HUNGWE J: The Attorney-General gave notice in terms of s
35 of the High Court Act, [Cap 7:06]
that he did not support the conviction of all four appellants in this
matter. The record shows that the appeal
had previously been set down for hearing on 5 May 2011. It could not be heard
because the record of proceedings, i.e. the original and the transcribed copies
were unintelligible. It appears that a directive was given at that point to the
relevant authorities to rectify the record in order to afford the appellants an
opportunity to have their appeal dealt with on the merits. In that regard
Principal Law Officer in the office of the Attorney-General, Mr Masamha, accordingly wrote to the Chief
Magistrate in an effort to ensure that the directive of this court was complied
with. His letter reads:
"RE: STATE vs HARDWORK MASAITI AND
OTHERS: CA753-6/O9: KIDNAPPING
The
above appeal is pending before the High Court and is supposed to be heard on 2
February 2012. The following are urgent
issues of concern.
Previously
the appeal was postponed to have the record attended to as it was in a
shambolic state. The transcript was not
certified, the trial magistrate had not responded to the notice of appeal, the
application for discharge at the close of the state case and the bail ruling
were not attached to the record. Further
the record itself is so disjointed in terms of the proceedings therein such
that no sense can be made of it.
On
12 August 2011 we wrote to the Criminal Registrar, High Court, sounding our
observations. See copy of the
correspondence attached.
We,
however, later learnt that the issues we raised could not be adequately
attended to, the handicap being that the trial magistrate Mr. Zuze is now late.
It
has since been ordered by the Appeals Court that a formal correspondence be
made for record purposes.
We
are therefore humbly requesting that you formally update us on the issue of the
trial magistrate's death."
On
1 February 2012 of the office of the Chief Magistrate addressed correspondence
to the Registrar of this court confirming that indeed Mr Zuze, the trial
magistrate, passed away on 12 January 2012 at Chipinge.
On
the same day, 1 February 2012, Mr Masamha,
for the Attorney-General, gave the notice aforesaid.
In
the notice he gave a background of this matter. He pointed out that both
counsel for the State and defence were agreed, from the outset, that the
numerous shortcomings of the record of proceedings presented a serious handicap
to the appeal court as it could not be said with any certainty what it was that
transpired during trial. Counsel for the appellants recited several case authorities
for the proposition that such material discrepancies as existed on the record
of proceedings constituted such a serious irregularity as to necessitate a
quashing of the proceedings.
See
R v Neto 1965 RLR 656 (A); S v Marais
1966 (2) SA 514 (T) @516G-H; S v Jenkins 1985 (2) ZLR 193 (SC); S v
Manera 1989(3) ZLR 92(S) @ 93; S v Davy 1988 (1) ZLR
386(S); S v Ndebele 1988 (2) ZLR 249 (H); S
v Duri HH 89/91; S v Nyamupanda
HH 101/91; Chidavaenzi v The State HH113/08.
It
is a correct observation that the record of proceedings does not make any
sense. To cite but one example, take the following section recording
cross-examination (a sample representative of the general tenor of the record):
"Q: When
do you say behind the case before the court today?
A: I
suspect my revival- Mr E Porusingazi and the people too also.
Q: You
admit your councellor to address the meeting?
A: Yes
that is true.
Q: From
the meeting on 3/12/09 we have the alleges
A: Yes
Q: At Chisuma we had two meetings
A: Yes that is true the other meeting was
only a counter."
In
S v
Curle 2001 (2) ZLR 323 (H) the entire evidence and
submissions in mitigation and aggravation was missing from the record.
Confronted with such an irregularity BLACKIE J stated:
"The
evidence missing from the record is the entire evidence and submissions in
mitigation and aggravation. The absence of such evidence and addresses means
that there is, in principle, a material deficiency in the record, more
especially so, as in this case, the accused is appealing against sentence.
'..........all
pleas of mitigation, where defending counsel outlines the facts to the court
must form part of the record, and they must be transcribed by official
shorthand writers and included in the record should the record subsequently
come on appeal.' See S v Neto 1965 RLR 656 (A). The effect of a
material deficiency in the record is that the proceedings must be set aside.
The accused is seriously prejudiced through no fault of his own. He is just
entitled to have his case considered on appeal or review and for that purpose
he is entitled to a copy of the record certified as correct. If he does not
receive that he is frustrated in his basic right of appeal or review."
In
light of these shortcomings regarding the record of proceedings, I was
satisfied that the concession by the Attorney-General was proper. The present
proceedings are incapable of rectification due to the death of the presiding
trial magistrate. The only course open to afford justice to the appellants is
indicated in the authorities cited by counsel for both the state and defence.
In the result therefore I quash the conviction in respect of all the appellants
and set aside the sentences imposed upon such conviction.
MAVANGIRA
J: I agree ..............
Maunga
Maanda and Associates, appellants' legal practitioners
Criminal Division of the Attorney-General's Office, respondent's
legal practitioners
