The High Court has strongly criticised a magistrate for blocking a criminal case from being referred to the Constitutional Court, ruling that the magistrate acted unreasonably and misunderstood his legal role.
Justice Maxwell Takuva overturned decisions made by Magistrate Taurai Manwere in a case involving Lindiwe Ndlovu, who was being prosecuted under a law that had already been repealed. The judge described the magistrate’s conduct as irregular and beyond his authority.
Ndlovu was arrested in March 2022 and charged with deliberate transmission of HIV under section 79 of the Criminal Law (Codification and Reform) Act. However, this offence ceased to exist when the Marriages Act came into effect on 27 May 2022.
Through her lawyer, Paida Saurombe, Ndlovu argued that she could not be prosecuted for an offence that was no longer recognised by law, relying on constitutional protections that prevent punishment for repealed crimes. The magistrates’ court dismissed this argument in November 2022, stating that section 17 of the Interpretation Act allowed prosecutions to continue even after a law has been repealed.
Ndlovu then requested that constitutional questions be referred to the Constitutional Court, including whether the Interpretation Act could override constitutional rights. The magistrate refused, claiming the application was defective because no oral evidence had been presented, and dismissed it as frivolous and vexatious.
Justice Takuva rejected this reasoning, stating that oral evidence is only required to prove facts, not legal arguments. Since all facts were agreed upon, the judge ruled that written affidavits were sufficient and the application was properly before the court.
The High Court also criticised the magistrate for contradicting himself by declaring the application defective and then still ruling on its substance. Justice Takuva said once an application is found to be fatally flawed, a magistrate has no authority to decide its merits.
More seriously, the judge found that the magistrate overstepped his powers by interpreting the Constitution himself instead of referring the matter to the Constitutional Court.
Justice Takuva emphasised that magistrates are only required to determine whether a constitutional issue is frivolous or baseless not to decide it. By doing so, the magistrate unlawfully assumed the role of the Constitutional Court.
The High Court further ruled that the constitutional issues raised were serious and legitimate, particularly because they concerned protection against retrospective criminal prosecution. The judge noted that an issue cannot be labelled frivolous if it requires detailed constitutional interpretation.
As a result, Justice Takuva set aside the magistrate’s decisions in full and allowed the matter to proceed. No order was made regarding legal costs.
