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

The applicant was on trial before the Regional Court for two counts of bribery under s 170 of the Criminal Law (Codification & Reform) Act. The first count alleged that on 26 June 2014, she offered money to a High Court Judge as a reward for a judgment favoring Avondale Holdings (Pvt) Ltd. The second count alleged that on 24 and 27 April 2018, she offered USD$500 to the State counsel prosecuting her bribery case as an inducement to decline prosecution. During the trial, the applicant's legal representative, Mr. Musarurwa, requested the trial magistrate (first respondent) to recuse himself due to an alleged personal relationship with the informant in the second count. The magistrate refused to recuse himself and also denied a postponement request. The applicant's legal team then withdrew from representation. The applicant filed a review application on 20 August 2018 seeking to set aside the magistrate's refusal to recuse himself and grant a postponement, and also sought removal of the prosecutor. A stay of proceedings was granted on 5 September 2018. The applicant then neglected her review application, and the second respondent filed an application for dismissal for want of prosecution in May 2019.

• Whether the High Court should interfere with interlocutory decisions made during an uncompleted criminal trial
• The distinction between review and appeal proceedings
• The circumstances in which a superior court may intervene in uncompleted proceedings before inferior courts
• Whether the magistrate's refusal to recuse himself and refuse postponement constituted gross irregularities warranting review
• Whether the court could order the Prosecutor General to replace the prosecutor in the absence of any decision by the Prosecutor General

The application was dismissed.

A superior court will only intervene in uncompleted criminal proceedings before an inferior court in exceptional circumstances where the applicant proves all of the following cumulative requirements: (i) exceptional circumstances exist; (ii) arising from a proven irregularity; (iii) the irregularity vitiates the proceedings; (iv) resulting in miscarriage of justice; (v) there is a nexus between the miscarriage of justice and the interlocutory order which is clearly wrong; (vi) there is proven serious prejudice to the rights of the litigant; and (vii) the prejudice cannot be redressed by any other means. The commission of an irregularity by a judicial officer is not per se justification for interference - the court only interferes where the irregularity is such that the proceedings have lost legal validity. Where a magistrate has adopted correct procedure and given parties ample opportunity to make submissions before making a competent interlocutory decision, the High Court will not interfere even if it might have ruled differently, as the proper remedy is appeal after conclusion of the trial.

The court observed that some litigants use the review procedure to challenge interlocutory decisions 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 reasonably could arrive at the decision', with the obvious motivation being to avoid seeking leave to appeal. The court noted that the debate around the distinction among these terms would not detain the court if the timing of either review or appeal is correct - that is, at the end of the trial. The court also observed that the power to descend into the arena of a criminal trial in progress is not carte blanche and that to side-track a criminal trial by ruling on every queried decision amounts to interference with a judicial function, regardless of whether such interference emanates from a superior court.

This case is significant in Zimbabwean criminal procedure law for clarifying the limited circumstances in which the High Court will interfere with ongoing criminal proceedings in lower courts. It reinforces the principle of judicial independence and the separation between review and appeal processes. The judgment establishes a clear seven-part test for when intervention is justified in uncompleted criminal proceedings, emphasizing that mere errors by a magistrate are insufficient - there must be irregularities that vitiate the entire proceedings and cause irremediable miscarriage of justice. This prevents the review procedure from being used as an improper interlocutory appeal mechanism to avoid the requirement of seeking leave to appeal. The case also demonstrates the court's reluctance to interfere with the prosecutorial discretion of the National Prosecuting Authority absent any reviewable decision.