Stanley Nyasha Kazhanje v Hosea Mujaya N.O. and The Prosecutor General N.O.

On 14 June 2019, Kwenda J dismissed the applicant's urgent application for a stay of criminal proceedings pending an application for review. The applicant had been on trial before a Regional Magistrate and sought to stay the criminal trial after the magistrate denied him discharge at the close of the State case. The applicant then sought leave to appeal against the judgment dismissing his urgent application. The applicant's legal counsel initially requested to make an oral application for leave to appeal, but subsequently filed a chamber application. The application for leave to appeal was based on grounds that the judge had made definitive findings on the merits of the pending criminal trial without the benefit of the full record or observing witnesses testify, thereby allegedly prejudicing both the trial and a pending review application.

• Whether the judge erred in making findings on the merits of a pending criminal trial when determining an application for stay of proceedings pending review
• Whether the chamber application for leave to appeal complied with the procedural requirements of the High Court Rules
• Whether it is permissible for a court hearing an application for stay of criminal proceedings to examine the merits of the underlying trial in order to determine the application
• Whether an applicant who invites the court to consider the merits of evidence at trial can subsequently complain that the court made findings on those merits

The application for leave to appeal from the judgment in case No. HC 4817/19 was dismissed with no order as to costs.

The binding legal principles established are: (1) A party who invites a court to examine and rule on the merits of evidence or proceedings by placing the record before the court and making extensive submissions thereon cannot subsequently complain that the court made findings on those merits. (2) When determining whether to grant a stay of criminal proceedings pending review, a court may properly examine the merits of the trial court's decision and the evidence on record to assess whether the stay should be granted. (3) A higher court is not disqualified from exercising jurisdiction over lower court proceedings merely because it did not hear the witnesses testify, provided the record is before it. (4) Chamber applications for leave to appeal must comply with the procedural requirements set out in Form 29B and rule 241 of the High Court Rules, including identifying supporting documents, stating the date of preparation, bearing the legal practitioner's signature, and providing proper addresses for service.

The court made several non-binding observations: (1) It noted that the chamber application appeared to have been prepared hurriedly and with strong emotions, resulting in repetition of grounds (the same ground was presented as seventeen grounds). (2) The court observed that S v Gumbura is "now one a must read for guidance in cases of rape of vulnerable women through manipulation, brain washing or enslavement of the mind." (3) The court remarked that where an accused on trial is aggrieved by a magistrate's decision considered wrong, the ordinary remedy is to appeal after conviction, citing Prosecutor General v Intratrek Zimbabwe. (4) The court noted that it would have struck the matter off for want of compliance with the rules but for the oversight of having already heard argument without inviting submissions on the procedural inadequacies. (5) The court observed that Order 34 of the High Court Rules 1971 is concerned with leave to appeal against conviction and sentence and does not apply to applications for leave to appeal against dismissal of urgent applications for stay of proceedings.

This case is significant in Zimbabwean criminal procedure and appellate practice for several reasons: (1) It clarifies that when an applicant seeking stay of criminal proceedings invites the court to examine the merits of the trial court's decision by placing the record before the court and making extensive submissions on the evidence, the applicant cannot subsequently complain that the court made findings on those merits. (2) It establishes that courts hearing applications for stay of criminal proceedings pending review may necessarily examine the merits of the underlying trial to properly determine whether to grant the stay. (3) It reinforces strict compliance with procedural requirements for chamber applications, particularly the requirements set out in Form 29B and rule 241 of the High Court Rules. (4) It demonstrates the court's willingness to invoke rule 4(c) to decide matters on the merits despite procedural deficiencies where fairness requires, particularly where the court has already heard argument without raising the procedural issues. (5) It follows and applies the principles from S v Gumbura regarding courts' ability to make substantive findings when dealing with procedural applications in criminal matters.