ACHINULO V MOYO NO & ANOR 2016 (2) ZLR 242 (H)

ACHINULO v MOYO NO & ANOR 2016 (2) ZLR 242 (H)

Flynote

Criminal procedure: " review " incomplete proceedings " refusal by magistrate to discharge applicant at conclusion of prosecution case " superior court should always be slow to intervene in unterminated proceedings of an inferior court " should only do so in the very rare situations where a grave injustice would occur if the superior court does not intervene " no prima facie case against accused " superior court entitled to interfere

Headnote

The applicant was arraigned before a magistrate on a charge of theft. At the close of the prosecution case he applied for discharge, which application the presiding magistrate refused. The applicant took this decision on review but the prosecution wished to proceed with the trial and the applicant filed an urgent application for the stay of the criminal proceedings pending the review.

Held, that a superior court should always be slow to intervene in unterminated proceedings of an inferior court and will ordinarily not sit in judgment over a matter that is before the court below except in very rare situations where the irregularity is gross and a grave injustice would occur if the superior court does not intervene.

Held, further, that the magistrate's failure to discharge the applicant at the close of the State case when there was no prima facie case established against him met the necessary stringent criteria and the application was granted pending the conclusion of the review proceedings commenced by the applicant.