S v Matsveru (CRB CHNR 101 of 2016; HH 265 of 2017) [2017] ZWHHC 265 (3 May 2017)

1 HH 265-17 CRB CHNR 101/16 STATE versus PHILLIP MATSVERU HIGH COURT OF ZIMBABWE HUNGWE & MUSHORE JJ HARARE, 3 May 2017 Criminal Review HUNGWE J: The registrar placed before me the record of proceedings in the above matter from the Regional Magistrate in Chinhoyi with the following minute attached to it. “The Registrar High Court of Zimbabwe HARARE APPLICATION FOR REVIEW OF THE RECORD OF PROCEEDINGS: STATE v PHILLIP MATSVERU: CRB CHNR 101/16 Reference is made to the above. May you please place the attached record before the Honourable Judge of the High Court with the following comments. The accused appeared in court facing allegations of contravening section 65(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The trial proceeded up to the last state witness without counsel for the accused mentioning anything in relation to the purchase of air time for the maid by the accused person. Counsel applied and insisted that they need to know the time the maid recharged her phone because she at one stage requested the accused to bring him air time. The court dismissed the application for the following reasons:- 1. That the issue of the air time was not mentioned anywhere during the trial up to the stage the defence counsel requested for an inspection in loco to be carried out. 2. The time the maid recharged her mobile phone is not of any relevance because the state in its state papers and evidence did not specify the time the complainant is alleged to have been abused. They only mentioned the day that the complainant was at some stage with the complainant (sic) which fact is not denied by the accused. 3. The court viewed the application as not being made in good faith because the time the mobile phone was recharged has no relevance to the trial. It was made just for the purposes of prolonging the trial. What is most disturbing is that the accused is in custody and the state opposed the granting of bail.” HH 265-17 CRB CHNR 101/16 It will be clear from the above that the application for review was not at the instance of the accused, through his counsel, or the prosecution. This is not an application made by notice of motion in terms of either s 57 of the Magistrates Court Act, [Chapter 7:10] or s 29 of the High Court Act [Chapter 7:06]. Where an application for review is not being brought by an accused person, s 29 (c) of the High Court Act requires that there be a question of law or fact arising from the proceedings for which a determination is being sought by way of review. That section states: “29 Powers on review of criminal proceedings (1) For the purpose of reviewing any criminal proceedings of an inferior court or tribunal, the High Court may exercise any one or more of the following powers— (a) direct that any part of the evidence which was taken down in shorthand or recorded by mechanical means be transcribed and that the transcription be forwarded to the registrar of the High Court; (b) hear any evidence in connection with the proceedings, and for that purpose may cause any person to be summoned to appear and give evidence or produce any document or article; (c) where the proceedings are not being reviewed at the instance of the convicted person, direct that any question of law or fact arising from the proceedings be argued before the High Court by the Attorney- General or his deputy and a legal practitioner appointed by the High Court.” It will be clear that presently the proceedings before me do not pose any question of law or fact whose determination is required by either party to the trial. Counsel for the accused may have been keen to have certain evidence called. When he made an application for that evidence to be called, the application was dismissed. If he felt that the decision to dismiss that application was wrong then he ought to have allowed the trial to conclude and make it a ground of appeal, depending on the outcome of the trial. To seek the stopping of proceedings simply because an interlocutory ruling was made against a party does not facilitate the determination of the real issues at trial. In criminal proceedings the courts are reluctant to sanction the piece-meal determination of issues. See generally Masedza v Magistrate, Rusape & Anor 1998 (1) ZLR 36; Ndhlovu v Regional Magistrate, Eastern Division & Anor 1989 (1) ZLR 264 (HC). In the present case it appears that the accused’s counsel will be satisfied by the state of affairs where this matter is put in abeyance and he does nothing to push for the conclusion of the proceedings. As such this court must give directions. It is accordingly directed that: HH 265-17 CRB CHNR 101/16 1. The matter of State v Phillip Matsveru CRB CHNR 101/16 proceeds to its logical conclusion with both counsels making closing submissions and the trial magistrate rendering a decision on the charge faced by the accused. MUSHORE J agrees……………….