MAKONESE
J: In an application for review in terms of section 26 of the
High Court Act [Chapter 7:06], the High Court may only rely on the record of
proceedings as the only official record of what occurred in the court a quo.
The court may not look beyond what is contained in the official
transcript and an allegation made by a litigant that the record does not
provide an accurate reflection of the proceedings would have to be supported by
other evidence, more particularly the exchanges between the trial magistrate
and the accused person as recorded in the court record. The applicant appeared before a magistrate
sitting at Zvishavane on 19 September 2015 facing one count of
unlawful entry as defined in section 131 of the Criminal Law Codification and
Reform Act [Chapter 9:23] and a further count of theft in contravention of
section 113 of the same Act. The accused
and his co-accused Tapiwanshe Muzvondiwa pleaded guilty to both counts and were
sentenced to 18 months imprisonment of which 6 months was suspended for 5 years
on the usual conditions. The applicant
filed an application for review on 24 September 2015, through his legal
counsel, complaining that the trial magistrate failed to properly record the
applicant's response, in particular that applicant had not tendered a guilty of
plea as reflected by the record of proceedings.
The relief sought by the applicant is an order for the quashing of the
entire proceedings and an order for the matter to be tried de novo before a different magistrate.
I
requested the trial magistrate and the public prosecutor to file written
responses to the allegations made. A
perusal of the record indicates that the learned magistrate put to the accused
persons the charge and the applicant and his co-accused gave unequivocal pleas
of guilty in respect of both counts. The
accused persons seem to have freely and voluntarily and without any undue
influence pleaded to the charges. The
following exchange took place between the magistrate and the applicant if one
goes by the record.
“Q. Are
the facts true and correct?
A. Accused 1 – Yes
A. Accused 2 – Yes
Q. Do
you admit that on the 2nd of September 2015 and at village Mbwende,
Chief Negove you broke into the complainant's house as alleged?
A. Accused
1 – Yes
A. Accused
2 – Yes
Q. How
did you gain entry?
A. Accused
1- we used an iron bar to break the door and gain entry.
Q. What
did you want to do in the house?
A. Accused
1 – to steal
A. Accused
2 – to steal
Q. Do
you admit that upon gaining entry into the house upon then stole complainant's
property in the manner alleged?
A. Accused
1 – Yes
A. Accused
2- Yes
Q. What
did you want to do with the property?
A. Accused
1 – to sell it
A. Accused
2 – to sell it
Q. You
therefore admit that your intention was to permanently deprive the owner of his
property.
A. Accused
1 – Yes
A. Accused
2 – Yes
Q. Any
defence to offer?
A. Accused
1 – none
A. Accused
2 – none
Verdict
– Both guilty as pleaded.”
A
further perusal of the record reflects that the applicant made submissions in
mitigation and this is what he had to say:
“Aged
26 years. Not married. Survives as a cross-boarder trader and
realizes an average of R2500 per month.
No money in person. No savings.
No assets of value.”
On
being asked by the trial magistrate why he committed the offence the applicant
stated that he had erred and asked for forgiveness.
The State prosecutor who
handled the proceedings filed a response to the allegations being made by the
applicant in this matter and stated in part as follows:
“----As
already mentioned, when the accused person was arraigned before Mr Story
Rushambwa who was the presiding magistrate the charges were put to them, he was
then asked to tender his plea. He then
tendered guilty pleas to both counts.
The facts were read and explained to him in terms of section 188 and 189
of the Criminal Procedure and Evidence Act [Chapter 9:07]. He was then asked whether he had understood
the facts to which he answered in the positive.
The court then proceeded to record the rest of his pleas. In as far as I am concerned the accused
tendered unequivocal guilty pleas. He
did so freely and voluntarily without any undue influence exerted on him.
Had
it been that the applicant pleaded not guilty to both counts; I as the trial
prosecutor would have made an application for separation of trial as provided
for in section 190 of the Criminal Procedure and Evidence Act [Chapter 9:07].
I am therefore surprised as to why
the applicant is now making an about turn.”
It
is important to observe that in its exercise of its review powers this court is
empowered in terms of section 26 of the High Court Act [Chapter 7:06] to review
all proceedings and decisions of all inferior courts of justice, tribunals and
administrative authorities within and under its jurisdiction.
Section
27 of the High Court Act provides as follows:
“(1) Subject to this Act and any other law, the
grounds on which any proceedings or
decision
may be brought on review before the High Court shall be-
(a) Absence
of jurisdiction on the part of the court, tribunal or authority concerned.
(b) Interest
in the cause, bias, malice or corruption on the part of the person presiding
over the court or tribunal concerned or on the part of the authority concerned,
as the case may be.
(c) Gross
irregularity in the proceedings or the decision ---.”
Upon a careful perusal of
the record of proceedings I cannot find anything to suggest that
there was any irregularity in the manner
in which the proceedings were conducted.
I must observe that I am confined to the record of proceedings and I am
bound by what appears in the record. See
the cases of S v Ncube 2012 (1) ZLR 422 (H) and S
v Davy 1988 (1) ZLR 386 (S).
In
all the circumstances of the case I make a finding that the application for
review has no basis both at law and in fact.
I
accordingly, dismiss the application.
Makonese J………………………………………..
