Matches Chadenega v Magistrate Manhibi N.O. and Prosecutor General

### Preamble
1
HMT 77-20
HC 30/20
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MATCHES CHADENGA

versus

MAGISTRATE MANHIBI N.O.

and

PROSECUTOR GENERAL

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 30 July 2020 and 5 November 2020

Opposed Matter

T.G Mukwindidza, assisted by T Tazvitya, for the Applicant

P. Garwe, for the First Respondent

Mrs J. Matsikidze, for the Second Respondent

MWAYERA J: The Applicant approached this court seeking review of proceedings in the Magistrates Court on the basis of alleged gross procedural irregularities warranting intervention by this court. The thrust of the Applicant’s argument being that the proceedings be quashed and trial be ordered to commence afresh before a different Magistrate. The First Respondent opposed the application while the Second Respondent did not strictly oppose the application with Mrs Matsikidze pointing out that they were not endorsing the initial State opposition for postponement to allow applicant’s Counsel to attend in the court a quo. The Second Respondent further expressed it would abide by the court’s decision highlighting that the matter was really between the Applicant and the First Respondent.

The brief background of the matter has to be put into perspective. The Applicant was arraigned before the Magistrates Court on a charge of Culpable Homicide as defined in s 49 (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The brief facts of the case of culpable homicide are that on 19 March 2018, the Accused (now Applicant) was driving a recovery motor vehicle namely Nissan NP300, registration number AAE 7133 along Mutare Masvingo road with five passengers on board. The Nissan Patrol was chasing a Nissan Caravan, registration number ACZ 3306 being driven by one Ian Gwandingw. Upon approaching the 34 kilometre peg along the Mutare Masvingo road the vehicles were involved in a collision following which the accused lost control of the vehicle Nissan Patrol which overturned resulting in the fatal consequences accounting for the death of three of the passengers. The scene of the accident was attended to by an accident evaluator who compiled a report per observations and indications from witnesses.

The Trial commenced on 5 December 2018 with only one State witness testifying. The matter was postponed to 18 December 2018 for continuation but the State witness was not in attendance hence the matter was further postponed to 22 January 2019. The State witness was again in default and the matter was postponed to 12 February 2019. On 12 February the Applicant’s legal practitioner of record Mr Zviuya was not in attendance attending a personal emergency in South Africa. Ms Gutuza who attended to the postponement was directed to proceed with the matter despite protestation and disclosure that the Applicant had a right to legal representation by a lawyer of his choice and that she was not well equipped and experienced to deal with a criminal matter.

The accident evaluator’s evidence in chief was adduced in the absence of the Applicant’s lawyer. Mr Jakazi from a different law firm Maunga Maanda & Associates approached the court seeking for postponement to allow Mr Zviuya to attend to his client’s matter and cross examine the witness. The application was dismissed and matter directed to proceed at 11:15 am. In the interim Mr Zviuya communicated from South Africa with the Provincial Magistrate in charge of Manicaland seeking to redress the injustice of having Applicant’s matter continue in the absence of his Counsel of record and choice. When the matter resumed at 12:45 pm without any application the matter was postponed to 22 February 2019.

Pursuant to the return of Mr Zviuya Applicant’s Counsel of record he made an application for referral of the matter to the Constitutional Court in terms of s 69 of the Constitution with Applicant arguing violation of the right to fair trial by an independent and impartial court as provided for in s 69 (1) of the Constitution of Zimbabwe and right to legal representation by a legal practitioner of his choice as provided for in s 69 (4) of the Constitution. The Applicant further applied that the Trial Magistrate recuse herself on grounds that she had exhibited bias which would affect fair trial. All the applications were dismissed. The Applicant made a further application for postponement for 30 days to allow for the transcription of the record of proceedings. The application was declined and the matter was postponed for (5 days) to 27 March 2019 accompanied with emotional out bursts that the Applicant’s Counsel was trying to bulldoze the court. It is on this backdrop that the Applicant sought redress from this court.

POINTS IN LIMINE

The Applicant and First Respondent both raised points in limine which for convenience I will deal with first. The Applicant queried the propriety of the Attorney General’s legal representative representing the First Respondent. Mr Mukwindidza argued that the Attorney General’s mandate is outlined in s 114 of the Constitution in particular subsection 4 (b) and sub section (5). His contention being that the Attorney General is mandated to represent the government and can also only be in court with the leave of the court as a friend of the court as provided under s 114 (5) of the Constitution. The Applicant’s counsel further argued that government is National Government, Metropolitan Councils and Local Authority. According to Mr Mukwindidza the First Respondent being a Judicial Officer is covered by the Judicial Service Commission and that the Judiciary is not part of government as such it is excluded from representation by the Attorney General. The First Respondent’s Counsel Mr Garwe argued that the Attorney General has a mandate to represent on the basis that his client Judicial Service Commission can sue and be sued in terms of s 190 of the Constitution. Further that s 114 (4) (e) of the Constitution provides for the Attorney General taking up any other functions assigned by the Act of Parliament and the Judicial Service Commission properly instructed the Attorney General to represent it.

The issue to be determined from the point in limine raised is whether or not the Attorney General has a mandate to represent the First Respondent; a Judicial Officer in her official capacity? The Attorney General derives his mandate from s 114 of the Constitution and functions are clearly spelt at in s 114 (4) which state:-

“4.	The functions of the Attorney General are:

To act as the principal legal advisor of the Government.

To represent the Government in Civil and Constitutional proceedings.

To draft legislation on behalf of the Government.

To promote, protect and uphold the rule of law and to defend the public

interests, and to exercise any other functions that may be assigned to the Attorney General by an Act of Parliament; and the Attorney General may exercise those functions in person or through subordinate officers acting under the Attorney General’s general or specific instructions.

5.	The Attorney-General may-

a)	attend cabinet meetings but has no vote;

b)	sit and speak in the senate and the National Assembly but has no vote, and

c)	with the leave of the court concerned, appear as a friend of the court in any civil proceedings to which the Government is not a party.”

First and foremost it is important to note that the Attorney General is a legal practitioner. Further worth noting is the fact that in terms of s 69 (4) which states:

“Every person has a right at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.”

The wording is clear that everyone has a right to legal representation by a legal practitioner of their choice. The Attorney General is a lawyer who is mandated to primarily represent the government. (My emphasis). This explains why s 114 (5) spells out that in matters in which the Government is not a party the Attorney General, a lawyer, can with the leave of the court, appear as a friend of the court. If the matter involves government then he cannot appear as a friend of the court because he would be conflicted since he is the Principal Legal Advisor to the Government.

The question is if we consider the Applicant’s submission that the Attorney General had no leave to appear in this case and as such no right of audience in connection with the parties it appears the argument is baseless. The First Respondent was acting in her capacity as a Judicial Officer and as such the Attorney General does not require leave as in matters not involving Government. The argument that the Attorney General is only mandated to represent Government and that a Judicial Officer in his official capacity is not Government is in my view a narrow interpretation of the word Government. The question is what is Government? In simple terms a Government is the group of people with the authority to govern a country or State. For the governance of a State to be effective, the three arms of the State are charged with responsibilities which enable the governing of the country.

The Government therefore in its broad sense consists of the Legislature, Executive and Judiciary. The three arms of the State have distinctive but complimentary roles. The Legislature’s main responsibility is to make the law while the Judiciary’s central business is to interpret the law and the Executive is responsible for enforcing the law. Considering the concept of separation of power applicability, it would not be proper to apply the exclusionary policy when it comes to representation in matters involving government. The sitting Judicial Officer is charged with interpretation of the law for purposes of good governance and effectively that is a Government concern. As such the Attorney General was properly consulted by the Judicial Service Commission to represent the Judicial Officer who was acting in her official capacity.

The challenge that Mr Garwe has no right of audience is therefore emanating from a misconception of what Government entails. The assumption that Government is the executive is erroneous. Having said that, Government is comprised of the three separate arms namely Legislature, Judiciary and Executive, there is nothing that bars the Attorney General from competently representing the First Respondent. The point in limine that Attorney General has no right of audience or legal mandate to represent the applicant is baseless and thus dismissed.

The First Respondent raised a point in limine that the Applicant is improperly before the court because the application was filed out of time. This fact is conceded by the Applicant who for reasons filed an application and sought condonation for late filing of review simultaneously with the Review Application. It is common cause that the applicant sought for a transcribed record in order to file the review. The Applicant put First Respondent on notice of the intended Application for Review. The Applicant paid for the record to be transcribed. From 22 February 2019 when the application for postponement was dismissed, the Applicant requested for the record to be transcribed but only got the transcribed record after July 2020 when the Registrar of the High Court by letter dated 2 July 2020 advised that the Applicant was seeking set down of the review filed in February 2020. Further the Registrar advised that the Clerk of Court was required to lodge the original record and other copies as provided for in r 260 of the High Court Rules 1971.

Mr Garwe for the Respondent conceded the delay in availing the record but persisted the application was filed out of time. It is apparent from the papers filed of record and submissions that there was inordinate delay in the transcription of the record. The Applicant sought condonation for late filing of review highlighting the unavailability of the record. The Applicant conscious of the eight weeks time frame within which to file an Application for Review sought for condonation of the delay. That the record was not availed could have caused the delay in filing the application is reasonable. The sentiments of the court in the case of Chikusvu v Magistrate T. Mahwe N.O. HH 100/15 resonate well with this case. It was stated:

“It is trite and a matter of elementary law that there can be no review of Judicial proceedings without the record of the proceedings which are subject of review. There being no record of proceedings it is virtually impossible to find fault with the trial Magistrate’s handling of the matter.”

It logically follows the availability of the record of proceedings is a condition precedent to determination of whether or not there was a procedural irregularity. In this case the record was not availed neither was it filed by the Clerk of Court who is mandated in terms of r 260 (1) to lodge the record with the Registrar of this court. See Chiura v Public Service Commission and Anor 2002 (2) ZLR 562 H. The Applicant further explained that it approached this court through the Urgent Chamber book seeking redress and when directed to discuss and resolve the matter the parties failed to resolve the matter. Despite the lengthy period of wait, the original record was not availed earlier than July 2020. Even reaching the point of set down, the Clerk of Court only complied with r 260 (1) after being cajoled by the Registrar’s correspondence. For the Respondent to hold the Applicant at fault in the delay of filing for review in this case is tantamount to locking the Applicant out and then hold Applicant responsible for not entering. The explanation of the delay is reasonable and considering what transpired; the delay cannot be held as inordinate delay. In the circumstances, the point in limine cannot be sustained.

The second point in limine raised by the Respondent that Applicant jumped the gun by filing an Application for Review before getting the original record from the Clerk of Court is baseless. The Applicant was desirous of the matter being reviewed and the Applicant was conscious of the time frame within which review was to be filed. The Applicant thus filed review without record to make intention clear. Further Applicant sought set down and the Registrar wrote to the Clerk of Court to comply with r 260 (1) by filing original record and copies. It is clear the Rules require the record to be prepared by the officer responsible for those proceedings. In this case the Clerk of Court must prepare and lodge the record with the Registrar for the review to be entertained. See Chiura v Public Service Commission and Anor 2002 (2) ZLR 562. The irregularity occasioned by the Clerk of Court cannot be visited on the Applicant in the circumstances. The second point in limine is baseless and frivolous.

Although I raised concern that the ideal situation would have been to file a separate application for condonation I proceeded to first consider the application for condonation of late noting of review and granted it. The application for condonation was well articulated by the applicant. The explanation for the delay and circumstances of the matter supported the granting of condonation. I will now turn to deal with the merits of the application for review.

MERITS

Having dismissed all the points in limine raised by the Applicant and Respondents respectively, I now turn to the merits.

It is not in dispute that the present application is seeking interference with unterminated proceedings in the Magistrates Court. That this court has power to intervene in unterminated proceedings in situations where non-intervention would occasion miscarriage of justice is provided for in s 29 of the High Court Act. Further a number of cases have been decided on the availability of the remedy. Section 29 of the High Court Act [Chapter 7:06] grants this court power to review criminal proceedings of the Magistrates Court particularly s 29 (4) states that this court or a Judge may mero motu or on Application Review criminal proceedings if it comes to the Court or Judge’s attention that such proceedings may not be in accordance with real and substantial justice. Worth noting however is the fact that the powers bestowed on the High Court are to ensure that justice is done not to frustrate proper prosecution of matters to their logical conclusion.

It is settled that the review powers to intervene in unterminated proceeding is to be sparingly done in warranted circumstances in the interest of justice. In the case John v The State HH 243/13, the court underscored that intervention is only in exceptional circumstances of proven gross irregularity vitiating proceedings and giving rise to miscarriage of justice which cannot be redressed by any other means. (My emphasis). See also Levy v Benata 1987 (1) ZLR 120, 1998 (1) ZLR 36 and AG v Makamba 2005 (2) ZLR 54 (S). All these cases spell out clearly that a Judge should not quash proceedings on grounds of irregularity unless he considers that there will be substantial miscarriage of justice.

Where there are other remedies available to address the alleged misdemeanour or misjudgment or error of judgment in unterminated proceeding then it is desirable to let the matter flow to its logical conclusion and access the remedies available at the end if one is not happy with the manner proceedings were conducted in the trial court. In the Makamba case supra, the Appeal court faced with a matter in which the High Court invoked its review powers to quash an application for discharge at the close of the State case, it was held that the exercise of review powers was misplaced as there was no allegation or proof of any gross irregularity in proceeding or decision of the lower court.

The court in emphasising that intervention with uncompleted proceeding of lower court should only be in exceptional circumstances of gross irregularity vitiating the proceedings and giving rise to miscarriage of justice cited the Ndlovu v Regional Magistrate, Eastern Division and Another and also Ismail and Ors v Additional Magistrate Wynberly and Another 1963 (1) SA 1A were steyn cj at p 4 stated as follows:

“It is not every failure of justice which would amounts to a gross irregularity justifying intervention before completion ….A superior court should be slow to intervene in unterminated proceedings in a court below and should generally speaking confine the exercise of its powers to rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.”

In this case the First Respondent dismissed an application for postponement to allow the Applicant’s counsel to attend for continuation of Trial. The matter had earlier been postponed on about 3 occasions at the behest of the State to allow for witnesses to attend. When the Applicant’s counsel of record was said to be in South Africa, Respondent declined to postpone the matter and allowed the Accident Evaluator to testify during the absence of the Applicant’s lawyer. The Applicant argued that by such conduct the First Respondent flouted the Applicant’s right to fair trial before an independent and impartial tribunal. The Applicant argued the First Respondent displayed bias towards prosecution by capriciously taking away the Applicant’s right and favouring the prosecution by granting it all postponements at their behest. The First Respondent’s conduct displayed that there would be prejudice to the Applicant as justice would not be done and or will not be seen to be done in the circumstances.

The Applicant applied for recusal of the trial Magistrate and also for referral of the matter to the Constitutional Court. Both applications were turned down. The Applicant argued that considering the manner the First Respondent carried on in the matter there was fertile ground justifying the recusal from the case on grounds of personal interest in the matter, bias prejudice and or conflict of interest. The Respondent displayed an outburst of emotions during the trial over and above the denial of legal representation.

The First Respondent in her reasons for refusal of Constitutional referral and recusal on (p 41 and 47) record of proceedings went personal and emotional when she stated referring to defence counsel:

“He felt because the court is young and he is senior practitioner, he will take the court wherever he wants, it will bend for him but this is not right.”

Further in conclusion the Magistrate stated as following:

“The application for recusal of this court is hereby dismissed. The alleged basis for bias is not supported by evidence but an attempt to bully a junior presiding officer but counsel should know that this court is well equipped and trained enough to do this job.”

It is with this background that the court is to decide whether or not there are gross procedural irregularities which fall under the exceptional circumstances warranting intervention of this court in unterminated proceedings. If there is likely to be substantial miscarriage of justice because of the gross procedural irregularity then intervention is warranted. In this case the manner in which the First Respondent carried on and the utterances made give the impression that Justice will not be done. The Applicant was not allowed a right to legal representation by a lawyer of his choice in circumstances in which there was an explanation for the non-availability of Counsel of record. Further to the capricious denial of right to legal representation was the refusal of recusal in circumstances where it appeared the Judicial Officer was too keen to cling to the matter in a fashion depicting development of special interest. Considering that what falls for consideration in an application for recusal is the principle that justice should not only be done but seen to be done. See S v Nhire and Another HH 619/15 and also S v Cummings HMA 17/18. The mere fact that the Applicant entertains a perception that he will not be subjected to a fair trial creates an arguable fear that the trial would not be impartial; and is a fertile ground for recusal. In this case the First Respondent; despite the application for deferment and conscious of the fact that accused had elected to be legally represented; when trial had commenced in the presence of his lawyer of choice; chose to proceed in the absence of Counsel of record. When a key witness the accident evaluator testified Counsel of record was not in attendance. It is settled that only in exceptional circumstances should a court be justified to refuse postponement where Counsel of choice is absent for a good cause. In the present case the Applicant had not in the past sought to delay proceedings neither was his legal practitioner not available in the past to warrant assumption of abuse of right to legal representation. If anything all the previous postponements were at the behest of the State. The heavy handedness by the trial court created basis of fear of bias. The sentiments echoed by Mathonsi J as he then was in Josephat Mukwemba v May Sanyatwe N.O and Prosecutor General HH 765/15 apply with great force in this case; he stated:

“A Judicial Officer must create an environment in his court which is not only of fairness and justice but also to be seen to be upholding in fairness rights of accused persons”

In the Mukwemba case a lawyer was sent to prison after being found in contempt of court and was detained Mathonsi J as he then was had this to say:

“Judges must have modest humility that they must know their limits and must not behave like emperors is sound advice we live in a tolerant society that recognises accused’s right to be represented by Counsel of their choice in defence of their criminal charges. It must not be a hazardous at the whim of a Judicial Officer, we must draw a line that this cannot be done.”

A perusal of the record of proceedings displays unwarranted heavy handedness and intolerance of the unavailability of Applicant’s Counsel of choice. Proceeding in the absence of Counsel amounted to trampling on the Applicant’s right to legal representation a right guaranteed in our constitution. The perceived bias prompted the application for recusal for fear of being subjected to an unfair trial. The court ought to have been conscious of the principle that justice should not only be done but seen to be done. In the case of Masedza and Others v Magistrate, Rusape and Another 1998 (1) ZLR 36 which quoted with approval sentiments expressed in Metropolitan Properties v Lannon and Others (1969) KB 577 it was stated:

“in considering whether there was a real likelihood of bias, the court does not look at the mind of justice … on or whoever it is who sits in a Judicial capacity. It does not look to see if there was a real likelihood that he would or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. (My emphasis)	Even if he was unbiased as could be, nevertheless if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then he should not sit.”

In casu the declination of postponement despite it being first request by Applicant with explanation that his Counsel of record was away attending a crisis in South Africa justified perceived bias. This was compounded by denial of legal representation and emotional and personal remarks made in the rulings. This is a case where despite the proceedings in the lower court not having terminated the cumulative effect of emotional outbursts, gross error of judgment and breach of right to fair trial would occasion miscarriage of justice. The exchanges in the court a quo show there was total disengagement and break down of relationship between the court and litigant. I must hasten to mention that counsel for the Applicant in the court a quo further caused disintegration of the relationship by display of arrogance. When Mr Zviuya Applicant’s counsel of record in the court a quo made applications he went personal. For example his years of experience and practice were irrelevant. The exchanges and rulings depicted a personal afforant much to the detriment of the interest of administration of justice. The presiding Magistrate was equal match as she went into overdrive and lost control of the wheels of justice. Such a scenario rendered the court to be perceived as compromised and unfit to proceed with the trial. Whatever decision the court would reach, it would not be viewed as an independent and just decision but pressured decision. The circumstances of this case are exceptional and special circumstances crying out for interference to ensure that justice is not only done but seen to be done.

There is need to terminate the proceeding and order trial de novo before a different Magistrate, to allow justice not only to be done but be seen to be done.

Accordingly it is ordered that:

The proceedings in the court a quo be and are hereby set aside.

The matter is remitted to the Magistrates Court for Trial De novo before a different Magistrate.

MUZENDA J agrees_____________________

Bere Brothers, Applicant’s legal practitioners

Civil Division of the Attorney General’s Office, First Respondent’s legal practitioners

National Prosecuting Authority, Second Respondent’s legal practitioners