The
three records of proceedings were referred for review by the Regional
Magistrate for Gwanda with the following minute:
“Please
place the above records before a review Judge with the following comments.
The
three records were dealt with at Kezi by the late Provincial Magistrate Mr
Zvenyika and Mr Mavuna who has since left the service. The ...
The
three records of proceedings were referred for review by the Regional
Magistrate for Gwanda with the following minute:
“Please
place the above records before a review Judge with the following comments.
The
three records were dealt with at Kezi by the late Provincial Magistrate Mr
Zvenyika and Mr Mavuna who has since left the service. The records were
not for scrutiny because of the sentences passed, however, they have been
brought to my attention by the Provincial Magistrate in charge, Matabeleland
South. A disturbing trend in them is the fact that full trials were carried
out, accused persons were convicted, but the judgments were not
written. The non-availability of the judgments renders proceedings
defective. Also not included are reasons for sentence. As both
members are no longer with us matters are forwarded for directions.”
In
the case of Shepherd Ncube, he was convicted, following a contested trial, of
unlawful entry. He was sentenced on 2 February 2012 to 3 months
imprisonment. No mitigation was recorded.
In
the case of Somemore Moyo, he was tried and convicted of theft on 10 August
2012 and sentenced to 3 months imprisonment. No mitigation was recorded.
Zibonile
Moyo was tried and convicted of theft on 1 August 2012 and sentenced to 3
months imprisonment wholly suspended for 5 years on condition of future good
conduct….,.
Emerging
from these cases are the following legal implications:
I.
All of them do not have reasons for judgment, neither do they have reasons for
the sentences that were imposed. In the first two, no mitigation was ever
recorded. In all three matters there is no indication that at least the
judgments were delivered ex tempore. Even where an ex tempore judgment is delivered its reasons must
subsequently be recorded.
II.
The fact that the cases did not find their way before me on automatic review in
terms of section 57(1) of the Magistrates' Court Act [Chapter 7:10] is of no
moment. Section 29(4) of the High Court Act [Chapter 7:06] bestows review
powers on a Judge to review any proceedings of an inferior court, however those
proceedings come to his/her attention, so long as they seem not to be in
accordance with real and substantial justice.
III.
Section 5(1) of the Magistrates' Court Act [Chapter 7:10] provides that every
magistrate court shall be a court of record. According to Wikipedia, the
term record means anything which is collected or stored in writing or otherwise
for future reference and to record means to give legal status to by making an
official public record.
In
the instant three cases, by not being complete records of the respective trials
for want of reasons for both judgment and sentence and also mitigation in two
of them, it is apparent that no legal status was given to those
proceedings. The need to keep a record is obvious for in the absence of such
record how is a review or appellate court to assess the correctness and
validity of any proceedings before it?
In
S v Ndebele 1988
(2) ZLR 249 (HC) it was underscored that all courts are courts of record and
are required to keep full and comprehensive records of all
proceedings. Failure to so do amounts to gross irregularity. And in S v Makawa and Anor 1991 (1)
ZLR 142 (SC) it was held that a failure to give reasons for judgment is a gross
irregularity. Without such reasons an appellate court is hamstrung in its
endeavours to determine if the conviction was justified. I must add here that
also failure to ask an accused person to give mitigation and/or to record
mitigation and give reasons for the sentence imposed amount to a gross
irregularity for how can the appellate or review court determine the
justification of the sentence that was imposed?
IV.
It is unfortunate that the first two accused have since finished their
respective sentences of 3 months imprisonment.
In
the result, the gross irregularities alluded to in the foregoing paragraphs
constrain me not to find that the proceedings in all the three matters were in
accordance with real and substantial justice. It therefore behoves me to
quash the convictions and set aside the sentence in respect of each case.
