The
accused person was arraigned before the Magistrates Court on a charge
of possessing property reasonably suspected of being stolen in
contravention of section 125(a)(b) of the Criminal Law (Codification
and Reform) Act [Chapter
9:23].
He was convicted of the charge…,.
The
magistrate accepted the plea in terms of section 271(2)(b) of the
Criminal Procedure and Evidence Act, and, on putting elements of the
offence to the accused he posed the following questions;
“Q.
Admit that on 8 August 2014, at Matangira Complex, Bindura you had in
your possession the alleged Samsung Dual Sim cell phone.
A.
Yes.
Q.
Where had you got it from?
A.
I stole it from Musiiwa night club.
Q.
So you took it without permission from the owner?
A.
Yes.
…,.
….,.
Q.
What did you want to do with this cell phone?
A.
To use it forever.
…,.”
The
magistrate proceeded to find the accused guilty as charged.
The
above facts do not disclose an offence of possessing property
believed to be stolen but theft. The conviction cannot therefore
stand.
The
magistrate explained that he made an error of omission. According to
him he convicted the accused on a charge of theft. In his mind that
is what he said he did. He claims theft is a competent verdict of the
charge of possessing property believed to have been stolen. The
correct position is that possessing property believed to have been
stolen is a competent verdict of a theft charge and not vice versa.
Where
a person is charged with a particular offence, he or she could still
be convicted on a competent verdict to that offence where the
evidence is sufficient to prove the accused's guilt to the
competent verdict. See Doma
v S
(2013) ZAGP JHC 116.
The
meaning of competent verdict, put in simple terms, is compromised
verdict. It can only be a lesser charge than the one preferred
against the accused person. See S
v Masuku
HB02-04.
In
this instance, the magistrate purports to have convicted the accused
on the charge of theft. As I have said above, this could never be
interpreted as a competent verdict and the conviction cannot be
allowed to stand.
The
magistrate was supposed to stop the trial and refer the matter to the
Prosecutor-General for directions if he felt he needed to convict on
theft. However, overally, I see no prejudice suffered by the accused
to warrant my intervention at this stage.
Accordingly
I withhold my certificate.
