Fairclot Investments (Pvt) Ltd and Others v Provincial Magistrate Shane Kubonera and The State

The first applicant (Fairclot Investments) and its director (second applicant), together with Paragon Printing (third applicant) and its director (fourth applicant), were charged with criminal nuisance in contravention of s 46 read with the Third Schedule s 2(v) of the Criminal Law (Codification and Reform) Act. The charge arose from a billboard erected on 10 December 2020 along Borrowdale Road which warned the public that land for the "Pomona City Housing Project" was subject to litigation (HC 4599/19, HC 5989/19, HC 10315/19) and that title deeds were held in escrow as security for an unpaid debt, advising that purchase of stands was at the purchaser's risk. The billboard was erected in the context of long-standing disputes between the applicants and Augur Investments OU concerning Stand 654 Pomona Township, Borrowdale, which had resulted in multiple lawsuits. After pleading, the applicants filed a three-pronged exception arguing: (1) the charge did not disclose an offence; (2) s 2(v) of the Third Schedule was unconstitutionally vague and violated their rights to a fair trial and equal protection under ss 68(3) and 56(1) of the Constitution; and (3) the matter should be referred to the Constitutional Court. The trial magistrate dismissed the exception, ruling that whether the charge disclosed an offence could only be determined after hearing evidence, and did not rule on the constitutional arguments. The applicants then brought urgent chamber proceedings for a stay (which was granted) and this review application.

• Whether the trial magistrate's decision to dismiss the exception and defer determination of whether the charge disclosed an offence until after hearing evidence was grossly irregular or irrational
• Whether a superior court should interfere with incomplete criminal proceedings in a lower court
• Whether the charge of criminal nuisance disclosed an offence on the face of the charge sheet and the contents of the billboard
• Whether the trial magistrate properly exercised discretion under s 171(2) of the Criminal Law Procedure and Evidence Act in determining the order in which to dispose of the plea and exception
• The appropriate test for review of interlocutory decisions of lower courts

The application for review was dismissed with costs.

A superior court will not interfere with incomplete criminal proceedings in a lower court on review unless there are exceptional circumstances involving gross irregularity, proven miscarriage of justice that cannot be redressed by other means, or where the interlocutory decision is clearly wrong and seriously prejudices the litigant's rights. A trial magistrate acts within proper discretion when, after an accused person pleads and excepts together under s 171(2) of the Criminal Law Procedure and Evidence Act, the magistrate determines that the question of whether a charge discloses an offence should be decided after hearing evidence rather than at the preliminary stage, particularly where the determination involves assessing factual matters such as the degree and extent of alleged public discomfort or inconvenience. Such a decision is neither irrational nor grossly irregular and does not warrant interference on review.

The court made several observations about proper criminal procedure: (1) Three stations should vet and test a charge - the police, the prosecution set-down office, and the trial magistrate, each forming a "three man tag team" responsible for ensuring charges are well-framed; (2) It is not in the interest of justice to continue with a trial in the face of a defective charge while waiting for an accused to raise an objection - personnel tasked with preparing charge sheets must be thorough; (3) An accused who excepts to a charge "must not be regarded as a time waster but asserting his or her rights to a fair trial"; (4) The purpose of a charge sheet is to inform the accused in clear and unmistakable language what charge they face, and it must not be framed so that an accused must guess or puzzle out what the real charge is (citing Rex v Alexander & Ors 1936 AD 445); (5) A billboard by its very nature is "a feast for the eyes of the public" - it is in the public domain and for public consumption. The court also noted that the applicants conceded the legislative provisions in question were "wide and broad" and acted as a "dragnet that captures any action," though this concession did not determine the outcome of whether their specific conduct fell within the offence.

This case is significant in Zimbabwean criminal procedure for clarifying the circumstances in which superior courts will interfere with incomplete criminal proceedings on review. It affirms the general reluctance to intervene in interlocutory decisions of magistrates' courts absent gross irregularity or miscarriage of justice. The judgment reinforces the discretion afforded to trial courts under s 171(2) of the Criminal Law Procedure and Evidence Act to determine the order in which to dispose of pleas and exceptions when raised together. It also addresses the standard for determining whether a charge discloses an offence, particularly where the determination involves assessing factual matters such as the degree of public discomfort or inconvenience that may require evidence. The case provides guidance on the proper approach to exceptions in criminal proceedings and the respective roles of reviewing courts versus trial courts in assessing the sufficiency of charges.