MUTEMA J: The trial magistrate who
dealt with all the above matters was discharged from the service before, in
some cases, responding to the queries raised by the scrutinising Regional
Magistrate. The records pertaining to these cases were retrieved from the trial
magistrate's office drawer in a plastic bag. The scrutinising Regional
Magistrate has forwarded the records in question for remedial action on review.
Re: State v Kudakwashe Nyawera
The accused pleaded guilty to 2
counts of malicious damage to property and to 1 count of theft. The trial
magistrate indicated that she proceeded with those guilty pleas in terms of s
271(2)(b) of the Criminal Procedure and Evidence Act. However, nowhere does it
reflect that that procedure was followed through for the essential elements of
the 3 counts were never canvassed to the accused.
As
regards the fourth count of malicious damage to property, the accused pleaded
not guilty and a trial followed. However, in her written judgment, the trial
magistrate did not complete the judgment. The judgment does not allude to any
verdict at all and the last sentence of it is incomplete. The verdict portion
at the back of the charge sheet simply says “guilty as charged” without stating
in respect of which counts.
The
sentence merely says “all counts as 1 for sentence” without stating which
counts since accused was not convicted of the 4th count he pleaded
not guilty to.
What
this all boils down to is that in respect of the 3 counts accused pleaded
guilty to, he was wrongly sentenced for want of the trial magistrate's failure
to proceed in terms of s 271(2)(b) of the relevant Act. The sentence meted out
is therefore incompetent. Regarding the 4th count it seems accused
was also sentenced in respect of it yet he judgment had not convicted him of
it. This slipshod and slapdash way of performing judicial work constitutes a
grave irregularity fatal to both conviction and sentence as regards all the 4
counts.
The
accused was sentenced on 6 July, 2009 to six months imprisonment portions of
which were suspended on certain conditions of good behaviour and restitution,
leaving him with an effective 2 months imprisonment. He has long served
that.
In
the event it behoves me to hold that I cannot certify that the proceedings were
in accordance with real and substantial justice. Accordingly the purported
conviction and the sentence in respect of all the counts are quashed and set
aside.
Re: State v Joseph Kaseke
The
learned scrutinising Regional Magistrate queried why the sentence on the
scrutiny cover differed from the one in the record and whether the trial
magistrate ever bothered checking her work prior to submitting it for scrutiny.
The sentence as reflected on the scrutiny cover reads:
“9 months imprisonment of which 4
months imprisonment is suspended 2 months is suspended on condition accused
pays a fine of US$50 on or before 30/04/09. 3 months is suspended on condition
accused performs 105 hours of community service at Chembira Primary School.
Community service shall commence on 08/04/09”.
The
sentence in the record is complete and somewhat adequately worded as reflected
on what is termed Community Service Sentence Formular 'A' as follows:
“9 months imprisonment of which 4
months imprisonment is suspended for 5 years on condition ..(of good
behaviour). The remainder of 3 months imprisonment is suspended on condition…
(of community service). A further 2 months imprisonment is suspended on
condition accused pays a fine of US$50 on or before 30/04/09 through the Clerk
of Court Mbare by 4 p.m.”
It
certainly reveals that the trial magistrate did not exhibit the required
diligence when she forwarded the record for scrutiny without ensuring that the
sentences captured above were in tandem. However, the sentence as reflected in
the record seems to be the actual one that was imposed and its wording is clear
enough. I would have been minded to correct the one on the scrutiny cover to
match the one in the record had that been the sole irregularity.
The
accused was charged with and pleaded guilty to C/S4 as read with s 3(i)(a) of
the Domestic Violence Act, [Cap 5:16}
in that he had assaulted his wife with a sjambok on 11/February 2009 for
refusing to give him “money to pay for his child's fees” and the wife sustained
“cuts and whips all over her body”. Thereafter accused went away and came back
on 14 February at around 21.20 hours. When complainant asked him where he had
been, accused again assaulted her with the same sjambok and she sustained cuts
on the hands, face and back. No medical report was obtained because the
complainant did not go to hospital.
Out
of this series of events the accused was charge with only one count instead of two
and no explanation therefor was proferred. It was incumbent upon the trial
magistrate to raise this issue with the prosecutor in the interests of justice.
She did not.
A
miscarriage of justice transpired. As for the absence of the medical report,
perhaps by the 7th of April, 2009 when the accused was arraigned, it
was too late to obtain one. But the investigating officer and the set down
prosecutor slept on duty by not being alive to timeously ensure that one was
obtained.
Over
and above the foregoing irregularities, and most importantly is this one
committed by the trial magistrate. She indicated that following the plea of
guilty, she proceeded in terms of s 271(2)(b) of the Criminal Procedure and
Evidence Act. However, the record of proceedings has nothing showing that that
procedure was ever embarked upon. The only notes present are ones pertaining to
reasons for sentence. No explanation of the facts and the essential elements of
the offence and no mitigation was recorded. In the result, the purported
conviction and sentence are incompetent. It is surprising that the scrutinising
Regional Magistrate missed this material irregularity, only managing to detect
the peripheral one alluded to above. The accused has long finished serving the
sentence. This is like closing the stable door after the horse has bolted. The
conviction and sentence which are patently incompetent cannot be allowed to
stand. In the event, both are quashed and set aside. If the accused paid the $50
fine, he is entitled to its refund.
Re: State v Francis Muchamba
Accused
was charged with assault. The charge appearing on the summary jurisdiction
states:
“assault as defined in s 89 of the
Criminal Law (Codification and Reform) Act [Cap
9:23]”.
On the scrutiny cover it reads:
“assault as defined in s 80 of the
Criminal Law (Codification and Reform) Act [Cap
9:23]”
This
constitutes the first irregularity. Section 89 has three subsections some
of which have paragraphs. To simply
prefer a charge of contravening that section without specifying the offence-
creating subsection and paragraph is not only vague but wrong. The correct
charge should read contravening s 89(1)(a) of the Act in question – the offence-
creating provision. As for the s 80 which was quoted on the scrutiny case
cover, it has nothing to do with assault at all. It deals with “sentence for
certain crimes where accused is infected with HIV”. This exposes lack of
diligence and thoroughness on the
part of the trial magistrate.
Accused
therein pleaded not guilty to assaulting the female complainant. The alleged
assault emanated from an altercation over the cellphone charger complainant had
given the accused to use and return and he had failed to give it back.
Complainant lost an incissor tooth as a result of the assault. Following a
contested trial, accused was convicted. The plea, verdict and sentence were
written on the face of the summary jurisdiction at the bottom. The sentence
reads,
“9 months imprisonment 3 months
imprisonment wholly suspended for 5 years on condition of good behaviour. 6
months imprisonment suspended on condition accused pays a fine of US$50”
The
trial magistrate's signature was endorsed thereon but no date is given.
On
the scrutiny case cover the sentence was allegedly passed on 19 March,
2009 and reads,
“4 months imprisonment wholly
suspended for 5 years on condition accused completes 140 hours of
Community Service at Waterfalls Police Station during midweek between
08.00-13-00 and 14.00 16.00…., Community Service to commence on 21
March, 2009 and to be completed within 3 weeks of that date” (my
emphasis).
When
the matter went for scrutiny the Regional Magistrate queried the difference
between the sentence on the charge sheet and that on the scrutiny cover. While
the trial magistrate conceded the error, the sentence on the face of the
summary jurisdiction cited above was crossed out. The papers do not ventilate
as to when that was done. However, at the back of the summary jurisdiction
appears this sentence seemingly written on 21/03/09:
“4 months imprisonment wholly
suspended for 5 years on condition accused perform (sic) 140 hours of c/s at Waterfalls Police Station. c/s to be
performed on Saturday and Sunday between the hours of 8 a.m.-1 p.m -2
p.m-4 pm excluding public holidays. c/s to be performed to the satisc. C/s to
commence on 21/03/09” signed Ruwona, 21/03/09. (my emphasis).
The
foregoing gives testimony of a maze of confusion as regards the exact sentence
that was meted out. The deleted sentence is totally different from the other
two sentences and those other two are also materially different from each other
if one compares the underlined words and or phrases. For instance the sentence
on the scrutiny case cover was passed on 19 March, 2009 while that at the back
of the summary jurisdiction was passed on 21 March, 2009. In the former, the
community service was to be performed during midweek (whatever that means)
whilst in the latter it was to be performed on Saturday and Sunday. In the
former, passed on 19 March, the community service was to commence on 21 March
whilst in the latter, passed on 21 March, it was to commence on the same date.
In both the 4 months were “wholly suspended for 5 years on condition accused
performed 140 hours of community service”. Such a condition of suspension of a
sentence is glaringly incompetent. If accused worked Saturdays and Sundays
doing 7 hours a day, in 3 weeks he would only have done 42 hours and not 140
hours.
In
view of the countless elementary and material mistakes that are observed on
review regarding sentencing, the office of the Chief Magistrate is urgently
called upon to do something to ameliorate this disturbing trend whereby quite a
substantial number of magistrates are clueless on these aspects of sentencing.
In
the instant case the conviction of the University of Zimbabwe
student seems proper and is confirmed, and the community service having been
long completed, it behoves me to adopt and correct the sentence at the back of
the summary jurisdiction to read as follows:
“4 months imprisonment wholly
suspended on condition accused completes 140 hours of community service at
Waterfalls Police Station. The community service shall be performed on Saturday
and Sunday excluding public holidays and between the hours of 8 a.m and 1p.m and
2 p.m and 4 p.m to the satisfaction of the person in charge at the institution.
The community service shall commence on 21 March, 2009 and must be completed
within 11 weeks of that date”.
Re: State v Stanely Shonhiwa
The
scrutinising Regional Magistrate took issue with the wording of the sentence.
That sentence reads:-
“6 months imprisonment wholly
suspended for 5 years on condition accused restitutes complainant Gerald Kanoyanga
in the sum of US$448-58 on or before 31/05/09 through clerk of court Mbare”.
The
phrase “….for 5 years …” also appears in the sentence in the case of Francis
Muchamba supra where I did point
out that it does not make sense. Such period of suspension is usually imposed
where a portion of sentence is suspended on condition of good behaviour and not
wherein restitution should be paid. Trial magistrates are reminded and urged to
diligently apply their mind to their work as expected of judicial officers. As
no prejudice will result to anyone, the sentence is corrected by the deletion
of the words “for 5 years” to read:
“6 months imprisonment wholly
suspended on condition accused restitutes complainant Gerald Kanoyanga in the
sum of US$448-58 on or before 31/05/09 through clerk of court Mbare”.
With this amendment, the proceedings in this
matter are confirmed.
Re: State v Farai Mavhundu
In
this case the scrutinising Regional Magistrate opined that the accused's guilty
plea ought to have been altered to one of not guilty. The charge is one of
assault and during the canvassing of the essential elements, the accused was
asked “what was your intention?” and his response was, “I was defending my
wife”.
Ordinarily,
such an answer gives rise to a triable issue of defence of a third party. In
the instant case however, I am not persuaded that there was such a defence open
to the accused in view of the common cause facts of this case. If an accused
person's wife has an altercation with a complainant in the absence of the
accused and the accused later comes home and is appraised of the altercation
then approaches the complainant and assaults him with fists and booted feet
several times with severe force occasioning a severely bruised neck and face
(as per the medical report), I cannot comprehend existence of such a
defence especially where the accused also says he assaulted the complainant
because he was insulting his wife. The requirements for such a defence are
absent because the accused emerged on the scene much later after the event.
There was no longer any imminent threat/danger of attack to the wife by the
complainant which would have entitled the accused to act in defence of his
wife. In the event, the trial magistrate was not obliged to alter the accused's
plea to not guilty.
In
the result, the proceedings in this case are certified to have been in
accordance with real and substantial justice.
MUTEMA J: …………………………
MTSHIYA J: agrees: …………………..
