The State v Benjamin Muvadi and Others (and related matters)

Twelve criminal matters were referred to the High Court by the Gutu Resident Magistrate by minute dated 28 April 2021. The magistrate who had been presiding over these cases, Mr Mohamadi, had resigned and left service without finalizing the cases. The cases were at various stages of incompletion - some were due for judgment after the defense case had closed, some had incomplete judgments written, and others were at various stages of trial. The cases involved charges ranging from robbery, sexual intercourse with a young person, stock theft, assault, contempt of court, unlawful possession of dagga, indecent assault, and domestic violence. The Gutu Resident Magistrate requested that the proceedings be reviewed with a request for a trial de novo. The court noted that many of these cases were simple and straightforward matters that had been inordinately delayed and remanded ad infinitum by the trial magistrate.

• What is the correct procedure to be followed where a trial magistrate resigns and leaves uncompleted criminal proceedings?
• Whether incomplete criminal proceedings become a nullity when the presiding magistrate resigns or becomes functus officio
• Whether a new magistrate can continue proceedings from where the previous magistrate left off
• Whether High Court sanction is required for a trial de novo in such circumstances

1. The incomplete proceedings in respect of all twelve (12) cases were quashed or set aside. 2. All twelve (12) cases were remitted for a trial de novo before a different magistrate or magistrates of competent jurisdiction.

Where a magistrate resigns, retires, is incapacitated or becomes functus officio before completing criminal proceedings in which evidence has been led, those proceedings become a nullity (except in circumstances provided for in sections 180(6) and 334(7) of the Criminal Procedure and Evidence Act). The accused must be tried de novo before a different magistrate. It is not permissible for a new judicial officer to continue from where the former magistrate left off. Once the trial magistrate becomes functus officio by resigning, the proceedings are abortive and a nullity, and a trial de novo can take place without High Court sanction.

The court expressed strong criticism of the former Gutu Resident Magistrate's case management, noting that he had accumulated many partly heard criminal matters, most of which were mundane, simple and straightforward cases that could have been disposed of without much ado. The delay was characterized as inordinate, inexplicable and indicative of inadequate administrative supervision. The court also mused, without the benefit of meaningful research or argument, whether it might be administratively beneficial to allow magistrates who have resigned to be recalled and temporarily clothed with judicial power to complete partly heard matters (similar to the exception available to High Court and Supreme Court judges), particularly where the resignation was not acrimonious or arising from misconduct. The court suggested this could save time, resources and inconvenience, though acknowledged this was merely speculative thinking.

This case establishes important principles regarding judicial administration and criminal procedure in Zimbabwe (and provides persuasive authority for South African law given the similar legal systems). It clarifies the procedure to be followed when a magistrate resigns before completing criminal proceedings, confirming that such proceedings become a nullity and must be started de novo. The case emphasizes the importance of proper case management by judicial officers and highlights the consequences of failing to finalize matters timeously. It also raises an interesting obiter question about whether magistrates who have resigned could be recalled to complete partly heard matters, similar to the exception available for judges of the High Court and Supreme Court.