Criminal Appeal
MUTEMA J: This
is an appeal against a sentence of 24 months imprisonment of which 8
months imprisonment were suspended for 5 years on the usual
conditions of future good conduct.
The
appellant who then was aged 32 years was arraigned before a senior
magistrate sitting at Kezi on 24 November, 2009 facing a charge of
contravening section 4(1) as read with section 3(1)(a) of the
Domestic Violence Act [Chapter 5:16].
The
allegations were that on 1st
November 2009 at her homestead in Natisa area of Matobo the
appellant, by means of an unlawful act which resulted in direct
infliction of physical injury, severely and intentionally burnt
Prince Nkosi, her son aged ten years on both palms with hot charcoal
and on the mouth with hot ashes.
The
agreed facts are that the complainant was doing Grade 4 at Whitewater
Primary School. On the day, at around 0800 hours, the appellant went
to church leaving the complainant and his sister Adelite Nkosi at
home. Around 1300 hours the complainant became hungry and took the
appellant's jollie juice/sweet aid valued at R1 which he diluted
with water and drank. On returning from church and discovering the
consumption of the sweet aid the appellant accused the complainant of
being a thief who should be taught a lesson. She took the complainant
into the kitchen hut where she took two pieces of hot charcoal and
put each in the complainant's palm. She proceeded to fill a
tablespoon with hot ashes and put it on the complainant's lips. Due
to the pain he felt the complainant started screaming but the
appellant ordered him to keep quiet. As a result the complainant
suffered severe burns on the palms and lips.
The
appellant took the complainant to Natisa Clinic where she lied to the
clinic staff that the complainant fell into the fire on his own.
It
was only after teachers at his school had observed the burns and
interviewed him that the complainant disclosed the offence leading to
the school head reporting the matter to the police. The complainant
was medically examined on 5 November, 2009 and a medical report was
then compiled. The doctor observed burns on both palms and on the
lips and opined that although there was no potential danger to life
or permanent disability likely to occur to the complainant, the
degree of force used to inflict those injuries was very serious.
The
appellant pleaded guilty to the charge.
She
is a first offender who is married with four children. She vends
vegetables realizing around R150 per month. She went to school up to
Form 4. She had US$150 and P360 in savings and three goats and a
donkey as assets. She said she was very angry at what complainant had
done, hence the punishment.
Following
the imposition of the sentence alluded to above on 24 November 2009,
the appellant's current legal practitioner noted the appeal against
the sentence on 4 December, 2009. The gravamen of the appeal is
simply that the appellant should not have been visited with an
effective custodial sentence, instead, the trial court should have
imposed a non-custodial sentence such as community service.
The
appeal having been noted on 4 December 2009 we raised eyebrows as to
why it took so long – up to 16 March 2015 – to have the appeal
heard.
A
perusal of the record and Mr Mahachi's
explanations revealed the following sad slipshod and slapdash way by
Mr Mahachi,
of prosecuting the appeal.
The
notice of appeal was served only on the criminal registrar and office
of the then Attorney General on 4 December, 2009. Contrary to appeal
rules it was not served upon the clerk of Kezi Magistrates' Court.
On 18 December, 2009 the criminal registrar's office issued a
warrant of liberation for the appellant. Although ex
facie appeal record
cover it is endorsed that appellant was on bail there is nothing in
the record showing who granted the bail, when and where or how much
it was.
The
next document is a piece of paper with this court's letter heads
written;
“EDNA
SIBANDA
-VS-
THE
STATE
HCA
185/09”
with
the criminal registrar's date stamp on 21 May 2010.
It
is not known who in that office gave the matter the appeal number –
even the stamping of 4 December 2009 on the notice of appeal by the
two offices alluded to above are not signed for.
The
matter lay in abeyance, shrouded with its secrecy until 13 February
2013 when the now resident magistrate of Kezi wrote to the Provincial
Magistrate in Gwanda querying the circumstances leading to the
issuance of the warrant of appellant's liberation alluded to above.
On
10 March 2013 the Provincial Magistrate directed that a warrant of
arrest be issued for the appellant. That prompted the appellant's
legal practitioners to serve the more than three year old notice of
appeal upon the clerk of Kezi Magistrates' Court on 18 March, 2013.
Promptly
on 19 March 2013 the clerk of court at Kezi forwarded the notice of
appeal and the record of proceedings to the trial magistrate who was
then based at Plumtree for processing of the appeal record which was
done and the processed record was sent back to Kezi from Plumtree on
11 April, 2013 and received at Kezi on 23 April, 2013.
Meanwhile,
as far back as 21 December, 2009 CHEDA J had confirmed the
proceedings on review.
On
27 May, 2013 appellant's legal practitioners were called upon by
the registrar's office to file their heads of argument by 21 June,
2013. They did not do so. On 16 July, 2013 the appeal was deemed
abandoned and dismissed.
On
5 August, 2013 a warrant for appellant's arrest was issued by the
magistrate at Kezi. This jogged Mr Mahachi
to apply for reinstatement of the appeal which MAKONESE J granted on
10 September, 2013.
On
13 September, 2013 Mr Mahachi
wrote to the Kezi
Magistrates' clerk of court attaching the order for reinstatement
of the appeal and requesting the clerk to issue a warrant of
liberation for the appellant. Thereafter the appeal again lay in
abeyance for more than a year. I presume this was because appellant's
heads of argument filed on 15 October, 2013 were not served upon the
respondent until this year.
At
the hearing of the appeal Mr Mahachi
on being quizzed by the court about the delay in prosecuting the
appeal, conceded that the delay was occasioned by himself.
Indeed
from the chronology of events postulated above he could not have had
any other plausible explanation except to concede and apportion the
blame squarely on his sole shoulders.
We
are not privy to the reasons why, in view of the brazen and suspect
non-observance of the appeal rules in
casu as expounded in
extenso supra, this
appeal was reinstated but clearly this is one case in which the
salutary words of DUMBUTSHENA CJ as he then was in S
v McNab 1986
(2) ZLR 280 (SC) @ 284 should have been, with respect, heeded.
Therein the learned Chief Justice said;
“It
is in the discretion of the court to refuse condonation even in cases
which the respondents do not object to the relief being granted to
the applicants. In cases in which defective notices of appeal are
filed it is in most cases the applicant's legal practitioners who
are to blame. In such cases the court has to consider whether to
punish the applicants for the negligence of their legal
practitioners. In my view clients should in such cases suffer for the
negligence of their legal practitioners. I share the view expressed
by STEYN CJ in Saloojee
& Ano NO v
Minister of Community
Development supra at
141C – E when he said:
'There
is a limit beyond which a litigant cannot escape the result of his
attorney's lack of diligence or the insufficiency of the
explanation tendered. To hold otherwise might have a disastrous
effect upon the observance of the Rules of this court. Considerations
ad misericordiam
should not be allowed to become an invitation to laxity. In fact this
court has lately been burdened with an undue and increasing number of
applications for condonation in which the failure to comply with the
Rules of this Court was due to the neglect on the part of the
attorney. The attorney, after all, is the representative whom the
litigant has chosen for himself, and there is little reason why, in
regard to condonation of a failure to comply with a Rule of Court,
the litigant should be absolved from the normal consequences of such
a relationship, no matter what the circumstances of the failure are
…'
I
have dwelt at length on this point because it is my opinion that
laxity on the part of the court in dealing with non-observance of the
Rules will encourage some legal practitioners to disregard the Rules
of Court to the detriment of the good administration of justice.”
Regarding
the merits or otherwise of the appeal it is trite that sentencing is
the prerogative of the sentencing court and the appellate court is
generally loathe to interfere unless there exists a clear injustice
or misdirection.
In
the instant case while Mr Mahachi
conceded in his oral submissions that appellant's conduct was
abhorrent for a mother cannot abuse her child in that manner he still
contended that the sentence was harsh. The pith of his argument was
that appellant pleaded guilty, is a first offender and if
incarcerated no one will remain taking care of the children. He
suggested that a sentence of 12 months imprisonment with half
suspended on condition of good behaviour and the balance on condition
of performance of community service will meet the justice of the
case.
Mr
Makoni
maintained that the appeal be dismissed for lack of merit.
Section
4(1) of Domestic Violence Act provides:
“…
any person who commits an act of domestic violence … shall be
guilty of an offence and liable to a fine not exceeding level
fourteen or imprisonment for a period not exceeding 10 years or both
such fine and such imprisonment.”
In
his reasons for sentence the learned trial magistrate said:
“The
accused, although a first offender, perpetrated a gothic and barbaric
crime that is viewed with indignation, contempt and abhorrence by the
public. As a mother, she severely and undeservingly punished a 10
year old son by burning him on the palms and mouth for drinking a R1
worth sweet aid. Mothers are synonymous with love and care. Although
a first offender, her behaviour is distinguishable. A fine will
trivialize the offence. An option of community service too, will be
inadequate. A prison sentence, appropriately suspended on condition
of good behaviour will meet the justice of this case. This is a
serious offence … The fact that she is a mother to the victim
aggravates this offence. A gaol sentence will be appropriate.”
It
is pertinent to point out that the appellant was in fact taken
through the community service enquiry. The learned trial magistrate
cannot be faulted in his reasoning supra
that a fine or community service will trivialize the offence. There
is no jot of misdirection on his part.
Those
of a rustic background would remember with shivers how rural women
used to punish hens that would have “eaten their own eggs.” The
women would take a piece of burning wood and burn the hen's beak
until only a stump remained so that thereafter the hen's beak would
not be able to peck and break the egg shell in order to drink the
contents again.
The
above scenario can be equated to the appellant's conduct in
casu.
Her
conduct was devoid of any maternal instinct in spite of the fact that
she was the one to blame by leaving the complainant with no food for
the day. Hunger being not a good teacher of morals got the better of
the complainant and understandably so. How could a mother worth her
motherhood cast away the cloak of maternity and brutally punish her
own ten year old son in such a primitive fashion for such a miniscule
infraction worth not even a teaspoon? As if that was not enough
appellant felt no remorse and had to effrontery to tell fibs to
clinic staff in an endeavour to sweep her dastardly act under the
carpet.
What
appellant did contravenes section 53 of the Constitution. She
subjected the son to torture, cruel, inhuman and degrading treatment
or punishment. This case is not one of sparing the rod and spoiling
the child. Section 81 of the Constitution confers on every child the
right to parental care, protection from maltreatment, neglect or any
form of abuse and the right to nutrition. By her conduct the
appellant sorely breached the complainant's constitutional rights
enshrined in the Bill of Rights.
It
does not matter that the appeal took this long to be heard. As
already stated the delay lies squarely on appellant's legal
practitioner's shoulders and this one is a proper case where
appellant must bear the consequences of her agent's negligence.
Also,
it matters not that if incarcerated appellant's children will
remain with no mother. They will remain with their father. After all
complainant himself is now 16 years old. He is now a teenager and not
a child. If it were in other societies the appellant, for this
domestic child abuse, would surely have been stripped of custody of
her children for she certainly does not deserve custody after
exhibiting such cruelty to the complainant.
There
was no misdirection by the learned trial magistrate in the manner in
which he assessed the sentence that he imposed upon the appellant.
The sentence is properly deserved.
In
the result the appeal against sentence is without merit and is
accordingly dismissed in its entirety.
Moyo J ………………………………………..
I agree
T. Hara & Partners,
appellant's legal practitioners
Prosecutors
General's Office respondent's legal practitioners
