Precious Dube v The State

The applicant, Precious Dube, was charged with attempted robbery as defined in section 189 read with section 189 of the Criminal Law (Codification and Reform) Act (Chapter 9:23). He and accomplices were allegedly ambushed by police while on their way to commit an armed robbery at an address in Greendale, Harare. During a police chase, there was an exchange of fire resulting in the applicant suffering injuries. Upon arrest, firearms and ammunition were recovered from the applicant's possession for which they had no certificates. Applicant first appeared at Rotten Row Magistrates' Court, Harare on 1 April 2022 and was remanded in custody. He initially filed a bail application at the High Court, Harare, which was withdrawn on 31 May 2022 on the basis that since attempted robbery is not a Third Schedule offence, the Magistrates' Court had jurisdiction. On the same day, applicant appeared before the Magistrates' Court for bail, but the court raised the issue of jurisdiction mero moto in view of section 116 of the Criminal Procedure and Evidence Act. The matter was postponed several times for a ruling on jurisdiction. On 17 June 2022, while the matter was still pending at the Magistrates' Court, applicant filed a fresh bail application at the High Court, Bulawayo.

• Whether the High Court has jurisdiction to entertain a bail application as a court of first instance when a bail application is still pending before the Magistrates' Court
• Whether a superior court should interfere with unterminated proceedings of a lower court
• Whether a bail application is pending before the Magistrates' Court when the lower court has not yet ruled on its own jurisdiction to hear the matter

The preliminary objection was upheld. The bail application was struck off the roll. The High Court declined its jurisdiction to entertain the matter.

A High Court will decline to exercise jurisdiction over a bail application as a court of first instance where the same bail application is pending before the Magistrates' Court, even if the Magistrates' Court has not yet ruled on its own jurisdiction to hear the matter. When a lower court is considering a preliminary issue of jurisdiction in the context of a bail application, the bail application itself is considered to be pending before that court. Superior courts should be very slow in interfering with unterminated proceedings of lower courts, and will only do so in exceptional cases involving gross irregularity or wrong decisions that seriously prejudice rights and cannot be corrected by other means. The principle of judicial comity requires that lower courts be given space to deal with matters they are seized with without unnecessary interference from superior courts.

The court noted that the allegation of inordinate delay in the Magistrates' Court handing down a ruling on the jurisdictional issue was "of no moment" to the determination of whether the High Court should exercise jurisdiction. This suggests that delays in lower court proceedings, while potentially concerning, do not in themselves justify a superior court entertaining the same matter as a court of first instance. The court also observed that the applicant's counsel was making "a distinction without a difference" in arguing that no bail application was pending before the Magistrates' Court simply because the court had raised jurisdiction as a preliminary issue before hearing the merits of the bail application.

This case is significant in Zimbabwean criminal procedure law as it reinforces the principle of judicial comity and the proper exercise of jurisdiction between superior and lower courts. It establishes that a High Court should not entertain a bail application as a court of first instance when the same application is still pending before the Magistrates' Court, even where there are delays in the lower court's proceedings. The case clarifies that when a lower court is considering its own jurisdiction to hear a bail application, the bail application itself is nonetheless pending before that court. The judgment underscores the principle that superior courts should refrain from interfering with unterminated proceedings of lower courts except in cases of gross irregularity that cannot be corrected by other means. This promotes judicial hierarchy, avoids forum shopping, and ensures that lower courts are given the opportunity to determine matters within their jurisdiction without premature interference.