The State v Brian Katiyo

### Preamble
1
HH 80-18
CRB B 978/15
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THE STATE

versus

BRIAN KATIYO

HIGH COURT OF ZIMBABWE

HUNGWE & MUSHORE JJ

HARARE, 7 February 2018

Criminal review

HUNGWE J: The Chief Magistrate requested that the record of proceedings in the matter of State v Brian Katiyo CRB B 978/15 be placed before a judge of this court with the following comments:

“Reference is made to the above matter.

Please place the attached record of proceedings before Honourable Judge of the High Court 	with the following comments:

‘The accused appeared before magistrate Mrs Chifamba at Bindura Magistrates 			Court on 11th April 2015 on allegations of Unlawful Entry into Premises in 			Aggravated Circumstances as defined in section 131  a read with section 113 (1) of 		the Criminal Law Codification and Reform Act [Chapter 9:23].

This was on initial remand. Accused was remanded in custody to 20 April 2015.

On 16 April 2015 magistrate Mr Rubwe took accused person’s record from the 			clerk of court to his chambers. A legal practitioner, Mr Motsi, was in Mr Rubwe’s 		chambers. In absence of the State, Mr Rubwe granted fifty dollars ($50.00) bail to the 		accused.

No record of proceedings was written except just an endorsement on the cover of the 		record of proceedings to the effect that bail in the sum of fifty dollars ($50.00) was 		granted with certain conditions.

The purported proceedings appear to be afflicted with serious irregularities as the 		State was not represented and no proper bail application was made before Mr Rubwe. 		I was unable to get comments from Mr Rubwe because he is unreachable and not at 		work.

In light of the above I am of the opinion that there was miscarriage of justice leading 		to the release of the accused.

Accordingly I hereby forward the record of proceedings in terms of s 29 (4) of the 		High Court [Chapter 7:06] for review.’”

The record of proceedings reflects that on 11 April 2015 the prosecutor at Bindura appeared on behalf of the State seeking the placement on remand of the accused on allegations that he unlawfully entered various premises and stole an array of goods valued at US$1700-00. The presiding magistrate placed the accused on remand and in custody. He was remanded to appear in court on 20 April 2015, for the court to consider the issue of bail.

Before that date, it is then that the events complained of by the Chief Magistrate took place. These events show that another magistrate, Mr Rubwe, uplifted the record from the Clerk of Court and took it to his chambers where a legal practitioner called Motsi was present. He endorsed that he had granted the accused bail in the sum of US$50-00 with reporting conditions. That sum of money was deposited with the Clerk of Court as bail resulting in the warrant of liberation being issued in favour of the accused on the same day 16 April 2015.

When he appeared on the remand date 20 April 2015, the prosecutor noticed that the proceedings leading to the grant of bail had occurred without the State being notified and therefore represented. He applied that the accused be remanded in custody. This application was made in the accused’s presence. Mr Motsi does not appear to have been present on this date. Accused was duly remanded in custody. A complaint was lodged with the Chief Magistrate against Mr Rubwe regarding the manner in which he had granted the accused bail.

Section 29 (4) of the High Court Act [Chapter 7:06] permits this court to review proceedings in the Magistrates Court notwithstanding the fact that those proceedings are not the subject of any application for review before this court or that they have not been formally placed before the court. This court is vested with powers to exercise its review powers in s 29 (1) or (2) if it is of the view that those proceedings are not in accordance with real and substantial justice.

The Chief Magistrate’s complaint is that these proceedings are grossly irregular in that the State was not notified of the proceedings and were not represented in the proceedings. As such no proper bail application was before Mr Rubwe. Mr Rubwe appears to have abdicated his office as soon as this complaint was made such that the Chief Magistrate was unable to get his side of the story. In the event, the perception Mr Rubwe created by failing to adhere to the basic rule to hear both sides before making a decision, is that he acted corruptly. The audi alterum partem rule is such a basic rule in criminal matters that failure to observe it can only be explained by categorising the instance as a show of bias and corruption.

Interest in the cause bias, malice and corruption are all grounds upon which a proceedings can be set aside on review (s 27 (b)).

There is not record of who was present when Mr Rubwe embarked on the process leading to the grant of bail to the accused besides a Mr Motsi who is presumably accused’s legal practitioner. This occurred not in open court but in chambers. Justice must only be done, but must also be seen to be done. A criminal proceeding that is shrouded in secrecy can hardly be said to affirm, the dictates of a fair hearing. It compromises justice delivery. It is an irregular proceeding as it infringes the other party’s right to a fair hearing.

In light of the above, I make the following order:

The order granting the accused bail in S v Brian Katiyo CRB B 978/15 dated 16 April 2015 be and is hereby set aside.

Mushore J agrees

National Prosecuting Authority, State’s legal practitioners