Prince Zvawanda v The State and Fadzai Mtombeni NO

The applicant appeared before the Magistrates Court at Harare on a charge of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act. On 18 June 2014 at Herald House, Harare, the applicant and one Amos Ngoshi allegedly misrepresented to homeseekers by advertising in the Herald newspaper that a proposed subdivision of land in Kuwadzana area consisting of 271 stands each measuring 300 square metres belonged to them and were for sale at US$7,500 per stand. In reality, the land belonged to the City of Harare and was intended for allocation to co-operative societies. The potential prejudice was US$2,053,500. The applicant pleaded not guilty. After the State closed its case, the applicant applied for discharge in terms of s 198(3) of the Criminal Procedure and Evidence Act. The Magistrate dismissed the discharge application while acquitting the co-accused. The applicant then approached the High Court on review.

• Whether the Magistrate's decision to refuse discharge at the close of the prosecution case was irrational or outrageous in its defiance of accepted standards
• Whether the High Court should intervene on review in uncompleted criminal proceedings
• Whether the evidence presented by the State was sufficient to require the applicant to answer to the charges
• The test for review of a Magistrate's decision on grounds of irrationality

The application for review was dismissed. The Magistrate's decision to refuse the applicant's discharge at the close of the prosecution case was upheld.

The binding legal principles are: (1) The High Court will only intervene on review in uncompleted criminal proceedings in exceptional circumstances; (2) A Magistrate's refusal to discharge an accused at the close of the prosecution case based on findings of fact does not constitute a gross irregularity or irrationality justifying review interference; (3) To successfully challenge a lower court's decision on grounds of irrationality requires proof not merely that the decision was wrong or unreasonable, but that it was so grossly unreasonable or irrational that the court must have taken leave of its senses or that "something else can be inferred" from the decision; (4) The reviewing court cannot interfere merely because it might have come to a different conclusion; (5) Where the state witnesses give a coherent version of events establishing a prima facie case, the Magistrate is entitled to refuse discharge under s 198(3) of the Criminal Procedure and Evidence Act.

The court observed that it was "reckless" for the applicant to suggest that the Magistrate's decision was irrational or outrageous in the face of the coherent evidence presented by the state witnesses. The court noted that matters of detail regarding the exact size of stands (200 vs 300 square metres) and different valuations of prejudice do not affect the substance of the allegations, and such issues should be dealt with in the accused's own evidence rather than forming grounds for discharge at the close of the prosecution case.

This case reaffirms the principles governing judicial review of criminal proceedings in Zimbabwe, particularly: (1) the exceptional nature of High Court intervention in uncompleted lower court proceedings; (2) the high threshold required to establish irrationality or gross unreasonableness in review proceedings; (3) the distinction between a decision being merely wrong or unreasonable versus being so irrational that the court must have taken leave of its senses; (4) that findings of fact by a Magistrate do not on their own constitute gross irregularity justifying review; and (5) the proper application of s 198(3) of the Criminal Procedure and Evidence Act regarding discharge at the close of the prosecution case.