Fabiola N Gonye v Fadzai Mtombeni N.O and Others

On 29 December 2014, the 2nd respondent was robbed of 45,000 Euros. The culprits were arrested, prosecuted and convicted. The applicant was a state witness in the criminal matter. She had entered into a transaction to exchange 6000 Euros for US$6,600. The Euros were part of the money stolen from the 2nd respondent. The applicant was found in possession of the 6000 Euros and led police to the person she transacted with, resulting in recovery of the US$6,600. Both amounts were used as exhibits in court. At the conclusion of the criminal trial presided over by the 1st respondent, the applicant made an application under section 61 of the Criminal Procedure and Evidence Act for return of her US dollars. The application was dismissed and the 1st respondent ordered that the money be awarded to the 2nd respondent. The applicant then approached the High Court by way of urgent chamber application seeking review of the magistrate's decision and a provisional order staying the decision pending confirmation.

• Whether an application for review can be brought by way of urgent chamber application rather than by court application as required by Order 33 Rule 256 of the High Court Rules 1971
• Whether the applicant complied with Rule 257 which requires that grounds for review be stated shortly and clearly
• Whether the failure to comply with the prescribed procedural requirements for review applications is fatal to the application

1. The application is dismissed. 2. The applicant to pay the second respondent's costs.

An application for review brought under the High Court Rules must comply with Order 33 Rules 256 and 257. Where an applicant seeks review under the Rules rather than under common law or another statute, the application must be by way of court application (not urgent chamber application) and must state shortly and clearly in the application itself (not merely in the founding affidavit) the grounds upon which review is sought. Failure to comply with Rule 257 is a fatal defect that warrants dismissal of the application. Where urgent interim relief is required pending determination of a review application, the proper procedure is to file an urgent chamber application seeking stay of execution pending the return day and final relief staying execution pending determination of a simultaneously filed court application for review.

The court noted that the rationale for Order 33's detailed procedural requirements, as explained in Jockey Club of SA v Forbes, is not to protect the decision-maker but to facilitate applications for review and ensure their speedy and orderly presentation, to the advantage of the citizen. The court observed that it is deliberate that the drafters dedicated a whole Order to review procedures, and that clear statement of grounds is necessary because the applicant is asking the court to interfere with a decision of another tribunal. The court also commented that the time has come to implement the warnings given in previous judgments that applications not complying with the rules should be dismissed, referencing the statement in Chataira v ZESA that "enough is enough" regarding non-compliance by legal practitioners.

This case provides important guidance on the proper procedure for bringing review applications in Zimbabwe, particularly where urgent interim relief is required. It reinforces the strict requirements of Order 33 Rules 256 and 257 of the High Court Rules 1971 and confirms that non-compliance with these procedural requirements will result in dismissal of the application. The judgment clarifies that while review applications can be brought under common law or other statutes, the applicant must clearly state the legal basis at the outset, and if proceeding under the High Court Rules, full compliance is mandatory. It also provides practical guidance on the proper procedure when interim relief is needed - filing an urgent chamber application for stay of execution simultaneously with a properly formatted court application for review, rather than attempting to combine both in a single urgent chamber application.