The
record of proceedings in this matter has been placed before me by the Provincial
Magistrate Masvingo under cover of a minute with the following comments;
“Please
place this record of proceedings before a High Court Judge with the following
request.
The
accused was arraigned before Mr P Mapiye at Masvingo Magistrates Court. The
trial progressed till judgment stage and the accused defaulted before it was
handed down. He was arrested through a warrant of arrest. However, the trial
magistrate left service before handing down judgement. We therefore request
that the proceedings be reviewed with a request for trial de novo.”
While
this court has inherent jurisdiction to review and regulate the proceedings of
lower tribunals, it is always important, in my view, for proper facts to be
stated when submitting records to the court for purposes of review. I make this
point because it is clear to me that the learned Provincial Magistrate who
wrote the referral minute seemed not to have appraised himself with the status
of the proceedings he was referring to this court. It is incorrect that this
matter had progressed till judgement stage. While it may be true that the
accused defaulted court as alleged (this is not apparent in this record of
proceedings), it is not true that this matter had reached the stage where
judgement could be passed. The correct position is that the State had led
evidence from three witnesses. The State case had not been closed and the
accused was yet to give evidence. I am surprised why this learned Provincial
Magistrate did not at least appraise himself of the record of proceedings. This
misrepresentation could also have been avoided if the learned Provincial
Magistrate has first referred this matter to the other interested party, the
Prosecutor General (the Attorney General) for their input on the status of the
matter.
The
correct facts of the matter are that the accused and an accomplice (who still
appear to be at large, one Rangarirai Pakachena) were arraigned before Mr
Mapiye at Masvingo Magistrate Court on 5 November 2008 facing a charge of
contravening section 114(2)(a) of the Criminal Law (Codification and Reform)
Act [Chapter 9:23] – stock theft. It is alleged that on 1 October 2008, at
Mavhorondiya Village, Chief Zimuto, Masvingo the accused and his accomplice or
one of them stole two cows belonging to Shumirai Mudakureva valued then at
Zimbabwean $600= million.
The
facts alleged are that both the accused and the complainant reside in the same
Mavhorondiya Village, Chief Zimuto, Masvingo. It is alleged that on 29 August
2008, the accused approached one Maramba who owns a butchery in Mucheke,
Masvingo and offered to supply him with beef. It is alleged that Maramba
alerted the police who proceeded to set up a trap. It is further alleged that
on 1 October 2008, the accused and his accomplice stole the complainant's two
cows after which the accused approached the police for a stock card clearance
and permit to drive the two cows whilst his accomplice drove the cows to
Gonyohori abattoir. The accused's accomplice was arrested at the abattoir with
one cow as the other had escaped. The accused was arrested at Maramba's
butchery awaiting payment for the two cows. Both cows were recovered. When the
trial commenced, Accused One was represented by Mr Bhunu
and his accomplice appeared in person. They both pleaded not guilty. Accused One
admitted offering to sell two beasts to Maramba but insisted that the beasts
were his and that he was arrested before he had completed the transaction. The
accomplice admits driving two beasts to Gonyohori abattoir where he was
arrested and said this was on Accused One's instructions.
The
record of proceedings shows that three witnesses, the complainant, Shumirai
Mudakureva, Godwin Maramba and the Investigating Officer, Chidhakwa, gave
evidence and the proceedings were adjourned. The reason is not clear, neither
is the date. The accused is alleged to have defaulted the court thereafter and
was re-arrested sometime in 2012. Meanwhile, the trial magistrate, Mr Mapiye,
left service. The date is not given in the referral minute.
It
is on this basis that I am being requested to quash these proceedings and order
trial de novo.
In
the case of S
v Tsangazi
1997 (2) ZLR 247 (H), GILLESPIE J examined the various scenarios where
incomplete criminal proceedings may be set aside and trial de novo ordered either due to the incapacity or
unavailability of the judicial officer dealing with the matter. I believe it is
important for guidance purposes to summarise the various scenarios and the
appropriate action to be taken.
a)
Where a judicial officer dies or is incapacitated, the incomplete proceedings
are a nullity and the matter may be commenced afresh. The reason is that the
judicial officer is incapable of bestowing a verdict and neither can the
accused successfully demand for one. I may venture to add that, in my view, in
such a scenario it may not be necessary for the High Court to set aside such
incomplete proceedings although for procedural expedience and completeness such
an order may be sought.
b)
Where a judicial officer recuses himself or herself or he or she becomes functus officio. In such circumstances, it is then
necessary for the State, through the Prosecutor, if it wishes to continue with
the matter, to have a new hearing.
c)
Where the judicial officer or magistrate is transferred from the station before
completing the criminal proceedings he or she is not disqualified from
continuing with that case. All what is required is for the necessary
administrative steps to be taken like mobilising financial resources and
necessary authority to vest him or her with the jurisdiction to exercise
his/her powers in that District or Province. Such a judicial officer may also
continue with the matter on the basis of implied jurisdiction.
d)
The power to set aside incomplete proceedings on account of transfer of the
judicial officer and to order trial de novo may only be
properly exercised by this court on application by one of the interested
parties on notice to the other. This is so because such a matter is not
available for automatic review.
The
circumstances of the matter in casu are that the
trial magistrate left the service before the criminal proceedings had been
completed. In the case of S v Tsangazi 1997 (2) ZLR 247 (H)…, GILLESPIE J referred to the
case of S v
Gwala
1996 (2) SA 227 (N) in what I believe the question of what proper
course of action this court can take was answered. It was stated that;
“Clearly,
such an officer becomes functus officio upon
recusal, and, the prosecutor desiring to proceed with the case, it becomes
necessary to have a completely new hearing. Equally so, the death of a
magistrate, his resignation, or dismissal, would give rise to the opening of a
case de novo against an accused person.”…,.
It
is clear from the facts of this case that the trial magistrate left the
service. It matters not whether it was by dismissal or resignation. The
criminal proceedings are incomplete. It is therefore appropriate, in such
circumstances, to have the proceedings set aside and commenced de novo before another magistrate. This is a very serious
matter of stock theft which invites a mandatory term of 9 years imprisonment in
the absence of special circumstances if the accused is convicted. I am
cognisant of the fact that the offence was committed in 2008 and that it has
been outstanding for 5 years. The accused is clearly to blame for this delay. I
also believe there would be considerable delay incurred if the trial magistrate
(assuming he is available) is to be recalled and clothed with the necessary
jurisdiction to finalise the matter and this is prejudicial to the accused.
I am
therefore satisfied that I can properly set aside these incomplete proceedings.
Accordingly, I make the following order;
1.
The proceedings in CRB MS 2520-21/08 be and are hereby set aside.
2. A
trial de novo be and is hereby ordered before a different
magistrate.
