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On 21 July 2021 after hearing arguments from counsel we proceeded to deliver an extempore judgement. The resultant order issued was as follows;
"It is ordered that the appeals in respect of sentence in both matters CRB CA 75/20 and CA 76/20 be and are hereby dismissed for lack of merit." 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
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
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
All these three records were referred to me on 29th March, 2021 by the Acting Resident Magistrate, Gutu under cover of a Minute stated as follows;
“May the following records be placed before a Judge. The Magistrate who dealt with the matters has since left service before responding to the queries. We are therefore referring the records for further directions.” More
The sole issue which fails for determination in all these twelve (12) cases is the correct procedure to be followed where a trial magistrate resigns and leaves uncompleted criminal proceedings or matters.
All these twelve records were referred to this court by the Gutu Resident Magistrate under cover of a minute dated 28 April 2021 which I received on 5 May 2021. The said minute reads as follows;
"Please place these records of proceedings before a High Court Judge with the following request.
The magistrate who dealt with the matters has since left service without having finalised the cases. We... More
