Amos Chimbiru v The State

The applicant had been convicted by a magistrate of contravening Section 60A of the Electricity Act and sentenced to 10 years imprisonment. He applied for bail pending appeal. The State filed a response on 15 September 2021 opposing bail. When the matter came before Chinamora J in bail court on 8 October 2021, the judge formed the view that the magistrate had not informed the applicant of his right to legal representation. The judge requested the State to address this issue, believing he could review the matter in terms of Section 29(4) of the High Court Act. On 5 October 2021, the State responded agreeing with the judge's view on review jurisdiction. On 8 October 2021, the judge granted an order releasing the applicant from prison custody unconditionally. The judge subsequently realized that the criminal record had already been reviewed by the High Court and confirmed to be in accordance with real and substantial justice, meaning a further review was not permissible. The judge also realized he had failed to seek the concurrence of another judge as required by Section 29(5)(b) of the High Court Act.

• Whether a judge can set aside his own judgment mero motu (on his own motion) when made in error
• Whether criminal proceedings that have already been reviewed by the High Court can be subjected to a further review
• Whether a single judge can exercise review powers under Section 29(4) of the High Court Act without the concurrence of another judge as required by Section 29(5)(b)
• Whether failure to inform an accused of the right to legal representation automatically renders proceedings irregular and unfair
• Whether the common law doctrine of justus error applies to set aside an order made in error by a court

1. The order granted under B1834/21 on 8 October 2021 (releasing the applicant from prison custody unconditionally) is hereby rescinded and set aside. 2. The Registrar of the High Court shall reinstate for hearing the bail application under B1834/21.

1. An order made by a court is null and void if it purports to review criminal proceedings that have already been reviewed and confirmed by the High Court. 2. An order purporting to exercise review powers under Section 29 of the High Court Act without the mandatory concurrence of another judge as required by Section 29(5)(b) is null and void. 3. A court has inherent power at common law to set aside its own judgment mero motu on the basis of justus error, which is an error by the court induced from non-fraudulent means. 4. Failure to inform an accused person of the right to legal representation, while potentially an irregularity, does not necessarily render proceedings unfair and warrant setting aside a conviction and sentence unless prejudice is shown. The entire record must be considered to determine if the accused was prejudiced and unable to represent himself adequately.

The judge made important observations about judicial practice and procedure. Chinamora J acknowledged: "This case starkly brings to the fore the need for a judge dealing with a matter they wish to review to examine carefully whether, indeed, the matter can be reviewed... If the judge nonetheless believes that the matter is capable of review, he/she must bear in mind that the concurrence of another judge is imperative. There is the inherent danger, as I have learnt from this case, of embarking on a review exercise while sitting as a single judge, especially in bail court. Regrettably, this is a cruel lesson that I will carry into the future." The judge also commented on the educative value of the Judge President's judgment in the earlier Amos Chimbiru case (HH 657-20), stating it made him "wiser on the implication of failure to advise an accused of his/her right to legal representation" and altered his previous view which had been in line with the South African decision in S v Gouwe 1995 (8) BCLR 968 (B). These observations, while not forming part of the binding ratio, provide valuable guidance on judicial conduct and the exercise of review powers.

This case is significant in Zimbabwean law (and relevant to South African jurisprudence given the similar legal systems) for several reasons: (1) It demonstrates the court's inherent power to set aside its own orders made in error mero motu using the common law doctrine of justus error; (2) It clarifies that criminal proceedings that have already been reviewed cannot be subjected to a further review; (3) It emphasizes the mandatory requirement for judicial concurrence under Section 29(5)(b) of the High Court Act when exercising review powers; (4) It clarifies that failure to inform an accused of the right to legal representation does not automatically render proceedings unfair - prejudice must be shown; (5) It serves as a cautionary example of the dangers of embarking on review proceedings while sitting as a single judge, especially in bail court, without proper verification of procedural requirements. The judgment demonstrates judicial accountability and the importance of correcting errors even when doing so may be embarrassing to the court.