Borislav Trifonov Boynov v Judith Taruvinga N.O and The State

The applicant was a manager of Bath Mansions, a block of flats in Harare. The Supreme Court issued an order in SC 503/20 on 2 December 2020 directing that from 1 January 2021, rentals from tenants be paid into an escrow account managed by Messrs Coghlan, Welsh & Guest Legal Practitioners. However, that law firm declined the appointment and could not accept rental payments. The applicant nonetheless received rentals totaling USD$7,700 in January and February 2021. He was charged with Theft of Trust Property under s 113 of the Criminal Law (Codification and Reform) Act. The applicant filed an exception to the charge in the Magistrate's Court, arguing that (a) the funds could not constitute trust property as he was not supposed to receive them under the Supreme Court order, and (b) he could not be said to have failed to account for them when the appointed escrow agents refused to accept the money. The first respondent (magistrate) dismissed the exception. The applicant then filed a review application in the High Court (HC 6431/21) challenging that dismissal, and simultaneously brought this urgent application seeking a stay of the criminal proceedings pending the outcome of the review.

• Whether the High Court should interfere with and stay unterminated criminal proceedings in the Magistrate's Court pending a review application
• Whether the charge of Theft of Trust Property was properly formulated and disclosed an offence
• Whether the exception to the charge was properly dismissed by the magistrate
• What are the principles governing superior court intervention in incomplete proceedings of lower courts
• Whether the applicant demonstrated exceptional circumstances and prospects of success on review sufficient to justify a stay of proceedings

The application for a stay of the criminal proceedings before the first respondent in the Harare Magistrate's Court (CRB Number HRE P 3225/21) pending finalization of the review application (Case Number HC 6431/21) was dismissed. There was no order as to costs.

A superior court will not interfere with unterminated criminal proceedings in a lower court unless there are exceptional circumstances arising from proven gross irregularity that vitiates the proceedings and results in a miscarriage of justice that cannot be redressed by any other means. An urgent application for a stay of criminal proceedings pending a review can only succeed if the applicant demonstrates strong prospects of success on review. A charge is valid and proper if it sets out the offence with sufficient particulars as to time, place, and the nature of the allegations to reasonably inform the accused of the charge they must meet, enabling them to plead. The fact that an accused faces prejudice inherent in being obliged to proceed to trial before testing the correctness of an interlocutory ruling in a superior court does not per se justify granting relief before conviction. Matters that are genuinely triable issues, including the circumstances of possession and dealing with alleged trust property, should be examined through the trial process rather than by pre-emptive intervention.

The court observed that parties should pursue speedy resolution of criminal review applications involving unterminated proceedings, and that applicants who benefit from stays should be held strictly to terms. The court noted the principle in Mupfumira v Mutevedzi that the power to postpone criminal proceedings reposes in the Magistrate's Court, and that direct urgent applications to the High Court for stays are essentially disguised review applications that require two judges to concur if they effectively set aside a trial court's decision. The court suggested that where stays are refused, parties can mitigate the inconvenience of concurrent proceedings by driving for speedy closure of interlocutory applications. The court also observed that while "lawfulness" of possession may be implied in the definition of trust property, it is not an explicit statutory requirement, and its nature and effect depends on the circumstances of each case. The court noted that the applicant had never explained what happened to the rentals he collected, despite persistent inquiries from various parties.

This case reinforces the strict approach of Zimbabwean courts (consistent with South African jurisprudence) against interference with unterminated criminal proceedings in lower courts. It provides comprehensive guidance on when superior courts will grant stays of criminal proceedings, emphasizing that such intervention requires exceptional circumstances, gross irregularity, and strong prospects of success on review. The judgment clarifies that perceived procedural irregularities and unfavorable interlocutory rulings do not automatically warrant intervention - most can be addressed on appeal or review after final judgment. The case also addresses the proper procedural route for seeking stays, referencing the principle in Mupfumira that postponement powers reside in the trial court, not the High Court through urgent applications. The judgment provides useful analysis of the elements of theft of trust property and the requirements for a valid charge under criminal procedure. It emphasizes the importance of expeditious resolution of interlocutory applications and reviews to avoid undue delay in the administration of criminal justice.