The accused persons were convicted of stock theft in contravention of section 114 of the Criminal Law Code [Chapter 9:23] by the Magistrates Court sitting at Chinhoyi.

The first accused person, having been convicted in terms of section 114(2)(d) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], was sentenced in terms of paragraph (f) of subsection (2) of section 114 to a fine of $400, or, in default of payment, 4 months imprisonment. In addition, he was given a wholly suspended prison term of 10 months.

In respect of the second, third and fourth accused, the trial magistrate was unable to find any special circumstances as would entitle them to a penalty other than the mandatory 9 years imprisonment provided for in paragraph (e) of subsection (2) of section 114. They were each sentenced to 14 years imprisonment of which 2 years imprisonment was suspended for 5 years on condition of good behaviour. A further 1 year imprisonment was suspended on condition they each compensate the complainant the sum of $200 on or before 30 March 2012. This left the three (3) accused persons with an effective sentence of 11 years.

The conviction of the accused persons was proper and nothing turns on it especially as the defence of the second and third accused, that they had found a snared kudu and sold its meat, was laughable to say the least against the background of the overwhelming evidence which was led on behalf of the State.

Nothing also turns on the sentence of the first accused given that the trial magistrate was entitled to sentence him aforesaid.

It is the sentence of the second, third and fourth accused persons which presents some difficulty; is inappropriate, and cannot be allowed to stand.

The State case against the accused persons is that on 29 October 2011 the complainant penned his 35 head of cattle at Tigere Village in Zvimba. The following morning he discovered that the cattle pen had been opened to allow the cattle out and they were scattered all over the place with 2 beasts having been tied with wire around their horns. 2 oxen were missing, and, when a search for them was conducted, the complainant discovered a place where one black ox had been slaughtered. Its head and other parts were found at the scene but the bulk of the meat had been carried away. The second ox later returned home on its own.

Meanwhile, the accused persons had been spotted in Chegutu selling meat in buckets leading to their arrest. The second, third and fourth accused persons led the police to the scene of the slaughter and readily admitted, then, to having committed the offence. They were to later renege in court. Substantial quantities of beef was recovered from them. The trial court accepted that the first accused had only received the stolen produce in the form of two (2) buckets of beef and hence sentenced him in terms of section 114(2)(f) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] aforesaid.

In respect of the second, third and fourth accused persons the trial court not only gave them a sentence which is well above the minimum sentence of 9 years for the theft of one (1) beast, but, in his wisdom, the magistrate also found it necessary to order compensation.

I have thoroughly gone through the record of proceedings and nowhere is it recorded that either the public prosecutor or the complainant made an application for compensation. It follows, therefore, that the trial magistrate mero motu ordered compensation.

I am of the view that the trial magistrate fell into grave error not only in sentencing the three (3) accused persons to a term in excess of the mandatory minimum sentence for one (1) beast but also in ordering unsolicited compensation.

While section 365 of the Criminal Procedure and Evidence Act [Chapter 9:07] allows a court convicting a person of unlawfully taking another person's property to restore it or an equivalent amount, that provision should be read in conjunction with section 368(1) of that Act which reads:

“A court shall not make an award or order in terms of this part unless the injured party or the prosecutor, acting on the instructions of the injured party, applies for such an award or order.”

In casu, there was a signal failure by both Brian Chitanda, the complainant, or his father, Simon Chitanda, and, indeed, the prosecutor, to apply for compensation. It was therefore incompetent for the trial magistrate to order it mero motu.

I would, at the outset, mention in passing that at the beginning of these proceedings we were advised that there were foreign observers who wanted to be introduced to members of the Court. While our courts are open to members of the public, we accord no special treatment to any class of persons regardless of their station or purpose in life.

We operate in an adversarial criminal justice system where a criminal trial is akin to a contest between the State and the accused and the function of the Court is, to a large extent, that of a referee or umpire.

The Court is therefore keenly aware, that like in any other contest, the audience or spectators attend Court for various reasons, some are in support of one side or the other, some are neutral curious observers, and, yet, others pretend to be neutral when in actual fact they are not disinterested curious observers.

Members of the public are nevertheless free to attend our proceedings without let or hindrance not withstanding their purpose for attending Court. In the ordinary run of things, the Court does not want to know why any member of the public may be attending Court for fear that their purpose for attending Court might rub onto its shoulders thereby undermining the independence of the judiciary and impartiality.

Impartiality, equality, and fairness are the bedrock upon which our criminal justice system firmly rests. Justice and fairness demands that if foreign observers are to be accorded the privilege of being introduced and rubbing shoulders with members of the judiciary the same privilege must be accorded to local observers and audience and vice versa.

This is, however, unusual - if not ridiculous.

For instance, it is scandalous that members of the accused's family may strive to introduce themselves to the Bench. The same applies to State functionaries and foreign observers who are not directly involved in these proceedings.

This explains why the Court turned down the request for the introduction to the Bench of any observers, foreign or otherwise.

Unfortunately, the presence of a high profile unusual audience appears to have had an unsettling effect on both counsels. The Court has noted a marked tendency to play to the gallery. Counsels appear to have lost their usual composure. They have uncharacteristically resorted to being quarrelsome and argumentative as they try to outwit each other in the glare of an unusual audience. They have tended to launch vicious personal attacks on each other.

There is no gainsaying this is unacceptable, deplorable conduct. Both counsels are very senior respectable members of the profession. They both know what is required of them. I can only remind them of the need to conduct these proceedings in a composed, ethical, and civilized manner.

I am sure counsel will take heed for the good of the due administration of justice.

In addition, I am extremely concerned by the lack of diligence, and cavalier attitude, of counsel for the respondent in this matter.

While, as an officer of the court, he is expected to be fair in his representation of an accused, or suspect's, interests, such “fairness” should not leave the court with an impression that he is the applicant's second legal counsel.

My observations, lest I am wrong, is based on his casual dismissal of the applicant's co-accused's statement implicating the applicant in this serious matter. Where there is such an allegation, the respondent should be concerned, and be eager to test the truthfulness, or otherwise, of the said allegation, as opposed to the readiness to believe the applicant's allegation without more.

Such test can only be done if the applicant stands trial, which, in this case, he is most unlikely to attend in light of his co-accused's warned and cautioned statement.

These courts cannot, and should not, be used to rubber-stamp decisions which appear to be riddled with all the ingredients of impropriety, all in the name of the State being dominus litis in criminal cases....,.

1....,.

2. Counsel for the respondent should not be involved in this matter again.

Magistrates should bear in mind that they are there to dispense justice, and they should not only look at the accused, but, at the victims as well.

We convicted the three applicants of murder on 12 June 2009. I sentenced the applicants to sixteen (16) years imprisonment. They noted an appeal against both conviction and sentence. They now seek leave to appeal to the Supreme Court.

It took long for the matter to be set down as the Attorney General's office was unable to formulate its position. This was so because the law officers who initially dealt with the matter are not in the service.

Counsel for the State required the record of proceedings to be transcribed in order to read it and thereafter formulate a position. The transcription of criminal records has almost ground to a halt on account of unavailability of human and other resources.

The prosecution is dominus litis.

As such, the prosecutor has unfettered discretion of determining the order in which he is going to call his witnesses. The prosecutor is not obliged to call witnesses in the order preferred by the defence, the court, or anyone else for that matter.

In my view, the trust that the court reposes in the word of the Attorney General is one to be cherished.

I am constrained to make these remarks in this matter as one or two unsavoury features have presented themselves in the hearing of the bail application, and to which I draw the attention of the Attorney-General.

Firstly, the hearing of the matter was postponed on a number of occasions, at the instance of the respondent, due to the alleged unavailability of the record of proceedings in earlier bail applications. The Officer representing the Attorney-General in the matter on the first day of the hearing...., advised the court that he could not proceed with the matter as staff at this court were failing to locate the records of the previous bail applications. From the notes in the record of both matters, the respondent had managed to have the hearing of the applications postponed on two previous occasions for the same reason. Administrative inquiries by my office revealed that the records had never gone missing and were available to the knowledge of the respondent's representatives.

Secondly, in the written response that was filed on behalf of the State was an allegation that the applicants had, on an earlier occasion, attempted to flee from custody, and were to be charged with that offence shortly. At the hearing of the matter, it emerged that these allegations were first made in 2008 in a response to a bail application filed by the applicants. The matter was not tried, and was only brought up again when the applicants filed the bail application before me, giving rise to the impression that the charge, if at all valid, is used routinely to wave a red flag at the court that the applicants are a high flight risk.

Counsel for the State conceded that the applicants were not on remand for the allegations, and that the information had simply been brought up for the information of the court.

This, in my view, should have been the mainstay around which bail was opposed, and should have been pursued with the vigour it deserves. That this was not gives some credence to the submissions of the second applicant that it is a convenient old allegation that is always brought up and dusted to defeat any attempts by the applicants to secure their liberty. He maintains that it is not a charge that the State ever intends to proceed with as it is without merit.

The applicants are seeking the dismissal of the charge for which they were committed for trial on 4 June 2008 on the basis that they were not brought to trial within six months of such committal.

The facts, as set out in counsel for the applicant's founding affidavit, are that the applicants were arrested on charges of contravening section 20 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They have been in custody since 30 May 2007. On 4 June 2008 they were served with indictment papers for trial before the High Court on 7 July 2008.

Subsequent to the committal for trial, the defence wrote to the prosecution on 5 June, 12 June, and 2 July 2008.

In the first two letters, they sought to be furnished with documentation and witnesses' statements. In the last letter, they were reminding the prosecution of the delay in being furnished with witnesses' statements and the difficulties defence counsel experienced in accessing the applicants in order to prepare their Defence Outline.

There were no replies to those letters.

The applicants are seeking the dismissal of the charge for which they were committed for trial on 4 June 2008 on the basis that they were not brought to trial within six months of such committal.

The facts, as set out in counsel for the applicant's founding affidavit, are that the applicants were arrested on charges of contravening section 20 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They have been in custody since 30 May 2007. On 4 June 2008 they were served with indictment papers for trial before the High Court on 7 July 2008.

Subsequent to the committal for trial, the defence wrote to the prosecution on 5 June, 12 June, and 2 July 2008.

In the first two letters, they sought to be furnished with documentation and witnesses' statements. In the last letter, they were reminding the prosecution of the delay in being furnished with witnesses' statements and the difficulties defence counsel experienced in accessing the applicants in order to prepare their Defence Outline.

There were no replies to those letters.

On the date of trial, the matter could not be heard as the defence persisted with its complaints. The Defence Outline was later filed on 11 July 2008. On the other hand, the State was notified of the defence's intention to raise a constitutional challenge against the charge that was preferred against the applicants.

On 5 August 2008, the constitutional issue was argued before HLATSHWAYO J who reserved judgment. Judgment was handed down on 18 November 2008 whereupon the matter was referred to the Supreme Court. The Supreme Court handed down its decision, in which it dismissed the application, on 7 December 2009.

Following the Supreme Court decision, the applicants' counsel personally attended at the offices of the Attorney-General where he requested that the matter be set down during the First Term of 2010. He was advised that it was not possible to set the matter down during that term.

In March 2010, the defence was notified of the setting down of the matter for 21 June 2010.

During the course of the applicants' incarceration, several applications for bail have been made. There was also an attempt to re-indict the applicants at the Magistrates Court a week before 21 June 2010. This was successfully resisted by the defence.

In his heads of argument, counsel for the applicants submitted, that, in terms of section 66 of the Criminal Procedure and Evidence Act [Chapter 9:07] the Attorney General is dominus litis in respect of cases he decides to prosecute. In this respect, a matter may be set down for trial even a year in advance.

He further submitted, that, in terms of section 160(2) of the Criminal Procedure and Evidence Act, an accused who has been committed for trial but not tried within six months is entitled to have his case dismissed. He also submitted that the provision in question is meant to protect an accused person from lengthy incarceration before he is brought to trial. The period in question should be six calendar months calculated in terms of the Interpretation Act [Chapter 1:01].

Counsel for the applicants further submitted that the reckoning of time is between the time the accused persons were indicted and the trial date. That period should exclude the time the Constitutional application was awaiting determination by the Supreme Court. That is the only time the applicants were not available for trial as the trial could not be set down whilst the Constitutional application was still pending.

The State did not file an opposing affidavit.

I must also point out that despite the State having been directed to file a response to the application by 28 June 2010 what were only filed were the State's submissions on the day of hearing.

The court was made to understand that the officer who previously attended to this matter was ill-disposed. However, that does not absolve the State from its obligations.

At the end of the day, one cannot say the matter was opposed in the manner expected of a contested application because effectively all the averments that were made against the State in the applicants' founding affidavit went unanswered save for issues of law that were addressed in the submissions.

In its written response, the State, in essence, raised two aspects regarding the delay in the matter:

(i) Firstly, it is contended that the calculation of the period within which accused persons should have been brought to trial should take into account the times the High Court was on vacation. In this respect, it was submitted that the High Court was on vacation between 29 November 2009 and 12 January 2010 as well as between 1 April and 10 May 2010. The two vacations are taken as a period that was beyond the control of the Attorney General as no trial could be heard during those periods.

Allied to this submission is the contention that the six months that entitle a dismissal of the case must run uninterrupted. In this respect, counsel for the State cited the case of Garikai Mukuze and Another v S whose correct citation is 2005 (1) ZLR 6 (H).

(ii) The other contention is that State witnesses had to be secured first before the case was set down for trial.

It was also submitted, that, between 29 March and 3 April 2010, a suspect was arrested on allegations of abetting the applicants in their attempt to escape from custody. This necessitated a delay as the matter had to be investigated. In this respect, the suspect was tried and convicted on 8 April 2010.

Section 160 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that:

“(1) Except as is otherwise expressly provided in this Act as to the postponement or adjournment of a trial, every person committed for trial or sentence whom the Attorney-General has decided to prosecute before the High Court shall be brought to trial on such date as may be determined by the Attorney General:

Provided that the High Court may, on application by the accused and on good cause shown by him, order that the trial shall take place on an earlier date than that determined by the Attorney General.

(2) If a person referred to in subsection (1) is not brought to trial after the expiry of six months from the date of his committal for trial, his case shall be dismissed:

Provided that any period during which such person is, through circumstances beyond the control of the Attorney-General, not available to stand trial shall not be included as part of the period of six months referred to in this subsection.”

It is clear from a reading of the above provision that the prerogative of setting down a criminal matter for trial is that of the Attorney General. The only time an accused person may be granted an earlier date is upon application before the court.

After all these anomalies were put to Mr Samkange, he ultimately sought a postponement in order for him to file an application for condonation. 

By virtue of section 11(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], all public prosecutors are charged with the duty of prosecuting in the magistrates courts to which they are attached. Proof of such delegation is ordinarily evidenced by a certificate to prosecute signed and issued by the Attorney-General.

The submission that a complainant's representation to the Attorney-General to reconsider his decision in a criminal matter is unconstitutional and violates the accused's right to protection of the law, as it undermines the independence of the Attorney-General, is misconceived.

A complainant in a criminal matter has a substantial interest in the prosecution of an accused.

In my view, a complainant is perfectly entitled to make representations to the Attorney-General regarding such prosecution. The Attorney-General is not bound to accept such representations. He can either accept or reject such representations depending on whether or not he finds merit in the representations.   In terms of the law, where the Attorney-General does not accept the representations, the complainant is entitled to a certificate of nolle prosequi – see section 13, as read with section 16, of the Criminal Procedure and Evidence Act [Chapter 9:07]. The mere fact that representations have been made does not, in any way, interfere with the independence of the Attorney-General, who is free to accept or dismiss such representations. In fact, this submission is as absurd as submitting that the Court's independence is compromised by submissions by counsel.

The respondent, after being granted leave to appeal, filed an affidavit, in which he swears positively, under oath, that he has no intention of committing similar offences whilst on bail.

The affidavit filed by the respondent is replete with invective language similar in effect to the language referred to in the dissenting opinion of MALABA DCJ in Jonathan Moyo & Ors v Austin Zvoma & Anor SC28-10…,. This is what the learned DEPUTY CHIEF JUSTICE had to say about the use of invective language in affidavits filed in Court proceedings:

"There is need to discourage the use of such invective language in court proceedings."

The respondent's affidavit contains invective language which accuses the Attorney-General of "misrepresenting facts", "grave injustice", "misleading contentions", and "the Attorney-General is using the criminal justice system perversely as a weapon of political oppression against me."

I am inclined to follow the route taken by MALABA DCJ in the case of Jonathan Moyo & Ors v Austin Zvoma & Anor SC28-10 that the Court should decline to award costs to parties who use such language which:

"…, offended its sense of fairness and justice for the Court to be put in a position in which it had to read through all the papers containing some of the impolite and discourteous language."

Counsel for the respondent apologised to the Court for the language - after being challenged by the Court. It is my view that the apology, since it came only after the Court had already been put in the position of reading the impolite language, came too late.

Before dealing with the merits of the appeals in both matters, it is important to comment on the conduct of the appellant's legal practitioner, Ms Mudisi.

During the hearing of the appeals it was abundantly clear that Ms Mudisi was ill-prepared to argue the appeals. She was a stranger to her cases as it were. To put it mildly, she was completely lights out. One wonders whether this was a result of inexcusable inexperience or simply the failure to prepare one's case or both.

After we realised that Ms Mudisi was virtually walking in darkness we inquired from her what the possible reason was. The excuse she gave was that she had been asked, at the last minute, that very afternoon, by her senior in their law firm, to proceed to this Court to argue the appeals. Naturally, we inquired why the so-called senior counsel in their law firm, who should have prepared the heads of argument, was unavailable. The answer we got was dumbfounding. The answer we got was that the senior legal practitioner had opted to attend to some disciplinary hearing at Zvishavane Town Council instead of appearing in this Court.

It is improper and unethical for the so-called senior legal practitioner to behave in such a manner. A disciplinary hearing cannot take precedence over a matter set down in this court. Further, it is inexcusable for Ms Mudisi to have appeared before this Court and purport to argue the appeals when she was virtually clueless as to what both matters entail. As a result, she spent most of her time fumbling through the papers and aimlessly gazing at the Bench instead of addressing the mundane and simple issues we sought clarity on. The court's valuable time was thus wasted.

Ms Mudisi did not even know or appreciate what sentences were imposed in both matters!

For some strange reasons she insisted that the court a quo had ordered the sentence in one matter to run concurrently with the sentence in the other matter. She did not even appreciate which witnesses testified in respect of Count 2 on CRB MBE 286/16 which relates to possession of dagga, or, worse still, where the dagga was allegedly found by the detail who detained the appellant. In a nutshell, she had simply not read the record of proceedings. One is left wondering what sought of tuition Ms Mudisi received or is receiving in her law firm.

In order to curb this type of conduct, and ensure that legal practitioners do not blindly walk into this Court without the necessary preparatory work expected of them, we shall, in future, seriously consider recommending disciplinary action to be taken. The conduct of Ms Mudisi and the said senior legal practitioner deserve censure.

The court noted, with some disquiet, that the appellant's instructing attorney, Messrs Laita and Partners Legal Practitioners, did a considerable dis-service to the appellant.

The grounds of appeal and the Heads of Argument which they prepared for the appellant were, to all intents and purposes, the same as the ones which they prepared for and on behalf of another appellant, one Leonard Ndombo, whose appeal they filed with the court under case number CA522/14. What the legal practitioners did was simply to copy and paste, with such minor variations as related to the names and ages of the two appellants, their written submissions in respect of one appellant onto the papers of the other appellant and vice-versa. There is no doubt that the legal practitioner's conduct in this regard constituted a very high degree of dishonesty which the court finds difficult to condone let alone accept.

Mr Mahuni, of Messrs Mahuni and Mutatu Legal Practitioners, whom Messrs Laita and Partners instructed did have a torrid time when he appeared before the court on behalf of the appellant. He had to contend with the unpalatable situation into which his instructing attorneys had placed him as stated above. He had, as it were, to think on his feet and salvage a situation which was already unpalatable, so to speak.

The court commends him for what he did under very difficult circumstances.

It is my view, that the office of the Prosecutor General should be reminded that they cannot simply walk into court at any time and do as they please. In my mind, that smacks of an attitude that the applicants can bring any application at any time and at their pleasure. That attitude cannot be accepted. The respondent expects to be treated fairly, and, at any rate, there must be finality to any proceedings.

It should be understood that in this country the Prosecutor General, and, by extension, the public prosecutors he assigns to prosecute offenders on his behalf, is dominus litis in criminal prosecutions. It is therefore the prosecutor's right to determine which charge to prefer against an accused person and to ensure that the accused person is charged with the correct offence. See S v Sabawu and Another 1999 (2) ZLR 314 (H).

I must, of necessity, commend the Regional Magistrate for his endeavours and I must also apologise on behalf of the institution on the mishap of registry directing the record to Chipinge thus unnecessarily delaying the review process.

I am indebted to Mr Zvekare of the National Prosecuting Authority for his well-researched and presented response.

We decided to proceed with this judgment without the benefit of counsel for the accused's written closing submissions. This so because counsel had promised to file written submissions by 20 December 2017.

There has been an inordinate delay in delivering judgment in this matter.

It was a criminal appeal from the Magistrates' Court. We heard argument on 2 August 2017 and reserved judgment. My brother, MAWADZE J, was the lead judge in the case. It was hoped to deliver judgment in the forthcoming weeks. It was not to be. A dreadful family tragedy struck and scuttled all the work in progress, leaving the station somewhat disoriented for some considerable time afterwards. A horrific traffic accident claimed the lives of the Judge's beloved wife; his driver; and his sister-in-law. May the souls of the departed rest in eternal peace.

It is disheartening to see counsel pay little attention to the Rules which they should refer to when they prosecute their appeals. The notices of amendment cannot be made in a rushed manner and then expect to pass without a strict observance of the Rules.

The delay in finalising this trial was occasioned by the absence of the doctor who performed the post mortem on the remains of the now deceased. The said doctor had relocated to Namibia and it took time to put logistical arrangements to enable him to travel to Zimbabwe to testify.

Whilst the appellant noted an appeal against sentence only, in view of the penalty of death imposed upon the appellant, it is imperative that the appeal should lie against both conviction and sentence.

In this regard, we therefore requested for supplementary submissions from counsel to address us on the question of conviction. We are indebted to both counsel for their prompt submissions.

On the 6^th day of February 2009, the applicant filed an urgent chamber application whose relief was couched as follows:-

“TERMS OF FINAL ORDER SOUGHT

The Provisional Order granted in this matter be and is hereby confirmed in the following terms:-

1. The Applicant be and is hereby given possession of a Nissan Maxima Motor vehicle Reg No: AAX 4540.

2. Respondent to pay costs of this suit at Attorney-Client Scale.

INTERIM RELIEF GRANTED

Pending the confirmation or discharge of this provisional order, the Applicant is granted the following interim relief:-

1. The motor vehicle Nissan Maxima Reg No: AAX 4540 be delivered to or impounded by the Deputy Sheriff, Bulawayo and taken to her offices there to be kept pending the finalization of the application for review under case No: HC121/09.

SERVICE OF ORDER

Service of this Urgent Chamber Application and Provisional Order shall be done by the Deputy Sheriff, Bulawayo upon the Respondent.”

The historical background of this matter is that the respondent was a complainant against the applicant in a criminal case, No. HC592/08, which was dealt with at Bulawayo Magistrate Court. The said proceedings are presently under review under Case No. HC121/09. He was charged with fraud and was convicted of the same. While awaiting sentence, and was in custody, he was visited by the trial magistrate (Mrs. Phathekile Msipa), prosecutor, the complainant and his wife. This visit resulted in him ceding his vehicle, a Nissan Maxima Registration number AAX 4540 to the complainant as restitution.

The proceedings at the prison and the subsequent sentence that he received prompted him to make an application for review referred to above.

While awaiting the outcome of the review, it is the applicant's position that the respondent began looking for a buyer so that when the review proceedings are finalized the vehicle in question would have been disposed of.

After perusal of this application, I ordered that the respondent be served and the matter was argued on the 5^th of March 2009.

The respondent file a notice of opposition.

His contention is that there was no urgency in this matter, and, as such, the applicant should have proceeded by an ordinary application. His reasons are that the cause of action arose on the 2^nd of December 2008 and the respondent has been in possession of the vehicle ever since. The applicant filed an application for review on 26 January 2009 and filed the urgent chamber application on 6 February 2009 which was served on him more than three months after. It is for that reason that he is of the view that there is no urgency.

The circumstances under which the applicant surrendered the motor vehicle to the respondent, while awaiting sentence, if proved to have been irregular would no doubt result in the respondent returning the car to the applicant. In my view, he is aware of that as evidenced by his frantic efforts to dispose of the motor vehicle with haste. It is for that reason that the applicant sought to prevent the disposal of the motor vehicle pending the finalization of the review application.

For that reason alone the matter became urgent and this application was therefore justified.

The respondent has argued that the applicant's surrender of his motor vehicle to him was above board as it was done freely and voluntarily. To buttress his argument, it is his submission that even the applicant's legal practitioner, Mr. Munjanja, relied on the said restitution in mitigation.

I don't see how the submission by Mr. Munjanja, that the vehicle in question is now in the hands of the complaint, can be proof of a voluntary surrender in the absence of an explanation. Mr Munjanja was merely confirming that the respondent was now in possession of the motor vehicle and not the circumstances surrounding the possession.

It is also his argument that he has already disposed of the motor vehicle to his brother who is based in the United Kingdom. He is of the view that the applicant's review application will fail as the surrender of the motor vehicle was voluntarily made.

This is yet to be proved and must be weighed against the potential prejudice to the applicant. The court cannot rely on his mere say-so.

The circumstances surrounding the “surrender” of the vehicle as compensation for the motor vehicle are, to say the least, surreptitious. In addition to this, the respondent's haste in the disposal of the vehicle is questionable. The trial magistrate's name has been mentioned and is being implicated in some wrongdoing. If her involvement in this matter is found to have been outside the call of duty, the proper administration of justice would have been seriously compromised. In order to clear herself of wrongdoing the Chief Magistrate should investigate her role in this matter without delay.

The question, therefore, is, will the applicant suffer any irreparable harm if the provisional order is not granted?

In my view, indeed, the applicant will indeed suffer such harm and no adequate remedy will be available to him. It is therefore in the interest of justice that this motor vehicle should not be disposed of at this stage.

The following order is made:-

INTERIM RELIEF GRANTED

Pending the confirmation or discharge of this provisional order, the Applicant is granted the following interim relief:-

1. The motor vehicle, Nissan Maxima Reg. No. AAX 4540, be delivered to or impounded by the Deputy Sheriff, Bulawayo and taken to her offices there to be kept pending the finalization of the application for review under Case No. HC121/09.

This review judgment has been occasioned by the rather incomprehensible conduct by the learned Provincial Magistrate based at Masvingo Magistrates Court. It is difficult to understand as to why the learned Provincial Magistrate, with all his experience, would conduct himself as a loose cannon. The baffling thing is why he decided not to follow simple, straightforward, and clear instructions outlined in the Order granted by this court. What is unfortunate is that the learned Provincial Magistrate would want to make this court part of the patently injudicious antics.

In our endeavour to reach an appropriate sentence we have considered all mitigatory and aggravatory factors submitted by both counsel for the accused and counsel for the State, respectively. We must commend both counsels for filing helpful closing submissions timeously. We further commend both counsels for addressing in aggravation and mitigation.

The appellant was convicted, on his own plea, of assault as defined in section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State alleged that, on 21 March 2010, and at Paradise Motel Bus Stop, Murambinda, the appellant assaulted one Dunmore Muripo several times upon the face with clenched fists. He also struck the complainant in the face with a bottle and several times on the leg with booted feet.

The court a quo sentenced the appellant to 24 months imprisonment, 4 months of which were suspended for 5 years on condition of future good behaviour.

The appellant appealed against the sentence which he said induced a sense of shock. His grounds of appeal were that:

1. The trial court erred in sentencing him to an effective imprisonment term when:

(a) He was a first offender who -

(i) Pleaded guilty, and, therefore, did not waste the court's valuable time;

2. The court a quo erred in sentencing him to imprisonment in circumstances where the court's policy was aimed at keeping young first offenders away from custodial sentences;

3. The learned magistrate erred when he failed to realise that the complainant had provoked the appellant; and

4. The trial court should have preferred such a punishment as community service.

The relief which the appellant sought was meaningless. It read;

“WHEREFORE, Appellant prays that the sentence passed by the Learned Judgment be set aside.”

Counsel for the appellant successfully applied that the prayer be amended to read:

“WHEREFORE, Appellant prays that the sentence passed by the learned magistrate be set aside and substituted with a non-custodial sentence.”

The respondent put up a stiff opposition to the appeal.

It submitted that the sentence which the trial court imposed was appropriate for the crime which the appellant committed. It stated that the sentence was arrived at after a careful analysis of all matters which favoured and militated against the appellant. It insisted that the sentence should not be disturbed as it did not induce a sense of shock.

Counsel for the appellant made two pertinent concessions. These were that:

(i) The appellant was not a young offender as had, earlier on, been submitted; and

(ii) The appellant's assault of the complainant was an unprovoked attack, and was, therefore, not warranted.

The court commends Mr Tawona for his candidness. He acted honestly and responsibly. What he did is indeed encouraged to all legal practitioners who argue matters on behalf of those whom they represent in court.

It is trite that a legal practitioner's duty is first and foremost to the court as well as to his or her learned colleague who will be appearing on the other side of the divide in our adversarial system of justice delivery. The legal practitioner's attention to his or her client's case is equally important and must be accorded the weight which it deserves. It should not, however, be allowed to cloud his or her sense of judgment to a point where he or she refuses to see obvious matters which are not favourable to his or her client's case. He should, as in casu, make concessions where such are due, and, at the same time, advance the cause of those whom he or she represents in a lawsuit or a criminal trial in an effective manner. 

See, in this regard, Kawondera v Mandebvu 2006 (1) ZLR 110 (S).

In reaching at an appropriate sentence we have considered all mitigatory and aggravatory factors submitted by the defence counsel and State counsel. We must commend both counsels for the help in referring us to case law, which are, of course, guidelines.

This is an appeal against a sentence of 24 months imprisonment of which 8 months imprisonment were suspended for 5 years on the usual conditions of future good conduct.

The appellant, who then was aged 32 years, was arraigned before a senior magistrate sitting at Kezi on 24 November 2009 facing a charge of contravening section 4(1) as read with section 3(1)(a) of the Domestic Violence Act [Chapter 5:16].

The allegations were that on 1st of November 2009, at her homestead in Natisa area of Matobo, the appellant, by means of an unlawful act which resulted in direct infliction of physical injury, severely and intentionally burnt Prince Nkosi, her son aged ten years, on both palms with hot charcoal and on the mouth with hot ashes.

The agreed facts are that the complainant was doing Grade 4 at Whitewater Primary School. On the day, at around 0800 hours, the appellant went to church leaving the complainant and his sister, Adelite Nkosi, at home. Around 1300 hours the complainant became hungry and took the appellant's jollie juice/sweet aid valued at R1 which he diluted with water and drank. On returning from church, and discovering the consumption of the sweet aid, the appellant accused the complainant of being a thief who should be taught a lesson. She took the complainant into the kitchen hut where she took two pieces of hot charcoal and put each in the complainant's palm. She proceeded to fill a tablespoon with hot ashes and put it on the complainant's lips. Due to the pain he felt the complainant started screaming but the appellant ordered him to keep quiet. As a result, the complainant suffered severe burns on the palms and lips.

The appellant took the complainant to Natisa Clinic where she lied to the clinic staff that the complainant fell into the fire on his own.

It was only after teachers at his school had observed the burns and interviewed him that the complainant disclosed the offence leading to the school head reporting the matter to the police. The complainant was medically examined on 5 November 2009 and a medical report was then compiled. The doctor observed burns on both palms and on the lips and opined that although there was no potential danger to life or permanent disability likely to occur to the complainant, the degree of force used to inflict those injuries was very serious.

The appellant pleaded guilty to the charge.

She is a first offender who is married with four children. She vends vegetables realizing around R150 per month. She went to school up to Form 4. She had US$150 and P360 in savings and three goats and a donkey as assets. She said she was very angry at what the complainant had done, hence the punishment.

Following the imposition of the sentence alluded to above, on 24 November 2009, the appellant's current legal practitioner noted the appeal against the sentence on 4 December 2009. The gravamen of the appeal is simply that the appellant should not have been visited with an effective custodial sentence; instead, the trial court should have imposed a non-custodial sentence such as community service.

The appeal having been noted on 4 December 2009 we raised eyebrows as to why it took so long, up to 16 March 2015, to have the appeal heard.

A perusal of the record and counsel for the appellant's explanations revealed the following sad slipshod and slapdash way, by counsel for the appellant, of prosecuting the appeal.

The Notice of Appeal was served only on the Criminal Registrar and office of the then Attorney General on 4 December 2009. Contrary to appeal rules, it was not served upon the Clerk of Kezi Magistrates' Court. On 18 December 2009 the Criminal Registrar's office issued a warrant of liberation for the appellant. Although ex facie appeal record cover it is endorsed that the appellant was on bail there is nothing in the record showing who granted the bail, when and where, or how much it was.

The next document is a piece of paper with this court's letter heads written;

“EDNA SIBANDA
-VS-
THE STATE
HCA 185/09”; with the Criminal Registrar's date stamp on 21 May 2010.

It is not known who in that office gave the matter the appeal number – even the stamping of 4 December 2009 on the Notice of Appeal by the two offices alluded to above are not signed for.

The matter lay in abeyance, shrouded with its secrecy, until 13 February 2013 when the now resident magistrate of Kezi wrote to the Provincial Magistrate in Gwanda querying the circumstances leading to the issuance of the warrant of the appellant's liberation alluded to above.

On 10 March 2013, the Provincial Magistrate directed that a warrant of arrest be issued for the appellant. That prompted the appellant's legal practitioners to serve the more than three year old Notice of Appeal upon the Clerk of Kezi Magistrates' Court on 18 March 2013.

Promptly, on 19 March 2013, the Clerk of Court at Kezi forwarded the Notice of Appeal and the record of proceedings to the trial magistrate who was then based at Plumtree for processing of the appeal record which was done and the processed record was sent back to Kezi from Plumtree on 11 April 2013 and received at Kezi on 23 April 2013.

Meanwhile, as far back as 21 December 2009 CHEDA J had confirmed the proceedings on review.

On 27 May 2013 the appellant's legal practitioners were called upon by the Registrar's office to file their heads of argument by 21 June 2013. They did not do so. On 16 July 2013 the appeal was deemed abandoned and dismissed.

On 5 August, 2013 a warrant for the appellant's arrest was issued by the magistrate at Kezi. This jogged counsel for the appellant to apply for reinstatement of the appeal which MAKONESE J granted on 10 September 2013.

On 13 September 2013 counsel for the appellant wrote to the Kezi Magistrates' Clerk of Court attaching the order for reinstatement of the appeal and requesting the clerk to issue a warrant of liberation for the appellant. Thereafter, the appeal again lay in abeyance for more than a year. I presume this was because the appellant's heads of argument filed on 15 October 2013 were not served upon the respondent until this year.

At the hearing of the appeal counsel for the appellant, on being quizzed by the court about the delay in prosecuting the appeal, conceded that the delay was occasioned by himself.

Indeed, from the chronology of events postulated above he could not have had any other plausible explanation except to concede and apportion the blame squarely on his sole shoulders.

We are not privy to the reasons why, in view of the brazen and suspect non-observance of the Appeal Rules in casu, as expounded in extenso supra, this appeal was reinstated; but, clearly, this is one case in which the salutary words of DUMBUTSHENA CJ as he then was in S v McNab 1986 (2) ZLR 280 (SC)…, should have been, with respect, heeded. Therein the learned Chief Justice said;

“It is in the discretion of the court to refuse condonation even in cases which the respondents do not object to the relief being granted to the applicants. In cases in which defective notices of appeal are filed it is in most cases the applicant's legal practitioners who are to blame. In such cases the court has to consider whether to punish the applicants for the negligence of their legal practitioners. In my view, clients should, in such cases, suffer for the negligence of their legal practitioners. I share the view expressed by STEYN CJ in Saloojee & Ano NO v Minister of Community Development supra at 141C – E when he said:

'There is a limit beyond which a litigant cannot escape the result of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the Rules of this court. Considerations ad misericordiam should not be allowed to become an invitation to laxity. In fact, this court has lately been burdened with an undue and increasing number of applications for condonation in which the failure to comply with the Rules of this Court was due to the neglect on the part of the attorney. The attorney, after all, is the representative whom the litigant has chosen for himself, and there is little reason why, in regard to condonation of a failure to comply with a Rule of Court, the litigant should be absolved from the normal consequences of such a relationship, no matter what the circumstances of the failure are…,.'

I have dwelt at length on this point because it is my opinion that laxity on the part of the court in dealing with non-observance of the Rules will encourage some legal practitioners to disregard the Rules of Court to the detriment of the good administration of justice.”...,.

It does not matter that the appeal took this long to be heard. As already stated the delay lies squarely on the appellant's legal practitioner's shoulders and this one is a proper case where the appellant must bear the consequences of her agent's negligence.