Charles Muchemwa Nherera v Lilian Kudya N.O. and The Attorney-General N.O.

The applicant was charged with and convicted of contravening section 3(1)(a)(i) of the Prevention of Corruption Act in the regional magistrate's court after pleading not guilty and undergoing a long trial. Following his conviction, he applied to a High Court Judge for bail pending appeal, which was dismissed on the grounds that the appeal had no prospects of success. The applicant then sought to bypass the High Court and launched an application directly to the Supreme Court for review of the regional magistrate's proceedings in terms of section 25 of the Supreme Court of Zimbabwe Act, as read with Parts II and III of the Supreme Court Rules.

• Whether the Supreme Court has jurisdiction to entertain an application for review at first instance brought directly by a litigant
• Whether section 25 of the Supreme Court of Zimbabwe Act confers a right on any person to institute review proceedings in the first instance before the Supreme Court or a Judge of the Supreme Court
• The proper interpretation of section 25(1), (2) and (3) of the Supreme Court of Zimbabwe Act regarding the review jurisdiction of the Supreme Court

The application for review was dismissed. The Court found that the application was not properly before it as it was contrary to section 25(3) of the Supreme Court of Zimbabwe Act, which expressly prohibits approaching the Supreme Court as a court of first instance in an application for review.

Section 25(3) of the Supreme Court of Zimbabwe Act expressly prohibits any person from instituting review proceedings in the first instance before the Supreme Court or a Judge of the Supreme Court. While section 25(1) and (2) confer review jurisdiction on the Supreme Court concurrent with that of the High Court, and empower the Supreme Court to act mero motu when irregularities come to its attention, this does not give litigants the right to approach the Supreme Court directly for review. The Supreme Court is an appellate court with no original jurisdiction except when sitting as a Constitutional Court under section 24 of the Constitution, and the review jurisdiction conferred by section 25 must be exercised as part of its appellate jurisdiction. Applications for review of inferior court proceedings must be brought first to the High Court.

The Chief Justice made critical observations about the statutory framework, finding it "rather unusual" that the Court or a Judge is conferred with jurisdiction to adjudicate on an irregularity that comes to its attention mero motu, but is barred from adjudicating on the same irregularity if brought to the Court's attention by one of the affected parties through a review application. He further observed that section 25 appears to deny the Supreme Court any review jurisdiction in respect of irregularities in High Court proceedings except in the process of hearing an appeal. The Chief Justice characterized this situation as "unsatisfactory and needs redress." He also criticized the second respondent's counsel for filing a document headed "Respondent's Response" instead of a proper notice of opposition supported by an opposing affidavit, noting this "reveals an appalling lack of appreciation of Court procedure and the Rules of this Court" and urged counsel to familiarize himself with proper procedure.

This case is significant in Zimbabwean jurisprudence as it definitively clarifies the review jurisdiction of the Supreme Court under section 25 of the Supreme Court of Zimbabwe Act. It establishes that litigants cannot bypass the High Court and approach the Supreme Court directly for review of inferior court proceedings, thereby reinforcing the Supreme Court's role as primarily an appellate court rather than a court of first instance. The judgment also serves as an important reminder about proper court procedure and the necessity of following established hierarchical court structures. The case is also notable for the Chief Justice's critical obiter dicta observations about the limitations and potential inadequacies of the statutory framework regarding the Supreme Court's review powers.