Priccilar Vengesai v Hosea Mujaya N.O and National Prosecuting Authority

The applicant was on trial before the Regional Court facing two charges of bribery under s 170 of the Criminal Law (Codification & Reform) Act. In count 1, she allegedly offered money to High Court Judge Justice Felicia Chatukuta on or around 26 June 2014 as a reward for rendering judgment favorable to Avondale Holdings (Pvt) Ltd. In count 2, she allegedly offered Prosecutor Michael Reza $500 to decline prosecution. The applicant initially pleaded guilty to all charges while represented by Admire Rubaya, who later renounced agency. A new legal practitioner, Rumbidzayi Venge, assumed agency and engaged Advocate Musarurwa. Upon reviewing the papers, Musarurwa believed the applicant could not receive a fair trial because the informant in count 2 (Michael Reza) was allegedly a close associate of the presiding magistrate (first respondent). The applicant applied for the magistrate's recusal, which was refused. She then applied for a postponement to prepare for trial, which was also refused. Her legal representatives then stepped down and the trial progressed with the applicant unrepresented. She filed this review application on 20 August 2018, and obtained a stay of the trial pending review on 5 September 2018. The applicant then failed to prosecute the review, leading to the second respondent filing an application for dismissal in May 2019. Various procedural delays ensued over approximately two years.

• Whether the first respondent's refusal to recuse himself was reviewable
• Whether the first respondent's refusal to postpone the trial was reviewable
• Whether incomplete criminal proceedings can be reviewed before finality
• The distinction between appeal and review in the context of ongoing criminal proceedings
• What must be established to succeed in a review of incomplete proceedings

The application for review was dismissed. The court found no procedural irregularities warranting review and held that the applicant had not established grounds for interfering with the incomplete criminal proceedings.

In respect of incomplete criminal proceedings, an applicant seeking review must plead and establish: (1) that the proceedings are reviewable; (2) that the court below committed a procedural irregularity which vitiates the proceedings; and (3) that irreparable harm will result. The mere fact that an interlocutory decision made during a trial may be wrong does not warrant review - such decisions stand to be corrected on appeal or review at the conclusion of the trial. A review concerns the procedure adopted by a court, while an appeal concerns the correctness of a decision after proper procedure has been followed. Superior courts should not interfere with the judicial function of lower courts during ongoing trials absent demonstrated procedural irregularity causing irreparable harm.

The court commented on the tendency of litigants to insist on review procedures in circumstances where they should be appealing, taking advantage of the thin line between "a wrong decision", "a misdirection" and "a decision so wrong and irrational that no reasonable court acting carefully could arrive at the decision." The court described this as "a pointless debate" and clarified the proper distinction. The court also noted the applicant's conduct in obtaining a stay of the criminal trial and then being content to let the review application lie dormant for approximately two years, only prosecuting it when an anti-corruption audit discovered the pending matters. While not essential to the decision, these observations reflect judicial concern about abuse of review processes to delay criminal proceedings.

This case clarifies important principles regarding review of incomplete criminal proceedings in Zimbabwe. It establishes that parties seeking to review interlocutory decisions made during ongoing trials must demonstrate not merely that a decision is wrong, but that there has been a procedural irregularity that vitiates the proceedings and causes irreparable harm. The judgment reinforces the principle that superior courts should not ordinarily interfere with ongoing trials through piecemeal review applications, and that such interference should be reserved for cases of clear procedural irregularity. It also reinforces the distinction between review (which concerns procedure) and appeal (which concerns the correctness of decisions made after proper procedure). The case serves as a warning against using review applications to delay or obstruct criminal proceedings.