Ryan Baglow v The State and Ignatius Mhere Esq

The applicant, Ryan Baglow, was charged with fraud as defined in section 136 of the Criminal Law [Codification and Reform Act] [Chapter 9.23]. The allegations were that the applicant, using the aliases Ryan Stewart and Ryan Baglow, misrepresented to the complainant that he had appointed a legal practitioner to represent the complainant in the sale of two properties in Kariba. After being appointed, the applicant allegedly failed to account or incorrectly accounted for sale proceeds of US$200,000.00 deposited into his firm's account. At trial in the Magistrates Court (CRB 924/20), three state witnesses gave evidence. After the state closed its case, the applicant's counsel made an application for discharge at the close of the state's case in terms of section 198(3) of the Code. The second respondent (magistrate Ignatius Mhere) dismissed this application. The applicant then brought a review application to the High Court challenging this dismissal.

• Whether the magistrate erred in dismissing the application for discharge at the close of the state's case under section 198(3) of the Criminal Law [Codification and Reform Act]
• Procedural issues regarding the proper citation of parties in review proceedings under Rule 62(1) of the High Court Rules S.I. 202/2021
• Whether the review application should proceed unopposed despite the filing of a notice of opposition that was not uploaded to the IECMS system
• Case management issues regarding system migration challenges and the interests of justice

Judgment deferred. The court ordered: (1) judgment is further deferred; (2) the first respondent shall within 3 days upload its notice of opposition dated 29 August 2023 onto IECMS; (3) within a further 3 days the first respondent shall file heads of argument; (4) the Registrar shall set the matter for hearing in November 2025 in consultation with parties; (5) proceedings in the lower court are stayed pending finalization of the review.

Review applications challenging decisions of inferior courts must be determined on their merits based on the record of proceedings, not on the basis of procedural default by a respondent. Review applications of this nature must be set down on the opposed roll even when there is no opposition filed. Where a respondent has demonstrated willingness to oppose but has been unable to properly file opposition due to system migration or technical challenges beyond their control, the interests of justice require that the court exercise its case management powers to allow the opposition to be properly filed and heard, rather than proceeding by default, to avoid potential future rescission applications and ensure finality.

The court made observations on the proper citation of parties in review proceedings under Rule 62(1) of the High Court Rules S.I. 202/2021, noting that the magistrate or presiding officer should typically be cited (and the applicant incorrectly cited the magistrate as second respondent rather than first respondent), though the court did not determine the matter on this basis as it was not raised for determination. The court also observed that there are rare instances when a review may be motivated by facts outside the record, but this was not such a case. The court noted it would be irregular for a presiding magistrate to oppose a review of their own decision. The court expressed regret for the delay in delivering judgment, attributing it to IECMS system migration challenges affecting record management.

This judgment is significant for illustrating how Zimbabwean courts balance procedural compliance with substantive justice when dealing with system migration challenges and technical irregularities. It demonstrates the court's case management powers and willingness to ensure parties are heard on the merits rather than deciding matters on technical defaults, particularly in the context of electronic case management system (IECMS) implementation challenges. The judgment also provides guidance on the proper procedure for review applications, including the requirement that such matters be set down on the opposed roll even when unopposed, and clarifies that review determinations must be based on the record and merits rather than procedural defaults.