Eastriver Investments (Private) Limited & Anor v Hoseah Mujaya N.O. & Anor

### Preamble
Judgment No. SC 82/19
Chamber Application SC 483/19
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DISTRIBUTABLE (76)
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DISTRIBUTABLE		(76)

(1)     EASTRIVER     INVESTMENTS     (PRIVATE)     LIMITED     (2)     BISHOP     JECHE

v

HOSEAH     MUJAYA     N.O.     (2)     THE     STATE

SUPREME COURT OF ZIMBABWE

MAKARAU JA

HARARE, SEPTEMBER 3, 2019 & OCTOBER 18, 2019

G.R.J Sithole & S Chikotora, for the applicants

T. Mapfuwa, for the second respondent

No appearance for the 1st respondent

IN CHAMBERS

MAKARAU JA: This is an urgent chamber application seeking the stay of proceedings in a criminal trial, pending finalisation of an appeal before this Court.

FACTS

The applicants are appearing before the first respondent, a senior regional magistrate facing three charges of perjury, fraud and money laundering. The trial of the matter is incomplete.

After leading evidence from the witnesses on its list, which list it shared with the applicants before the trial in accordance with s 382 of the Criminal Law (Codification and Reform) Act [Chapter 9.23], the second respondent applied to call three additional witnesses. The application, though opposed by the applicants, was duly granted by the first respondent. In allowing the application, the first respondent directed that the second respondent serve the applicants with the statements recorded from the additional witnesses before proceeding to call the witnesses.

The applicants brought the decision of the first respondent allowing the calling of the three additional witnesses on review before the High Court, (the court a quo). The court a quo withheld its jurisdiction to intervene in the on-going proceedings before the lower court. It found that the application for review was pre-mature in the circumstances of the matter. In making this finding, the court a quo analysed decisions in this jurisdiction on when the High Court may exercise its power to intervene in uncompleted criminal proceedings in the lower courts. It concluded thus:

“It is apparent from the above cases that what is permitted is intervention by this court in a ruling that is so gross that it is incapable of correction by way of ordinary review or appeal; or where it is unconscionable to await the conclusion of the proceedings before seeking redress in the normal way. This court will thus sparingly intervene in uncompleted inferior proceedings.”

Dissatisfied with the decision of the court a quo, the applicants noted an appeal to this court on 25 July 2019 under SC 434/19.

On appeal, it is intended to advance the following grounds:

The court a quo erred in not find (sic) that on the facts and the law there existed special circumstances justifying the intervention of the High Court in un-terminated proceedings of the magistrates’ court.

The court a quo erred in not finding that the first respondent’s decision to allow the calling of witnesses whose statements were not recorded halfway through the trial offended the appellants’ fundamental rights enshrined in s 69 (1) as read with ss 86 (3) and 70 (1) (c) of the Constitution of Zimbabwe.

The court a quo erred in not finding that the decision complained of was in any event Wednesbury unreasonable and susceptible to vacation on review.

The court a quo erred in having no regard to matters of law canvassed and fully ventilated before it.

Anxious that the un-terminated criminal proceedings before the first respondent will proceed regardless of the appeal, the applicants filed this urgent application seeking to stay the proceedings.

The second respondent opposed the application, arguing in the main that the application is not urgent. It also argued that the application has been filed in a bid to avoid the completion of the un-terminated proceedings before the first respondent.

In support of the application it was submitted on behalf of the applicants that the relief sought in the application is required urgently to protect the sanctity and integrity of the appeal pending before this court. It was thus argued that if the proceedings are not stayed, the first respondent will proceed to hear the evidence of the additional witnesses whose statements were not availed to the applicants at the commencement of the trial, defeating the purpose of the review proceedings in the court a quo and the appeal before this Court.

From the sheer number of decided cases in this jurisdiction on what constitutes urgency for the purposes of the rules of court, one would think that the position, which is settled, is clear. From the facts of this application, it appears not.

A matter is urgent if its determination cannot wait. Put differently, a matter is urgent if in waiting, substantial injustice would result to the applicant. Thus, a matter cannot wait if the impending threat, un-arrested, has the effect of knocking the applicant off his or her “legal” feet. A matter is therefore urgent if relief is urgently required or necessary to preserve and protect the applicant’s obtaining legal position.  (See Econet Wireless (Pvt) Ltd v Trustco Mobile (Pty) Ltd and Anor 2013 (2) ZLR 309. Nyakutombwa Mugabe Legal Counsel v Mutasa and Ors SC 28/18; Kuvarega v Registrar- General and Anor 1998 (1) ZLR 188 (H); Document Support Centre v Mapuvire 2006 (2) ZLR 240 (H) and Mutarisi v United Family Intl Church & Anor 2012 (2) ZLR 434. (H)).

Based on the law emerging from the above authorities, this application is not urgent on two accounts.

Firstly, the facts alleged by the applicants fall short of showing that the day of reckoning is imminent. The calling of the three additional witnesses is not imminent.

It is clear from the circumstances of this application that the purpose of this application is to stay the leading of evidence from the three additional witnesses until the appeal has been determined. At the time of the hearing of the application, it was common cause that the second respondent, whilst indicating to the first respondent that it was ready to proceed with the trial, had not yet recorded statements from the three additional witnesses. Thus, the preliminary steps necessary for the resumption of the trail had not yet been taken. In view of not only the directives given by the first respondent in his ruling, but also of the requirements of the law entitling the applicants to copies of the statements before the trial can resume, the trial cannot resume immediately.

Therefore the application is not urgent and can be heard in the ordinary course of litigation as an ordinary chamber application.

Secondly and more importantly in my view, if the application is not heard urgently, the applicant’ legal position will not be adversely affected. The applicants still have available to them remedies and relief in terms of the criminal law procedure that will ensure that they have a fair trial in the event of the trial proceeding before the first respondent pending the determination of the appeal before this Court. It is not necessary for the purposes of this judgment that I detail the remedies and relief available to the applicants at law.

I am aware that it has been strenuously argued on behalf of the applicants that it is necessary to stay the criminal proceedings before the first respondent to preserve the integrity of the appeal proceedings.

The protection of the sanctity of the appeal may in some instances ground urgency. It does not do so in the circumstances of this matter. The Supreme Court has power to make such orders as will give efficacy to any order that it may make in upholding the appeal. Further, the Supreme Court has power to correct or to give directions for the correction of irregularities in the proceedings of the magistrates’ court whenever these are brought to its attention. Thus, in the event that irregularities do occur when the criminal trial resumes before the first respondent pending determination of the appeal, the applicants are not without protection or remedies.

Viewed in light of the above legal position and as indicated above, the application before me is not urgent. Put differently, the applicants will not suffer irreparable harm were I not to determine this matter as an urgent application.

It is therefore my finding that the application before me is not urgent in the sense that if I do not stay the proceedings before the first respondent, the applicants’ position at law will be impaired and irreparably so. As demonstrated above the relief sought urgently is not necessary to preserve the legal position of the applicants. The stay of the proceedings before the first respondent is not necessary to preserve the sanctity of the pending appeal.  The matter cannot therefore be urgent for the purposes of the rules. I will dismiss it for these reasons.

The second respondent did not pray for costs. In the circumstances, I will not make an order in its favour even though it has been successful.

In the result, I make the following order:

The application is dismissed.

There shall be no order as to costs.

Rubaya and Chatambudza, applicants’ legal practitioners

National Prosecuting Authority, 2nd respondent’s legal practitioners