Andrew Richard Bruford v Attorney General and Magistrate Jarabini

The applicant was standing trial in the Magistrates Court on unspecified criminal charges. On 15 February 2010, he made an application for discharge at the close of the state case, which the trial magistrate (second respondent) dismissed and ordered the trial to proceed on 4 March 2010 (later extended to 12 March 2010). The trial magistrate did not give reasons for dismissing the discharge application. The applicant's lawyers wrote to the Clerk of Court on 22 February 2010 requesting reasons for the judgment, stating these were required for an appeal to the High Court. When the reasons were not provided, the trial magistrate indicated he would only give his reasons in the main judgment. The applicant then brought an urgent application to the High Court seeking a provisional order staying the criminal proceedings pending receipt of the magistrate's reasons and compelling the magistrate to furnish those reasons.

• Whether a trial magistrate is obliged to provide reasons for an interim determination dismissing an application for discharge at the close of the state case
• Whether criminal proceedings should be stayed pending provision of reasons for an interim determination
• Whether it is competent to appeal or seek review of an interim determination during ongoing criminal proceedings
• Whether the circumstances constituted exceptional circumstances warranting an interim application for review

The application was dismissed with costs.

It is premature and incompetent to appeal against a trial magistrate's interim determination (such as dismissal of an application for discharge at close of state case) during ongoing criminal proceedings. Superior courts will only entertain interim applications for review in exceptional circumstances. Where the stated basis for requesting reasons for an interim determination is legally incompetent (such as an appeal of an interim order), a trial magistrate is justified in proceeding with the trial without providing those reasons. The ends of justice are better served by allowing criminal trials to proceed rather than granting stays pending interlocutory challenges, particularly where the applicant has not demonstrated exceptional circumstances. Applications are determined on the record with affidavits constituting the evidence, and counsel cannot overcome deficiencies in their client's sworn affidavit through oral submissions or amendments to separate correspondence.

The court observed that while not wishing to preempt the outcome of any intended review application, the applicant 'has a mountain to climb' in pursuing such a review. The court invoked the adage 'Justice delayed is justice denied' as being apt in the circumstances. The court noted it deliberately chose to ignore the question of urgency, electing instead to determine the application on the merits for the sake of finality. The court also observed that proceeding with the trial is no impediment to the intended review application.

This case reinforces important principles in Zimbabwean criminal procedure regarding: (1) the limited circumstances in which interim determinations during criminal trials may be challenged before finalization of the trial; (2) the general rule that superior courts will only entertain interim applications for review in exceptional circumstances; (3) the impropriety of seeking to appeal interim determinations before the conclusion of criminal proceedings; and (4) the principle that criminal trials should proceed without undue delay and that the interests of justice generally favor the continuation of proceedings rather than stays pending interlocutory challenges. The case demonstrates the court's reluctance to interfere with ongoing criminal proceedings on procedural grounds where the substantive matter can be addressed after conclusion of the trial.