The
issue which arises in this matter is a novel one.
This
matter was referred to this court by the learned Provincial
Magistrate for Masvingo under cover of a minute dated 20th
July 2014. The said minute summarised the history of the matter and
explained why the matter was being referred for review. In essence,
the learned Provincial Magistrate wanted to be advised whether this
matter is a partly heard matter. Two of the magistrates which had
dealt with it had arrived at different conclusions. Further, the
learned Provincial Magistrate inquired whether a fellow magistrate
could competently go against the ruling of a fellow magistrate on the
same point. Lastly, this court was asked to consider to order a trial
de
novo
in the matter.
It
is important to put into context these issues by dealing with the
background facts of this matter.
The
two female accused persons, aged 23 years and 29 years respectively,
appeared before the magistrate, a Mr Mudzongachiso, at Masvingo on 4
July 2016 facing the charge of contravening section 57(1)(c) of the
Criminal Law (Codification and Reform) Act [Chapter
9:23]
which relates to dealing in dangerous drugs. They both pleaded not
guilty to the charge.
The
facts alleged were that on 12 April 2016 the police in Masvingo
received a tip off that the two accused persons were in possession of
dagga at Accused One's residence at No.19930 Chiremwaremwa Street,
Rujeko 'C' in Masvingo. The police swiftly acted on this
information and proceeded to the said house where they allegedly
found both accused persons packing 130 cobs of dagga, 76 sachets of
dagga and 31 twists of dagga which were contained in three 20 litre
plastic containers and a black plastic bag. Both accused persons were
arrested. The said dagga weighed 6,715kg with a street value of
US$1,350=.
Both
accused persons, who were represented by a Mr
Shumba,
pleaded not guilty to the possession of the said dagga found at the
said house. They tendered a Defence Outline in which they implicated
other tenants at this house whom they said were also present at the
time of their arrest - especially one Edmore. They said it is
surprising that the police decided to only arrest the two of them.
When both accused persons appeared before Mr Mudzongachiso and
pleaded not guilty to the charge Accused Two was pregnant and not
feeling well. The trial, for that reason, could not proceed after the
Defence Outline had been tendered and the certificate of weight of
the dagga produced. The matter was postponed to 23 August 2016.
The
matter never took off until both the prosecutor handling the matter
and Mr Mudzongachiso transferred from Masvingo Magistrates Court.
From the record of proceedings, other than the certificate of weight
of the dagga produced, no other evidence had been led.
On
an unspecified date, the matter was brought before another
magistrate, Mr Mohamadi, at Masvingo for trial. The defence objected
to proceeding with the matter indicating that it was improper for Mr
Mohamadi to proceed with the trial since this was a partly heard
matter before Mr Mudzongachiso. The State argued otherwise.
Both
the State and the defence filed written submissions in support of
their positions. The prosecutor relied on the case of Chipuza
v Dzepasi
HH487-15. The defence cited the cases of S
v Sibanda
SC169-06 and S
v Dehwe
1987 (2) ZLR 231. The State argued that Mr Mohamadi should proceed
with the trial. On the other hand, the defence argued that the matter
should be referred to this court for the proceedings to be quashed
and a trial de
novo
ordered.
Mr
Mohamadi, after hearing counsel, found favour with the submissions
made by the defence and ruled that the matter was a partly heard
matter before Mr Mudzongachiso. He ruled that the matter should be
placed before Mr Mudzongachiso who should proceed with the trial and
that if that became impossible the matter could be referred to the
High Court for the proceedings to be quashed and a trial de
novo
ordered.
When
Mr Mudzongachiso came to Masvingo to deal with his other partly heard
matters this matter was placed before him together with Mr Mohamadi's
ruling on 14 June 2018. He did not find favour with Mr Mohamadi's
ruling and declined to deal with the matter. Mr Mudzongachiso was of
the view that this matter was not a partly heard matter and that any
other magistrate at Masvingo Magistrates Court could deal with the
matter. He proceeded to so endorse on the record.
This
is what prompted the learned Provincial Magistrate to refer this
matter to this court as earlier on explained.
The
task before me is to decide whether this matter is a partly heard
matter or not and what course of action to take. I was also asked to
pronounce whether it was proper for Mr Mudzongachiso to overrule the
decision of Mr Mohamadi.
In
the matter of AG
v Gavaza
1984 (2) ZLR 212 GUBBAY ACJ..., dealt with an interpretation of the
then section 163(5) of the Criminal Procedure and Evidence Act
[Chapter
59] which bears some similarity to the current section 180(6) of the
current Criminal
Procedure and Evidence Act
and made the following remarks...,;
“But,
the ratio which emerges clearly from the judgment is that as soon as
an accused has pleaded to a charge in a court properly constituted
and appointed to try him, that court, and no other court, assumes
jurisdiction and is seized with the trial. From that moment onward,
and irrespective of whether any evidence in support of the charge has
been placed before it, that court is obliged to conduct the trial to
finality unless it becomes impossible for it do so.”
The
learned Acting Chief Justice..., stated that the legislature had to
intervene to deal with the problems arising from the provisions of
the then section 163(5) of the Criminal Procedure and Evidence Act
[Chapter
59].
The
Legislature has answered to the call by the then Acting Chief Justice
in the current section 180(6) of the Criminal Procedure and Evidence
Act [Chapter
9:07]
which provides as follows;
“180.
Pleas
(1)
Not relevant.
(2)
Not relevant.
(3)
Not relevant.
(4)
Not relevant.
(5)
Not relevant.
(6)
Any person who has been called upon to plead to any indictment,
summons or charge shall, except as is otherwise provided in this Act
or in any other enactment, be entitled to demand that he be either
acquitted or found guilty by the judge or magistrate before whom he
pleaded:
Provided
that -
(i)
Where a plea of not guilty has been recorded, whether in terms of
section two
hundred and seventy-two
or otherwise, the trial may
be continued before another judge or magistrate if no evidence has
been adduced;
(ii)
Where a plea of guilty has been recorded, the trial may be continued
before another judge or magistrate if no evidence has been adduced or
no explanation has been given or inquiry made in terms of paragraph
(b) of subsection (2) of section
two hundred and seventy-one.”…,.
In
my view, the proviso to section 180(6) of the Criminal Procedure and
Evidence Act [Chapter
9:07]
is clear and invites no other interpretation.
In
casu, both accused persons had pleaded not guilty before Mr
Mudzongachiso who recorded their pleas of not guilty. The record
shows that no evidence had been adduced by the State in support of
the charge of contravening section 57(1)(c) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]. This means that the
trial of both accused persons may be continued before another
magistrate.
It
was therefore incorrect for Mr Mohamadi to make a finding that this
was a partly heard matter before Mr Mudzongachiso. In that vein, it
was competent and proper for Mr Mohamadi, or any other magistrate, to
proceed with the trial. All what had been produced was the accused
persons' Defence Outline and a certificate of weight of the dagga.
The State had not adduced any evidence. Any other magistrate may
therefore continue with the trial and assess the credibility and
demeanour of witnesses called. See S v Lance Kennedy HH70-17...,.
The
last issue I have to consider is what course of action should Mr
Mudzongachiso have taken.
While
it is trite that a magistrate cannot overrule the decision of another
magistrate it is folly to have expected Mr Mudzongachiso to go along
with the decision of Mr Mohamadi which clearly flies in the face of
the provisions of section 180(6)(1) of the Criminal Procedure and
Evidence Act [Chapter
9:23].
The
finding by Mr Mohamadi, that this matter is a partly heard matter, is
clearly legally wrong. Mr Mudzongachiso could not have been expected
to endorse a wrong decision, and, worse still, act upon it by
complying with such a decision. It was well within Mr Mudzongachiso's
rights to decline to implement a wrong decision at law. This does not
at all mean that Mr Mudzongachiso reviewed Mr Mohamadi's decision
or that he acted as an Appellate Court. He simply declined to act in
accordance with a clearly wrong decision.
What
other option would Mr Mudzongachiso have had other than declining to
endorse a wrong decision?
Lastly,
in the circumstances, I am not obliged to quash the proceedings
and/or order a trial de
novo.
This trial should simply proceed before another magistrate of
competent jurisdiction at Masvingo. For the avoidance of doubt, I
shall however set aside the order or ruling by Mr Mohamadi.
It
is accordingly ordered that;
1.
The order or ruling by Mr Mohamadi be and is hereby set aside.
2.
It is directed that the trial shall proceed before any other
magistrate of competent jurisdiction at Masvingo Magistrates Court.
