NDOU J: The
accused is a young man aged 19 years. He
started his criminal life in the deep end of the pool. He was convicted by a Bulawayo Magistrate of
three counts of robbery as defined in section 126 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23].
He was sentenced to a term of five (5) years imprisonment on each
count. The salient facts of the case are
the following. In count 1, the accused,
in the company of an accomplice, pounced on the complainant who was waiting for
lifts along Luveve Road at around 22.15 hours.
The two demanded money from the complainant and the latter
resisted. The accused produced an okapi
knife and grabbed complainant by the neck and searched him. They forcibly took away his national identity
card, ZAR400, US$40 and a Samsung cellular phone. The phone and ZAR400 were recovered as a
result of police effort. In count 2 at
Nguboyenja suburb the accused and two others, met the complainant at around
1900 hours, walking home. The three
produced knives and threatened him.
Using force they searched him and stole from him a Nokia 100 cellular
phone, ZAR5,00 and US$3,00. The cellular
phone was recovered from the person who had bought it from the accused
person. In count 3, at 0030 hours, near
Mukambo market in Makokoba suburb, the complainant and his friend were waiting
for transport after they just arrived from Botswana. They had quite substantial amount of property
including, inter alia, a 21 inch
television set, two DVD players, a Philibao decoder, flash disks, LG cellular
phone, a pair of takkies, hair cutting kit, perfumes, lotions, sweets, football
shoes, 3 pairs ladies sandals and a jacket.
Unfortunately for the accused and his accomplices, the complainant
managed to identify them as he used to see them at local shebeens. They ordered the complainant and his friend
to lie down. They complied and the
accused and his accomplices took the above mentioned property plus cash
amounting to BP70, ZAR50 and US$3,00.
The accused was arrested and he
pleaded guilty to the charges. Nothing
turns on the convictions as they are proper.
Were it not for the procedural irregularity, the sentence would have
been on the severe side but within the learned magistrate's sentencing
discretion. I would not have
interfered. The problem here is that the
learned magistrate exceeded her jurisdiction.
When I queried all she could say is that she “was laboring on a
misconception that” since she has extended jurisdiction for “crimes of
dishonesty, theft and unlawful entry” the same applies for robbery. She was clearly wrong. Her ordinary jurisdiction is provided for in
section 50(1) of the Magistrates Court Act [Chapter 7:10] is the following:
“(1) Subject
to this Act and any other enactment, the jurisdiction of a court of a
magistrate, other than a senior, provincial or regional magistrate, in respect
of punishment for any offence shall be-
(a)
On
summary trial-
(i)
Imprisonment
for a period not exceeding two years;
(ii)
A
fine not exceeding level seven;
(b)
On
remittal by the Attorney General under the increased jurisdiction given by this
paragraph –
(i)
Imprisonment
for a period not exceeding four years;
(ii)
A
fine not exceeding level none.”
As an ordinary magistrate, the learned trial magistrate
enjoys special jurisdiction in terms of section 51(1) and (3) of the Act as
follows:
“(1) Notwithstanding
section fifty, the jurisdiction of a court of magistrate, other than a regional
magistrate, in respect of punishment for –
(a)
Public
violence; or
(b)
Malicious
injury to property; or
(c)
An
attempt to commit either offence referred to in paragraph (a) or (b);
Whether on summary trial or remittal by the Attorney General,
shall be –
(i)
Imprisonment
for a period not exceeding seven years;
(ii)
A
fine not exceeding level eleven. …
(2) …
(3) Notwithstanding
section fifty, every magistrate shall have special jurisdiction to impose the
penalties prescribed in sections 113 (“Theft”), 114 (“Stock theft”) and 131
(“Unlawful entry into premises”) of Criminal law Code.”
There are, of course, other statutory enactments that give
ordinary magistrates special jurisdiction.
These are not relevant in this case.
It is important to note that the special jurisdiction for offences of
dishonesty is only in respect of theft and stock theft i.e. offences defined
under sections 113 and 144 of the Criminal law Code and not other.
In the circumstances the sentence
imposed in this case cannot stand. The
learned trial magistrate should have stopped the matter in terms of section 54
of the Magistrates Court, supra and sought the directions of the Attorney
General in terms of section 225 of the Criminal Procedure and Evidence Act
[Chapter 9:07] rather than assume jurisdiction that she does not have.
Accordingly, I confirm the
conviction and set aside the sentence and refer the matter to the magistrate
for a sentence de novo.
Cheda J
………………………………………… I agree
