Laxton Tendai Biti v Francis Mapfumo N.O and The State

Tendai Biti, a political leader of the People's Democratic Party and Vice-President of the MDC-Alliance, was charged with contravening s 66(A)(i) of the Electoral Act and s 36 of the Criminal Law Codification and Reform Act following events surrounding the July 2018 Zimbabwean election. On 1 August 2018, police announced they wanted to interview Biti regarding killings that occurred earlier that day. Biti alleges he was persecuted by state agents and fled to Zambia on 7 August 2018, arriving at Chirundu border post on 8 August 2018. He claims he applied for political asylum in Zambia and obtained a High Court order directing Zambian authorities to present him before the Lusaka High Court on 9 August 2018. Despite this, Biti alleges he was abducted by Zimbabwean authorities from Zambia and forcibly returned to Zimbabwe. On 9 August 2018, he was arraigned before a magistrate who, on 31 August 2018, dismissed his application for permanent stay of proceedings, placed him on remand on the two charges, and granted him bail of $5000. Biti sought review of the magistrate's decision on grounds that the judgment was grossly unreasonable and irrational, and tainted with bias and malice.

• Whether the High Court should exercise its review powers over unterminated criminal proceedings in the magistrates' court
• Whether the magistrate had jurisdiction to try Biti given his alleged abduction from Zambia to Zimbabwe
• Whether the alleged abduction constituted a cognizable offence that would deprive Zimbabwean courts of jurisdiction
• Whether the Zimbabwean authorities violated any law or protocol in returning Biti from Zambia
• Whether grave injustice would result if the proceedings were allowed to continue
• Whether Biti properly submitted to the jurisdiction of the magistrate's court by applying for bail

The application for review was dismissed with costs. Biti was ordered to appear before the magistrate's court to have the two charges against him heard and determined.

The High Court will only exercise its review powers over unterminated criminal proceedings in exceptional circumstances where grave injustice might result that cannot be redressed by ordinary review or appeal after completion of proceedings. An alleged abduction does not deprive a court of jurisdiction where abduction is not a cognizable offence in domestic law. At a one-stop border post, a person who crosses into the physical territory of a neighboring country but whose passport has not been processed by immigration authorities of both countries is not legally present in that country and remains on "no-man's land." A person who applies for and is granted bail submits to the jurisdiction of the court. An applicant who makes serious allegations must substantiate them with corroborating evidence, and failure to produce evidence from witnesses who allegedly shared the same experiences is fatal to the application.

The court made several non-binding observations: (1) that Biti's application to the Zambian High Court for asylum was procedurally improper as asylum is an administrative matter falling under the executive, not judiciary; (2) that Biti's attempt to pre-emptively apply for review of a decision not yet made was procedurally defective; (3) that the principle against approbating and reprobating applies - Biti could not argue that both Zambian and Zimbabwean authorities abducted him while simultaneously asserting that Zambian courts had jurisdiction over his asylum application; (4) that it was improbable that Zambian immigration officials would deliberately disobey their own High Court order, and more likely they were not aware of it when they handed Biti over; (5) that Biti's stated intention to return to Zimbabwe after the election dispute was resolved was inconsistent with a genuine asylum application which contemplates extended absence from one's country of origin.

This case clarifies the limited circumstances under which the High Court will interfere with unterminated criminal proceedings in subordinate courts. It establishes important principles regarding: (1) the test for reviewing uncompleted proceedings - that grave injustice incapable of correction by ordinary means must be shown; (2) jurisdiction over accused persons - that alleged procedural irregularities in bringing an accused before court do not automatically deprive courts of jurisdiction, particularly where the alleged conduct does not constitute a cognizable offence; (3) the one-stop border post concept and its implications for determining when a person has legally entered or left a country; (4) submission to jurisdiction through conduct such as applying for bail; and (5) the requirement that applicants substantiate serious allegations with corroborating evidence. The case also demonstrates judicial reluctance to interfere with ongoing criminal proceedings on jurisdictional grounds absent clear violations of law.