Allen Kudhengeya v Farayimhizha

The trial magistrate granted judgment in favour of the plaintiff for payment of money by the defendant. Upon execution, an immovable property was attached and sold. Although the warrant of execution specified that only an undivided one-half share (being the defendant's interest) was to be sold, the provincial magistrate confirmed the sale of the entire property. After realising his mistake following a protest letter from the judgment debtor's legal practitioners, the provincial magistrate referred the record to the High Court for review almost two weeks after confirming the sale, stating he was functus officio and blaming the lawyers for not acting timeously in terms of Order 26 r 7(15c) of the Magistrates Court (Civil) Rules.

• Whether a magistrate can refer a civil matter to the High Court for automatic review
• What is the proper procedure for seeking review of civil proceedings in the magistrate's court
• Whether legal practitioners can write directly to a magistrate to protest and demand that a confirmation of sale be set aside

The record was remitted back to the provincial magistrate. The purported review was dismissed as incompetent and unprocedural.

In civil matters, there is no provision for automatic review or for a magistrate to refer a matter for review to the High Court. Civil reviews are party-driven and must be initiated by way of court application in terms of Order 33 r 256 of the High Court Rules by the party seeking review. A person objecting to confirmation of a sale in execution must apply to court in terms of Order 26 r 7(15c) of the Magistrates Court (Civil) Rules with due notice to the messenger; direct correspondence with the judicial officer is incompetent and does not constitute proper legal process.

The court observed that the provincial magistrate had attempted to absolve himself by claiming he was functus officio and shifting blame to the lawyers for not acting timeously, when in fact the magistrate's referral of the matter was itself procedurally improper. The court also implicitly criticized the legal practitioners for their threatening tone in correspondence ('we demand...failing which, we shall take legal action against you') rather than following proper procedure from the outset.

This case reinforces the important procedural distinction in Zimbabwean law between criminal and civil review proceedings. It clarifies that magistrates cannot unilaterally refer civil matters to the High Court for review, and that civil reviews must be initiated by affected parties through proper court applications. The case serves as an important reminder to legal practitioners about the correct procedure for challenging decisions in civil matters, particularly regarding sales in execution, and confirms that direct correspondence with judicial officers demanding remedies is not a substitute for formal court processes.