Dexter Tawona Nduna and Munyaradzi Simango and Takemore Maphosa v The State and Judith Taruvinga NO

The applicants were being tried at Chegutu Magistrates Court on charges of intraparty political violence relating to ZANU PF primary elections (case numbers CRB CHG 674-76/18). The trial had been postponed on three previous occasions due to the absence of the first applicant and/or his legal practitioners. On 1 October 2018, when the matter was set down for trial with prior warning that no further postponements would be granted, the applicants' legal practitioner Mr Mataka failed to attend. Mr Mukunduri appeared on behalf of Mataka in the morning requesting removal from remand, citing that Mataka was engaged in an electoral petition at the High Court. The Magistrate refused the application and stood the matter down to 11:45 AM to allow applicants to secure legal representation. When no legal practitioner appeared by 11:45 AM, the trial proceeded. The applicants gave their defence outlines and the State closed its case. The applicants then filed an urgent chamber application seeking to stay the criminal proceedings pending determination of a review application (HC 9109/18), alleging violation of their constitutional right to legal representation.

• Whether the Magistrate erred in refusing to postpone the trial or remove the applicants from remand when their legal practitioner of choice was unavailable
• Whether the applicants were denied their constitutional right to legal representation
• Whether the High Court should intervene to stay unterminated criminal proceedings pending review
• Whether the application for review had reasonable prospects of success
• Whether the Magistrate's conduct in managing the trial proceedings was unreasonable or created an apprehension of bias

1. The application for stay of criminal proceedings in CHG 674-76/18 pending finalization of the review application in HC 9109/18 was dismissed. 2. The criminal proceedings in CRB CHG 674-76/18 were ordered to proceed to the defence case. 3. The applicants were ordered to pay costs of suit.

The binding legal principles established are: (1) A High Court will not stay unterminated criminal proceedings pending review unless there are exceptional circumstances and the review application has reasonable prospects of success; (2) The constitutional right to legal representation does not entitle an accused person to indefinite postponements where the accused and/or legal practitioners have been afforded reasonable opportunities to prepare and appear but have failed to do so through apparent delaying tactics; (3) A magistrate, as an administrator of justice, is entitled and indeed obligated to firmly manage court proceedings and may refuse postponements where applications appear to be made for dilatory purposes, provided this is done fairly; (4) The granting or refusal of postponements involves a balancing exercise between the right to legal representation and the efficient administration of justice, including the rights of complainants, witnesses and the State to have matters dealt with expeditiously; (5) Mere withdrawal of a legal practitioner or termination of mandate does not automatically entitle a party to a postponement as of right.

The court expressed skepticism about the applicants' allegations that 18 armed riot police officers with loaded FN rifles, pistols and teargas canisters occupied the courtroom, questioning how the applicants could know specific details about ammunition loads and suggesting this was a misrepresentation of facts. The court noted this issue would be left to the judge dealing with the review application. The court also observed, citing Take & Save Trading CC v Standard Bank, that one of the oldest tricks used by legal practitioners is to withdraw from cases or have clients terminate mandates to force postponements, and that judicial officers have a duty to curb this abuse. The court emphasized that while firm control is necessary, there is a thin dividing line between managing a trial and getting involved in the fray, and that judicial officers must be "firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes."

This case is significant in Zimbabwean criminal procedure for affirming the principles that: (1) Superior Courts will not lightly interfere with unterminated criminal proceedings unless exceptional circumstances exist and the review has prospects of success; (2) the constitutional right to legal representation is not absolute and must be balanced against the efficient administration of justice and the rights of other participants in the criminal justice system; (3) judicial officers have a duty to firmly manage their courts and may refuse postponements when faced with apparent delaying tactics; (4) mere absence of a legal practitioner or withdrawal does not automatically entitle an accused to postponement as of right; and (5) accused persons and their legal practitioners cannot abuse the right to legal representation to frustrate the criminal justice process. The judgment reinforces the need for judicial officers to adopt a balanced approach between ensuring fair trials and preventing abuse of process.