The above two matters raise the same issues. The matters were placed before me as applications for disposal orders in terms of Section 107 of the Labour Act [Chapter 28:01]. The matters were both opposed. They were initially set down for hearing on Wednesday 15th November 2021, but due to COVID 19 restrictions the hearing was deferred. The parties were requested to file written submissions. The Applicants and 1st Respondents in both matters duly complied. No papers were filed on behalf of the 2nd Respondent. This judgment is largely based on the written submissions. More
This judgment disposes of two matters dealing with predominantly the same parties and the dispute relates to the same piece of land.
At the centre of these two urgent chamber applications is a dispute in respect of a certain piece of land situate in the communal land of Madicheche, Pfungwe under Chief Chitsungo herein after referred to as the mining location. John Mahudu ‘Mahudu’ is the applicant in HC 89/21. He alleges that the land is part of his field and it is currently under cultivation. Mahudu discovered some gold deposits in the field. Together with some partners Mahudu constituted... More
This is an application for leave to appeal against a judgment by my brother MATHONSI J handed down on 14 June 2018. That judgment HB 147/18 being in respect of case number HC 2606/17. The applicant had sought condonation for the late filing of his notice of appeal against a judgment by KABASA J of the labour court. Apparently, the applicant had earlier in case number HC 2016/16 made the same application before my brother MAKONESE J who struck the matter off the role on 21 September 2017 as it was improperly before the court. It had been filed out... More
The applicants were placed on remand jointly charged on one countof armed robbery as defined in s126 of the Criminal Law (Codification and Reform) Act (Chapter 9:23 ) and one count of unlawful possession of a firearm without a licence in contravention of s4(1) of the Firearms Act (Chapter 10:09). They applied for bail pending trial separately. For convenience, the two records were consolidated by consent for the purposes of disposing of the application. More
The above two matters where both heard on appeal on 7 October 2019. The subject matter and facts giving rise to the appeals are the same. The grounds and heads of argument are exactly the same with just the necessary changes and they are subject of the same arbitral award granted by the same arbitrator and registered by the same Magistrates’ Court sitting at Kwekwe. For that reason, I have combined them for purposes of this judgment. More
The above two applications have been consolidated only for purposes of preparing one judgment that disposes of both applications. The motivation for the consolidation is based upon the considerations that both applicants are co-accused in case No. Harare Magistrates court CRB 4105 – 4113/15 wherein they were arraigned for trial with six other co-accused. They are also co-applicants with their co-accused in case No. HC 4098/19 wherein they seek a review of the criminal proceedings. More
The above record of proceedings pertain to trials presided over by the same magistrate at Murehwa Magistrate Court. They suffer from the same irregularity of a procedural error which vitiates the proceedings. In all the cases, the accused persons were convicted on their own pleas of guilty purportedly done in terms of s 271 (2) (b) of the Criminal Procedure and Evidence Act, [Chapter 9:07] . When the records were initially placed before me to review in July, 2021, I raised in respect of each record of proceedings, a similar query on whether or not the trial magistrate had complied... More
TAKUVA J: The two records were placed before me by the Registrar. They had been referred to this Court by the Learned Scrutinising Regional Magistrate at Gwanda with the following comment:
“Both matters came to me by way of scrutiny and were dealt with by the same Magistrate. I queried the correctness of the convictions seeing it was quite clear from the record of proceedings that the accused persons were raising defences. In response to the queries raised the trial Court conceded.
If the learned Judge is with me may corrective measures be taken.” More
The proceedings in the two matters under review suffer from the same irregularity. They were dealt with by the same learned provincial magistrate who to her credit has acknowledged her acts of omission. Upon my perusal of the two records on review, I raised a query that it did not appear on record that the learned provincial magistrate had complied with the provisions of s 163A of the Criminal Procedure and Evidence Act, [Chapter 9:07] at the commencement of the two trials. I therefore revert to s 163A aforesaid. More
I have deliberately consolidated both bail applications because they are related and interlinked. In case number 309/13 the firstappellant ThabaniMpofu is jointly charged with Felix Matsinde, Warship Dumba and MethuliTshuma with contravening s 4 (3) of the official Secrets Act [Cap.11: 09], Contravening s 179 (1) of theCriminal Law (Codification and Reform) Act [Cap:9:23] and s 40 (1) of the same Act. The offences have to do with the unlawful communication of certain official Information and possession of certain articles for criminal use. More
Change is a complex topic. It baffled even Aristotle and his predecessors. For instance Plato argued that real things do not change. He confined change to the realm of appearances; that is the physical world. Parmenides rejected the concept altogether and argued that change did not exist. Although those early scholars were dealing with the metaphysical, in the modern world of administration of justice, change also remains a frightening proposal. Judicial officers are naturally comfortable with the old, tried and tested systems. They do not want to create new problems. It is one of the reasons why precedent is regarded... More
The accused persons in the two separate matters, (which I will refer to as S v Shonhiwa and S v Docklands respectively) were each convicted of theft of trust property as defined in s 113 (2) of the Criminal Law (Codification and Reform) Act [ Chapter 9:13] (the “Code”). The proceedings in S v Shonhiwa were referred to a regional magistrate for scrutiny in terms of s 58 of the Magistrates Court Act [ Chapter 7 :10]. The learned regional magistrate correctly queried the propriety of the conviction and in turn sought the High Court`s intervention. More
All these three matters were submitted to me by the learned Regional magistrate ostensibly for review purposes.
All these three matters were dealt with by the Resident Magistrate at Bikita. Due to the sentences imposed by the trial Magistrate of 3 months imprisonment wholly suspended on the usual conditions for 5 years in all these matters, the cases would not ordinarily be subject to scrutiny or review. More
This review judgement has been necessitated by the apparent conflation of the provisions of the Criminal Procedure and Evidence Act [Chapter 9:07] and the Children’s Act [Chapter 5:06] exhibited by the learned trial magistrate in sentencing a juvenile offender. More
Both matters were dealt with by the same provincial magistrate sitting at Kwekwe and the issues which exercised my mind are common to both cases.
The facts giving rise to the charges and convictions in both matters can be summarised as follows:
1. MORRISON NCUBE AND 3 ORS
All the four accused persons are juveniles attending school at Fatima High School and are in Form 4. Accused 1 is aged 17 years, accused 2, 16 years, accused 3, 17 years and accused 4, 16 years. They all pleaded guilty to the charge of contravening s 113 (1) of the Criminal... More
