Herbert Learnmore Chikiwa v The State

The applicant was convicted on 17 August 2022 by the High Court under case number CRB 107/15 on two counts: unlawful entry into premises and murder. He was sentenced to three years' imprisonment for unlawful entry and thirty years' imprisonment for murder, with sentences running concurrently. The applicant appealed to the Supreme Court, which acquitted him on the unlawful entry charge but dismissed the murder conviction appeal (SC30-23). He then approached the Constitutional Court for direct access, alleging violations of his constitutional rights including the right to a fair trial under section 69(1) of the Constitution. He claimed the trial judge descended into the arena by improperly questioning defence counsel during closing submissions, demonstrating bias and partiality. The Constitutional Court dismissed the application (CCZ 4-25) on the ground that this issue had not been raised before the Supreme Court and could not be entertained for the first time at the Constitutional Court level. Following this dismissal, the applicant filed the present application in the High Court seeking to set aside the trial proceedings and have the matter remitted for trial de novo before a different judicial officer.

• Whether the High Court has jurisdiction to set aside its own final judgment after it has been appealed and partly confirmed by the Supreme Court
• Whether a constitutional challenge can be brought before the trial court after superior courts have dismissed the matter
• Whether the doctrine of functus officio prevents the High Court from revisiting a matter already finally determined
• Whether one judge of the High Court can set aside or review the decision of another judge of coordinate jurisdiction
• Whether the applicant's constitutional challenge was procedurally proper or amounted to impermissible piecemeal litigation

The application was dismissed. The subsequent oral application for leave to appeal to the Supreme Court was also dismissed.

1. Once a court has delivered final judgment, it becomes functus officio and cannot revisit, alter, or set aside its own decision except in limited circumstances expressly provided by law, such as correcting clerical errors or ambiguities. 2. Judges of the High Court, being of coordinate jurisdiction, cannot review or set aside the decisions of their colleagues, as such would amount to the High Court reviewing its own decision, which is procedurally impermissible. 3. Once the Supreme Court has delivered its judgment on appeal, that decision is conclusive and binding on lower courts, and the High Court has no jurisdiction to set aside a judgment that has been replaced or upheld by the Supreme Court. 4. Constitutional challenges cannot be used as a disguised mechanism to seek review of issues that were not raised on appeal or to circumvent the normal appellate process. 5. The principle of finality in litigation must be respected, and litigants cannot engage in piecemeal litigation by raising disjointed issues through multiple applications after superior courts have rendered final decisions.

The court observed that the applicant appeared to have misinterpreted the Constitutional Court's remarks regarding it not being a court of first instance. The applicant incorrectly believed this meant he could return to the High Court to raise the issue afresh. The court clarified that this was a fundamental misunderstanding of the legal framework. The court also noted that even if the applicant was correct in asserting that the trial judge descended into the arena and thereby infringed his right to a fair trial, the proper forum to raise such challenges would have been on appeal to the Supreme Court, not by returning to the trial court. The court commented on the frivolous nature of the applicant's attempt during the hearing to amend his relief to seek referral to the Constitutional Court, describing it as demonstrating a fundamental misunderstanding of the legal framework governing constitutional referrals.

This case reinforces critical principles of South African and Zimbabwean jurisprudence regarding finality in litigation and the doctrine of functus officio. It establishes clear boundaries on the ability of litigants to repeatedly challenge final judgments through different procedural mechanisms. The judgment emphasizes that constitutional challenges cannot be used as a disguised form of review to circumvent normal appellate procedures, and that courts of coordinate jurisdiction cannot review or set aside each other's decisions. The case serves as an important precedent preventing abuse of process through piecemeal litigation and underscores the binding nature of superior court decisions on lower courts. It also clarifies that once superior courts have ruled on a matter, the trial court lacks jurisdiction to entertain fresh applications seeking to overturn or revisit those decisions, even when framed as constitutional violations.