Robert M Gumbura and 6 Others v Francis Mapfumo N.O and Another

The appellants were facing criminal trial in the magistrate's court (CRB 4105-13/15). At the close of the state case, the appellants applied for discharge before the trial magistrate (first respondent), which was dismissed. The appellants then filed a review application in the High Court (HC 4098/19). When the respondents indicated they would proceed with the trial notwithstanding the pendency of the review, and the trial magistrate refused to postpone the matter without a High Court order, the appellants approached the High Court on 17 May 2019 on urgency seeking an order staying the criminal trial pending determination of the review. The appellants contended they had reasonable prospects of success in the review as none of the witnesses had connected them to the alleged offences. The court a quo dismissed the application, finding that the appellants did not have prospects of success in the review, that the trial magistrate had given a fully reasoned ruling establishing a prima facie case, that there was no irreparable harm if the trial proceeded, that there were alternative remedies, and that the balance of convenience favored allowing the trial to proceed.

• Whether the court a quo improperly exercised its discretion and wrongly applied the law in refusing to grant the interdict staying the trial pending review
• Whether the prerequisites for a temporary interdict (prima facie right, irreparable harm, absence of alternative remedy, and balance of convenience) were properly applied
• Whether the court a quo's decision met the Wednesbury unreasonableness test
• Whether the judgment of the court a quo was unconstitutional in violating the right to a fair trial under section 69 of the Constitution
• Whether the judgment violated the right to have a case reviewed by a higher court under section 70 read with section 69 of the Constitution
• When a superior court should interfere with unterminated criminal proceedings of a lower court

Appeal dismissed with no order as to costs

A superior court will not readily interfere with unterminated criminal proceedings of a lower court except in exceptional circumstances where grave injustice would occur or where there is gross irregularity resulting in a miscarriage of justice. A stay of unterminated criminal proceedings is an extraordinary remedy that must be exercised judiciously. An appellate court will not interfere with the exercise of discretion by a lower court unless the lower court acted on a wrong principle, took into account extraneous or irrelevant matters, failed to take into account relevant considerations, or was mistaken about the facts. The test for interfering with judicial discretion is the Wednesbury unreasonableness test - the decision must be so outrageous in its defiance of logic or common sense that no reasonable judge applying his or her mind to the facts could ever have reached such a decision. Where an application for discharge at the close of the state case is refused, accused persons have alternative remedies including appeal and the application of section 12(2) of the Supreme Court Act which allows convictions to be set aside where a substantial miscarriage of justice has occurred.

The court noted that the appellants raised alternative constitutional arguments (grounds 3 and 4) proposing that a stay of trial in the magistrate's court should be automatic on the mere filing of a review application in the High Court based on the non-derogable right to a fair trial under section 86(3) of the Constitution. However, the court declined to make a determination on these arguments, observing they were half-heartedly raised with no serious intention of obtaining relief and were not properly ventilated before the court. This suggests the court was not persuaded that such an automatic stay rule could be constitutionally justified, but it left this question open for proper determination in a future case where the arguments are fully developed.

This case is significant in Zimbabwean criminal procedure law as it reinforces the principle that superior courts will not readily interfere with unterminated criminal proceedings of lower courts except in exceptional circumstances. The case clarifies that a stay of criminal proceedings pending review is an extraordinary remedy that requires applicants to establish that grave injustice would result if the superior court does not intervene. The case also reaffirms the prerequisites for temporary interdicts and the limited grounds on which appellate courts will interfere with the exercise of judicial discretion by lower courts. It emphasizes that courts must guard against applications meant to derail proceedings in lower courts, particularly those attacking interlocutory decisions in unterminated proceedings. The case confirms that accused persons have alternative remedies even where their application for discharge at the close of the state case is refused, including appeal and the application of section 12(2) of the Supreme Court Act regarding miscarriage of justice.