The applicant was convicted of rape in the Regional Magistrate's Court sitting at Bindura on 4 June 2008 and sentenced to 10 years imprisonment after pleading guilty. The applicant subsequently sought to have his conviction and sentence set aside by way of review. He alleged that his guilty plea was induced by undue influence from the prosecutor, who allegedly promised him a lenient sentence (a fine with time to pay) if he admitted to the charge. The applicant claimed that he had only "caressed the complainant's body" and did not actually rape her. According to the applicant, after the magistrate initially altered his plea to "not guilty" and stood the matter down, he was taken to the prosecutor's office where he was influenced to change his plea back to guilty. A medical affidavit confirmed penetration had occurred.
The application for review was dismissed.
A challenge to a criminal conviction on the basis that a guilty plea was improperly induced raises a question of law and must be pursued by way of appeal rather than review. A review application under the court's general powers of review must comply with the procedural requirements of Order 33 r 256 of the High Court Rules, including proper citation of respondents and clear statement of grounds for review. For a review to succeed on grounds of irregularity, the irregularity must be so gross as to vitiate the proceedings and be apparent ex facie the record. Where an applicant challenges the conviction itself rather than the propriety of the procedure used by the magistrate, the appropriate remedy is appeal, not review.
The court expressed concern about the "disturbing stream of applications for review" by convicted persons who underwent trial without legal representation, many of which fail to comply with Rule 257 of the Rules of Court. Hungwe J provided detailed obiter guidance on the three methods for bringing criminal matters on review: (1) where the accused was legally represented or was a company (s 7(2) of the Magistrates' Court Act); (2) where the accused challenges only the sentence as not in accordance with real and substantial justice (s 57(3) of the Magistrates' Court Act - not available for conviction challenges); and (3) under the High Court's general powers of review on grounds of lack of jurisdiction, bias/interest/corruption, or gross irregularity (s 27 of the High Court Act). The judge noted that the notice of motion procedure under Order 33 is "somewhat undeniably complex to many a legal practitioner" and suggested that in many cases it may be simpler to follow one of the other review procedures.
This case serves as an important restatement of the procedural requirements for bringing criminal review applications in Zimbabwe. It clarifies the distinction between review and appeal in criminal matters, emphasizing that challenges to conviction (as opposed to gross procedural irregularities) should be pursued by way of appeal. The judgment provides comprehensive guidance on the three methods available for bringing criminal proceedings on review from the Magistrates' Court. It highlights the strict procedural compliance required for review applications and the consequences of failing to follow proper procedure, particularly in the context of unrepresented or poorly represented accused persons.