In an application for review, in terms of section 26 of the
High Court Act [Chapter 7:06], the High Court may only rely on the record of
proceedings as the only official record of what occurred in the court a
quo.
The court may not look beyond what is contained in the official
transcript and an allegation made by a litigant that the record does not
provide an accurate reflection of the proceedings would have to be supported by
other evidence, more particularly, the exchanges between the trial magistrate
and the accused person as recorded in the court record.
The applicant appeared before a magistrate sitting at
Zvishavane on 19 September 2015 facing one Count of unlawful entry,
as defined in section 131 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] and a further Count of theft in contravention of section 113 of
the same Act. The accused and his co-accused, Tapiwanshe Muzvondiwa, pleaded
guilty to both Counts and were sentenced to 18 months imprisonment of which 6
months was suspended for 5 years on the usual conditions.
The applicant filed an application for review on 24
September 2015, through his legal counsel, complaining that the trial
magistrate failed to properly record the applicant's response, in particular
that the applicant had not tendered a guilty plea as reflected by the record of
proceedings.
The relief sought by the applicant is an order for the
quashing of the entire proceedings and an order for the matter to be tried de
novo before a different magistrate.
I requested the trial magistrate and the public prosecutor
to file written responses to the allegations made.
A perusal of the record indicates that the learned
magistrate put to the accused persons the charge and the applicant and his
co-accused gave unequivocal pleas of guilty in respect of both Counts. The
accused persons seem to have freely and voluntarily, and without any undue
influence, pleaded to the charges.
The following exchange took place between the magistrate
and the applicant, if one goes by the record;
“Q. Are the facts true and correct?
A. Accused 1 – Yes.
A. Accused 2 – Yes.
Q. Do you admit that on the 2nd of September 2015, and at Village
Mbwende, Chief Negove, you broke into the complainant's house as alleged?
A. Accused 1 – Yes.
A. Accused 2 – Yes.
Q. How did you gain entry?
A Accused 1- we used an iron bar to break the door and gain
entry.
Q. What did you want to do in the house?
A. Accused 1 – to steal.
A. Accused 2 – to steal.
Q. Do you admit that upon gaining entry into the house upon
then stole complainant's property in the manner alleged?
A. Accused 1 - Yes.
A. Accused 2 – Yes.
Q. What did you want to do with the property?
A. Accused 1 – to sell it.
A. Accused 2 – to sell it.
Q. You therefore admit that your intention was to
permanently deprive the owner of his property.
A. Accused 1 – Yes.
A. Accused 2 – Yes.
Q. Any defence to offer?
A. Accused 1 – none.
A. Accused 2 – none.
Verdict – Both guilty as pleaded.”
A further perusal of the record reflects that the applicant
made submissions in mitigation and this is what he had to say:
“Aged 26 years. Not married. Survives as a cross-border
trader and realizes an average of R2,500= per month. No money in person. No
savings. No assets of value.”
On being asked by the trial magistrate why he committed the
offence, the applicant stated that he had erred and asked for forgiveness.
The State prosecutor who handled the proceedings filed a
response to the allegations being made by the applicant in this matter and
stated, in part, as follows:
“…,. As already mentioned, when the accused person was
arraigned before Mr Story Rushambwa, who was the presiding magistrate, the
charges were put to them, he was then asked to tender his plea. He then
tendered guilty pleas to both Counts. The facts were read and explained to him
in terms of section 188 and 189 of the Criminal Procedure and Evidence Act
[Chapter 9:07]. He was then asked
whether he had understood the facts to which he answered in the positive. The court
then proceeded to record the rest of his pleas. In as far as I am concerned,
the accused tendered unequivocal guilty pleas. He did so freely and voluntarily
without any undue influence exerted on him.
Had it been that the applicant pleaded not guilty to both Counts;
I, as the trial prosecutor, would have made an application for separation of
trial as provided for in section 190 of the Criminal Procedure and Evidence Act
[Chapter 9:07].
I am therefore surprised as to why the applicant is now
making an about turn.”
It is important to observe that, in its exercise of its
review powers, this court is empowered, in terms of section 26 of the High
Court Act [Chapter 7:06], to review all proceedings and decisions of all
inferior courts of justice, tribunals and administrative authorities within and
under its jurisdiction.
Section 27 of the High Court Act [Chapter 7:06] provides as
follows:
“(1) Subject to this
Act, and any other law, the grounds on which any proceedings or decision may be
brought on review before the High Court shall be -
(a) Absence of jurisdiction on the part of the court,
tribunal or authority concerned.
(b) Interest in the cause, bias, malice or corruption on
the part of the person presiding over the court or tribunal concerned or on the
part of the authority concerned, as the case may be.
(c) Gross irregularity in the proceedings or the decision…,.”
Upon a careful perusal of the record of proceedings, I
cannot find anything to suggest that there was any irregularity in the manner
in which the proceedings were conducted. I must observe that I am confined to
the record of proceedings and I am bound by what appears in the record.
See the cases of S v Ncube 2012 (1) ZLR 422 (H) and S v
Davy 1988 (1) ZLR 386 (S).
In all the circumstances of the case, I make a finding that
the application for review has no basis both at law and in fact.
I, accordingly, dismiss the application.
