Criminal
Review
MUTEMA
J:
The
conduct by the trial provincial magistrate in the instant case is one
sui
generis.
She
convicted the accused person on the 8th
May, 2013 of contravening section 186(1) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23], viz
threatening
to kill his father.
This
was following a plea of guilty.
She
sentenced the accused to 24 months imprisonment of which 6 months
imprisonment was suspended for 5 years on condition of good behaviour
while the balance of 18 months was suspended on condition accused
completed 630 hours of community service at Chikwingwizha Seminary
School.
I
raised a query with the trial magistrate whether she ever bothered to
acquaint herself with the maximum period of imprisonment for the
offence in question.
The
response I got reads as follows:
“My
sincere apologies for the anomaly and I undertake in future to regard
this as unacceptable and therefore not to repeat it. I have however
rectified the anomaly and may corrective measures be taken to rectify
the anomaly. The correct sentence should not exceed 6 months or fine
not exceeding level 5.”
I
was, naturally constrained to write back to the trial magistrate to
reverse what she had done as I was disabled from further reviewing
the matter. I wrote to as follows:
“…The
trial magistrate's conduct in
casu
is
fraught with serious irregularities bordering on misconduct. As
things stand I can no longer recall off hand what sentence was
imposed in the first place since the trial magistrate, in her
perceived wisdom, has arrogated to herself review powers and altered
her offending sentence to conform with the statutory limit. In so
doing she has removed the annexure B on which the wrong sentence was
written as well as the initial review case cover and substituted both
with new ones written the corrected sentence.
This
is wholly unprecedented and unacceptable.
It
is only a High Court Judge who is imbued with review powers to
alter/correct a sentence by an inferior tribunal. A trial magistrate
is not clothed with such powers.
As
things stand I am unable to carry out the review process to its
logical conclusion. In order to do that, the trial magistrate is
directed to bind back the erroneous pages that she removed and
re-submit the record of proceedings to this court.”
She
so did with this covering minute:
“… I
sincerely apologise for the misdirection and I have attached the
annexure B that had been removed and resubmitted the record for
review. I undertake in future not to repeat this anomaly. Grateful
for your guidance.”
The
original review case cover was written the sentence of 24 months
imprisonment of which 6 months was suspended for 5 years on condition
of good behaviour while the balance of 18 months was suspended on
condition accused completed 630 hours of community service.
Annexure
B – the placement of the offender on community service – also
bore the same sentence.
The
date on both documents was 9 May, 2013.
Following
my initial query, on checking the statute and realizing that she had
overshot the maximum sentence permissible, the trial magistrate had
then plucked out the two documents alluded to supra
and substituted them with two respective ones bearing the sentence of
6 months imprisonment wholly suspended on condition accused completed
210 hours of community service at the same institute commencing at
the same date of 9 May, 2013 but the new date stamp was the date of
amendment of the sentence, viz
04 September, 2013.
Originally
the community service was stipulated to be completed within 18 weeks
but in the amended sentence it was scheduled to be completed within 6
weeks.
But
by the 4th
September, 2013 when the sentence was self amended accused had gone
15 and a half weeks with the community service.
The
record is silent on whether the trial magistrate advised both the
accused and the relevant institution, not to mention the prosecution,
about this new sentence of hers.
By
now the accused has already finished both sets of sentences in terms
of performing the community service.
The
prejudice wrought to him cannot now be undone all because of a trial
provincial magistrate – a fairly senior grade in the magisterial
hierarchy – who shockingly purported not to know that a review
query is not a licence to correct her mistake(s) but to simply
respond to it as requested so that corrective measures, if any, could
be taken by the reviewing authority.
I
am constrained once again to advert to the exhortation Judges have
often sounded to trial magistrate to please apply their mind to their
work meticulously and with the utmost of diligence. Whilst it is
acknowledged that erring is an accepted and inevitable human
shortcoming, in discharging judicial work it must be the exception
instead of the norm.
A
bad decision can have far reaching and debilitating consequences to
another human being's life, liberty or general affairs.
We
cannot, as judicial officers, afford to discharge judicial duties on
the premise of work as usual. To adopt that mentality would mean that
we are in the wrong profession.
It
behoves me to only declare that these proceedings are a far cry from
being categorized as being in accordance with real and substantial
justice. Accordingly I withhold my certificate.
The
Registrar of this court is directed to bring the Chief Magistrate's
attention to these proceedings.
