by the State. In all offences for which a minimum mandatory sentence is prescribed, it is an infringement for a trial court to fail to advise an unrepresented accused person of his or her right to legal representation, at his own expense, by a legal practitioner of his choice; or, if he cannot afford one, to be represented by a legal practitioner assigned by the State and at the State’s expense, if substantial injustice would otherwise occur: s 70 (1) (d) and (e) of the Constitution of Zimbabwe. These rights are entrenched for the obvious reason; to protect, to promote; to uphold and to ensure the realisation of the accused’s fair trial rights.</p> <p>In my respectful view, it is high time that our legal system give effect to the constitutional right to a fair trial by enacting appropriate legislation that would entitle every suspect standing trial who faces a minimum mandatory sentence to legal representation at the expense of the State. Besides being a positive fulfilment of the right to a fair hearing, such a step would ensure that the wheels of justice turn more swiftly and efficaciously. The Law Development Commission should considers the suggestion seriously.</p> <p>Finally, in response to the notice and grounds of appeal, the learned trial magistrate stated thus:</p> <p>“I convicted the appellants on the charge preferred as I was in no doubt that the appellants were looking for minerals regardless of where they were doing it.”</p> <p>            This attitude reflects a failure of appreciation of the true nature of the grounds of appeal. The grounds of appeal attacked the very foundation of the conviction. The learned magistrate clearly proceeded with the trial on the baseless and unfounded assumption that a person who possess gold ore without a permit must have necessarily “looked for it”. He erroneously assumed that “prospecting” and “possession” are synonymous terms. This was an error of law. Section 271(2) (b) of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>] provides for a summary trial procedure. It permits a criminal trial court to proceed to convict a suspect where he pleads guilty to any offence without requiring the leading of evidence to prove the State’s case. Whilst it facilitates the prompt dispatch in straightforward cases, this procedure is open to abuse by overzealous police and court officials who are under pressure to achieve set statistical data when unrepresented accused are subject of judicial processes. The temptation to clear such suspects by manipulating the provisions of this procedure are all too obvious to the seasoned practitioner of the law. In the present case, had the police not short-circuited their investigational skills and presented the facts to court, it is highly unlikely that the appellants would have tendered guilty pleas. I make this observation in light of the following. The appellants went to a gold mining location, Lennox Mine, Mashava, where they proceeded into an underground tunnel. There, they removed gold ore. They were not prospecting for a mineral. They knew that there was ore from which they would get gold if they processed it. They removed it with the full knowledge that this was gold ore. The location had long been established as a gold mine. The issue of “looking for” or “prospecting” did not arise. They simply stole gold ore. The facts supported a contravention of s 379 of the Mines and Minerals Act, [<em>Chapter 21:05</em>]. In the exercise of this court’s review powers in s 27 of the High Court Act, [<em>Chapter 7:06</em>]<em>,</em> I proceed to substitute the charge preferred with s 379 of the Mines and Minerals Act, [<em>Chapter 21:05</em>].</p> <p>            As pointed out above, but for the admission of a contravention of s 379 (1) of the Act, an appropriate order would have been to set aside the conviction and order a trial de novo. In light of the fact that the appellants’ counsel conceded that the facts disclosed an offence, it is only fair that this court substitute the conviction on prospecting with that of possession of ore without a permit issued by the proprietor of Lennox Gold Mine. Following upon the alteration of the conviction, the sentence must necessarily be quashed and in its place, the following is imposed:</p> <p>            “Each Accused: <strong>US$200 or in default of payment 3months imprisonment.”</strong></p> <p>MUSHORE J: agrees………………………….</p> <p><em>H Tafa &amp; Associates</em>, appellants’ legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2017/94/2018-zwhhc-94.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24391">2018-zwhhc-94.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2017/94/2018-zwhhc-94.pdf" type="application/pdf; length=228525">2018-zwhhc-94.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/minerals-oil-and-gas">Minerals, oil and gas</a></li><li class="vocabulary-links field-item even"><a href="/tags/procedural-fairness">Procedural Fairness</a></li><li class="vocabulary-links field-item odd"><a href="/tags/supervisory-jurisdiction">Supervisory Jurisdiction</a></li></ul></span><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review">application for review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/plea">Plea</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/guilty">guilty</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-statutory-offences">CRIMINAL PROCEDURE (SENTENCE) Statutory offences</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/high-court">HIGH COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/powers-high-court">Powers (HIGH COURT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The court considered an appeal against a prior criminal conviction. </p> <p>The appellants had extracted gold ore from a gold mine and were intercepted and arrested by the police. They were charged under s368(2) of the Mines and Minerals Act for illegally prospecting for minerals. They pleaded guilty, were convicted and sentenced to the mandatory two-year prison sentence. They appealed on the ground that they were convicted on a charge which was not supported by the facts admitted between them and the State.</p> <p>The court had to consider whether the appellants’ plea of guilty was sufficient to convict them for contravening s368(2) of the Act. The court found that courts have a duty to protect the rights of the accused and to ensure that they fully understand the charge and the essential elements, as well as that they genuinely, and unequivocally admit to the charge, its essential elements, and the facts alleged by the prosecution. </p> <p>In this case, the lower court simply accepted the uninformed admission of guilt by the accused as proof and disregarded the fact that the charge was not proved by the facts relied upon by the State. </p> <p>Further, the court found that the appellants did not prospect for minerals, they simply stored gold ore from a known mine, thus contravening s379 not s368. </p> <p>Accordingly, the appeal was upheld. </p> </div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1961/38">Mines and Minerals Act [Chapter 21:05]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Mon, 21 May 2018 10:49:24 +0000 admin 8840 at https://old.zimlii.org Makwara & 2 Others v Chitura & 2 Others (HH122-18, HC 12096/16) [2018] ZWHHC 122 (07 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/122 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>WINNIE MAKWARA</p> <p>and</p> <p>BETHELEM MAKWARA</p> <p>and</p> <p>AZARIA MAKWARA</p> <p>versus</p> <p>GRACE CHITURA</p> <p>And</p> <p>OLIVER MASOMERA</p> <p>(In his capacity as Executor of the Estate Zebediah</p> <p>Mudimu Makwara)</p> <p>and</p> <p>MASTER OF THE HIGH COURT</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA J</p> <p>HARARE, 5 October 2017 and 7 March 2018</p> <p> </p> <p> </p> <p><strong>Opposed Matter</strong></p> <p> </p> <p> </p> <p><em>D C Kufaruwenga, </em>for the 1st – 3rd applicants</p> <p><em>E. Ngwerewe, </em>for the 1st respondent</p> <p>Ms <em>T. Figu, </em>for the 2nd respondent</p> <p> </p> <p> </p> <p>            MWAYERA J: On 5 October, 2017 after reading documents filed of record and hearing counsel I gave an order in favour of the applicant. The written reasons for my disposition are laid out herein.</p> <p>            The applicant sought review of the decision of the Master (3rd respondent) on three grounds of illegality and procedural irregularity. The applicant attacked the decision of the Master of holding the first respondent as the sole beneficiary of the Estate of late Zebediah Mudimu Makwara. Secondly, the applicant attacked the decision of the Master of allocating house no 17 Glamis Road, Hatfield Harare to the first respondent alone whereas deceased has other 4 surviving spouses and 41 children. The applicant also cited procedural irregularity alleging the third respondent, the Master, declined to accept evidence that the immovable property awarded to the third respondent was acquired by the deceased and his first wife without any contribution of the third respondent who was no yet married to the deceased at the time of acquisition.</p> <p>            The brief history of the matter has to be put into perspective. The estate of late Zebediah Mudimu who passed on on 18 May 2007 was registered with the Master third respondent who awarded the immovable property No. 17 Glamis Road Hatfield Harare to the first respondent in the distribution plan. This brought about an impasse with the applicants the children of the late Zebediah Mudimu Makwara. It is worth noting that the late Zebediah Mudimu Makwara in his life time had married 8 wives and sired 41 children. The immovable property in contention was acquired by the deceased in 1981 whereby at that time he was not yet married to the first respondent but to Faina his first wife. The deceased’s first wife passed on in 1989. The deceased divorced his 6th and 7th wives. At the time of his death he had 5 spouses including the first respondent who happened to be his 8th wife. The deceased was survived by 41 children including the first to third applicants. Also worth noting is that after the demise of the deceased the first respondent had an intimate relationship with Caleb Makwara, a grandson to the deceased and his first wife. The relationship resulted in birth of a child.</p> <p>            The respondent raised a point <em>in limine</em> that the applicants have no <em>locus standi</em> to bring the application before the court. At hearing the respondents abandoned the point <em>in limine</em> as it could not be sustained since the applicants as children and beneficiaries of the deceased had the relevant <em>locus standi.</em></p> <p>            What fell for determination in this matter can be summarised as follows:</p> <p>            1.         Whether or not the applicants adopted the correct procedure in bringing the</p> <p>present application before the court.</p> <p>2.         Whether or not the grounds for review raised are competent grounds for review.  </p> <p>3.         Whether or not the third respondent erred by awarding the immovable property to the first respondent as her sole and exclusive property.</p> <p>It is clear the applicant in seeking relief approached the court by way of review as provided from in section 26 and 27 Of the High Court Act [<em>Chapter 7:06</em>].</p> <p>            Section 26 states “subject to this Act and any other law the High Court shall have power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunal and administrative authorities with Zimbabwe”. The decision of the Master in befitting circumstances is subject to review. Section 27 of the High Court Act outlines grounds upon which proceedings or decisions may be brought for review.<br />             Section 27 provides as follows:</p> <ol> <li>Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be</li> </ol> <ul> <li>absence of jurisdiction on the part of the court, tribunal or authority concerned.</li> <li>interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned as the case may be.</li> <li>gross irregularity in the proceedings or the decision.</li> </ul> <ol> <li>Nothing in subsection (1) shall affect any other law relating to review of proceeding or decisions of inferior courts, tribunals or authorities”.</li> </ol> <p> </p> <p>The applicants acted within legal bounds to bring an application for review in a matter in which they questioned the legality of the decision of the respondent as well as the procedural irregularity occasioned by snubbing the interests of all other beneficiaries. It is clear s 68, of The Administration of Estate Act [<em>Chapter 6:01</em>] prescribes that anyone dissatisfied by the decision of the Master ought to lodge an appeal. Section 68 J is not worded in peremptory language. It reads “any person who is aggrieved by any decision of the Master in terms of his part may appeal against the decision to the High Court within the time and manner prescribed in rules of court”. The section does not by any chance oust the review powers of this court neither does it take away the parties right to choose recourse to remedy their grievance. Given that clear discretionary manner in which s 68 J is worded one cannot be faulted for opting for review. See <em>Msomi </em>v <em>Abrahams and Another 1981</em> (2) SA 256 at p 261 A when Honourable J stated</p> <p>“The mere fact that a statute provide extra-judicial remedy in the form of a domestic appeal or similar mechanism which would afford the aggrieved party adequate relief does not give rise to such a necessary implication, in the absence of further conclusiveimplications to the contrary, it will be considered that such extra judicial relief was intended to constitute analternative to and not a replacement for review by the courts, bearing in mind that there is always a presumption against a statute being construed so as to oust the jurisdictions of the court completely….”</p> <p> </p> <p>A reading of s 27 of the High Court Act clearly shows it is permissible for a party to use common law principles of review in seeking redress from the court. I subscribe to the sentiments of <em>Gwaunza JA </em>in<em> Gwaradzimba NO</em> v <em>Gurtna NO</em> SC 10/15 when she remarked:</p> <ul> <li>My understanding of this provision (referring to section 27 of the High Court Act) is that the High Court Act contemplates and permits review proceedings that are brought before it in terms of any other law.”</li> </ul> <p> </p> <p>The applicants in raising disquiet in the manner the third respondent the Master handled and decided the distribution of their late father’s estate procedurally approached the court for review. The applicant approached the court on three grounds of review namely illegality, irrationally and procedural impropriety. These are recognised grounds for review. See <em>Council for Civil Service Unions</em> v <em>Minister for Civil Service</em> [1984] 3 A4 GR 935 (HL), <em>Masuka</em> v <em>Chitungwiza Town Council and Another</em> 1998 (1) ZLR, <em>Rushuga</em> v <em>Minister of Local Government</em> 1987 (1) ZLR 15 and see also <em>Telecel Zimbabwe</em> v <em>Attorney General of Zimbabwe</em> SC 1/14.</p> <p>In the present case the applicants argued they were not given an opportunity to state their case, as provided for by the law in s 68 F of the Administration of Estates Act [<em>Chapter 6:9</em>] s 68F (b) provides in determining any issue between an executor and a beneficiary the Master shall ensure that executor and the beneficiary concerned are afforded a reasonable opportunity to state their respective cases” failure by a tribunal <em>a quo</em> to observe procedural rules that are laid down in the legislative instrument by which its jurisdiction is conferred amounts to procedural irregularity. Lord in <em>Council for Civil Service Unions supra</em> in defining procedural impropriety remarked</p> <p>“I have described the third head as procedural impropriety rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under his head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid   down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice….”</p> <p>            The applicants were not given chance to argue and present their case as is provided for in s 68 F (1) (b) of the Administration of Estate Act [<em>Chapter 6:01</em>] that on its own would amount to a procedural irregularity which falls for redress by way of review. The other grounds of review as presented by the applicant relate to the legality and rationality of the third respondent’s decision which was anchored on interpretation of s 68 (F) (2) (c) (1).</p> <p>            The concept of legality as a ground for review in my view encompasses the correct understanding and interpretation of the law that regulates the decision process. The legality or otherwise of the decision should not be viewed in isolation with the principle of rationality nor reasonableness. If the decision reached by the tribunal is outrageous in defiance of logic then irrationality properly stands as a ground for review.</p> <p>            <em>In</em> <em>casu</em> given the brief historic background of the matter, it is apparent the house awarded to the first respondent by the third respondent was acquired in 1981 way before the first respondent got married to the deceased. The first respondent only married the deceased in 1994 and she is the 8th wife. The third respondent ought to have considered the practicality or otherwise of awarding an immovable property acquired before the marriage of the first respondent. The award was for her to be the sole beneficiary to the exclusion of the other surviving spouses and 41 children. The house was not acquired during the subsistence of the first respondent’s marriage but during the subsistence of the applicant’s late mother’s marriage to the late Zebediah Mudimu Makwara.</p> <p>            In the case <em>Chimhowa and others</em> v <em>Chimhowa and Ors</em> 2011 (2) ZLR 471 the Honourable Judge President Chiweshe lucidly laid down the law on inheritance in protection of widows and children in a just manner. He remarked:</p> <p>“In my view the legislature intended to protect in the case of widows that property acquired during the subsistence of their marriage to the deceased persons. The protection benefitted not just widows but their minor children as well. I do not perceive the legislature’s intent to be to extend this protection and privilege to persons outside the marriage within which such property might have been acquired………..’</p> <p> </p> <p>For these reasons l would conclude that the protection afforded to surviving spouses in terms of inheritance is limited to those assets that were acquired during the course and subsistence of that spouse’s marriage to the deceased person whose estate is under distribution. In particular a surviving spouse cannot by right claim any right to matrimonial property acquired outside their own marriage. To allow that would be against public policy and conscience to deprive the children of deceased persons the common law right to inherit from their parents merely because at some stage the surviving parent had remarried.”</p> <p> </p> <p>            One cannot rewrite such clear thought frame when considering the circumstances of this case. It is not only irrational and outrageously unreasonable to award the immovable property acquired before the first respondent’s marriage to the first respondent as a sole beneficiary. It is also illegal given the deceased is survived by 4 wives and 41 children.</p> <p>            See also <em>Jessis Chinzou </em>v <em>Oliver Masomere </em>HH 593/15 wherein CHITAKUNYE J denied a widow, <em>inter alia</em>, exclusive inheritance of immovable property which was acquired after the widow had separated from the deceased.</p> <p>            The third respondent, by awarding the first respondent 17 Glamis Road Hatfield, as her sole and exclusive property which was acquired prior to her marriage acted irrationally. The third respondent ought to have examined the practicality of such an award. If he had fully ventilated and examined the applicant’s submissions on acquisition of the property and the status of beneficiaries then a different conclusion would have been reached. The decision of the third respondent in this regard is contrary to reasonableness and the law. Even if one was to have recourse to s 68 F (2) (c) (1) of the Administration of Estates Act [<em>Chapter 6:01</em>] the decision of awarding the property to the first respondent as her sole and exclusive property flies foul in the eyes of the law because of the impracticability of the decision. Section 68 F reads:</p> <p>“Where the deceased person was a man and is survived by two or more wives, whether or not there are any surviving children, the wives should receive the following property</p> <ol> <li>Where they live in separate houses each wife should get ownership of or, if that is impracticable a usufruct over the house she lived in at the time of the deceased person’s death, together with all the house hold goods in that house.” (underlining my emphasis)</li> </ol> <p> </p> <p>            It is not a fact that the first respondent is the only surviving spouse of the deceased. Further even if she was, the law places an obligation on the third respondent the Master to examine the practicality of awarding the immovable property to the first respondent before making a final decision. Clearly in circumstances of this case where the property was acquired prior to the first respondent’s marriage the question that hovers is on what basis was the sole exclusive award made. This is more so when one considers that the deceased is survived by 41 children inclusive of applicant, the children of deceased and his first wife with whom he acquired the home. The impracticality of the award of sole and exclusive right to the first applicant is further made apparent by the fact that at the time of death the first respondent was living with the late husband and other wives in Botswana. Number 17 Glamis was a home for all the wives as they moved from Zimbabwe to Botswana with the businessman husband.</p> <p>            The children from different mothers survived the deceased and are beneficiaries to their father’s Estate. The fact that the property was acquired prior to the tenure and subsistence of the first respondent’s marriage is a clear indication of the impracticality of the decision of the third respondent. The third respondent appears to have paid cursory attention to the objection raised as regards the distribution plan. The investigative role as provided by law if properly carried out would have revealed and put in the fore the acquisition of the property in issue. This would have shown the impracticality of awarding the respondent the property as her sole and exclusive property.</p> <p>            The applicants have properly approached the court on clearly spelt out grounds of review namely, irrationality, illegality and procedural irregularity.</p> <p>The application for review is accordingly granted as follows:</p> <p>It is ordered that:</p> <ol> <li>The third respondent’s directive together with the second respondent’s distribution plan, both of which awarded House No. 17 Glamis Road, Hatfield, Harare to the first respondent as her sole and exclusive property, be and is hereby set aside.</li> <li>The second respondent is directed to compile a fresh distribution plan which awards House No. 17 Glamis Road, Hatfield, Harare to the deceased surviving children and third respondent is directed to ratify the distribution plan.</li> <li>The second respondent is further directed to compile a fresh distribution plan in para 1 which grants a life usufruct over House No. 17 Glamis Road, Hatfield, Harare to the deceased’s surviving spouses.</li> <li>The costs of this application shall be borne by the first respondent on an ordinary scale.</li> </ol> <p><em>Dzimba Jaravaza &amp; Associates, </em>applicants’ legal practitioners</p> <p><em>Chatsanga &amp; Partners, </em>1st respondent legal practitioners</p> <p><em>T. Pfigu, </em>2nd respondent’s legal practitioners                    </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/122/2018-zwhhc-122.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26031">2018-zwhhc-122.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/122/2018-zwhhc-122.pdf" type="application/pdf; length=141821">2018-zwhhc-122.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/administration-estates">ADMINISTRATION OF ESTATES</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/deceased-estate">Deceased estate</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/master-high-court">Master of the High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-review">application for review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/civil-matter-review">Civil matter review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/proceedings-brought-review">Proceedings brought on review</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2015/10">Gwaradzimba N.O. v Gurta N.O. (Civil Appeal No. 416/13) [2015] ZWSC 10 (05 March 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2014/1">Telecel Zimbabwe (Pvt) Ltd v AG of Zimbabwe N.O. (Civil Appeal No. SC 254/11) [2014] ZWSC 1 (27 January 2014);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1929/12">Administration of Estates Act [Chapter 6:01]</a></div></div></div> Tue, 15 May 2018 07:16:18 +0000 admin 8786 at https://old.zimlii.org Nyekile One Penny Half Penny (PVT) LIMITED (HB 1-18, HC 2097/16 X REF HC 2122/16) [2018] ZWBHC 1 (01 January 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>NYEKILE ONE PENNY HALF PENNY (PVT) LTD APPLICANT And PARIRENYATWA GROUP OF HOSPITALS 1ST RESPONDENT And SURDAX INVESTMENTS (PV) LTD 2ND RESPONDENT IN THE HIGH COURT OF ZIMBABWE TAKUVA J 28 JULY 2017 &amp; 18 JANUARY 2018 Opposed Application Advocate L. Nkomo for the applicant Advocate H. Moyo for the 1st respondent No appearance for 2nd respondent TAKUVA J: This is an application for review of a decision made by the 1st respondent. The applicant is an unsuccessful bidder in a tender process that was flighted by the 1st respondent. Aggrieved by this decision, it filed this application seeking the following order: “1. The informal tender process conducted by the 1st respondent under Tender No. CLE 01/2016 is a nullity and is accordingly set aside; or alternatively 2. The decision of the 1st respondent rejecting the applicant’s tender bid as unsuccessful be and is hereby set aside and is substituted with a decision awarding the tender to applicant as the lowest bidder. 3. The 1st respondent pays the costs of suit.” The facts are as follows: In 2016 the 1st respondent floated an Informal Tender No. CLE 01/2016 for provision of cleaning services. The requirements that successful bidders must comply with are set out in Annexure I which contains inter alia a chapter on “Method of Evaluation”. For a bid to be successful, it has to comply with the criteria set out in the table therein numbered 1 to 17 at page 13 of Annexure I. After complying with this criteria a bidder is then awarded to the lowest bidder again in accordance with Annexure I. In casu nine (9) bids were lodged after Annexure I was floated. An Evaluation and Assessment of the bids was conducted and results were tabulated on the Evaluation Comparative Schedule attached as Annexure 2 on pages 76-82 of the record. After this process, the applicant’s bid was rejected after the preliminary assessment and evaluation because it did not state payment terms as required by item 14 on page 13 of the record. During evaluation, it was noted that all bid prices exceeded the annual threshold of US$500 000,00 (Five Hundred Thousand United States Dollars) set out in Procurement (Amendment) Regulations 2015 (No. 18) SI 19 of 2015. As a result, 1st respondent referred its recommendations to the State Procurement Board for a review and an opinion in terms of section 21 of the Procurement (Amendment) Regulations SI 126 of 2015. After considering the recommendations, the Procurement Board, sent a letter dated 18 July 2016 directing that the tender be awarded to the 2nd respondent. Applicant and other bidders were thereafter advised by the 1st respondent of the decision. Arising from this decision applicant filed this application seeking the nullification of this decision on two grounds namely, the 1st respondent did not comply with the provisions of the “Procurement Act and the Procurement Regulations” and that the 1st respondent’s decision is irrational. The 1st respondent opposed the application. It raised a point in limine on material non-joinder of the State Procurement Board. First respondent contended that the applicant should have cited the State Procurement Board because the decision it seeks to review is that of the State Procurement Board and not that of the 1st respondent. Also, it was argued that a reading of SI 126/2015 reveals that tenders both formal and informal are now subject to State Procurement Board’s supervision and directions. This is why the State Procurement Board authorized the informal tender to run under its supervision. Accordingly, so the argument goes, this application cannot be determined without citation of the State Procurement Board. Reliance was placed on MBCA Bank Ltd v RBZ &amp; Anor HH-482-15 and Dynamos Football Club (Pvt) Ltd and Anor v Zimbabwe Football Association &amp; Ors 2006 (1) ZLR 346 (S). In my view, the point in limine is devoid of merit for a number of reasons. Firstly, the provisions of r87 of the High Court Rules 1971 and clear that no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party and the court may in any case or matter determine the issues and questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter. In any event, where a matter has not been determined, there is no question of non-joinder being fatal because the court has power under r87 (2) of the High Court Rues to order the joinder of a party whose presence is necessary to ensure the effectual and complete adjudication of all the matters in dispute. See Wakatama &amp; Ors v Madamombe 2011 (1) ZLR 10 (s); Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd &amp; Ors 2006 (2) ZLR 232 (H) at p232E, PATEL J (as he then was) held that, “Having regard to r87 (1) of the High Court Rules 1971, there is no basis to warrant the striking out of a matter for material non-joinder. Where a party should have been joined to proceedings, a court is entitled, in terms of r87 (2) of the Rules, to order the joinder of such party either on its own motion or on application so (as) to ensure the effectual and complete adjudication of all matters in dispute. See also Chiadzwa v Commissioner-General of Police &amp; Ors 2011 (2) ZLR 241 (H) at p241H; Sibanda v Sibanda &amp; Anor 2009 (1) ZLR 64 (H) at p64E-F. Secondly, the non-joinder of the State Procurement Board in casu is neither a material non-joinder nor fatal in that the matter in dispute is capable of effectual and complete adjudication between the parties without occasioning any prejudice to the State Procurement Board. This is so because the informal tender process sought to be nullified was conducted by the 1st respondent’s Adjudication and Procurement Committees. Notwithstanding the State Procurement Board’s letter dated 18 July 2016 the decision to reject the applicant’s bid as non-compliant to mandatory requirements and specifications was made by the 1st respondent’s said committees. Therefore, the State Procurement Board has no direct and substantial interest in the relief sought by the applicant. The 1st respondent is the procuring entity. In Mugano v Fintrac &amp; Ors 2013 (2) ZLR 452, it was held that: “The right of a defendant to demand the joinder of another party and the duty of the court to order such joinder or ensure that there is a waiver of the right to be joined are limited to cases of joint owners joint contractors and partners and where the other party has a direct and substantial interest in the issues involved and the order which the court may make. Such an interest is one in the right which is the subject matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation. (my emphasis) Consequently, I take the view that there is no conceivable prejudice likely to be suffered by the State Procurement Board if it is not joined in these proceedings in light of the specific relief sought by the applicant. The non-joinder is neither material nor fatal. Therefore, the point in limine is dismissed. On the merits the applicant contends that by conducting an informal tender process when the annual contract price threshold required that a special informal or formal tender be conducted, 1st respondent violated the following statutory provisions; (a) Section 4 of the Procurement Regulations as amended (b) Section 30(1) (b) as read with sections 31 and 32 of the Procurement Act. It was further contended that the State Procurement Board’s opinion that it had “No objection” to the 1st respondent’s award of the tender to the 2nd respondent could not confer the informal tender process with any legality or validity. Applicant relied on PMA Real Estate Agency (Pvt) Ltd v ARDA 2011(2) ZLR 355(H) where it was held that what was contemplated by the Procurement Act was that every procurement entity must adopt a method that complies with the general procedures elaborated in the regulations and that any departure from the prescribed proceedings must be sanctioned under the Act or Regulations. The issue here is whether the tender process conducted by the 1st respondent is contrary to the provisions of the Procurement Act Chapter 22:14 and its regulations? It is common cause that section 4 sets out the monetary threshold for informal and formal tenders. It is also common cause that the bid prices exceeded the threshold for an informal tender that had been flighted. Further, it is also common cause that when faced with this predicament, 1st respondent sent a bid evaluation for review to the State Procurement Board in terms of section 21 of SI 126/15. The section states: “Board shall review Accounting Officer’s awards for formal tenders. 21. The Board shall review the Accounting Officer’s recommendations and issue an opinion based on the facts presented, the opinion does not exonerate the Accounting Officer from mis-procurement when additional information contrary or in addition to the initial presentation are received.” In submitting its report to the State Procurement Board the Accounting Officer complied with the provisions of section 16 of SI 126 of 2015. The State Procurement Board received the report and deliberated on it fully before issuing its opinion to the 1st respondent. The real issue is whether an informal tender flighted as such could be lawfully transformed into a special Informal or Formal Tender in terms of section 21 supra. In order to fully appreciate how section 21 was invoked, it is necessary to examine the relevant communication between the 1st respondent’s Group Chief Executive and the State Procurement Board. The former wrote in the following terms: “… with reference to your correspondence SPB/A/12/B of 27 June 2016, we hereby submit our evaluation report for the above-mentioned tender for your review. The total annual cost of the contract will exceed the Informal Tender threshold as anticipated. Please find attached bid documents, tender documents and signed evaluation report. Your opinion and guidance will be appreciated.” In response, the State Procurement Board wrote: “Reference is made to your minute dated July 7, 2016 concerning the above. At its Meeting No.50/2016, Members observed that the Accounting Officer floated a Limited Tender without prior approval of the Board in violation of section 7 (1) of the Procurement Regulations. Accordingly, the State Procurement Board has, through PBR 0699 of July 14, 2016, having reviewed the Accounting Officer’s submission in line [with] SI 126/2015, resolved that: • There is “No objection” to the Accounting Officer’s request to award Informal Tender No. CLE 01/2016 for Provision of Cleaning Services, to SURDAX Investments P/L the lowest bidder to specification, in the sum of US$536 345,28. • In terms of SI 159/2012, the Accounting Officer should pay US$900 administration fees as per State Procurement Board invoice for violating sections 7(1) and 25(4) of the Procurement Regulations as amended by floating a “limited Tender” and limiting participation to Registered Suppliers without prior approval by the Board. You are therefore advised to proceed as follows: 1. Take all necessary steps as directed by the resolution. 2. In all communications, please quote the above PBR number and the date.” It follows therefore from the above that the State Procurement Board has authority to review an Accounting Officer’s recommendations and proffer an opinion and directions. There is nowhere in the regulations where it is stated that an informal tender may not be reviewed by the State Procurement Board and applicant’s counsel has not drawn my attention to any such provision. In my view s21 provides the legal basis for reviewing an informal tender so as to convert it to a formal tender where necessary. Therefore I find no merit in applicant’s contention that the informal tender was a nullity because the bids exceeded the informal tender threshold stipulated in the Regulations. The informal tender process was found to be valid by the State Procurement Board despite the imposition of an administrative fee for violating sections 7(1) and 25(4) of the Regulations. I note with interest that the procedure that applicant complains about did not in any way prejudice it. The manner in which the tender was issued and the subsequent conversion has nothing to do with the reasons why applicant’s bid was rejected. For the above reasons, the main ground for review is hereby dismissed. In the alternative, applicant argued that the decision of the 1st respondent to reject its tender bid on the basis that it failed to meet mandatory requirements in that it did not specify payment terms is irrational, or so wrong that it must have been reached, “deliberately or inadvertently, by failing to apply the right criteria or through bias, malice or corruption on the part of 1st respondent.” The totality of applicant’s argument on this ground is captured in paragraphs 21 and 22 of its heads of argument. I hereby reproduce them verbatim. “21. Item 14 under Evaluation Criteria of the Request for Proposals required bidders to state; “Payment strictly after provision of service”. In response to that requirement the applicant stated that: “Payment terms: 30 days”. The 1st respondent contends that the applicant’s stated payment terms do not meet the requirement to state “Payment strictly after provision of service”. The 1st respondent contends that the applicant should have stated that “Payment terms: 30 days strictly after provision of service”. It is submitted that the 1st respondent’s contention is manifestly flawed and irrational because it would be unnecessarily repetitive for the applicant to repeat the wording “strictly after provision of service” when same is already stated in item 14 of the evaluation criteria in the Request for Proposals. 22. There was therefore no vagueness or failure to meet the mandatory requirement to state payment terms in the applicant’s bid. The stated payment term of “30 days” is a sufficient response to the requirement in item 14 of the Request for Proposals.” (my emphasis) It is clear from the above argument that applicant does not deny that it did not exactly do what it was required to do by the 1st respondent. Its contention is that what it did is sufficient to meet the requirement. What is vague is what is not clear and applicant’s phrase “30 days” is not clear in that it is unknown when the 30 day period begins to run. In other words does it start to run before or after the service has been rendered. Applicant’s tender was inelegantly drafted and it was not the procurement committee’s duty or role to search for a meaning. The committee acts as an umpire, it cannot add words or supplement one bid in favour of another – see Premier Free State and Ors v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA) at para 30. As regards irrationality, it is trite that a court sitting as a review court can only set aside a decision if it is satisfied that it was so grossly unreasonable that no reasonable person applying his mind to the facts before him would have come to that conclusion. See EXP MUSS X 1993 (1) ZLR 233 (H) at 239C; Charumbira v Commissioner of Taxes &amp; Ors 1998 (1) ZLR 584 (S) at 585D-E and Muringi v Air Zimb Corp &amp; Anor 1997 (2) ZLR 488 (S) at 490F. In the present case, the 1st respondent’s decision cannot be described as so grossly, unreasonable that no reasonable person applying his mind to the facts before him would have come to that conclusion. As regards bias, corruption and malice, I concur with counsel for the 1st respondent that these allegations are “a red herring”. In fact the applicant betrays itself by stating that “it has shown a well-grounded apprehension of bias and malice against it in that the 1st respondent previously refused to allow the applicant to commence the provision of tendered services after the applicant was declared a winning bidder.” One wonders why applicant thought this allegation was relevant. Applicant’s prayer that he be awarded the tender as the “lowest bidder” is baseless because the lowest bidder is the 2nd respondent. In conclusion, I find that the bidding process followed by 1st respondent was in tandem with the procurement laws and dictates of justice and fairness. Consequently, the alternative ground for review is devoid of merit and is hereby dismissed. Accordingly, the application is dismissed with costs. Ncube &amp; Partners applicant’s legal practitioners Kantor &amp; Immerman 1st respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/1/2018-zwbhc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25330">2018-zwbhc-1.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/1/2018-zwbhc-1.pdf" type="application/pdf; length=120566">2018-zwbhc-1.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/joinder-parties">Joinder of parties</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/principles-joinder-parties">principles (Joinder of parties)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/when-may-be-ordered-joinder-parties">when may be ordered (Joinder of parties)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review">application for review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/proceedings-brought-review">Proceedings brought on review</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/482">MBCA Bank Ltd v RBZ &amp; Another (HC 1147/14) [2015] ZWHHC 482 (26 May 2015);</a></div></div></div> Wed, 11 Apr 2018 07:43:15 +0000 admin 8705 at https://old.zimlii.org Sergeant Nhodza v The Trial Officer (Superintended Ndlovu) & Another () [2018] ZWBHC 85 (22 March 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/85 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>SERGEANT NHODZA R. 049759A</p> <p><strong>versus</strong></p> <p>THE TRIAL OFFICER (SUPERINTENDENT NDLOVU)</p> <p>and</p> <p>THE COMMISSIONER GENERAL OF POLICE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MOYO J</p> <p>BULAWAYO 20 FEBRUARY 2018 AND 22 MARCH 2018</p> <p> </p> <p> </p> <p><strong>Opposed matter</strong></p> <p> </p> <p><em>R Ndou</em> for the applicant</p> <p><em>L Msika</em> for the respondents</p> <p> </p> <p> </p> <p>            <strong>MOYO J:       </strong>The applicant filed an application for review seeking an order to set aside the decision of the trial officer who convicted him and sentenced him on 2 February 2015.  At the hearing of this matter following a concession, I granted the order sought.  I now provide the reasons herein.</p> <p>            The facts of the matter were that the applicant stopped a bus which carried some Zanu Pf delegates to a conference.  He required a permit for such a mission, which permit the driver did not have.  It is not clear from the facts for how long the bus was stopped.</p> <p>            The charge sheet and the state outline are not part of the record of proceedings so it is not clear as to what exactly was the applicant’s offence.  However, from the testimony of the state witnesses it would appear as though the problem was why the applicant had stopped a bus carrying Zanu Pf delegates to a conference as if that fact meant that he should have let the bus go without stopping it.  It would appear as if that was the thrust of the state case.  This is gleaned from the testimony of Majayi Jengwa the bus driver who said that they thought that since their buses were escorting Zanu Pf delegates they were not liable to pay any fines.  This is at page 9 of the court record.  Even the bus driver was asked if he was happy with the way applicant had treated him and he said he was not happy although the applicant was doing his job.  It would thus appear as if the bone of contention was stopping a bus carrying Zanu Pf delegates and subjecting it to normal police checks and routines.  In his findings however, the trial officer correctly stated that, the mere fact that they were Zanu Pf delegates was not an issue.  He also correctly found that as the police, they deal with customers irrespective of their political affiliation.  The trial officer later also made a finding that the accused was correct in arresting the bus crew and that once arrested he was duty bound to immediately dispose of them by making them pay a fine or arranging that they pay later.  He then makes a finding that this was not done.  This is where the problem is, the facts as to whether the bus driver and the applicant discussed about arrangement on the payment of a fine are not in the court record.  The bus driver does not say he had no fine on his person and could pay later No, the bus driver seemingly expected no liability to pay a fine under any circumstances since he was carrying Zanu Pf delegates.  That is what the driver says for himself.  So the trial officer could thus not make a finding that the accused failed to make arrangements with the bus driver on when and how the fine could be paid yet the bus driver who was the state witness says he challenged the liability to pay a fine on the basis that he carried Zanu Pf delegates.  On this point, the trial officer fell into error by making a factual finding on an issue where no evidence was led.  Even the trial officer asked the applicant some questions but did not ask the specific question on an arrangement being made for the bus driver to pay the fine later.  The trial officer nonetheless proceeds to conclude on that point which was never canvassed on the facts.  The trial officer in this regard fell into a fatal error because he read unproven facts into the court record and then made findings with regard thereto formulating the basis for convicting the applicant.</p> <p>            The second issue is that the record of proceedings shows that after the trial officer pronounced a verdict of guilty as charged with no reasons, there is no judgment but only the verdict:  Guilty as charged.  This is on page 17 of the court record.  Then there is a record of previous convictions.</p> <p>            Then there is mitigation and sentence.  The sentence averlaps into the next page of the court record, page 18 where it is stated that the accused is sentenced to USD10-00.</p> <p>            Thereafter, there is a recording that:</p> <p>“Accused indicated that he wanted to appeal against judgment and sentence.  Procedure of appeal explained to accused.”</p> <p> </p> <p>Then below that, comes the inscription “Judgment”.  The judgment is then written underneath.  The impression that one gets looking at this court record, is that the trial officer convicted and sentenced the accused person and only wrote a judgment thereafter upon an indication by the accused that he intended to appeal.  This is a gross irregularity that is fatal to these proceedings in that</p> <p>1)         The accused was convicted without reasons.</p> <p>2)         The judgment and reasons that later followed should then have been tailor made to suit the verdict no wonder why the trial officer reads into the court record non-existent facts.</p> <p>3)         A judgment arrived at with no reasons, runs the risk that the decision maker would not have applied his/her mind to the facts before him.</p> <p>            A judgment should be well reasoned out on the facts and on the law, showing precisely how the decision maker wove his/her way through the issues at hand.  Judging first without reasons, creates a danger that the trial officer went through the trial with a mind made up that the accused must be convicted at all costs.  It therefore arouses the suspicion of bias especially in this case where the trial officer goes on to read non-existent facts into the court record.</p> <p>            A look at the facts of this case, and the whole court record, shows that the police as an organization are using untrained police officers as trial officers.  Clearly, the trial officers are not equipped with the appropriate legal knowledge and the technical know-how required of how to conduct a trial.  Clearly, the trial officer in this case committed serious and fatal irregularities. In the circumstances one would want to believe that perhaps an in-depth training is needed for these officers before they conduct these kind of matters especially considering that such a trial is subjected to the stringent test of a criminal trial.  The proceedings were grossly flawed warranting that they be set aside.</p> <p>            It is for these reasons that I granted the order as sought.</p> <p><em>Mugiya &amp; Macharaga Law Chambers</em>, applicant’s legal practitioners</p> <p><em>Civil Division, Attorney General’s Office</em>, respondents’ legal practitioners</p> <p> </p> <p> </p> <p>             </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/85/2018-zwbhc-85.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=20712">2018-zwbhc-85.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/85/2018-zwbhc-85.pdf" type="application/pdf; length=151401">2018-zwbhc-85.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-review">application for review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-see-criminal-procedure-review">Criminal matter See CRIMINAL PROCEDURE (Review)</a></li></ul></span> Tue, 10 Apr 2018 13:19:20 +0000 admin 8703 at https://old.zimlii.org Maudy Kembo & Others v Ms. Mazhande N.O & Another (HH 162-18, HC2268/18) [2018] ZWHHC 162 (21 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/162 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>MAUDY KEMBO</p> <p>and</p> <p>ANNA MAVHANGIRA</p> <p>and</p> <p>NYARAI MASHINGAIDZE</p> <p>and</p> <p>MUNETSI HENRY TAFIRENYIKA</p> <p>versus</p> <p>MS MAZHANDE N.O.</p> <p>and</p> <p>THE STATE</p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU J</p> <p>HARARE, 19 &amp; 21 March 2018</p> <p><strong>URGENT CHAMBER APPLICATION</strong></p> <p><em>T. K. Hove </em>for the applicants</p> <p><em>E. Makoto </em>for the second respondents</p> <p> </p> <p>ZHOU J: This is an urgent chamber application for an order staying the criminal proceedings which are pending in the Magistrates Court against the applicants. The final order seeks the stay pending determination of an application for review filed by the applicants challenging the dismissal by the Magistrates Court of their application for acquittal at the close of the case for the prosecution.  The first respondent is the presiding Magistrate in the trial.  The interim relief is in its effect the same as the final relief sought save for the fact that it is sought “pending the return date”.  The application is opposed by the second respondent.</p> <p>The brief facts of the matter are as follows.  The applicants stand accused of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>].  It is being alleged that on 9 June 2016 and at the office of the Master of the High Court at Harare the applicants or one or more of them unlawfully and with intent to deceive the Master of the High Court or realizing that there was a real risk or possibility that the Master may be deceived misrepresented to the Master by creating and submitting a false affidavit to the effect that George Kembo who was the Executor in the Estate of the Late Dorothy Kembo was no longer interested in the affairs of the estate and that the applicants were the only beneficiaries of the estate.  It is further alleged that the applicants, in fact, knew when they made the misrepresentation, that George Kembo was a beneficiary to the estate.  Through the misrepresentation, it is alleged, the applicants obtained the Master’s consent to sell an immovable property belonging to the deceased estate to one Rockford Nyamakura for a sum of US$21 000, and by their conduct prejudiced George Kembo. The prosecution closed its case after leading evidence from two witnesses. The witnesses were the complainant, George Kembo, and Simon Madi who is the Assistant Master.  The applicants through their legal practitioner thereupon made an application in terms of s 198(3) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>] for discharge at the close of the state’s case which was dismissed by the learned Magistrate. On 9 March 2018 the applicants instituted an application seeking review of the decision of the Magistrate.  That application was followed a day later by the filing of the instant application.  </p> <p>When the application was placed before me on 12 March 2018 I endorsed on the record that it was not urgent and struck it off the roll of urgent matters. The applicants, as they were entitled to do, addressed a letter to the registrar requesting to be given audience on the question of urgency. I obliged, and invited the parties to make submissions. The second respondent objected to the matter being heard on an urgent basis on the ground that the applicants delayed the filing of the application after the Magistrate had dismissed their application for discharge at the close of the case for the prosecution. There was debate as to the date on which the application for discharge was dismissed. Mr <em>Makoto </em>for the second respondent referred to the record of proceedings in which it is indicated that the ruling would be made on 27 February 2018.  Mr <em>Hove </em>who was involved in the trial submitted that on that date the determination on the application was not made, but the matter was postponed to 6 March on which date the first respondent delivered the judgment in the application for discharge.  The trial was due to resume on 13 March 2018, hence the applicant instituted the instant chamber application on 10 March 2018. The resumption of the trial is now set to take place on 23 March 2018.  There is nothing on the record that would assist in resolving the issue of the date when the Magistrate dismissed the application for discharge. Be that as it may, it seems to me that my conclusion would still be the same irrespective of whether the application was dismissed on 27 February or on 6 March 2018. I do not believe that there was such a delay in instituting the application for stay of the proceedings that would deprive the matter of its urgency. My earlier opinion regarding the issue of urgency was based on the issue of the irreparable prejudice to the applicants if the relief being sought in this application was to be refused. That is a matter which the parties addressed in relation to the merits of this application.</p> <p>Both counsel debated at length the fact that this application constitutes an invitation to the High Court to intervene in interlocutory proceedings in circumstances where the real dispute has not yet been terminated or completed on its merits. Put in other words, both the instant application and the application for review ask this court to intervene in unterminated proceedings before the Magistrates Court. There is a welter of cases in which the court has expressed reluctance to intervene, whether by way of review or by order staying the proceedings, in uncompleted proceedings before a lower court or tribunal, as well as the principles which will guide the court in the exercise of its discretion as to whether or not to intervene. See <em>Dombodzvuku &amp; Anor </em>v<em> Sithole NO &amp; Anor </em>2004 (2) ZLR 242(H); <em>Bvunzawabaya &amp; Ors </em>v<em> Commissioner of Prisons &amp; Anor </em>2008 (1) ZLR 108(H); <em>Mashonganyika </em>v<em> Lena NO &amp; Anor </em>2001 (2) ZLR 103(H).  What is clear from the many cases in point is that the intervention by a superior court in uncompleted proceedings of a lower court should only be entertained in exceptional circumstances, see <em>Attorney-General </em>v<em> Makamba </em>2005 (2) ZLR 54(S). </p> <p>In this case despite the reference to the Constitution, it is clear that the applicants are seeking to impeach the factual findings of the Magistrate upon which she refused to discharge the applicants.  It has been held that refusal by a magistrate to discharge an accused person at the close of the case for the prosecution which is based on findings of fact is not a gross irregularity entitling the High Court to interfere in the uncompleted proceedings on review, see <em>Attorney-General </em>v<em> Makamba </em>2004 (2) ZLR 63(S). Although the merits of the review application is a matter that will be dealt with at the appropriate time, it seems to me that the basic facts which are common cause or are not in dispute would clearly warrant that the applicants be put on their defence. All the applicants represented themselves as the only ones interested in the immovable property which had been part of the deceased estate.  The Master’s authority to sell was obtained and the property was sold with all the applicants benefitting from the sale.  The complainant did not benefit.  These basic facts call for some explanation from the applicants and do not amount to placing the onus on the applicants to prove their innocence. The reasoned conclusion by the Learned Magistrate was that the evidence of Simon Madi actually implicated the applicants insofar as it showed that they misled the Master in order to prejudice the complainant.</p> <p>Also, there is no irreparable prejudice which would be occasioned to the applicants by the refusal to intervene in the Magistrates Court proceedings at this stage. The applicants still have the remedy of appealing against any judgment of the Magistrates Court which may come out of the proceedings if there are grounds to challenge it.  The suggestion that there is a likelihood of inconsistent judgments should the trial proceed while the review application is pending is based on speculation as to the likely outcome of both proceedings.  Litigants must realize that the mere filing of an application for the review of a decision of the Magistrate in an application for discharge at the close of the case for the prosecution does not constitute a special circumstance warranting intervention in uncompleted proceedings, especially if the review application seeks to challenge factual conclusions.  Only serious matters, such as the apparent lack of jurisdiction of the lower court would justify the intervention otherwise the administration of justice would be jeopardized by unnecessary interference by the superior courts in the unterminated proceedings of lower tribunals.</p> <p>In the circumstances of this case there are no grounds to justify the relief being sought.</p> <p>In the result, the application is dismissed.</p> <p> </p> <p><em>T. K. Hove &amp; Partners</em>, applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, second respondent’s legal practitioners   </p> <p>       </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/162/2018-zwhhc-162.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=18953">2018-zwhhc-162.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/162/2018-zwhhc-162.pdf" type="application/pdf; length=116014">2018-zwhhc-162.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/interlocutory-order">Interlocutory order</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/discharge-close-state-case">Discharge at close of State case</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-review">application for review</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Mon, 09 Apr 2018 08:18:27 +0000 admin 8689 at https://old.zimlii.org Chiremba v Chiroodza & Another (HH 163-18, HC 956/17) [2018] ZWHHC 163 (22 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/163-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>CRISPEN CHIREMBA</p> <p>versus</p> <p>SUPERINTENDANT CHIROODZA</p> <p>and</p> <p>COMMISSIONER GENERAL OF POLICE</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANGOTA J</p> <p>HARARE, 23 November 2017 &amp; 22 March 2018</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p> </p> <p><em>T Tabana,</em> for the applicant</p> <p><em>E Mukucha,</em> for the 2nd &amp; 3rd respondents</p> <p> </p> <p> </p> <p>            MANGOTA J: Our jurisdiction is anchored upon the adversarial system of justice delivery. The system has invariably two parties to it. These are the plaintiff and the defendant in a civil suit, the applicant and the respondent in motion proceedings and the state and the accused in a criminal trial.</p> <p>            A person who is not satisfied with the decision of the court <em>a quo </em>has every right to appeal or review the same. In appealing or reviewing the decision, he must cite the other party as the respondent. He, at times, cites the judicial officer whose decision he is appealing or reviewing. Citing the judicial officer has two advantages to it. The first is that the judicial officer is made aware of the fact that his decision is being appealed or reviewed. The second is that the citation affords him an opportunity to make comments upon, or to clarify, some aspects of his judgment for the benefit of the reviewing, or the appeal, court.</p> <p>            A judicial officer who decides a case which is the subject of review or appeal can never be cited as a substitute for the party in whose favour he ruled in the proceedings of the court <em>a quo.</em> Such a citation is not only undesirable. It is also procedurally improper. It is improper for a party which is appealing or reviewing the decision of the judicial officer to compel the latter to defend his decision.</p> <p>            The remarks which I was at pains to make in the foregoing paragraphs of this judgment are characteristic of the current application. This was an application for review in which the applicant appeared before the first respondent as a party. The first respondent heard his case in his capacity as a <em>quasi – </em>judicial officer.</p> <p>            The persons who dealt with the case of the applicant comprised:</p> <ul> <li>superintendent D Chiroodza, the first respondent <em>in casu. </em>He heard the case in his capacity as the trial officer.</li> <li>the parties to the case were the State and the applicant. Each of them was legally represented.</li> <li>Assistant Inspector G Chiripanyanga appeared for the State. He prosecuted the applicant.</li> <li>a Mr O Marwa of Rubaya and Chatambudza Legal Practitioners appeared for the applicant. He was his defence counsel.</li> </ul> <p>The trial commenced on 20 December 2016. The applicant was charged with contravening paragraph 35 of the Police Act [<em>Chapter 11:10</em>] (“the Act”) as read with ss 29 and 34 of the Act as amended by the Criminal Penalties Act No. 22 of 2001. The State’s allegations were that, on or about 7 December 2016 and at Harare, he, being a duly attested member of the police force, did wrongfully and unlawfully access and abuse documents of limited circulation to senior officers of the Zimbabwe Republic Police. It was alleged that he used the documents to file a court application for an interdict in an attempt to bar the police commissioner-general from transferring the administrative role of the Police Association from ZRP Harare Province to Police General Headquarters.</p> <p>When the abovementioned charge was put to the applicant, he pleaded not guilty to the same. His plea set the stage for his trial. This followed, as closely as possible, all the stages of a criminal trial in which the State is <em>dominus litis.</em></p> <p>            The prosecutor led evidence from his two witnesses, each in turn. The applicant’s legal practitioner cross-examined the State witnesses, each in turn. Having led evidence from the two witnesses, the prosecutor closed his case.</p> <p>The applicant’s legal practitioner applied for discharge of his client at the close of the state case. He based his application on the allegation that the evidence which the state had led did not establish a <em>prima facie</em> case against the applicant.</p> <p>The prosecutor successfully opposed the application for discharge of the applicant whom the trial officer put on his defence.</p> <p>The applicant’s legal practitioner led the applicant’s evidence-in-chief. The prosecutor cross-examined him after which the applicant closed his case.</p> <p>The trial officer delivered judgment. He convicted the applicant. He was advised that the applicant did not have any previous convictions. He invited the applicant to state his mitigatory circumstances. When the applicant completed giving his mitigation, he passed sentence on him.</p> <p>It is important to mention that prior to the leading of evidence by the state and during the course of the trial, the applicant made a number of applications. He, at the initial stage of the hearing, applied that the trial officer should recuse himself. The prosecutor opposed the application as a result of which the trial officer ruled that he would continue to hear the case. The applicant, it has already been stated, applied for his discharge at the close of the case for the state. The prosecutor, once again, opposed the application as a result of which the trial officer ruled that the applicant should be put on his defence.</p> <p>The rulings which the trial officer made during the trial of the applicant precipitated the current application for review. The complaint was that the trial officer was biased against the applicant. It was alleged that the bias was evident from the manner that the trial officer discharged his duties as a judicial officer.</p> <p>In applying as he did, the applicant was aware that the first respondent heard his case in his capacity as a judicial officer. He was alive to the fact that the first respondent was not a party to the court <em>a quo</em>’s proceedings. He was also aware that the relevant party to those proceedings was the state which was represented by the prosecutor in the case. He was, in short, very clear in his mind that the prosecutor played a very important role in his prosecution, conviction and sentence. He also knew that it was not the first respondent, but the state, who/which preferred the charge against him.</p> <p>Notwithstanding his clear and unambiguous knowledge in the abovementioned regard, he, for his unstated reasons, made up his mind to leave the prosecutor out of equation altogether. He, in other words, decided not to cite the state as the substantive respondent to his application for review. He gave no reason for the position which he took in the mentioned regard.</p> <p>By leaving out the state or the prosecutor from his application, he, no doubt deprived the reviewingcourt of the benefit of hearing, from the prosecutor’s perceptive, if what he alleged against then first respondent was, or was not, warranted. He also deprived the state of the opportunity to be heard in so far as his application for review was concerned.</p> <p>It was procedurally wrong for the applicant to have cited the first respondent as the substantive party to his application for review. He turned him into a party to the proceedings when he was not such. He compelled him to descend into the arena and to defend his decision. He took advantage of his erroneous citation of the parties to the review application and proceeded to criticize the first respondent for, he alleged, having shown bias against him and in favour of the state. What he stated in the first paragraph of his heads of argument brings out in a clear and lucid manner what he intended to achieve when he alleged that the first respondent was biased against. He said:</p> <p>“… the fact that the first respondent has decided to stand in opposition to this application makes it a total irregularity, more so if one considers that the application is based on allegations of his bias.”</p> <p>            The applicant cannot approbate and reprobate. He placed the first respondent into a very invidious position when he cited him as a substantive party to his application. When the first respondent opposed the same, he criticized him for having done so. One wonders what he intended the first respondent to have done under the stated set of circumstances.</p> <p>            It stands to logic and good reason that the applicant expected the first respondent not to have opposed his application for review so that it would remain unopposed and, in that way, he would have had the reviewing court rule in his favour with little, if any, difficulty. He referred to the opposition which the first respondent filed as having been irregular. He refused to acknowledge, as he should have done, that his citation of the first respondent as a substantive party and in substitution of the state which he should have cited was more irregular than the first respondent’s opposition to the application for review.</p> <p>            The first respondent had no option but to oppose the application. He had been thrown at the deep end of the scale.</p> <p>            The party which had the opportunity to properly oppose the application was the state or the prosecutor representing the State. That party had been left out of the equation completely and for no apparent reason for that matter.</p> <p>            The applicant gave no reason at all for having cited the second respondent as a party to his application for review. The second respondent was not a party to the proceedings of the court <em>a quo</em>. The draft order which he moved the court to grant to him made no mention of the second respondent at all. It had everything which related to the first respondent who had presided over his case in his capacity as a <em>quasi</em>-judicial officer.</p> <p>            The applicant’s citation of the parties in his application for review was quite telling. He left out a critical player, the prosecutor, who dealt with him during the hearing of his case. He, paradoxically, included in the application the second respondent who was not a party to the court <em>a quo</em>’s proceedings. He also turned the trial officer into a party to his application for review when he should not have done so at all.</p> <p>            The impropriety of citing the judicial officer who heard and determined a party’s case in an application for review, or in an appeal, can hardly be overemphasized. I have already made a statement on that matter in the first portion of this judgment. My remarks find support from a number of decided case authorities. Amongst them is that of <em>Senior Minister of National Affairs, Employment Creation and Co-operatives </em>v <em>Joram Mupambirei &amp; Ors, </em>SC 182/94 which related to a dispute between two factions of a co-operative society. The Minister, sitting as a <em>quasi</em>-judicial officer, had ruled in favour of one faction and the losing faction had reviewed his decision with the Administrative Court which had ruled against the decision of the Minister. The Minister appealed the decision of the Administrative Court. The Supreme Court dismissed the appeal and, in doing so, it gave the example of a magistrate who decides upon a matter which, on appeal, the High Court upset and said:</p> <p>“… it would be improper for a magistrate who is upset on appeal by the High Court to appeal that decision to this court. To allow him to do so would be to allow him to defend his own decision  … which is not permissible.”</p> <p>In <em>Joram Mupambirei &amp; Ors </em>v <em>Zvarivadza and Ors,</em> SC 94/96 the Supreme Court</p> <p>had the occasion to deal with the above-mentioned case, but this time from the perspective of one of the factions. KOrsah JA brought out the position of the Minister in a clear and succinct manner. The learned judge remarked as follows:</p> <p>“The Minister as an arbiter in the proceedings, is firstly, not a party to the dispute, and, secondly, is not adversely affected by the quasi-judicial findings he makes. He ought not to have been made the substantive party in proceedings where his own decision was being challenged ….” (emphasis added)</p> <p> </p> <p>The remarks which McNally JA made in <em>Blue Ribbon Foods Ltd </em>v <em>Dube NO &amp; </em></p> <p><em>Anor, </em>1993 (2) ZLR 146 at 150 B cannot go unmentioned. He made them in regard to matters of the present nature. He said:</p> <p>“In review proceedings, where allegations of procedural impropriety or bias are commonly made (those being the common grounds which justify review) the presiding officer whose conduct is in question may, if he wishes, file an affidavit to clarify such matters as he may wish to clarify. And in a proper, though I would think exceptional, case he may be represented by counsel. But only on that issue. It is not for him to enter into the merits of the case or to defend his decision. That is the function of counsel for the respondent employer or the respondent employee, as the case may be.” (emphasis added).</p> <p><em>Leopard Rock Hotel (Pvt) Ltd</em> v <em>Wallen Construction (Pvt) Ltd,</em> 1994 (1) ZLR 255</p> <p>(S) at 279 B-F to which the applicant referred the court supports the review which I hold of the matter more than it advances the applicant’s cause. It reads:</p> <p>“…., in circumstances, such as these, an arbitrator, umpire judge or other adjudicating body has one of two choices.</p> <p> </p> <p>The first is that he could file an affidavit setting out facts which he considers may be of assistance to the court. So long as such facts are stated colourlessly, no one could object, but if the affidavit should err plainly in support of one of the parties it might expose the adjudicator to the odium of the court.</p> <p> </p> <p>It is most undesirable that any arbiter or other adjudicator of a dispute should appear to be rendering assistance to one of the contestants to the dispute before him. For the other party is likely to gain the impression that the arbiter and his adversary are conspiring against him. And such an impression would reinforce his belief that the arbiter is biased against him. See the remarks of McNally J in <em>Blue Ribbon Foods Ltd </em>v <em>Dube No &amp; Anor</em>, 1993 (2) ZLR 146 (S) at 148.</p> <p> </p> <p>When the arbiter makes common cause with one of the parties in such proceedings</p> <p>any façade of  justice is shattered; the arbiter is seen to have descended into the arena with the possible consequential blurring of his vision by the dust of battle. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.</p> <p>The second choice of the arbitrator or umpire when served with notice of motion for his removal, or to set aside his award, is to take no action and abide by the court ‘s decision.”</p> <p>In this application, it is evident that the applicant did not afford the first respondent</p> <p>the option which the court enunciated in the <em>Leopard Rock</em>  case. He compelled him to descend into the arena so that he remained clouded with the dust of his battle with the State. He blurred the vision of the first respondent so that he would have sufficient material to criticize him as he did in his application for review.</p> <p>            It is pertinent to advise all those who are in the position of the applicant [i.e. appellants and applicants for review], to make every effort to cite relevant parties when they appeal or review decisions of the court <em>a quo</em>. They are exhorted to leave judicial officers out of the equation or to only cite those as a way of informing them that their decisions are being appealed or reviewed. Judicial officers are not, and will never be, substantive parties to proceedings which are being appealed or reviewed.</p> <p>            In <em>casu</em>, the applicant cited the wrong parties. That rendered his application fatally defective. It was incurably bad. It could not stand.</p> <p>            The application is, accordingly, dismissed with costs.  </p> <p> </p> <p><em>Rubaya &amp; Chatambudza</em>, applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, 2nd &amp; 3rd respondents’ legal practitioners</p> <p>                </p> <p> </p> <p>                   </p> <p> </p> <p>           </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/163/2018-zwhhc-163.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24574">2018-zwhhc-163.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/163/2018-zwhhc-163.pdf" type="application/pdf; length=188165">2018-zwhhc-163.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/parties-practice-and-procedure">Parties (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/application-review">application for review</a></li></ul></span> Mon, 09 Apr 2018 07:42:34 +0000 admin 8688 at https://old.zimlii.org