Fanuel Chipinda v The State

On 11 April 2013, the applicant appeared before the Kadoma magistrate court charged with contravening section 3(1)(a) of the Domestic Violence Act [Cap 5:16]. The applicant pleaded guilty to assaulting his brother by biting his ear during a family meeting at their homestead where they were discussing family matters. The applicant was convicted and sentenced to 16 months imprisonment, with 6 months suspended for 5 years on condition of good behaviour. The applicant noted an appeal and applied for bail pending appeal, which was dismissed. He then mounted an application for bail pending review. The matter had already been submitted on automatic review and confirmed by the High Court. The applicant sought to review the proceedings on the basis that he was wrongly convicted under the Domestic Violence Act, arguing that he did not fall under the definition of "complainant" as envisaged by the Act because he claimed not to stay at the same homestead with the complainant (his brother), but rather in the same village.

• Whether exceptional circumstances existed to warrant attacking the conviction by way of review rather than appeal
• Whether the magistrate properly explained the essential elements of the domestic violence offence
• Whether the complainant fell within the definition of 'complainant' under the Domestic Violence Act
• Whether bail pending review should be granted considering: (1) likelihood of absconding, (2) prospects of success on review, (3) right to individual liberty, and (4) likely delay before review is heard

The application for bail pending review was dismissed.

1. An attack on a conviction is ordinarily remedied by way of appeal, while procedural irregularity is remedied by review. Only in exceptional circumstances can a review procedure be used to attack a conviction. 2. In applications for bail pending review, the court must consider: (a) the likelihood of the accused absconding in light of the sentence imposed; (b) the prospects of success on review; (c) the right to individual liberty; and (d) the likely delay before the review is heard. 3. Under section 2(1)(c) of the Domestic Violence Act [Cap 5:16], the definition of "complainant" includes people living together at the time of commission of the offence. 4. Where an accused person pleads guilty after proper explanation of facts and essential elements in compliance with section 271(2)(b) of the Criminal Procedure and Evidence Act, and confirms understanding and agreement with the facts, there is no basis for attacking the conviction on review absent exceptional circumstances.

The court observed that the applicant's argument regarding an alternative address 500 metres away constituted an afterthought and amounted to a "fishing expedition or gambling to try and evade justice in the wake of dismissal of the initial bail pending appeal." The court noted that expecting the magistrate to have guessed about such alternative living arrangements would be unreasonable. The court also noted that the fact that a matter has already been forwarded on automatic review and confirmed is not a bar to mounting a fresh application for review, as the applicant would essentially be seeking withdrawal of the certificate of confirmation on the basis of irregularity in the proceedings or existence of new facts.

This case clarifies the distinction between review and appeal procedures in Zimbabwean criminal law, particularly that convictions should ordinarily be challenged by way of appeal rather than review, with review being reserved for procedural irregularities or exceptional circumstances. The case also provides guidance on the interpretation of "complainant" under the Domestic Violence Act, clarifying that persons living together at the same homestead at the time of the offence fall within the definition. The judgment reinforces the principles applicable to bail pending review applications and emphasizes that applicants must demonstrate genuine prospects of success and exceptional circumstances, not merely afterthought arguments, when seeking to challenge guilty plea convictions through review proceedings.