Peter Kawonde v Ms Kufa Provincial Magistrate and The Prosecutor General

The applicant, a legal practitioner, was an accused person in an uncompleted criminal trial at Harare Magistrates Court (CRB 1782/16) before the first respondent (magistrate). He was charged with 3 counts of fraud under s 136 of the Criminal Law (Codification Reform) Act and alternatively with one count of theft of trust property under s 113(2). At the close of the State case, the applicant made an application for discharge which was dismissed by the first respondent who ordered the matter to proceed to the defence case. The applicant filed an application for review of this decision (HC 6049/27) which was pending. Meanwhile, the trial was set to continue on 24 July 2017. On 17 July 2017, the applicant filed an urgent chamber application seeking a stay of proceedings pending determination of the review application. The applicant alleged the magistrate had infringed his rights to a fair trial by failing to properly interrogate whether the State had established a prima facie case, failing to effect amendments to the charge sheet creating confusion about which charges he faced, being biased toward the State, manufacturing evidence, distorting his defence, and shifting the burden of proof. The matter was allocated to Muremba J on 19 July 2017 who endorsed it as not urgent. The applicant requested reasons for this decision.

• Whether the application was properly certified and qualified as urgent
• Whether the court should intervene to stay uncompleted criminal proceedings in the magistrates court pending review
• What constitutes exceptional or rare circumstances justifying intervention in uncompleted proceedings
• Whether the applicant had established sufficient grounds for a stay of proceedings
• Whether an applicant seeking to review uncompleted criminal proceedings must attach the record of proceedings to demonstrate the alleged irregularities

The matter was endorsed as not urgent and was not heard on an urgent basis. The application was effectively refused on the grounds of lack of urgency.

An applicant seeking urgent intervention by way of stay of uncompleted criminal proceedings pending review must attach the record of proceedings from the lower court to enable the court to verify the alleged irregularities. Without the record of proceedings, a court cannot properly assess whether the case constitutes one of the rare or exceptional cases where grave injustice might occur if the proceedings are allowed to continue to completion. The court's power to review uncompleted criminal proceedings is exercised sparingly, and allegations of bias, irregularities, and misdirections must be substantiated by the record rather than remaining bald averments.

The judge made observations about the general principle that the High Court has powers to review uncompleted criminal proceedings of inferior courts at any stage, but exercises this power sparingly. The court noted that it is preferable to allow proceedings to be completed and for the aggrieved party to subsequently seek redress by means of an appeal or review, citing authority from John Reid Rowland's Criminal Procedure in Zimbabwe, Attorney-General v Makamba 2005 (2) ZLR 54 (S), Dombodzvuku & Anor v Sithole N O & Anor 2004 (2) ZLR 242 (H), and Ndhlovu v Regional Magistrate, Eastern Division & Anor 1989 (1) ZLR 264 (H). The judge also observed that even if the applicant's concerns about his legal practice collapsing due to potential incarceration were legitimate, these did not constitute grounds for urgent intervention without proper substantiation of the alleged irregularities in the uncompleted proceedings.

This case is significant in Zimbabwean criminal procedure law as it clarifies the requirements for urgent applications seeking to stay uncompleted criminal proceedings pending review. It emphasizes that the court's power to intervene in uncompleted criminal proceedings is exercised sparingly and only in exceptional cases. The case establishes the procedural requirement that applicants seeking such intervention must provide the court with the full record of proceedings to substantiate their allegations of irregularities or bias. Without the record, the court cannot properly assess whether the case falls within the narrow category of exceptional cases justifying intervention before the completion of the lower court proceedings. The case reinforces the general principle that it is preferable to allow criminal proceedings to be completed before seeking redress through appeal or review, unless grave injustice would result.