Phinias Ngarava v Nyasha Vitorini N.O. and The State

The applicant, a legal practitioner, was charged with theft of trust property in violation of s113(2)(d) of the Criminal Law (Codification and Reform) Act. The charge alleged that in December 2016, he unlawfully converted to his personal use USD13,521.50 being proceeds from the sale of Stand 258 Engineering, Highfields, Harare, which he held in trust for the complainant Hundivenga Matsveru. The complainant had instructed applicant to transfer the property to his daughter and defend divorce proceedings. Instead, applicant signed a divorce consent paper for sale of the property (which was not matrimonial property), did not complete the transfer to the daughter despite charging fees of $1,900, and only tendered the complainant's share of proceeds in October 2018 after criminal proceedings commenced in January 2018. The Law Society investigated and found improper conduct, referring the matter to its Disciplinary Tribunal. At the close of the state case, applicant applied for discharge which the magistrate dismissed. Applicant then sought review of this decision on grounds of bias and gross irregularity.

• Whether superior courts should interfere with unterminated criminal proceedings in the Magistrate's Court absent gross irregularity or bias for which there is no remedy
• What constitutes gross irregularity or bias warranting review of unterminated proceedings
• Whether the magistrate erred in dismissing the application for discharge at the close of the state case
• Whether the test for discharge at close of state case was properly applied
• Whether perceived errors by a judicial officer amount to bias or interest in the cause

The application for review of the decision to dismiss the application for discharge at the close of the state case is dismissed.

Superior courts will not interfere with unterminated criminal proceedings in the Magistrate's Court unless there is gross irregularity or bias for which no remedy is available. Allegations of bias or gross irregularity cannot be grounded merely on an accused being unhappy with a decision or on the court making an error. There must be evidence of procedural irregularity in the manner proceedings were conducted, and such irregularity must be so grave as to cause irremediable harm to the accused. Where an accused has suitable remedies available, including presenting a defence and potential appeal or review after conclusion of proceedings, review of unterminated proceedings is not warranted. At discharge stage, the trial court need only determine whether a prima facie case has been shown to warrant putting the accused on his defence, not proof beyond reasonable doubt.

The court observed that it is unfortunate that any perceived error by a judicial officer would be interpreted to amount to bias or interest in the cause, particularly where no extraneous evidence of bias or interest is given. The court noted that in this case, the magistrate's proceedings were scrupulously conducted, he refused to allow inadmissible evidence, was candid in agreeing with applicant's position on the law, and was well alive to his obligation to acquit where state evidence was discredited or manifestly unreliable. The court also commented that an incomplete record missing exhibits incapacitates the review court from substituting its own decision and ordering discharge.

This case clarifies the strict limits on superior court interference with unterminated criminal proceedings in Zimbabwe. It reinforces that review of such proceedings requires gross procedural irregularity causing irremediable harm, not mere disagreement with a judicial decision or ordinary errors. The case demonstrates that dissatisfaction with dismissal of discharge applications does not ground review where adequate remedies remain available through continuation of trial and potential appeal. It also warns against spurious allegations of bias based solely on perceived errors without extraneous evidence of actual bias or interest.