Joana Mamombe and Cecelia Chimbiri and Netsai Marova v The State and Bianca Makwende, Deputy Chief Magistrate & Presiding Magistrate N.O and Michael Reza N.O

The three applicants were accused persons facing trial in the Harare Magistrates Court (CRB ACC 45-47/20) for publishing or communicating falsehoods prejudicial to the State under s 31(a)(ii) of the Criminal Law (Codification and Reform) Act. They had previously filed HC 7200/20 seeking review of the Deputy Chief Magistrate's decision to separate their trials. A consent agreement was reached between counsel before ZHOU J disposing of that review, providing that the trials would proceed jointly before a different magistrate. In HC 7206/20, a provisional order was granted staying the trial pending determination of HC 7200/20. On 28 April 2021, the Deputy Chief Magistrate proceeded with the trial despite the provisional order and the consent agreement. The applicants then filed this review application challenging the decision to proceed with the trial.

• Whether the Deputy Chief Magistrate erred in proceeding with the trial despite an extant provisional order staying proceedings pending determination of HC 7200/20
• Whether a provisional order lapses after 10 days if not confirmed or discharged
• Whether a consent agreement between parties disposes of review proceedings even if not signed by the judge
• Whether the High Court should interfere with uncompleted criminal proceedings in the magistrates' court
• What is the appropriate procedure for urgent review applications seeking stay of ongoing proceedings
• Whether the prosecutor should be disqualified from prosecuting the case

1. The review application succeeds. 2. The decision of the Deputy Chief Magistrate that it was competent to convene the trial of the applicants in the face of the extant provisional order granted in case No. HC 7206/20 is set aside. 3. The trials of the applicants remain stayed as was ordered by this court in case No. HC 7206/20. 4. The trials of the applicants can only be convened upon the final and definitive conclusion of case No. HC 7200/20. 5. The prayer for the disqualification of Mr Reza, the 3rd respondent herein from prosecuting the applicants is dismissed. 6. There is no order of costs.

A provisional order staying criminal proceedings pending determination of a review application remains in force and effect until the review application is definitively determined or the provisional order is discharged. Such a provisional order does not lapse after 10 days merely because it has not been confirmed or discharged within that period - the 10-day period in Form 29C relates only to the time within which a respondent must file opposing papers, not the lifespan of the order itself. A magistrate cannot lawfully proceed with a trial in contravention of an extant High Court provisional order staying proceedings. Where there is uncertainty about the status of a High Court order or proceeding, the proper course is to verify the position through the Registrar of the High Court rather than proceeding on speculation or assumptions.

CHITAPI J made several important observations: (1) There is an increasing tendency by accused persons to apply for review of uncompleted criminal proceedings through ordinary applications accompanied by separate urgent chamber applications for stay, which can lead to delays in criminal trials and create public perception that the High Court is responsible for non-prosecution; (2) The proper approach for urgent review of ongoing proceedings should be through Rule 223A, which allows the court to manage both the stay and the review urgently together, rather than having an urgent stay application for a non-urgent review; (3) A judicial officer cannot cling to a case and insist on presiding over a matter - the Prosecutor General is dominus litis and decides where to institute prosecution; (4) Where parties reach a consent agreement disposing of litigation, the litigation is generally considered disposed of on the agreed terms, even if not formally reduced to a court order - though parties may request it be made an order of court; (5) It is important that accused persons be tried in accordance with law and that impediments to trial commencement be cleared to protect both the interests of justice and the accused's rights to trial within a reasonable time; (6) A prosecutor is not disqualified from prosecuting merely because he or she made a wrong submission of fact or law - there must be evidence of abrogation of constitutional and statutory duties and responsibilities.

This case provides important guidance on several aspects of Zimbabwean criminal procedure: (1) It clarifies that provisional orders under Form 29C do not automatically lapse after 10 days - they remain operative until the substantive matter is determined or the order is discharged; (2) It distinguishes between different types of provisional orders, particularly provisional liquidation orders with specified return dates versus stay orders pending review; (3) It provides guidance on the proper procedure for urgent review applications of ongoing criminal proceedings, recommending use of Rule 223A to manage both the stay and the review urgently together; (4) It reaffirms the general principle that superior courts should only interfere with uncompleted proceedings in lower courts in exceptional circumstances of gross irregularity, citing Attorney General v Makamba and Prosecutor General v Intratek; (5) It emphasizes the importance of parties and lower courts verifying the status of High Court orders through the Registrar rather than proceeding on speculation; (6) It addresses the constitutional right of accused persons to trial within a reasonable time while balancing this against ensuring procedural regularity and compliance with court orders.