It
is important for me to provide an elaborate background to this case
and there is no better way of doing so than to reproduce both the
charge sheet and the State Outline as well as the correspondence that
I have exchanged with the magistrate concerned.
The
two accused appeared at Gweru Regional Magistrates Court and were
charged with the crime of;
“Attempted
robbery as defined in section 189 as read with section 126 of the
Criminal Law (Codification and Reform) Act [Chapter 9:23].
In
that on the 7th
of July 2015, and at Safago Farm, Shurugwi, Metron Chongani Makamba
and Knowledge Jonasi, one or both of them, unlawfully and
intentionally attempted to steal property belonging to Edwin David
Shaw by using violence or threats of future violence towards Innocent
Mabuto, Simbarashe Jonathan Sithole and Shamiso Nyamala employees of
Edwin David Shaw. That is to say Metron Chongani Makamba and
Knowledge Jonasi all armed with pistols threatened to shoot Innocent
Mabuto, Simbarashe Jonathan Sithole, and Shamiso Nyamala who had
lawful control of the property to relinquish control over it…,.”
The
Charge Sheet was backed up by the State Outline which reads as
follows:
“1.
The complainant, in this case is Edwin David Shaw, residing at Safago
Dairy Farm, Shurugwi and is the farm owner.
2.
Accused person number one, Metron Chongani Makamba, resides at
Village 6, Bangala Ranch, Chiredzi and accused number two, Knowledge
Jonasi, resides at Taruvinga Village, Chief Bota, Zaka. Both are not
employed.
3.
On the 6th
day of July 2015 the two accused persons, together with Anold
Makamba, who is still at large, hatched plan to rob the complainant
at Safago Dairy Farm, Shurugwi.
4.
At around midnight, the two accused persons, with Anold Makamba,
proceeded to Safago Dairy Farm using a grey Toyota Gaia without
number plates. Accused number one, Metron Chongani Makamba, was
putting on a police riot uniform, accused number two was putting on
civilian clothes while Anold Makamba was putting on police FD suit.
The three introduced themselves as police details from Gweru Rural
Police Station and requested to see the complainant.
5.
While at Safago Farm, the accused persons awakened farm workers and
locked them into Jonathan Simbarashe Sithole's house after
confiscating their cellphones.
6.
The accused persons then force-marched Jonathan Simbarashe Sithole,
Innocent Mabuto and Shamiso Nyamala to the complainant's house
where they ordered Jonathan Simbarashe Sithole to break open the main
door whilst accused one and two were holding pistols.
7.
Accused persons entered the house, and, whilst inside, they searched
the whole house demanding cash and pistols.
8.
The accused persons ordered Jonathan Simbarashe Sithole to grind open
a chub safe which they found in the complainant's bedroom but
failed to open it. The accused persons then coerced the farm workers
to lift the chub safe into their car but they all failed.
9.
The accused person then took a black hunters torch from the bedroom
and a bunch of keys before tying Innocent Mabuto's hands and shoved
him into the vehicle. The accused persons drove away and later dumped
Innocent Mabuto at Guinea Fowl Primary School along Gweru-Shurugwi
road.
10.
On the 18th
of August 2015, the two accused persons were arrested in Masvingo.
Detectives searched accused persons' residence and recovered police
and army uniforms.
11.
An identification parade was conducted at Mashing Police Station and
accused number one, Metron Chongani Makamba, was positively
identified by Jonathan Simbarashe Sithole and Shamiso Nyamala.
12.
The value of the stolen and damaged property is USD1,750= and nothing
was recovered.
13.
The accused persons acted unlawfully.”
When
this matter was placed before me, on review, I raised a query with
the Magistrate, and, on 11 May 2016, my minute was framed as follows:
“The
summary of the State case, as confirmed by the first witness, David
Shaw (record page 3), suggests that a black hunter's torch and a
bunch of keys were taken away by the accused in circumstances where
clearly violence was used against the witnesses. How does the
conviction of the accused person get restricted to attempted robbery
under such circumstances?
If
the evidence did not support the allegations, as contained in the
Outline, with specific reference to the violent taking away of the
torch and workshop keys, why is that this issue was not addressed in
the judgment itself?
Let
me hear from the learned magistrate.”
The
Magistrate's response was as follows:-
“Place
this record before the Honourable Bere J, with the following
comments.
1.
The Charge preferred against the Accused was that of Attempted
Robbery.
See
the Charge Sheet.
The
trial court's mind got largely exercised by the alleged 'attempt'.
And, to be honest, the Court got impressed upon, as if, the Accused
'attempted to rob the chubb safe' from the complainant's
premises.
See
the State Outline; especially -
In
the process of attempting to rob, the items grabbed away were a torch
and some keys. Quite honestly, it did not occur to the trial court
that Accused should be convicted of robbing a torch and keys as
opposed to being convicted of attempting to rob the complainant of
the chubb safe.
2.
As stated earlier, the trial court was looking out for the 'attempt
to rob the complainant of the chubb safe'. That is why the issue of
the violent taking away of the torch and keys from the complainant's
workers was not specifically address in the judgment; which judgment
was focusing on 'an attempt to rob the cub safe'.
3.
Well, it maybe that the Accused may have been convicted of Robbery of
the torch and keys which would have been justified, really. But, it
seems to the trial Court, that the conviction for Attempted Robbery
here still meets the justice of the Accused's case.
The
trial court does not readily see any substantial miscarriage of
justice in the totality of the circumstances of the case…,.”
It
is this clearly belligerent and intransigent attitude exhibited by
the trial magistrate which has prompted me to write this review
judgment in the desperate hope that at the end of it all the issues
that are of concern to me in this matter will make sense to the trial
magistrate, and, possibly, help others of a like mind….,.
Having
said this, I now propose to focus on the substantive issues in this
case.
Firstly,
a simple perusal of the outline of the State clearly shows that some
property belonging to the complainant was stolen and was never
recovered. Paragraph 5 of the Outline speaks to the armed robbers
having confiscated the victims' cellphones. Paragraph 9 of the same
Outline makes specific reference to the armed accused persons having
violently taken a black hunters torch and a bunch of keys from the
victims. The State Outline concludes, in its paragraph 12, by
asserting that:
“12.
The value of the stolen and damaged property is USD1,750= and nothing
was recovered.”
On
reading of the evidence, as recorded by the trial magistrate, the
witnesses confirmed that indeed property in the form of a torch and
workshop keys were stolen (record page 3, per Edwin David Shaw's
evidence). The evidence of Shamiso Nyamala (record page 6) further
confirms that the phones were violently taken by the accused persons.
Given
the nature of the defence proffered by the convicted accused person,
the convicted first accused could not possibly have offered any
sustainable defence and the magistrate correctly found against him.
The
query that I raised with the magistrate pertained to the propriety of
the charge sheet and the conviction given the overwhelming evidence
that was at his disposal which clearly supported a conviction of the
accused of the offence of robbery.
Just
by merely paying sufficient attention to the presentation of the
outline of the State case, an alert magistrate would have been able
to appreciate that the preferred charge was not complementing the
facts as outlined. But sometimes because magistrates and all other
judicial officers are fallible, the magistrate probably overlooked
this and needs not be condemned. However, one gets concerned when it
becomes clear that the presentation of the Charge
Sheet
and the outline of the State case was not the only opportunity the
magistrate had in this case. The magistrate followed, and recorded,
the testimony of the witnesses in this case. If he was not
lackadaisically following the proceedings he could not have failed to
appreciate that this case was much more than attempted robbery - but
robbery per
se.
It
completely took the review Judge by surprise for the magistrate to
attempt to give a virilis
defencio
to the undefendable. Such attitude retards the development of our
jurisprudence and an otherwise healthy exchange of views between the
High Court bench and the lower court. It should never be the case.
Having
said this, I must now consider the appropriate remedy in this case.
I
have already noted that from the inception, the attempted robbery
charge was incompetent given the facts and the accepted evidence
which fully supported the substantive charge of a violation of
section 126(1) of the Criminal Law (Codification and Reform) Act
[Chapter 9:23] (the Code).
It
must therefore follow that the verdict of the court must be amended
to reflect the fact that Accused 1 be found guilty of having
committed robbery as informed by section 126(1) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]. The conviction is so
amended.
The
sentence of the court remains the same.
It
is for the aforegoing reasons that I am unable to confirm these
proceedings as having been in accordance with real and substantial
justice. I withhold my certificate.
