Michael Kawanzaruwa v Esquire Matova N.O and The State

The applicant was arraigned before the magistrate court facing allegations of contravening section 136 of the Criminal Law Codification and Reform Act. The allegations were that on 28 June 2019, the applicant and three others, acting in common purpose, unlawfully misrepresented to Kudakwashe Gapara that one of the accused (William Bertram Gibbons) was Jason David Maple, the legitimate owner of certain property for sale for US$120,000. This misrepresentation caused Gapara to pay US$55,000 as a cash deposit at Sengwe Law Chambers. At trial, five State witnesses testified. At the close of the State case, the applicant applied for discharge and acquittal in terms of section 198(3) of the Criminal Procedure and Evidence Act. The magistrate dismissed this application, finding that a prima facie case had been established. The evidence showed the applicant was portrayed as the driving force behind the fraudulent transaction, connecting Gapara to the second accused, collecting the trust account receipt book, being involved in counting the money, and dealing with the Gaparas under a false name (Michael Chimanikire instead of Michael Kawanzaruwa). The applicant then brought this review application to the High Court seeking to have the magistrate's decision set aside.

• Whether the magistrate erred in dismissing the application for discharge at the close of the State case
• Whether a prima facie case was established against the applicant
• Whether the High Court should interfere with unterminated criminal proceedings by way of review
• Whether the applicant's challenge was properly brought by way of review or should have been brought by way of appeal
• Whether there were exceptional circumstances warranting interference with unterminated proceedings

The application for review was dismissed. The matter was remitted to the Magistrate Court for continuation of trial before the same magistrate, to proceed to the defence case as directed by the first respondent.

The binding legal principles established are: (1) A challenge to the substantive correctness of a decision (whether based on facts or law) must be brought by way of appeal, not review. Review proceedings are limited to procedural irregularities and questions of validity, not correctness. (2) Superior courts will not interfere with unterminated criminal proceedings in lower courts except in exceptional circumstances where gross irregularities would occasion grave injustice. Mere disagreement with a finding does not constitute such exceptional circumstances. (3) At the close of the State case, a prima facie case is established where, on a balance of probabilities, there is evidence upon which a reasonable court acting carefully might convict. The test at this stage is not proof beyond reasonable doubt. (4) Placement of an accused on his defence after establishment of a prima facie case does not improperly shift the onus of proof to the accused.

The court made observations regarding the strength of the evidence against the applicant, noting that he was portrayed as the driving force behind the fraudulent transaction, that he connected the parties, collected receipt books, counted money, and dealt with the complainants under a false name. The court observed that the applicant, along with co-accused, were the only persons who could explain what happened to the money paid by the Gaparas, and that the applicant would need to explain how he received his commission when the agreement provided that all money should be held in trust until full payment of the purchase price. These observations, while supporting the finding of a prima facie case, go beyond what was strictly necessary for the decision and constitute obiter dicta.

This case reinforces important principles of Zimbabwean criminal procedure regarding: (1) the distinction between review and appeal proceedings - review concerns the validity/procedural regularity of decisions while appeal concerns substantive correctness; (2) the reluctance of superior courts to interfere with unterminated criminal proceedings except in exceptional circumstances of gross irregularity or grave injustice; (3) the proper test for establishing a prima facie case at the close of the State case - whether there is evidence upon which a reasonable court acting carefully might convict, assessed on a balance of probabilities rather than proof beyond reasonable doubt; and (4) the proper application of section 198(3) of the Criminal Procedure and Evidence Act regarding discharge at the close of the prosecution case.