CHITAKUNYE
JA:
This is an appeal against the judgment of the High Court (the court a
quo)
granting the respondent leave to appeal to the High Court against the
appellant's discharge at the close of the State case at the
Magistrate's Court.
At
the conclusion of the hearing we dismissed the appeal and indicated
that our reasons will follow. These are the reasons.
FACTS
The
appellant was arraigned before the Magistrate Court charged with:
1.
Contravening section 3(1)(a) of the Precious Stones Trade Act
[Chapter
21:06]
and;
2.
Contravening section 3(1)(a) of the Gold Trade Act [Chapter
21:03].
In
the first count it was alleged that the appellant was found in
possession of 3309,37 carats of diamonds and 1506,41 grams of
emeralds without being a holder of a permit or licence in respect of
the said stones.
In
the second count it was alleged that the appellant was found in
possession of 1345,99 grams of gold granules, five (5) smelted gold
bars weighing 3990,45 grams, two (2) smelted gold rods weighing 29.78
grams and two (2) smelted gold buttons weighing 10.31 grams all with
a combined weight of 5453,43 grams without being a holder of a permit
or licence in respect of the gold.
At
his trial in the magistrate's court it was common cause that the
pieces of minerals as described above were all recovered from the
appellant at Exquisite Jewellers Shop Number P14 Westgate Shopping
Complex, Bluff Hill, Harare. The appellant is the Director of
Exquisite Jewellers.
The
appellant admitted to possession of the aforesaid minerals.
His
defence was that his possession of the said minerals was lawful by
virtue of the fact that he was an employee of a holder of a mining
location, Carmel Mining, in Bindura, and those minerals had come from
that mine.
As
regards the gold, he contended that these pieces of gold were handed
to him by his employer for him to ascertain what type of minerals
they were, after they had been discovered by the employer at the
mining location.
His
defence was thus that his possession was permitted under section
3(1)(d) of the Precious Stones Trade Act and section 3(1)(d) of the
Gold Trade Act.
The
respondent called four witnesses and tendered numerous exhibits as
evidence after which it closed its case.
The
appellant applied for discharge at the close of the state's case
which application was granted. Dissatisfied by the Magistrate's
decision the respondent applied to the High Court for leave to appeal
in terms of section 198(3) of the Criminal Procedure and Evidence
Act; [Chapter
9:07].
The application was opposed.
FINDINGS
IN THE COURT A QUO
The
court a
quo
after hearing submissions and a consideration of the proceedings from
the Magistrate's Court, granted leave to appeal as sought by the
respondent.
In
granting the application the court a
quo
accepted the explanation for the delay in filing the application as
reasonable given the circumstances of the case.
On
the merits of the application the court a
quo
held that the respondent had established an arguable case and the
issues to be raised were not frivolous. The judge also found that
there were prospects of success on appeal.
The
effect of the granting of leave was to pave the way for the appeal to
be placed before the High Court for consideration.
BEFORE
THIS COURT
The
appellant was aggrieved by the decision of the court a
quo
hence this appeal. The grounds of appeal were couched as follows:
“1.
The honourable court a
quo
grossly misdirected itself in finding that the respondent had proved
a prima
facie
case when the evidence on record corroborated the appellant's
version that he was duly authorised to possess the minerals in
question.
2.
The honourable court a
quo
grossly misdirected itself on a point of law in interfering with the
discretion of the trial court on its findings on the credibility of
the appellant's version in dismissing the circumstantial evidence
adduced by the state. Issues of assessment of credibility of evidence
are a preserve of the trial court.
3.
The honourable court a
quo
further grossly misdirected itself in finding that the explanation
given by the respondent for the 9-month long delay prior to seeking
leave to appeal was reasonable in the absence of any evidence to that
effect having been placed before it.”
The
application before the court a
quo
was for leave to appeal. It was not the appeal itself.
At
that stage the judge is required to ascertain whether the applicant
deserved to be heard on appeal or not. He acts as a gate keeper to
ensure that only deserving cases are allowed to pass through.
In
that regard the court a
quo
condoned the delay in filing the application after considering the
circumstances of the case and proceeded to consider whether there
were prospects of success on appeal.
In
as far as the judge was acting as a gate keeper his decision to grant
the application simply allowed the appeal to be filed and be placed
before an appeal court for determination on the merits. It was not a
determination on the merits of the appeal itself.
The
judge was imbued with judicial discretion to grant or not to grant
leave to appeal.
In
the exercise of such discretion the judge considers, inter
alia,
the prospects of success on appeal. See Attorney-General
v Steyl & Others
2005 (1) ZLR 269 (S).
In
casu,
the exercise of the discretion was not challenged as being grossly
unreasonable, capricious or mala
fide.
It
is pertinent to note that the matter of the appeal remained pending
and unterminated.
APPLICATION
OF THE LAW TO THE FACTS
It
is trite that superior courts are generally reluctant to interfere
with unterminated proceedings in the lower courts or tribunals.
In
Chawira
& Others v Minister of Justice, Legal and Parliamentary Affairs &
Others
2017 (1) ZLR 117 (CC) at p121B-F the Constitutional Court reiterated
this position in these words:
“Generally
speaking higher courts are loathe to intervene in unterminated
proceedings within the jurisdiction of the lower courts, tribunals or
administrative authorities.
In
the recent case of Munyaradzi
Chikusvu v Magistrate Mahwe
HH100–15, (unreported) the High Court had occasion to observe that:
'It
is trite that judges are always hesitant and unwilling to interfere
prematurely with proceedings in the inferior courts and tribunals. In
the ordinary run of things, inferior courts and tribunals should be
left to complete their proceedings with the superior courts only
coming in when everything is said and done.'
In
Masedza
& Ors v Magistrate Rusape & Anor
1998 (1) ZLR 36 (H) at 36F it was held that a higher court will
intervene in unterminated proceedings of a lower court:
'… only
if the irregularity is gross and if the wrong decision will seriously
prejudice the rights of the litigant or the irregularity is such that
justice might not by other means be attained.'
Although
the above judicial pronouncements were made by the High Court on
review, they are equally relevant to this Court's criteria for
intervention in unterminated proceedings before lower courts,
tribunals and administrative authorities.”
In
Dombodzvuku
& Another v Sithole N.O. & Anor
2004 (2) ZLR 242 (H) at 245C-F MAKARAU J (as she then was) in
commenting on the power of the High Court to review criminal
proceeding of the Magistrates Court at any stage of the proceedings
aptly noted that:
“While
the statute granting the review power does not place any limitations
on the exercise of that power, this court has in practice rarely
exercised the power in relation to proceedings pending before the
lower court. In practice, the court will withhold its jurisdiction
pending completion of the lower court's proceedings to make for an
orderly conduct of court proceedings in the lower court. It would
create a chaotic situation if any alleged irregularity or
unfavourable ruling on an interlocutory matter were to be brought on
review before completion of the proceedings in the lower court. The
court's aversion to disrupting the general continuity of
proceedings in the lower court assumes ascending importance
especially in cases where no actual and permanent prejudice will be
occasioned the applicants. The power is, however, exercised in all
matters where, not to do so, may result in a miscarriage of justice.
See
Ndlovu
v Regional Magistrate, Eastern Division & Another
1989
(1) ZLR 264 (H); Levy
v Benatar
1987
(1) ZLR 120 (S) and Makamba
v Sithole N.O. & Another
HH83/04.” (my emphasis)
It
is thus apparent that an appellate court will not lightly interfere
in unterminated proceedings before a lower court unless not to do so
will result in the applicant suffering prejudice which cannot be
ameliorated in any way or will result in a miscarriage of justice.
In
casu,
the judge a
quo
after hearing the parties, held that there were prospects of success
and so he accorded the respondent leave to appeal to the High Court.
In
coming to that decision the judge was exercising judicial discretion
premised on what had been presented before him. He was not in any
way deciding the appeal.
It
was thus incumbent upon the appellant to show that the decision
granting leave to appeal would result in such prejudice as to result
in a miscarriage justice. It was not enough to merely express
dissatisfaction with the decision.
The
grounds of appeal as couched do not address the issue of prejudice to
be suffered by the appellant if the appeal is allowed to be heard and
determined.
The
aspects raised in the first two grounds are on issues that are to be
determined in the envisaged appeal. The third ground relates to an
exercise of discretion and nowhere has it been alleged that the
discretion was wrongly exercised.
The
exercise of judicial discretion can only be overturned on limited
grounds such as, inter
alia,
the decision is grossly unreasonable, or the judicial officer acted
on wrong principles, allowed irrelevant or extraneous considerations
to affect its decision. See Barros
& Anor v Chimphonda
1999 (1) ZLR 58 (S).
In
casu,
there were no such allegations.
The
points raised in the appellant's grounds of appeal 1 and 2
regarding the Magistrate's findings are issues for the appeal
before the High Court in the assessment of the merits and demerits of
the appeal before it. In any case no irreparable harm or such
prejudice as cannot be corrected in the appeal was alleged. The
appeal therefore lacked merit.
It
was for the foregoing reasons that we dismissed the appeal.
GWAUNZA
DCJ:
I agree
MATHONSI
JA:
I agree
Kadzere,
Hungwe & Mandevere, appellant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
