Takudzwa Admire Dzitiro v Mukanga ESQ (In her capacity as judicial officer and magistrate) and The National Prosecuting Authority

The applicant was arrested on 28 February 2020 and arraigned before the Magistrate's Court, Bulawayo on 29 February 2020, charged with theft as defined in section 113 of the Criminal Law (Codification and Reform) Act Chapter 9:23. He pleaded guilty and was sentenced to six years imprisonment, with one year suspended on the usual conditions. The applicant sought review of the conviction and sentence, alleging that: (1) the magistrate misdirected herself by confirming the guilty plea when the charge was theft but the facts supported fraud; (2) the charge alleged "unlawfully took cash" but the facts were in variance; (3) the magistrate returned a guilty verdict without proper confirmation of the elements of the offence; (4) 99 counts were improperly reduced to one count. The application was filed in terms of Order 33 of the High Court Rules, 1971, and the second respondent (NPA) filed an affidavit conceding the relief sought. The matter was placed before a single judge in the unopposed motion court.

• Whether the High Court Rules are applicable to criminal proceedings
• Whether a single judge of the High Court may hear argument on the merits and set aside a conviction arising from a criminal matter
• Whether the requirement for concurrence by another judge under section 29(5)(b) of the High Court Act applies to review applications brought at the instance of an accused person under Order 33 of the High Court Rules
• Whether the unopposed motion court is the appropriate forum for hearing applications for review seeking to quash criminal convictions

The application was removed from the unopposed motion court roll and left to the Registrar to set down the matter before two judges of the High Court in an appropriate court.

Section 29(5)(b) of the High Court Act requires that a single judge shall not quash a conviction unless another judge has agreed with the exercise of that power in that particular case. This requirement is peremptory and applies to all reviews of criminal convictions, whether brought by automatic review under the Magistrates' Court Act or at the instance of the accused under Order 33 of the High Court Rules. The requirement for concurrence is substantive, not formal - two judges must sit together to hear and decide applications seeking to quash criminal convictions. A single judge in unopposed motion court or opposed applications court cannot hear argument on the merits, make a decision, and then seek concurrence from another judge, as this would reduce the concurrence requirement to a matter of form. Applications for review seeking to quash criminal convictions must be set down before two judges in an appropriate court (such as the civil appeals court), not in the unopposed motion court or opposed applications court.

The court observed that the grounds for review met the requirements of Order 33 rule 257 of the High Court Rules. The court noted that in automatic review matters, when a decision to quash proceedings is made, the record is referred to another judge to read and decide whether they concur, but in such cases there is no argument - only a record. The court questioned what would be the point of dealing with the merits of the application when, as a single judge, the court cannot accede to the relief sought. The court suggested that such applications must be set down in the civil appeals court or some other appropriate court, but expressly not in the unopposed motion court or opposed applications court.

This case is significant in Zimbabwean criminal procedure law (applicable by analogy in South African jurisprudence concerning procedural safeguards) as it clarifies that applications for review of criminal convictions seeking to quash a conviction cannot be heard by a single judge in unopposed motion court, even where the relief is conceded by the prosecution. The judgment emphasizes that the statutory requirement for concurrence by two judges is substantive, not merely formal, and must be complied with regardless of whether the review is brought automatically under the Magistrates' Court Act or at the instance of the accused under Order 33 of the High Court Rules. It establishes that two judges must sit together, hear argument together, and decide together - one judge cannot hear the matter alone and then seek retrospective concurrence.