The Court's position, which I feel inclined to emphasize, is that the Court can never be held hostage by the concession made by the State as happened in this case. There may be so many reasons why the defence and the prosecution may come to any agreement including but not limited to for example, a conspiracy to mislead the court for whatever reason. The Court must not be bound by such concessions and must retain its discretion to arrive at a properly informed or judicious decision taking into account the evidence tabled before it.

The final decision must remain the prerogative of the Court.

This is an appeal against the decision of the Provincial Magistrate sitting at Harare delivered on 30 March 2012 in which he dismissed an application by the appellants for the suspension of their sentence of 12 months imprisonment or 420 hours of community service at institutions in Harare and Chinhoyi.

The appellants had approached the court a quo seeking that suspension pending an appeal which they noted to this court on 22 March 2012.

As stated, their application did not find favour with that court as a result of which they have approached this court as an Appeal Court....,.

Regarding the merits of the matter, the appellants have attacked the decision to dismiss their application on the grounds, inter alia, that the court a quo misdirected itself in dismissing the application without a finding that the appeal had no prospects of success at the Appellate Court.

It has been submitted, on behalf of the appellants, that the court a quo did not properly apply its mind to the application before it especially as it did not consider all the factors placed before it in that application including the prejudice likely to be visited upon the appellants if they perform community service before the appeal is determined given the obvious delays that occur.

On the other hand, the State is of the view that the appeal against both conviction and sentence is without merit, has no prospects of success whatsoever, and, for that reason, the appellants should be made to serve their sentences.

Counsel for the State relies on the authority of S v Kilpin 1978 RLR 282 (AD) where the Appeal Court pronounced…, as follows:

“The principles governing the grant of bail before conviction are entirely different from those governing the grant of bail after conviction and the difference is even more marked when the guilt of the accused is not in issue and the usual sentence for the offence is an effective prison sentence of substantial duration. It is wrong that a person who should properly be in gaol should be at large and nothing is more likely to encourage frivolous and vexatious appeals than the attitude adopted by the magistrate in the present case.”

In the present case, the application for a stay of sentence was made after the notice of appeal had been lodged and the court a quo had the benefit of that detailed appeal when considering the application. It also had the benefit of lengthy oral submissions made by both counsel. In fact, the submissions by counsel run into 10 pages of the transcribed record, from page 75 to 85.

It is therefore curious that the judgment of the court is spectacular by its brevity - it being only 16 lines of the record. It reads as follows:

“Right, listen to the ruling.

The court considered the submissions made by both counsels (sic), and, in applications of this nature, some of the factors to be considered are whether there are prospects of success on appeal and the likely delay before the appeal is heard.

The accused were convicted of contravening section 188 as read with section 36 of the Criminal Law (Codification and Reform) Act. The evidence analysed in the judgment revealed that the key State witness was present in the room and narrated all that transpired and this was further corroborated by the accused themselves during their defence cases. It must be reiterated again that the accused were not found guilty of watching a video footage but that the video was just played to arouse feelings of hostility amongst those who attended as analyzed in the judgment and the reasons for sentence.

The accused were found guilty after the State proved its case beyond a reasonable doubt. The essential elements of the offence were satisfied as clearly shown by the evidence on record. Hence, this court did not misdirected (sic) itself in any way by arriving at the verdict of guilty.

The application for the suspension of performing community service is hereby dismissed.

So, that is the ruling.”

This is the entire judgment of the court a quo which is now being challenged on appeal.

It is difficult to understand how anyone can attempt to defend this judgment. While the magistrate made reference to matters to be considered in an application of the nature before him, he did not even attempt to deal with them. The magistrate busied himself with a narrative of how he arrived at the verdict and the sentence at the expense of the relevant considerations.

The appellants had raised essentially three (3) issues in their application, namely:

1. That they have prospects of success on appeal for a variety of reasons contained in their Notice of Appeal.

At the risk of commenting on issues still to be placed before the Appeal Court, I may hazard an example; being the contested issue of whether their conduct, be it “watching” or “playing” a video, constituted an offence as defined in section 188 as read with section 36 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code). In my view, this is a critical issue which calls for interrogation by the Appellate Court.

2. That should they be made to commence performing community service they will suffer prejudice in the event that their appeal is successful as they would have served a substantial part of the sentence which may be overturned on appeal, and, yet, no prejudice will be suffered by the State if the sentence is suspended.

3. That there is no risk of abscondment given that they had piously complied with their bail conditions and attended court - even when they were facing more serious charges.

In my view, these are the issues which should have occupied the mind of the court a quo in considering the merits of the application. It did not. Instead, as stated by counsel for the appellants, the court pre-occupied itself with justifying its judgment.

This was a misdirection.

Indeed, there are no reasons for dismissing the application at all.

State counsel has conceded that the court a quo did not give reasons for dismissing the application, and, in a way, although with tounge in cheek, he does concede that the points raised by the appellants were not addressed at all. He has however asked me to reconsider the evidence which he says will persuade me to uphold the decision of the magistrate.

The appellant was convicted on a charge of contravening section 3(1)(a) of the Sexual Offences Act [Chapter 9:21].

He appealed to this court against both conviction and sentence.

After hearing submissions from counsel for the parties we upheld his appeal and set aside his conviction and sentence. We indicated that our reasons for judgment would follow. These are they:

The appellant fell in love with the complainant who was then aged thirteen. He, early in the morning of 17 April 2006, invited her to his house where it is alleged he raped her. He was charged with rape, but, was convicted of contravening section 3(1)(a) of the Sexual Offences Act [Chapter 9:21]. He was convicted by a Regional Magistrate sitting at Harare Regional Magistrate's Court, who sentenced him to 36 months imprisonment of which 12 months were suspended on conditions of good behaviour.

The appellant appealed to this court against conviction and sentence. His appeal against conviction is based on irregularities and evidential deficit.

On irregularities, the appellant alleged that his trial was fast tracked to his prejudice and the State failed to produce the complainant's first statement to the police in which she denied having been raped by the appellant. Counsel for the appellant also challenges the medical report on the ground that it was produced without giving the appellant three days' notice as required by section 278(11) of the Criminal Procedure and Evidence Act [Chapter 9:07], and, without seeking his consent for its production without the requisite notice.

On evidential deficit, counsel for the appellant submitted, that, the trial court erred by relying on the evidence of the complainant who came to court with visible injuries, having been assaulted by her uncle for this case; that the complainant had freely and voluntarily made an initial statement to the police denying having been raped by the appellant. He submitted that the complaint was examined by a doctor four days later and the report does not state that the appellant is the one who had sexual intercourse with her. He also argued that there was no basis for the magistrate preferring the complainant's and her uncle's evidence to that of the appellant and his witness.

Irregularities

Counsel for the appellant raised two main grounds on which he alleged that there were irregularities in the appellant's trial before the court a quo:

(i)...,. 

(ii) The Doctor's report on the complainant was improperly produced....,.

The issue of substance, which was dwelt on towards the end of the appeal hearing, is the magistrate's failure to observe the requirements of section 278(11) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Counsel for the appellant submitted, that, the appellant's trial was conducted with such haste that his right to three days notice before the production of the Doctor's report on the complainant's examination was not complied with.

Counsel for the respondent conceded, that, the appellant was not given three days' notice of the State's intention to produce the Doctor's report, and that his consent to its production without such notice was not sought.

It was also conceded, that, the law on the production of such documents was not explained to the appellant.

The concessions were properly made as the magistrate's omissions are apparent from the record of proceedings.

Section 278(11) of the Criminal Procedure and Evidence Act provides as follows:

“(11) An affidavit referred to in this section shall not be admissible unless the prosecutor or the accused, as the case may be, has received three days' notice of its intended production or consents to its production.”

In terms of section 278(11) of the Criminal Procedure and Evidence Act two things must happen for the affidavit to be admissible in evidence:

(i) The three days' notice should have been given; or

(ii) The appellant should have consented to its production without his having been given such notice.

The consent of an unrepresented accused person can only be valid if his right to such notice is explained to him before he is asked whether or not he consents to its production without the requisite three days' notice.

It is not enough to merely ask if he consents to the production of the Doctor's report as there is need for him to consent to its production in general, and to consent to its production without the statutorily required three days notice of its production.

If the affidavit is produced without the requisite notice or consent, it will not have been properly produced and cannot be used as evidence against the accused.

In this case, the Doctor's affidavit, on the examination of the complainant, was not properly produced. That evidence was not properly before the trial court.

Its use in convicting the appellant should therefore affect the regularity of the proceedings and the propriety of the conviction.

Its production without the requisite three days' notice, or his informed consent, is an example of the court proceeding with a trial with undue haste to the prejudice of the appellant.

This is an example of how fast track trials should not be conducted.

Counsel for the respondent could not possibly hold that in each case where there was not a scream for help, a victim of rape was not worthy of belief.

Such an approach is misplaced.

In the end we were satisfied her concession was totally ill-advised and therefore dismissed it.

In their oral submissions, both the State and defence counsel were agreed that the accused person lacked the mental intention to commit murder by reason of the mental disorder that afflicted him.

We agree…,.

The State and the defence later advised the court that they were both satisfied that the court should return a special verdict in terms of section 29(2) of the Mental Health Act [Chapter 15:12]. We adjourned the proceedings to consider the parties submissions on the retention of the special verdict. In view of the common evidence from both the State's and defence's expert witness we were satisfied that the parties' concessions on the special verdict were properly made.

Not being quite satisfied as to the basis upon which the concession by the respondent has been made I requested additional submissions from counsel for the respondent.

I am live to the fact that the respondent is not opposed to this application.

There seems to be a popular but wrong perception that the State's concession to the granting of bail automatically guarantees the applicant's success in his application. 

The court has the final say, after satisfying itself that the concession made by the State is properly made. The court cannot, and should not, be used as a rubber stamp on concessions and/or agreements reached by the applicant and the respondent.

In the circumstances, I am of the opinion that the applicant's chances on appeal are nil. I find that the applicant has failed to prove, on a balance of probabilities that he is likely to succeed on appeal.

When this matter was initially presented to court, both the State and the defence had opted for the lesser charge of culpable homicide.

The court registered its reservations on the correctness of the approach opted for and the State had to reconsider its position. The result was that the case had to proceed on the substantive charge of murder in contravention of section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The respondent's counsel filed a concession of the appeal in terms of section 35 of the High Court Act.

We have considered the concession filed and the reasons thereto and we are of the firm view that that concession was well-made and an informed one for that matter…,.

The respondent and the appellants are ad idem on the point that the sentence which was imposed on the appellants was not only harsh but was excessively severe. Given the appellants' circumstances, the court remains of the view that the sentence cannot be allowed to stand. It induces a sense of shock in us and it will, therefore, be interfered with.

The court has considered all the circumstances of this appeal.

It is satisfied that the respondent's concession was properly made, and it, in the process, left this court at large as regards the fact of what the court may consider to be an appropriate sentence which must be imposed upon the appellants.

The respondent's attitude to the appeal was that the conviction was unsafe and should, therefore, be quashed and the sentence set aside. It stated that the evidence of witnesses for the prosecution was not only contradictory but was also inconsistent, conflicting and un-corroborative of each other….,.

It, in this regard, requested that the appeal be dealt with in terms of section 35 of the High Court Act [Chapter 7:06]….,.

The complainant's evidence left a lot of loose ends to it. It was, at best, unbelievable, and, at the worst, contradicting the testimony of other State witnesses. It was indeed difficult for the court to appreciate the reasons which persuaded the trial court to come to the conclusion that the appellant's guilt was proved beyond any shadow of reasonable doubt in circumstances where even a prima facie case was not sticking.

The respondent's concessions were properly made and the court associates itself with them.

The parties in the present appeal are ad idem on the point that the sentence which the trial court imposed on the appellant is not only harsh and severe but it also induces a sense of shock.

The court agrees with the position which the parties took.

After a perusal of the file in preparation for the trial set down for the 28^th January 2015, I, on the morning of the trial date, invited counsel for the parties to my chambers in terms of Rule 183 of the High Court Rules 1971 which entitles a judge to “call into his chambers the counsel for the parties with a view to securing agreement on any matters likely to curtail the duration of the trial.”

The Constitutional Court is empowered to confirm an order of constitutional invalidity only if it is satisfied that the impugned law or conduct of the President or Parliament is inconsistent with the Constitution. It must conduct a thorough investigation of the constitutional status of the law or conduct of the President or Parliament which is the subject-matter of the order of constitutional invalidity. The Constitutional Court must do so irrespective of the finding of constitutional invalidity by the lower court and the attitude of the parties.

Thorough investigation is required, even where the proceedings are not opposed or even if there is an outright concession that the law or the conduct of the President or Parliament which is under attack is invalid. The reason for this strict requirement is that invalidity of the law or the conduct of the President or Parliament is a legal consequence of a finding of inconsistency between the law or the conduct in question and the Constitution.

Inconsistency is a matter of fact, on the finding of which the court a quo and the Constitutional Court may differ.

On the 13^th of December 2010, around 2100 hours, and along Bulawayo–Gwanda Road, an accident which claimed the life of one Alfred P. Moyo (the deceased) occurred. The deceased was the driver of a DAF truck bearing registration number AAC 4363 which was heading towards Bulawayo whilst the appellant was driving a freight-liner heavy vehicle bearing registration number ABB 5780 towing a trailer heading in the opposite direction. The two vehicles collided along the way and the appellant was charged and convicted of contravening section 49(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and some other offence for which he was acquitted and is consequently of no relevance to this appeal….,.

Aggrieved by both the conviction and sentence, the appellant lodged this appeal against both.

The main complaint by the appellant is that the court a quo erred in its assessment of the evidence that it relied upon in convicting him; the argument being that he ought to have been acquitted at the close of the proceedings as the evidence did not support his conviction.

In its response to the appeal, the respondent has conceded that the conviction was not supported by the evidence which was at the disposal of the court a quo.

I agree.

It is quite clear that the court a quo itself was not impressed by the evidence of the key witnesses in this case, viz, the deceased's wife, who was clearly not on a vantage position to enable her to see clearly how the accident had occurred. Her ability to see clearly was compounded by the bad weather which was prevailing at the time. She was the only witness who was expected to give direct and credible evidence, but, as the court a quo noted, that evidence had its own shortcomings. As regards the second witness, the court found him to have been sincere but unhelpful and unable to corroborate any of the other witnesses.

Philimon Mupasiri, who claimed to have been driving in front of the deceased's vehicle before the impact, could not, in all probabilities, be said to have been able to give a credible account of what happened since he clearly reacted to the collision of the motor vehicle. This witness only stopped as a result of the collision and his evidence could not have assisted the court a quo in determining the alleged negligence of the appellant.

The fourth witness, the Police Accident Evaluator's evidence, was largely compromised by not having been at the scene at the time of the accident. The witness' testimony created even more confusion when he came up with two possible points of impact and his sketch plan was found, by the court a quo, not to have been comprehensive enough.

The court's view is that, in the line of the unconvincing evidence led by the State, the appellant should have been believed when he testified that the deceased's vehicle appeared to have encroached into his lane of travel thereby causing the accident.

The evidence, looked at in its totality, did not satisfy the threshold of proof beyond a reasonable doubt and the benefit of doubt should have been granted to the appellant at the close of proceedings….,.

I am satisfied that the concession made by the State, not to support the conviction, was well made. The conviction is quashed and the sentence set aside and the appeal is upheld.

The accused person is charged with the offence of murder: it being alleged, that, on 25 March 2012 he assaulted the deceased, Jacob Matereke, with a log resulting in the deceased dying on 3 April 2012 from the injuries sustained in the assault.

The accused person pleaded not guilty to this charge, but, instead, offered a limited plea to a charge of culpable homicide. The State accepted this limited plea and the parties drew exhibit number 1, being a Statement of Agreed Facts. Its material aspects read as follows:

1. Munyaradzi Matuke (hereinafter called the accused person) was aged 20 years at the time of the commission of the alleged offence. He resided at Lot 1 Induna Farm, Lalapanzi in the Midlands Province.

2. Jacob Matereke (hereinafter called the deceased person) was 49 years at the time of his death. He resided at the same farm with the accused.

3. On the 25th day of March 2012, and at about 0500 hours, the deceased went into the accused's room at the farm and pulled away the blanket from the accused who was still sleeping. The deceased kicked the accused once with booted feet and got restrained by people who were present in the room.

4. The accused person then got up and went to the shops where he spent the whole day there and returned around 1900 hours.

5. The accused indicated that he wanted to go to the fields and guard against pigs, but, the deceased indicated that he was to attend to the fields himself. This degenerated into an argument as both parties insisted that they wanted to go to the fields.

6. The deceased, who was holding a matchete, struck the accused once on the face with a clenched fist.

7. The accused then picked up a log that was nearby and struck the deceased once on the forehead and he fell unconsciously.

8. The deceased was ferried to Gweru General Hospital where he was later transferred to Parirenyatwa Hospital where he passed away on 3 April 2012.

9. On the 5th of April 2012, Dr Gabriel Aguero examined the remains of the deceased and concluded that the cause of death was:

(i) Severe head injury due to assault.

10. The accused person accepts the contents of the post mortem report. The accused denies having the requisite intention in the form of dolus directus, or dolus eventualis to kill the deceased but acknowledges, that, through his conduct aforesaid, he was negligent in causing the deceased's death.

11. The State concedes to the fact that the accused was negligent in the way he conducted himself in the manner he assaulted the deceased. The State acknowledges that the accused was negligent resulting in the death of the deceased and concedes to the accused's plea of culpable homicide.

The post-mortem report was tendered and marked Exhibit 2; it gives the cause of death as severe head injury due to assault.

The log that was allegedly used in the commission of the offence was tendered and marked Exhibit 3.

The court accordingly, from the evidence before it, found the accused person not guilty of murder but nonetheless proceeds to convict the accused person of the offence of culpable homicide.

It is not correct, as the respondent (the State) had wrongly conceded, that the appellant was treated as an adult.

Maybe both counsel were put on the wrong scent by what the learned Senior Regional Magistrate said in the reasons for sentence. The relevant part reads as follows:

“I do not believe corporal punishment will reform you. I believe a short prison term will teach you a good lesson to other boys out there now that you are close to 18 years. I do not believe treating you like a juvenile will save (sic) any good lesson. You should be treated like an adult (sic).”

The mumbled pronouncements by the learned Senior Regional Magistrate are unfortunate.

This should not, however, detract from the fact that the appellant was not treated as an adult. A number of observations inform this finding. The appellant's mother was called to assist the court in the pre-sentence inquiry as there was no Probation Officer's report. What is even more pertinent is that the sentence imposed by the trial court is way below the sentences normally imposed in rape matters where adult men who sexually abuse minor children like the 10-year-old complainant. The sentences are well above 10 years imprisonment.

A proper assessment of all the factors clearly show that the appellant was not treated as an adult.

The appellant and the respondent were ad idem on the point that the evidence of the State did not support the conviction of the appellant on the main charge.

The court agrees with the parties' position on the matter.

The accused was charged with the crime of murder; it being alleged that on 19 December 2014, at Mabutho Ncube's homestead, Nyambane Village, Gulathi area, Matobo, the accused did wrongfully and unlawfully kill and murder Mabutho Ncube, a male adult who was aged 35 years, by striking him with a log on the head.

The accused pleaded not guilty to the charge and tendered a limited plea of guilty with respect to the lessor charge of culpable homicide.

The State accepted the limited plea and tendered a Statement of Agreed facts (exhibit 1).

The brief facts are that on 18 December 2014, the accused and the deceased, who were husband and wife, had a misunderstanding over the accused's disappearance from their matrimonial home without the deceased's knowledge. The deceased did not accept the accused's explanation. On the following day, on 19 December 2014, around 20:00 hours the accused and the deceased had a physical confrontation. Harsh words were exchanged between the parties. The accused alleges that the deceased threatened to stab her with a knife. In anger, the accused picked up a log and struck the deceased twice on the head. The accused disappeared from the scene.

On 20 December 2014, the accused phoned the deceased's brother and informed him that she had fought with the deceased and struck him with a log. On 21 December, the deceased's brother proceeded to the deceased's homestead where he found the deceased naked and lying in a pool of blood – dead.

The deceased had succumbed to the injuries sustained in the assault.

The postmortem report (exhibit 2) reveals that the cause of death was:

(a) Subarchnoid haemorrhage.

(b) Depressed skull fracture.

(c) Blunt force trauma head.

(d) Homicide.

The pathologist concluded, from the examination, that the cause of death was consistent with a blunt force trauma with a heavy and blunt object.

On external examination, the following marks of violence were observed:

(i) Abrasion on left hand (2cm x 2cm);

(ii) Swelling on hand;

(iii) Blood on the face, neck, shoulders and forearm;

(iv) Lacerations below right eye (2cm);

(v) Laceration on left frontal (4cm) and left parietal (6cm).

The court is satisfied that the accused acted negligently in causing the death of the deceased. Accordingly, the accused is acquitted on the charge of murder and found guilty in respect to culpable homicide.

The appellant approached the court expressing disagreement with the Chinhoyi Magistrate Court judgement wherein the court ordered the appellants to be evicted from House Number 14317 Brundish, Chinhoyi.

It is apparent from the record of proceedings that the appellants and the respondent, at different times and for different purchase prices, purchased the house in question from the seller, one Solomon Mukwidza. The scenario envisaged by evidence is that of double sale.

The appellant raised eight (8) grounds of appeal.

(a) The learned magistrate erred in holding that the appellants were aware of the dispute between Phiona Moyo and Solomon Mukwidza before cession was effected.

(b) The learned magistrate erred in holding that the appellants deliberately ignored the court case that was pending before the Chinhoyi Magistrates Court between the respondent and the seller of the House 14317 Brundish, Chinhoyi.

(c) The learned magistrate erred in holding that the appellants were aware that House 14317 Brundish, Chinhoyi had been sold to a third party before taking occupation and making improvements.

(d) The learned magistrate erred in holding that the appellants had not extended that house in question from four to seven rooms.

(e) The learned magistrate erred in accepting the evidence of the Chamber Secretary of the Municipality of Chinhoyi despite its glaring inconsistencies.

(f) The learned magistrate erred in holding that cession of right, title and interest in the appellants names was improperly done, hence was null and void.

(g) The learned magistrate erred in holding that they were no appeal circumstances justifying the appellants in defeating the eviction proceeding.

At the hearing, the applicants counsel raised a legal issue that the judgement was a nullity, and, on that basis, the trial court's judgment ought to be set aside.

It is settled, a legal issue may be raised at any stage in an appeal.

The record of proceedings…, shows that the matter was heard before magistrate Gayikayi who recorded and heard viva voce evidence from witnesses for the plaintiff and defendant respectively. The magistrate left service and joined private practice before attending to writing and delivery of judgement. The parties subsequently agreed that another magistrate peruse the record and come up with judgment. Indeed, a magistrate attended to judgement and delivered a judgment which forms the subject of this appeal.

The legal issue raised is that the judgement by a magistrate who did not preside over the proceedings is a nullity, and, as such, it cannot stand.

Counsel for the respondent whereas conceding that ordinarily only the presiding magistrate ought to have assessed, analysed, and come up with judgment presented argument that in circumstances of this case the judgement was valid. He based his argument on the fact that the appellant is the one who initiated the request for a different magistrate to write and come up with a judgement. The parties agreed and acceded to having the judgment delivered, and, as such, it was not a nullity.

The question that begs of answer is whether or not by the agreement of parties would clothe a nullity to be legally binding

For a concise and precise answer to this question to come out one has to look at the rationale or basis of the settled position that the presiding magistrate ought to come up with judgement.

It is not in dispute that the trial magistrate, in coming up with a judgment, has to assess not only the evidence adduced but demeanour. It is a holistic assessment and analysis of evidence which leads the magistrate to choose which story carries the day. Credibility of witnesses is best tested by the person who observes and hears witnesses testify. A new magistrate, on simply reading the record, may not appreciate the unwritten aspects such as demeanor and thus might come up with a judgement prejudicial to either of the parties.

Once appreciative of the rationale behind the desire for the presiding magistrate to write judgment it becomes abundantly clear that an agreement by the parties does not have the effect of clothing a nullity to become valid. The fact that parties agree to an illegality does not change the complexion of an illegality to be legal.

I subscribe fully to the sentiments echoed by BARTLETT J in S v Likwenga and Ors 1999 (1) ZLR 498 wherein he quoted with approval GILLESPIE J's reasoning in S v Tsangaiza 1997 (2) ZLR 47. Both judges where of the opinion that where a magistrate retires or is incapacitated or recuses him/herself or becomes functus officio the proceedings are a nullity. The proceedings are deemed abortive and have to be started afresh before a different magistrate.

In situations where a magistrate will have transferred or resigned before completing a partly heard matter the correct and expedient approach is to utilise administrative remedies of recalling the magistrate to come in and complete the partly heard matters. Also, in the case of a resigned or retired magistrate, like in casu, again, administrative remedies of recalling and having the individual take the oath of office to finalise the partly head matter would cure the anomaly of delay of proceedings starting de novo.

Handing over record of proceedings for assessment of evidence and judgment before a new magistrate, albeit by consent of the parties, does not paint the proceedings a legality. There are obvious prejudices which are occasioned by not having a complete assessment of the matter.

It is my considered view that the fact that civil proceedings are party-driven does not make them any different from criminal proceedings. The Civil Court, just like the Criminal Court, is duty bound to appreciate full facts, evidence, and then assess. The court is the umpire and has to come up with the judgement and this duty is not on the parties to the proceedings.

It is clear, therefore, that a wrong procedure was adopted to come up with a judgment, and, as such, the judgment by a magistrate who did not preside over the hearing is invalid and thus a nullity. Having pointed out that there is no judgement before this court it is therefore not necessary to look into the grounds of appeal for there is, strictly speaking, nothing before the court since the court a quo judgment is a nullity.

In the premises the judgment of the court a quo must be set aside.

Accordingly it is ordered that;

1. The judgement of the court a quo be and is hereby set aside.

2. The matter is referred to the trial court for the original presiding magistrate to finalise the matter, or, in the event that the magistrate is not available, for trial de novo before another magistrate who has not dealt with the matter.

3. Each party is to bear its costs.

This is an application for bail pending trial.

The applicant is facing a charge of robbery as defined under section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The applicant appeared at the Magistrates Courts and was denied bail and was referred to this Honourable Court since the robbery which the applicant is facing involved the use of a firearm and hence falls under the Third Schedule Offences Part 1 paragraph 3(a) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The circumstances of the case are that on 22 November 2014, and at about 1800 hours, the applicant was driving a commuter omnibus along Upper East, Avondale, Harare, in the company of two accomplices who are at large. The applicant and his accomplices hatched a plan to rob passengers in the commuter omnibus in and around Harare. They were armed with a firearm and knives. The applicant and his accomplices ferried passengers at Coppa Cabbana Rank intending to go to Marlborough East. The commuter omnibus had eighteen passengers. On the way to Marlborough East the driver diverted the route and turned into Upper East towards Mt Pleasant. One of the accused persons produced a knife and shouted at the top of his voice ordering everyone to keep quite. The other accomplice withdrew a pistol and pointed it at the other passengers whilst demanding for all bags. The applicant, who was the conductor, snatched the complainant's handbag and stole USD$440= and her Samsung S4 Galaxy IMEI number 358904050059490. After the robbery, the applicant and his accomplices pushed the complainant out of the moving vehicle. They drove off at high speed along Pendenis Road, Mt Pleasant, Harare.

On 29 January 2015 the police details received information to the effect that the stolen cell phone was being used by Gerald Tarasikirwa. Detectives interviewed Gerald Tarasikirwa who indicated that he bought that cellphone from the applicant but had sold it to one Owen Chinopamba. The cell phone was then recovered and it was positively identified by the complainant as hers. The detectives interviewed the applicant but he failed to give an account of where he obtained it. He was then arrested.

The respondent made a concession that the applicant is a good candidate for bail. The reason being that the cell phone had changed hands hence the evidence against the applicant was weak.

The investigating officer, Detective Sergeant Alice Chirombo, deposed to an affidavit opposing bail. Her basis for opposing bail being that the applicant is likely to interfere with witnesses and investigations. Further, some stolen property has not been recovered, and, if granted bail, the applicant might hinder the arrest of the outstanding accomplices. Furthermore, he might team up with his accomplices and commit other similar offences. In the event of a conviction he is likely to be given a lengthy custodial sentence and this would induce him to abscond if granted bail.

The principles which are followed in an application for bail pending trial are set out in section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The same principles were summarized in a number of cases. See Makamba v The State SC30-04; Aitken and Anor v Attorney–General 1992 (1) ZLR 249.

The principles were stated as follows:

(1) Whether the applicant will stand trial in due course;

(2) Whether the applicant will interfere with the investigations of the case against him or temper with prosecution witnesses;

(3) Whether the applicant will commit offences while on bail; and

(4) Other considerations the court may deem good and sufficient.

In casu, the applicant was linked to the robbery by the recovered cell phone which was positively identified by the owner. His accomplices are still at large, and, if granted bail, will not only interfere with investigations, but also may commit further offences.

The concession by the respondent is misplaced given the fact that, although the cellphone exchanged hands, the others were able to explain where they got it. The applicant dismally failed to give an account of where he got it. It follows that the doctrine of recent possession will operate against him.

Wherefore, in the result, the application for bail pending trial is dismissed.

The appellant was convicted on one count of armed robbery by the Regional Court sitting at Harare. He had been charged with two Counts of armed robbery of two motor vehicles. He was, due to lack of evidence, acquitted on the other Count….,.

At the hearing of the appeal, counsel for the respondent conceded that the Regional Magistrate erred when he convicted the appellant of armed robbery when there was no evidence linking him to the robbery. Counsel for the appellant agreed with counsel for the respondent that the appellant should have been convicted of receiving the motor vehicle knowing it to have been stolen.

The complainant in the Count for which the appellant was convicted only had 30 seconds in which he observed the robbers. Thereafter, he was ordered not to look at his assailants and a gun was pointed at his head. In the 30 seconds he said he observed that the robber who approached his motor vehicle from the right was short, dark and stout. It is common cause that the appellant does not fit that description. The complainant said the robber who approached his motor vehicle from the left was tall and slim. Again, the appellant does not fit that description.

It must be noted that the complainant did not have sufficient time to observe the robbers. His brief observation, which was split between the robbers on either sides of his motor vehicle, could not have founded the appellant's conviction even if the description he gave fitted the appellant. On the contrary, the complainant said he was not able to identify the appellant as one of the robbers.

In view of the above we were satisfied that the Regional Magistrate erred when he convicted the appellant of armed robbery in the absence of evidence identifying him as having been at the scene of the robbery. We therefore found that the concession made by counsel for the respondent was properly made.

Counsel for the respondent, in making the concession, submitted that the applicant should be convicted on the competent verdict of receiving stolen property knowing it to have been stolen. He said this was to be premised on the appellant being in possession of the stolen motor vehicle the next morning after it had been robbed from the complainant after 10:00pm the previous night. He further pointed out that the appellant's conduct, after taking possession of the motor vehicle, proves he knew it was stolen. He pointed to the following as proof of such knowledge;

(1) That the appellant used an illegal exit from Zimbabwe to Mozambique resulting in the motor vehicle being stuck in Mukumbura River.

(2) He gave Cst. Muchira incorrect information about his identity and that of the motor vehicle;

(a) He told Cst. Muchira that he was Victor Mujuru Chatibva.

(b) He showed him a driver's licence in the name of Victor Mujuru Chatibva.

(c) He gave an incorrect registration number and colour of the motor vehicle.

This proves the appellant did not want to be linked to the motor vehicle he had driven from Harare to Mukumbura River. This can only be because he knew the motor vehicle had been stolen.

Counsel for the appellant agreed with counsel for the respondent that the evidence proved that the appellant received the motor vehicle knowing it to have been stolen.

We were satisfied that the concessions made by counsel for both parties were properly made.

The State has made a concession that there is merit in the appeal against sentence and I am more than satisfied that that concession was well made.

The appellant was convicted, on his own plea, of assault as defined in section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State alleged that, on 21 March 2010, and at Paradise Motel Bus Stop, Murambinda, the appellant assaulted one Dunmore Muripo several times upon the face with clenched fists. He also struck the complainant in the face with a bottle and several times on the leg with booted feet.

The court a quo sentenced the appellant to 24 months imprisonment, 4 months of which were suspended for 5 years on condition of future good behaviour.

The appellant appealed against the sentence which he said induced a sense of shock. His grounds of appeal were that:

1. The trial court erred in sentencing him to an effective imprisonment term when:

(a) He was a first offender who -

(i) Pleaded guilty, and, therefore, did not waste the court's valuable time;

2. The court a quo erred in sentencing him to imprisonment in circumstances where the court's policy was aimed at keeping young first offenders away from custodial sentences;

3. The learned magistrate erred when he failed to realise that the complainant had provoked the appellant; and

4. The trial court should have preferred such a punishment as community service.

The relief which the appellant sought was meaningless. It read;

“WHEREFORE, Appellant prays that the sentence passed by the Learned Judgment be set aside.”

Counsel for the appellant successfully applied that the prayer be amended to read:

“WHEREFORE, Appellant prays that the sentence passed by the learned magistrate be set aside and substituted with a non-custodial sentence.”

The respondent put up a stiff opposition to the appeal.

It submitted that the sentence which the trial court imposed was appropriate for the crime which the appellant committed. It stated that the sentence was arrived at after a careful analysis of all matters which favoured and militated against the appellant. It insisted that the sentence should not be disturbed as it did not induce a sense of shock.

Counsel for the appellant made two pertinent concessions. These were that:

(i) The appellant was not a young offender as had, earlier on, been submitted; and

(ii) The appellant's assault of the complainant was an unprovoked attack, and was, therefore, not warranted.

The court commends Mr Tawona for his candidness. He acted honestly and responsibly. What he did is indeed encouraged to all legal practitioners who argue matters on behalf of those whom they represent in court.

It is trite that a legal practitioner's duty is first and foremost to the court as well as to his or her learned colleague who will be appearing on the other side of the divide in our adversarial system of justice delivery. The legal practitioner's attention to his or her client's case is equally important and must be accorded the weight which it deserves. It should not, however, be allowed to cloud his or her sense of judgment to a point where he or she refuses to see obvious matters which are not favourable to his or her client's case. He should, as in casu, make concessions where such are due, and, at the same time, advance the cause of those whom he or she represents in a lawsuit or a criminal trial in an effective manner. 

See, in this regard, Kawondera v Mandebvu 2006 (1) ZLR 110 (S).

The accused appeared before the court charged with the crime of murder as defined in section 47(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is the State's contention that on 12 April 1997, and at Chabvukwa Village, the accused unlawfully and with intent to kill or realising there was a real risk or possibility that death might result, struck Kustera Muyambo with a stick and log all over the body thereby inflicting injuries from which the said Kutsera Muyambo died.

In his response to the charge the accused stated that it happened but that when it happened he was unwell, which culminated in the court entering a plea of not guilty.

There being no disputed facts, the trial proceeded with the State and defence counsels submitting, by consent, a Statement of Agreed Facts as exhibit 1. Further submitted by consent was an affidavit of evidence by Dr Walter Mangezi. The affidavit confirmed that the accused was mentally disordered and required further management in a long term special psychiatric institution. The post mortem report by Dr B Dhliwayo, which concluded that the deceased Kustera Muyambo died as a result of head injury following deep cuts to the head, was also tendered as exhibit 3 by consent. Finally, in evidence by consent, a sketch plan by the attending details was submitted as exhibit 4.

The circumstances surrounding the matter were aptly captured in the Statement of Agreed Facts…,;

“STATEMENT OF AGREED FACTS

1. The Accused is a male adult who ordinarily resides in Chabvukwa Village, Chief Musikavanhu in Chipinge.

2. On the 13^th day of April 1997, and at Chabvukwa Village, Musikavanhu in Chipinge the Accused approached Kutsera Muyambo (the Deceased), who was working in his fields with his family, with the intention of asking the Deceased why he was bewitching the Accused person.

3. The Accused was not satisfied with the response given to him by the Deceased, and, in anger, he began to assault the Deceased with a small stick on his back.

4. The Deceased took the stick from the Accused, after which the Accused picked up a log and continued to assault the Deceased all over his body.

5. The Accused left the Deceased lying in the field, badly injured but still breathing, to go home.

6. Upon arriving at his house the Accused decided to return to the scene, and, upon arrival, he again continued to assault the Deceased with a log all over his body.

7. The Deceased attempted to roll away to escape the assault and rolled down an escarpment where he died after landing on rocks at the bottom.

8. The Accused was admitted to Chikuribi Psychiatric Unit following the commission of the offence that he is being charged with, from 1997 to 2001, after which he was discharged. The Accused was again examined in 2016 by Dr Mangezi, a duly registered Medical Practitioner employed as a Psychiatrist. He observed that the Accused became of sound mind after taking medications for Epilepsy and Mental Disorder. Dr Mangezi concluded, in terms of an affidavit that he deposed to on 1 December 2016, that the Accused was mentally disordered at the time of the commission of the offence, but that he was now fit to stand trial.

9. The Accused cannot properly be found guilty of murder as he lacked the requisite mental capacity at the time of the commission of the offence and should be appropriately dealt with in terms of the Mental Health Act [Chapter 15:12].

10. Dr Walter Mangezi recommended that the Accused be managed in a long term special psychiatric institution to assist in his rehabilitation and anger management.”

Given the evidence presented we found no reason to disagree with both the State and defence counsels' position. We were moved to act in terms of the Mental Health Act [Chapter 15:12].