Tirivangani Matare v Estere Chivasa N.O and The State and Others

The applicant (second accused) was jointly charged with five co-accused persons (third to seventh respondents) before the Regional Court in Harare. The main charge was fraud under s 136 of the Criminal Law (Codification and Reform) Act, alleging that the accused persons, acting in common purpose, misrepresented to the Zimbabwe Defence Forces (ZDF) that Ollyman Investments/Marlbereign Suspension had rendered vehicle repair services, causing ZDF to pay $751,150.35 through fictitious invoices. The alternative charge was criminal abuse of duty as public officers under s 174(1)(a) of the Criminal Law Code. All accused were ZDF employees in various accounting and procurement positions. After pleading not guilty, the applicant and the fourth respondent applied for separation of trials, arguing that some co-accused persons' defence outlines showed they were potential defence witnesses while the sixth respondent's defence outline implicated the applicant. The Magistrate dismissed the application for separation of trials. The applicant then sought review of this decision in the High Court.

• Whether the Magistrate's refusal to order separation of trials constituted a gross irregularity reviewable under s 27(1)(c) of the High Court Act
• Whether a joint trial violated the applicant's constitutional right to adduce and challenge evidence under s 70(1)(h) of the Constitution
• Whether the joint trial would be unfair given that some co-accused persons' defence outlines supported the applicant while another implicated him
• Whether the High Court should interfere with unterminated criminal proceedings in the Magistrate's Court
• The proper interpretation and application of s 190 of the Criminal Procedure and Evidence Act regarding separation of trials

The application for review of the Magistrate's decision dismissing the applicant's application for separation of trials was dismissed. The joint trial was to proceed.

Section 190 of the Criminal Procedure and Evidence Act reposes discretion in the judicial officer to grant or refuse separation of trials. There is no legal right to separation of trials. A separation of trials will not be ordered merely because one co-accused person's defence outline implicates another or because some co-accused may be potential defence witnesses. Defence outlines are not evidence and do not create separate cases within a joint trial. The discretion to refuse separation of trials must be exercised judicially, but where persons are charged with the same offence allegedly committed in common purpose, the presumption is for a joint trial under s 158 of the CPEA. A superior court will not interfere with unterminated criminal proceedings in a lower court on review unless there is a gross irregularity causing serious prejudice that cannot be remedied through ordinary appeal or review after trial. Constitutional rights challenges must be brought through proper constitutional applications under s 85 of the Constitution, not through omnibus review applications. Courts will not act on speculative or hypothetical prejudice that may or may not materialize during the course of a trial (principle of ripeness).

The court observed that the criminal justice system provides adequate remedies of appeal and review after conclusion of trial to deal with wrong or grossly irregular decisions. If concerns about the Magistrate's thought process being tainted by inadmissible evidence materialize, the High Court can deal with such issues on appeal after trial. The court noted with approval the principle from S v Ismail 1994(1) ZLR 377 that it is not a rule of law that separate trials must be ordered every time one accused person's defence attacks a co-accused. The court emphasized that calling the same witnesses to testify in multiple separate trials when they would give evidence on what is in reality a single transaction would be prejudicial to the State and the administration of justice. The fact that co-accused persons' defence outlines are inconsistent is not in itself prejudicial - it merely reflects that they have different defences, which is self-evident.

This case clarifies important principles in Zimbabwean criminal procedure regarding: (1) The discretionary nature of separation of trials under s 190 of the Criminal Procedure and Evidence Act - there is no automatic right to separation even where co-accused persons' defences conflict; (2) The proper approach to constitutional challenges - rights-based arguments must be brought through proper constitutional applications under s 85 of the Constitution, not through ordinary review applications; (3) The principle of ripeness in criminal procedure - courts will not interfere with unterminated proceedings based on speculative prejudice that may or may not materialize; (4) The general rule that persons charged with the same offence acting in common purpose should be tried together under s 158 CPEA unless there are compelling reasons for separation; (5) The limited circumstances in which superior courts will interfere with ongoing Magistrate's Court proceedings - only in rare cases where there is gross irregularity causing serious prejudice that cannot be remedied through ordinary appeal or review after trial.