Japhet DUBE Versus T Gwazemba AND THE Prosecutor General

### Preamble
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HH-127-18
HC 3902/14
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JAPHET DUBE

versus

T GWAZEMBA

and

THE PROSECUTOR GENERAL

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 8 March 2018

Criminal Review

N Mushangwe, for the applicant

I Muchini, for the 2nd respondent

CHITAPI J: This matter is before me on review of ongoing trial proceedings before the magistrate at Kadoma Magistrate Court. The applicant faces a charge of contravening s 52 (2) of the Road Traffic Act [Chapter 13:11] (Negligent driving). He is alleged to have driven his vehicle negligently on 20 January 2013 and caused an accident with another vehicle at the 129 kilometre peg along the Harare – Bulawayo.

The trial commenced on 20 March 2014. The applicant was represented by the same legal practitioner who has filed this application for review of the trial proceedings. The application for review was filed on 13 May 2014. The record was only referred to me on 23 February 2018 under cover of a letter from the applicant’s legal practitioner who traced the record in the Civil Registry where the record was purportedly misfiled.

On perusal of the record there was no certificate of service of the application on both respondents. There was however a written response by the Prosecutor General’s office filed on 21 May 2014. The Prosecutor General’s representative indicated that he did not oppose the relief sought by the applicant on review.  In the absence of the certificate of service which should have formed part of the record, I directed the Registrar to advise the applicant’s counsel that it was necessary that proof of service of the application on the respondents, especially the first respondent who did not file a response be filed.

On 6 March 2018, the applicant’s legal practitioner filed a certificate of service of the application on both respondents. He did so in response to my query conveyed to him by letter generated by the Registrar dated 5 March 2018. The certificate of service shows that the application was served on the first and second respondents respectively on 13 and 15 May 2014. The applicant’s legal practitioner attached a copy of the first page of the application franked on the said dates with office stamps of the first and second respondents as evidence of delivery of the application at their offices.

The first respondent did not file any response to the application. The application itself is faulty as it does not comply with the provisions of Order 33 r 257. The applicant did not state the grounds of review separately as required by the rule. For his part, the first respondent albeit not being his function stricto senso should have instructed the clerk of court to forward the original record on review to the Registrar of this Court as required by r 260 of Order 33.

In the letter by the legal practitioner dated 23 February 2018, it is stated that the trial was put on hold pending the outcome of the review. However, the matter was now scheduled to proceed. Quite clearly there is a serious disconnect caused by the non-compliance with r 260 because had the original record been forwarded to the Registrar, the trial would have been stayed by the absence of the original record as a matter of law pending the return of the record after review.

Criminal case reviews are confusing in how they are handled and processed because there is also authority to hold that the filing of a review of an ongoing trial does not arrest the trial unless this court or the trial court has ordered otherwise. It is not however my intention to interrogate the issues of whether the trial should have remained arrested because first respondent so far as the record before me indicates did arrest the trial continuation by ordering or agreeing to have the proceedings reviewed mid-trial.

This brings me to the problem which led to the review. It had to do with a procedural matter. What happened was that the state prosecutor led evidence from its main and first state witness on how the accident occured. The evidence in chief of the witness was brief. I will not go into it in any detail save to state that the witness blamed the applicant for the accident. The cross-examination of the witness was however lengthy and involved. When the prosecutor was given the chance to re-examine the witness, he applied for an inspection in loco of the witness’ vehicle which was involved in the accident. The motor vehicle was reportedly outside the court house. The applicant’s legal practitioner objected to the inspection on the basis that the prosecutor was now seeking to introduce fresh evidence in support of the state case in re-examination.

The first respondent overruled the objection. An inspection in loco was conducted. After the inspection, the applicant’s legal practitioner addressed the court further on the impropriety of allowing the inspection in loco. He applied that proceedings be referred to the High Court on review as continuing with the trial in circumstances where an irregularity had occurred would prejudice the applicant in his defence. The prosecutor after an unsavoury exchange of words with the applicant’s legal practitioner in which he insisted that no irregularity was committed, curiously agreed to await the results of the review. I will in passing remark that courts frown upon counsel who fails to respect each other or use measured and intemperate language in court. The applicant’s legal practitioner accused the prosecutor of sleeping on duty. The prosecutor did not take kindly to the attack on his integrity and hit back. The use of uncourtly language even if not directed at the judicial officer amounts to disrespecting the court. Counsel must be guided accordingly. The first respondent then made the following ruling:

“It is just and fair this point be determined by the High Court. Matter referred on Review”

The first respondent did not however refer the matter on review as per his order.  He ought to have done so if this was his intention when he made the ruling. It was instead the applicant (accused) who filed the review application which as I have indicated is not opposed by either the first or second respondents. Under the circumstances it becomes difficult to throw out the application on the basis of the procedural improprieties which I have referred to earlier. It however appears that the trial has in the meantime been proceeding. I say so because in the letter by the legal practitioner dated 23 February 2018 it is stated that the case is now at the stage of the parties preparing to make closing submissions. The original record also remained at the trial court. Having decided and ruled that the proceedings be reviewed, the trial should have been arrested pending review. Had the court not agreed on the review and made an order to that effect then the trial would have properly continued.

The draft order seeks an order not opposed by the state that the evidence of re-examination of the witness and a fortiori of the inspection in loco should be disregarded by the first respondent when he assesses evidence led on behalf of the state and that the evidence be expunged from the record. It does not appear to me that the proceedings will pass the test of a fair trial if a court which has already heard evidence is directed to disregard such evidence. The first respondent carried out the inspection in loco and noted the evidence which he observed on the vehicle. That evidence is engrained in his mind. To order the first respondent to disregard is an exercise in futility. The trial process was poisoned and quite clearly it was not proper to allow the state without the prosecutor having applied to re-open the state case and an order granted to that effect, to lead evidence of proof of damages caused to the vehicle of the witness in re-examination. Re-examination is a procedure for clearing up matters raised in cross-examination which are not clear. It is not a procedure designed to introduce new evidence or spruce-up the evidence of a witness on matters not raised when the witness gave evidence. If the prosecutor intended to lead fresh evidence from the witness he should have applied to recall the witness and such application determined by the first respondent.

I have already noted that the first respondent agreed to refer the case for review. The second respondent has consented to the relief sought on review. I am however not persuaded that the relief sought as set out in the draft order is appropriate nor that it will achieve the ends of justice. In my judgment, the appropriate relief will be to set aside the proceedings and order a fresh trial before a different magistrate.

It is so ordered.

ZHOU J agrees

Mushangwe & Company, applicant’s legal practitioners

National Prosecuting Authority, 2nd respondent’s legal practitioners