The applicants have approached the High Court for a review of the procedures followed, and the decision arrived at, by the trial magistrate in placing them on remand. The brief grounds of review are outlined in the application as follows.,.

The court drew to the applicant's legal practitioners attention that the grounds for review that they had set out., had more to do with the substantive correctness rather than the procedural impropriety of the decision complained of; that the "grounds for review" when examined closely tended more towards "grounds of appeal"; that practically, and as an example only, it was easier to prove that a decision was incorrect (appeal) than that it was so incorrect that no reasonable person who applied his mind to the matter would have arrived at the same decision (review); that strictly speaking, in terms of the rules of court, there are no provisions for urgent reviews or urgent appeals, but that in appropriate cases nothing would prevent an appeal being heard urgently and that at any rate, an application for bail pending appeal or review can always be made.

The legal practitioners., insisted that the matter should proceed as a review matter and as currently formulated.

Section 27 of the High Court Act [Chapter7:06] sets out specific grounds upon which an application for review may be made. Among other things, the applicant must show that the inferior court, tribunal, or administrative authority lacked the requisite jurisdiction or that there was gross irregularity in the conduct of the proceedings.

In the application before me, the grounds for review, as already noted, were crafted in very general and sometimes vague terms. There was no allegation of lack of jurisdiction on the part of the court a quo. Therefore, the only substantive ground for review can be taken as that of "gross irregularity". There is a vague reference to perceived bias.,. However, this appears to be a misunderstanding by the respondents lawyers of the nature of the application they were involved in at the court a quo..,. It would be stretching matters rather far to hold that the ruling by the magistrate demonstrated bias in favour of the State.,.

For the decision to be set aside for unreasonableness, it must be shown that the decision is so grossly unreasonable that it can only be explained on the grounds that the decision was made in bad faith or because of some ulterior motive or that the decision-maker failed to apply her mind to the decision. This is the so-called "symptomatic unreasonableness."

As matters stand, the accused has been discharged from prison having completed the sentence previously imposed.,. This court, on review, may quash the sentence imposed and remit the sentence for sentencing afresh by the trial court. It will then direct that the sentence imposed takes into account that already served by the accused till the date of discharge. This court may alternatively set aside the sentence imposed in error and pass the appropriate sentence if the accused is unable to, at this late stage, offer any special circumstances.

However, either course of action is, in my view, unfair to an accused person who has undergone the rigours of imprisonment. It is sufficient if the delay resulting in the failure to take an appropriate course of action timeously, is deprecated. Attention to act promptly in remitting records on review cannot be over-emphasized. Had the record been sent on review within the statutory seven days and had this court acted without seeking the magistrate's views, in all probability the appropriate remedial actions consistent with the letter and spirit of the law would have been taken.

HERBSTEIN & VAN WINSEN, Civil Practice of the Supreme Court of South Africa 4ed…, explain the distinction between an appeal and a review:

“The reason for bringing proceedings under review or appeal is usually the same - to have the judgment set aside. Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where, however, the real grievance is against the method of the trial, it is proper to bring the case on review. The first distinction depends, therefore, on whether it is the result only or rather the method of trial which is to be attacked. Naturally, the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well. The giving of a judgment not justified by the evidence would be a matter of appeal and not a review upon this test. The essential question in review proceedings is not the correctness of the decision under review but its validity.”…,.

The power of a superior court to review the proceedings of an inferior court covers various stages in a criminal proceeding before an inferior court, that is, prior to conviction, after conviction but before sentence, and after sentence has been passed by an inferior court.

Part IV of the High Court of Zimbabwe Act, 1981 enumerates the High Court's statutory powers of review.

Section 26 of the High Court Act provides that, subject to the provisions of the Act and any other law, the High Court has review powers over all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities. Section 27(1) provides that subject to the provisions of that Act and any law, the grounds of review are;

(i) Absence of jurisdiction;

(ii) Bias; and

(iii) Gross irregularity in the proceedings or decision.

Section 27(2) provides that nothing in that particular section shall affect the provisions of any other law relating to review of inferior courts, tribunals or authorities.

Section 29(1)(b) provides that, for purposes of reviewing any criminal proceedings, the High Court may hear any evidence in connection with the proceedings. Section 29(2) states that if, on review of any criminal proceedings, the High Court considers that the proceedings are not in accordance with real and substantial justice it has the power to do various things, including the power to alter and quash the conviction or to set aside or correct the proceedings or "generally give such judgment or make such order as the inferior court or tribunal ought, in terms of any law, to have given, imposed or made on any matter which was before it in the proceedings in question."

Section 29(3) specifically provides that no conviction or sentence shall be quashed or set aside in terms of section 29 by reason of any irregularity or defect on the record of proceedings unless the High Court considers that a substantial miscarriage of justice has actually occurred. Section 29(4) states that, subject to the rules of court, the powers under section 29(1) and (2) may be exercised whenever it comes to the notice of the High Court that any criminal proceedings are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court or have not been submitted to the High Court for review.

It is clear from the foregoing that the statutory powers of review under the High Court of Zimbabwe Act, 1981, can be exercised at any stage of criminal proceedings before an inferior court.

Magistrates are urged to accept that pointing out a mistake on their part is not intended to insult them, but is intended to guide them only for future purposes.

The appellant was convicted by a Zvishavane Magistrate of possessing 6.46 kilogrammes of dagga. She was sentenced to 36 months imprisonment of which 10 months was suspended for 5 years on the usual conditions of future good behavior.

The salient facts of the matter are that the appellant's place of abode, Number 99 Mandava Township, Zvishavane, was searched on 1 August 2005 by two members of the Zimbabwe Republic Police, Criminal Investigation Department, who were acting on information.

At the time of the search, the appellant and her spouse and children were not present. The search was carried out in the presence of the maid, Sarafina Maramba. From the evidence of the police details, they did not have a search warrant to carry out the search. Sarafina initially refused them permission to search the house. She, however, later allowed them to do so. It is, however, not clear what prompted her to change her mind. The police details did not justify their search without warrant by the provisions of section 51(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] i.e. they did not testify that they, on reasonable grounds, believed that a search warrant would be issued to them; and, if they had first applied for the same, the delay in obtaining such warrant would defeat the object of the search.

When the matter was argued, counsel for the appellant conceded and agreed with our view that the Notice of Appeal is defective. Even his argument is not based on the “grounds” set out in the defective Notice of Appeal.

It is trite the would-be appellant must particularize the grounds of appeal to the extent of saying whether his/her attack on the conviction is based on the quality of the prosecution evidence or its quantum or both. If the appellant is relying on an error in law, he/she should say what error was. If he/she is alleging that the trial court made a mistake of the facts, he/she should say what the mistake was; whether the court erred in accepting the evidence of a particular person or in regarding that evidence is sufficient to prove the offence.

Generalizations are not good enough, the notice must point out where the trial court erred or misdirected itself. It is not good enough to make a general statement. It is necessary to say why the court erred – Criminal Procedure in Zimbabwe, J R ROWLAND…,; R v Emerson & Ors 1957 R & N 743 (SR); S v McNab 1986 (2) ZLR 280 (S); S v Ncube 1990 (2) ZLR 303 (S); and S v Jack 1990 (2) ZLR 166 (S).

It is trite law that a defective notice is no notice and cannot be amended. If necessary, an application should be made for extension of time within which to note an appeal – S v Jack 1990 (2) ZLR 166 (S). The appellant has not applied for such extension and her right to appeal has lapsed.

The respondent does not support the conviction on account of gross irregularities. Counsel for the appellant also raised other gross irregularities.

The parties have asked us to exercise our inherent powers of review to set aside the conviction.

We agree that we should, nevertheless, deal with this matter by way of our review powers notwithstanding the flaws in the Notice of Appeal. We will act in terms of section 29(4) of the High Court Act [Chapter 7:06].

Counsel for the appellant sought the court's indulgence to exercise its review powers and grant an application for the late filing of an application for review, wherein the relief sought was against both conviction and sentence on the grounds that -

“Ad Conviction

1. The court a quo erred in law in convicting the appellant of contravening s66 of the Criminal Law (Codification and Reform) Act (hereinafter referred to as 'the Act'), in that the essential elements of the offences were neither alleged by the State nor admitted by him, more particularly, that penetration of the complainant's body was neither alleged nor proved in either counts, moreso that the appellant was not legally represented at the summary trial.

2. The facts established by the State in the outline of the State case, and admitted by the appellant, only support verdicts of contravening s67 of the Act, that is to say, indecent assault simpliciter, the penalty for which is set out in that appropriate section which is a permissible verdict under s275(a) of the Act as read with the Fourth Schedule thereto.

Ad Sentence

1. The overall sentence imposed is so manifestly excessive so as to induce a sense of shock.

2. A balance up of the aggravating and mitigating circumstances of his offences, and of the accused, militate against the lengthy terms of imprisonment imposed.

3. Additionally, or in the further alternative, a globular and shorter term of imprisonment is called for in a case of the nature in issue and a failure to consider it constitutes a gross misdirection on the part of the trial court below.”

The State had been served in advance with the purported application to amend the grounds of appeal, and had no objection to the application being granted for the sake of finalization of the matter.

In the result, counsel for the State prepared its heads of argument on the basis of the amended grounds of appeal.

The question raised in the present review is whether an acquittal after a full trial is subject to review at the instance of the complainant.

The record of proceedings was forwarded by the Provincial Magistrate, Harare at the request of a firm of legal practitioners which was instructed by the complainant who was dissatisfied with the acquittal of the accused person after a full trial. The letter is couched in these terms –

The High Court, being a court of inherent jurisdiction, has wide reviewing powers conferred upon it by both common law and statute. The law applicable in criminal matters has been conveniently set out by the legislature in section 29 of the High Court Act [Chapter 7:06] which reads thus –

“29 Powers on Review of Criminal Proceedings

(1) For the purposes of reviewing any criminal proceedings of an inferior court or tribunal, the High Court may exercise any one or more of the following powers -

(a) ...,.

(b) ...,.

(c) Where the proceedings are not being reviewed at the instance of the convicted person, direct that any question of law or fact arising from the proceedings be argued before the High Court by the Attorney General or his deputy and a legal practitioner appointed by the High Court.

(2) If on a review of any criminal proceedings of an inferior court or tribunal the High Court considers that the proceedings -

(a) Are in accordance with real and substantial justice, it should confirm the proceedings;

(b) Are not in accordance with real and substantial justice, it may, subject to this section -

(i) Alter or quash the conviction; or

(ii) Reduce or set aside the sentence or any order of the inferior court or tribunal, or substitute a different sentence from that imposed by the inferior court or tribunal:

Provided that -

(i) A sentence of imprisonment should not be substituted for a fine unless the enactment under which the convicted person was convicted does not permit the imposition of a fine;

(ii) The substituted sentence shall not be more severe than that imposed by the inferior court or tribunal unless the convicted person -

(a) Is a company; or

(b) Was represented by a legal practitioner at the proceedings in the inferior court or tribunal concerned; and requested that the proceedings be forwarded on review or otherwise instituted the review; or

(iii) Set aside or correct the proceedings of the inferior court or tribunal or any part thereof or generally give such judgment or impose such sentence or make such order as the inferior court or tribunal ought in terms of any law to have given, imposed or made on any matter which was before it in the proceedings in question; or

(iv) If the convicted person was convicted on one of two or more alternative counts, when quashing that conviction remit the case to the inferior court or tribunal with instructions that he be retried on one or more of the alternative counts before a presiding officer other than the presiding officer who recorded the previous conviction; or

(v) Remit the case to the inferior court or tribunal with such instructions relative to the further proceedings to be had in the case as the High Court thinks fit; or

(vi) Make such order relative to the suspension of the execution of any sentence against the convicted person or the admission of such person to bail or generally any matter or thing connected with such person or the proceedings in regard to him as the High Court thinks or calculated to promote the ends of real and substantial justice; or

(vii) if the convicted person was convicted on one or more counts and acquitted on one or more counts and it appears to the High Court that the inferior court or tribunal intended to -

A. Acquit him on one or more of the counts on which he was convicted; and

B. Convict him on one or more the counts on which he was acquitted;

correct the proceedings in accordance with such intention;

(viii) If the convicted person has been convicted of an offence and the inferior court or tribunal could, on the indictment, summons or charge have found him guilty of some other offence, whether because it was, according to the law, a competent verdict or because that other offence had been alleged as an alternative count, and on the findings of the inferior court or tribunal it appears to the High Court that the inferior court or tribunal must have been satisfied of facts which proved him guilty of that offence, the High Court may, when quashing the conviction, substitute for the judgment of the inferior court or tribunal a judgment of guilty of that other offence, whether or not the convicted person had been acquitted of that offence at the trial, and may -

A. Subject to the provisions to subparagraph (ii), substitute a different sentence for that imposed at the trial; or

B. Remit the case to the court or tribunal concerned for the passing of such sentence in substitution for the sentence passed at the trial whether more or less severe, as may be warranted in law for that other offence.

(3) No conviction or sentence shall be quashed or set aside in terms of subs (2) by reason of any irregularity or defect in the record or proceedings unless the High Court or a judge thereof, as the case may be, considers that a substantial miscarriage of justice has actually occurred.

(4) Subject to rules of court, the powers conferred by subss (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review.

(5) A judge of the High Court before whom the record of criminal proceedings in a magistrates court has been laid in terms of s55, 57, or 58 of the Magistrates Court Act [Chapter 7:10] -

(a) May lay the proceedings before the High Court for its consideration in terms of this section; or

(b) May himself exercise the powers conferred by subsection (1) other than paragraph (b) thereof, or subsection (2); provided that a judge of the High Court shall not exercise any of the powers conferred by subparagraph (i), (ii) or (iii) of paragraph (b) of subsection (2) unless another judge of the High Court has agreed with the exercise of the power in that particular case.

(c) Shall, if he confirms the proceedings, cause the record to be endorsed with a certificate to that effect and returned to the court concerned.”

The provisions of section 29 of the High Court Act [Chapter 7:06]..., may be divided into two parts. These are those matters which are brought for review by magistrates in terms of section 55,57 and 58 of the Magistrates Court Act [Chapter 7:10] and those which come to the notice of the High Court by some other means as provided in section 29(4) of the High Court Act [Chapter 7”06]...,.

Ordinarily, criminal reviews seek to alter or quash a conviction, or reduce or set aside a sentence.

The present matter is rare in that a complainant seeks the court to declare that an acquittal was not in accordance with real and substantial justice.

In my view, this is permitted by section 29(1)(c) of the High Court Act [Chapter 7:06] which gives the High Court a discretion to direct the Attorney General and a legal practitioner appointed by it to argue on any question of law or fact emanating from the proceedings. Section 29(2) of the High Court Act [Chapter 7:06] empowers the High Court to determine whether the proceedings are in accordance with real and substantial justice. If it finds that they conform to accepted norms of both adjectival and substantial law it approves of the proceedings. If the proceedings run foul of either the procedural or substantive legal requirements the court has a wide choice to draw from to correct the proceedings. The choices set out in section 29(2)(b) of the High Court Act [Chapter 7:06] are predicated on a conviction and not on an acquittal. This is because both subparagraphs (i) and (ii) of section 29(2) of the High Court Act [Chapter 7:06] revolve around a conviction and sentence. An acquittal does not fit into this model. The eight provisos to section 29(2)(b) of the High Court Act [Chapter 7:06] are triggered by either a conviction or a sentence.

Section 29(b)(vii) of the High Court Act [Chapter 7:06] permits the High Court to convict an accused person who has been acquitted on one or more counts which are co-joined with one or more counts for which he has been convicted – but only in circumstances where the inferior court has made a deliberate error of acquitting when it actually wanted to convict. This proviso does not, therefore, authorize the High Court to convict an accused person on review where the trial magistrate, as in the present matter, intended to acquit.

The letter written on behalf of the complainant did not set out the basis for the review. It did not attack any of the findings of the trial magistrate. It obliquely suggested bias on the part of the trial magistrate but did not link that perception to the conduct or outcome of the trial. The fact that an accused person boasts of his acquittal before the event may very well arise from his appreciation of the evidence led during his trial. That his opinion comes to pass would not objectively be reason to suspect bias or other untoward practice on the part of the trial magistrate.

On review of an acquittal, the High Court has two options. The first is to confirm the proceedings if they meet the procedural and substantive legal requirements. The second is to decline to confirm the proceedings if they fall short of the requisite standard of justice. An unhappy complainant may seek a review of an acquittal notwithstanding that the Attorney General may appeal against the acquittal in terms of section 61 of the Magistrates Court Act [Chapter 7:10] or section 38A of the High Court Act [Chapter 7:06].

The record of proceedings was submitted for review in January 2010.

The offences were committed on the night of 16 to 17 July 2007. The accused persons were sentenced on 1 August 2007 and their record of proceedings was submitted for review in January 2010 - about two and half years later. The trial Regional Magistrate merely signed the review cover and forwarded the record of proceedings for review. He should have explained the delay. I raised the issues referred to above by letter dated 25 January 2010. The Regional Magistrate's reply is dated 9 April 2010 but was referred to my office in May 2010. The trial Regional Magistrate did not explain the delay in responding to the issues I raised.

Delays in submitting records of proceedings for review and responding to issues raised by the reviewing judge are unlawful and acceptable. They compromise the quality of justice, and are potentially prejudicial to accused persons.

In terms of section 57(1) of the Magistrates Court Act [Chapter 7:10] the record of proceedings must be submitted for review “not later than one week after the determination of the case.” In this case, the case was submitted for review two and a half years after the period stipulated by the legislature.

The Clerk of Court did not comply with the law. 

The magistrate, who should have ensured that he or she did, did not take notice. He, too, did not treat the case with the urgency it deserved. He took three months to respond to the issues I raised. Section 57(1) of the Magistrates Court Act [Chapter 7:10] provides as follows-

“(1) When any court sentences any person-

(a) To be imprisoned for any period exceeding twelve months; or

(b) To pay a fine exceeding level six;

The Clerk of the Court shall forward to the Registrar, not later than one week next after the determination of the case, the record of the proceedings in the case, together with such remarks, if any, as the magistrate may desire to append.”

The magistrate's remarks, in terms of section 57(1) of the Magistrates Court Act [Chapter 7:10], can be in relation to the proceedings. He can also remark on delays in sending the record of proceedings for review. The remarks are simply those in relation to the case the magistrate may desire to append.

This matter came to me for review in terms of section 57 of the Magistrates Court Act [Chapter 7:10] following the conviction and sentence of the accused person by the Magistrate Court at Western Commonage. There has been an extremely inordinate delay in bringing the matter to finality which is unacceptable indeed.

The matter was previously placed before my brother CHEDA J and it is not clear why it was set down for argument on 19 November 2010. He later recused himself and it was then placed before me. When I went through the record I ordered the immediate release of the accused person and said that the reasons will follow.

These are the reasons.

This happened on 10 March 2010. With one third remission, the accused has already finished serving the sentence. It is not clear when the proceedings were sent for scrutiny but the learned scrutiny Regional Magistrate first raised the query with the trial magistrate on 10 June 2010.

There are countless review judgments reminding magistrates to comply with the statutory requirements in the Magistrates Court Act  [Chapter 7:10] to expeditiously transmit scrutinable and reviewable cases for the purpose in order to obviate, inter alia, unwarranted incarceration of humans who do not deserve such inhuman and degrading punishment such as happened in casu.

The learned scrutinizing Regional Magistrate took issue, rightly in my view, with the two misdirections alluded to supra with the trial magistrate who lamely and grudgingly conceded his errors.

The above case was forwarded to me for review.

It has come to my attention that there are two issues to be dealt with.

The review cover recorded that the accused was charged with (several counts) of rape, and was, however, sentenced to twelve (12) years imprisonment on each count totaling thirty-six (36) years imprisonment of which five (5) years was suspended for five (5) years on the usual conditions. The judgment indicates that the accused was convicted of three (3) counts of rape; which counts of rape the accused did not plead to. According to the record, the accused was charged with one count; this is what he pleaded not guilty to and is recorded at the back of the charge sheet. In addition to this, there is no verdict recorded on the back of the charge sheet.

This record is not a true reflection of what took place during a trial as there are numerous errors.

This matter was referred to me by the scrutinising Senior Regional Magistrate for the Eastern Division who felt that it needed urgent attention as there was a likelihood of a grave injustice occurring given that the accused person had been given an unjustified term of imprisonment.

Although the referral letter of the learned Senior Regional Magistrate is dated 22 November 2012, it is not clear when the record was received by the Registrar of this court as it bears no stamp of receipt. The record was only placed before me on 21 January 2013 - exactly two (2) months after its referral. Due to that delay, the accused person had already served 73 days of an effective three (3) months imprisonment term, he having been sentenced on 9 November 2012.

I find myself having to repeat what I have said several times before in expressing the need for review records to be sent with speed to the reviewing judge in compliance with the provisions of the law. See S v Mhondiwa HB193-11; S v Shava HB200-11; and S v Moyo HH308-12.

I restate the pronouncement I made in S v Mhondiwa HB193-11…., -

Scrutinising Regional Magistrates must also have a good grasp of the law applicable to the case under scrutiny.

If one is not sure it is important to check before referring a case for review. Section 58(3)(b) of the Magistrates Court Act [Chapter 7:10] provides for a referral of a case under scrutiny to a judge for review “if it appears to him that doubt exists whether the proceedings are in accordance with real and substantial justice”. A doubt which justifies a referral to a judge for review must be one which lingers on after the Regional Magistrate has fully played his part. Scrutinising means looking deeply and closely into a matter. It is not a cursory examination of the record without applying ones knowledge of the law into what the trial magistrate did….,.

Real and substantial justice

I must conclude by saying scrutinising and reviewing judicial officers must be guided by the attainment of the standard of “real and substantial justice” by the work they will be scrutinising or reviewing. That is what determines whether he should confirm the proceedings or refuse to certify them as being in accordance with real and substantial justice or take such other remedial action permitted by the law.

The attainment of “real and substantial justice” is ascertainable by checking for the things mentioned in the case of S v Lee Kawareware HH268-11…, where I said -

“The crucial question should always be: has the accused been correctly convicted and sentenced? If he has, the proceedings should be confirmed. If not, the certificate should be withheld. The main features to look out for in scrutinising or reviewing proceedings are therefore;

1) The correctness of the charge preferred;

2) The agreed facts or State and defence outlines;

3) Compliance with statutory requirements in taking a plea of guilty or in conducting a trial where the accused pleads not guilty;

4) The acceptance or proof of the facts on which the charge is based;

5) The assessment of evidence i.e matching of the law and the accepted or proved facts;

6) The trial court's reasons for judgment;

7) The correctness or otherwise of the conviction; and

8) The justifiability of the charge or sentence as discussed in Chidodo (supra).

Since the codification of our criminal law, all sentences are provided for in the Code or the statute which creates the crime charged. All the reviewing or scrutinising judicial officer should do is check if the sentence suits the offence and the offender within the range of sentences provided for in the Code or other statutes.”…,.

The trial magistrate's handling of this case has satisfied me that these proceedings are in accordance with real and substantial justice. I therefore duly confirm them….,.

BERE J

I have had the privilege of reading my brother judge UCHENA J's thoughtful and well-reasoned judgment. The exposition of the law, and the legal principles applicable, is beyond reproach. I commend the interactive process between the trial magistrate and the Acting Regional Magistrate.

It is such seemingly insignificant exercises that enrich or nourishes the development of our jurisprudence.

On 27 February 2012, I noted to the Provincial Magistrate the following terms:

“The four accused persons appeared before the learned trial magistrate on February 2009 charged with contravening section 131 of the Criminal Procedure and Evidence Act, [Cap 9:07) in that he broke and entered two different business premises on separate dates and stole there from. The record shows that initially, of the five accused, the first four admitted their guilt upon arraignment. The letter 'G' appears against each of them.  The fifth accused has 'N.G' against his number for both counts.

It appears the letter “N” was added before “G” for both counts in respect of accused 3, and 4 in a subsequent occasion since the colour of the ink is different from the general ink used on 3 February.

The record also shows that when essential elements were subsequently put in respecting both counts the learned trial magistrate entered globular answers thus “A1-4 yes.”

There is no indication as to what happened to accused 5.  The record shows that on 3 February 2009 the four accused persons were convicted on both counts initially charged. They gave their mitigation on the same date.

The charge sheet reflects that on 9 March 2009 only accused 1 and 3 appeared before the same learned trial magistrate for sentences. There is no explanation as to what happened to accused 2,4 and 5.

As for the sentence, they were each sentenced to 18 months imprisonment without anything suspended although they both appear to be first offenders. May the learned Magistrate comment?”

He replied thus;

“The trial magistrate who dealt with the above two cases left service on 18 May 2010. His whereabouts are not known to us hence we are returning the first record to you without the trial magistrate's comments.

The same magistrate dealt with the second case. Though the trial magistrate signed the review cover, there are no reasons for judgment and sentence. Further, the record was not submitted for review within the statutory period only to be located as we prepared records for archives. We apologise for sending the record for review well after the statutory period (S57(1) Magistrate Court Act [Cap 7:10].”

The second ground of review advanced by the applicants alleged that the trial court had denied them the right to request statements of outgoing mobile phone calls to prove that they had never called Booker Huni as the court said it was too late to do that.

The record of proceedings, however, does not show where or when the trial magistrate refused or prevented the production of such evidence. At the hearing, counsel for the applicants fairly conceded that the second ground was not going to be persisted with as it was not borne out by the record of proceedings. 

The applicant was charged in the Magistrates' Court for fraud and sentenced to 5 years imprisonment. The applicant has not filed a copy of the indictment, and, as such, the exact nature of the allegation is not disclosed.

The applicant made a late application for review. When it was pointed out that the application for review was out of time he applied for condonation and put the blame for the delay on his legal practitioner for not acting timeously. The Judge, to whom the application for condonation was made, advised the applicant to file an affidavit from the legal practitioner explaining the delay. The applicant did not do that. The applicant persisted with the application for review and filed a hand-written copy of the record of proceedings. I ordered that the record be typed. The record was then typed at the offices of his lawyers. In view of the allegations that the applicant made against the trial magistrate at the trial proceedings I ordered that the trial magistrate be provided with a copy of the record to certify that it reflected the proceedings that the magistrate recorded at the trial. This was not done.

Despite all these instructions which his legal practitioner continues to ignore he has written asking that the matter be set down for argument. Instead, the legal practitioner has filed in the record an outline of a different person's case and not that of the applicant. He alleges that the applicant did not receive a fair trial but continues to ignore all the instructions to prepare the matter for hearing.

Under normal circumstances, in terms of section 57(1) of the Magistrates' Court Act [Chapter 7:10] only a sentence of imprisonment exceeding twelve months or a fine exceeding level six is subject to automatic review. However, section 29(4) of the High Court Act [Chapter 7:06] provides that:

The two accused persons were jointly charged with contravening section 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which is stock theft. They pleaded not guilty. Accused 2 was acquitted at the close of the State case. 

The indictment does not show that he was acquitted, and, as a result, his name appears on the review cover saying he was convicted. The magistrate signed the review cover to that effect.

This is a very high degree of negligence on the part of the trial magistrate. By signing the cover he is certifying that it reflects correctly what transpired in his court. Details of each accused's plea, verdict and sentence should always be recorded and certified by the trial magistrate.

1. The verdict of not guilty is entered against the 2^nd accused person.

This matter emanated from Mvurwi and found its way to my desk via the automatic review process. I discerned a number of irregularities which prompted me to write to the trial magistrate thus:

“Two issues are of concern to me:

1. The two accused persons were each charged with four counts with each count framed thus:

“charged with contravening s131 as read with 113 of the Criminal Law Codification and Reform Act [Cap 9:23] “Unlawful entry into premises and theft.” The allegations were that on four occasions each accused unlawfully entered the various complainants' dormitories and stole property therefrom.

Sections 113 and 131 of [Cap 9:23] create two stand alone offences of theft and unlawful entry into premises respectively. Either of the two crimes cannot be read with the other. Where one commits the offence of unlawful entry into premises in contravention of s131 and steals property therefrom, that offence of unlawful entry into premises is then committed in aggravated circumstances and one must be charged only with the offence of unlawful entry into premises in aggravating circumstances in contravention of s 131(1)(a) as read with subs (2)(a) or (b) or (c) or (d).

In the result, were the four counts properly framed?

2. (a) Both accused pleaded guilty to all four counts. After taking the accused through the essential elements the trial magistrate on verdict wrote:-

'V-Guilty as pleaded both counts and both accused.'

Both counts mean two counts yet there were four counts. Whence did the “guilty as pleaded both counts” come?

(b) As if that was not enough misdirection, regarding sentence, the trial magistrate wrote:-

“S-a 1 (for accused 1) – 2 years imprisonment (3 months suspended on Gve 627/12 brought into effect and incorporate (sic) in the 2 years imprisonment).

 A 11 (for accused 2) – 1 year imprisonment”.

(c) The trial magistrate did not, following production of accused 1's certificate of previous conviction, bother to find out from him whether he was admitting the previous conviction and if he had any cause to show why the suspended sentence should not be brought into operation.

(d) Further, the trial magistrate did not indicate in respect of which count or counts each accused person's sentence related to. Was this proper?

Could I have the trial magistrate's comments?”

The trial magistrate's response was as follows:

“Review Minute: State vs Edward Maripfonde and Gift Banda MV 921-2/12

1. In relation to the charge contravening section 131 as read with 113 of the Criminal Law Codification and Reform Act, I stand guided by the Honourable Judge's decision. This has been a grey area and has created a lot of confusion with some learned Judges preferring count 1 unlawful entry, count 11 Theft other review matter with unlawful entry and theft have been confirmed. However, your decision is quite commendable.

2.(a) There was an oversight; the court took the accused persons through the essential elements of the 4 counts which they were facing instead of indicating verdict- Guilty as pleaded all 4 counts for both accused persons. The court proceeded to indicate guilty as pleaded both counts.

(b) In failing to question the accused person about the certificate of previous conviction I erred; this was a serious misdirection. I also failed to indicate to which count the sentence was relating to. Intended to treat all 4 counts as one for sentence, globular approach, since these offences were committed on single day, almost at the same time, the offence being similar in nature i.e. the essential elements.

This record of proceedings, which came before me on review, epitomizes the trial magistrate's total failure to apply his or her mind to judicial proceedings resulting in an unnecessary serious miscarriage of justice.

This record is a classic example of how not to write a judgement in a criminal matter.

The record was referred to me on automatic review in 2011, and, on 21 May 2011, I raised the following query with the trial magistrate;

“1. The reasons for judgement by the trial Magistrate do not at all state specific findings made and the evidence which links accused to all 5 counts.

2. May a detailed and well reasoned judgment be submitted to enable this court to properly review the proceedings.”

Instead of responding to my minute, the trial magistrate, on 15 November 2011, decided to seek guidance to the Provincial Magistrate in charge of Mashonaland – Harare. The pertinent part of the trial magistrate's minute reads as follows;

“I am hereby seeking for your indulgence if it is not only impossible but also unlawful for me to rewrite my judgment again at this stage.”

The import of the trial magistrate's minute is that he or she was seeking “administrative protection” from my apparent unlawful instructions and that he or she could not act as directed by this court.

The Provincial Magistrate decided to refer the matter to the Acting Chief Magistrate under cover of a minute dated 14 November 2011 which reads, in the relevant part, as follows;

“The Magistrate has written seeking guidance on whether it is permissible for him to redo the judgment considering that he is now functus officio.”

Apparently, the Acting Chief Magistrate referred the matter to the Secretariat of the Judicial Service Commission, who, in turn, referred it to the Judge President. No official endorsements were made until the record later found its way to my office again on dates I cannot recall. This delay, in my view, has now rendered these review proceedings merely academic. 

The matter came before me after the accused had already served his sentence….,.

This court has in the past bemoaned the lack of diligence in transmitting records for review – S v Mhondiwa HB193-11. In that case, I stated…, as follows:

“The reviewing judge and the trial magistrate are a tag team serving the same purpose, namely, to ensure that justice is done and accused persons receive fair treatment. In review proceedings, time is always of the essence and for that reason there must be strict compliance with the time limits provided for in the Act for submitting records of proceedings for review. The reason for those requirements is self evidence. The reviewing judge may decide that the sentence imposed by the magistrate is excessive and should either be quashed or substantially reduced. It is therefore undesirable for an accused person to serve the whole or a substantial part of the sentence which he does not deserve while the record remains somewhere between the courtroom and the judge's chambers.”

It is regrettable that I have to repeat the foregoing remarks in the present case.

The record in this matter was placed before the scrutinising magistrate in June 2011, more than a month after conviction and sentence. He raised queries on 20 June 2011, and although the trial magistrate wrote her letter on 12 July 2011, she only sent it out in August 2011. The scrutinizing magistrate respondent by letter dated 30 August 2011 and it was not until 6 November 2011 that the trial magistrate wrote back admitting her mistakes.

This matter was referred to the High Court for review by the Chief Magistrate in terms of section 29(4) of the High Court Act [Chapter 7:06]. 

That section entitles a Judge of the High court to review any criminal proceedings of an inferior court whenever it comes to his attention that the proceedings were not conducted in accordance with real and substantial justice.

It is trite and a matter of elementary law that there can be no review of judicial proceedings without the record of the proceedings which are the subject of review. 

2. STATE v CLIVE MUNETSI

The accused was convicted after a protracted trial of the offence of assault in contravention of section 89(1)(a) of the Criminal Code [Chapter 9:23].

The proved facts are as follows;

The 36 year old accused resides in Munetsi Homestead in Deera Village, Chief Chikwaka and the 36 year old complainant resides at Devonia Farm where he is a farmer. There was a dispute between the accused and the complainant as the accused was allegedly carrying out mining activities on the complainant's farm. On 2 July 2014, the complainant was driving his motor vehicle at the farm when he saw the accused. The complainant stopped the motor vehicle and enquired from the accused as to why he was mining in the complainant's farm when the court was seized with the dispute between them. The accused was not amused and proceeded to assault the complainant in the following manner;

(i) By poking the complainant with his fingers on the complainant's head.

(ii) By holding and dragging the complainant out of the vehicle.

(iii) By hitting the complainant with clenched fists on the mouth and twice on the back.

(iv) By throttling the complainant and suffocating him.

The accused was restrained by one Chamunorwa Mavhunga. The complainant was medically examined on 4 July 2014 and the Doctor observed that the complainant had the following injuries;

(a) Abrasions on the right hand.

(b) Loose incisor tooth.

(c) That severe force was used to inflict the injuries described as serious as the complainant would lose the tooth….,.

I am…., unable to appreciate the query or issues raised by the learned Regional Magistrate in this case.

It would appear that the learned Regional Magistrate is satisfied that on the evidence led, the accused was properly convicted of assault. Further, no issue is taken as regards the appropriateness of the sentence imposed.

The learned Regional Magistrate raises some procedural issues without explaining whether such alleged procedural irregularities are fatal to the proceedings. Let me comment on each of the issues raised.

(a) The failure to cite the provisions of the Criminal Procedure and Evidence Act [Chapter 9:07] after asking the accused to explain or give his Defence Outline:-

I am unable to appreciate this query.

After the trial, the magistrate asked the accused to give his Defence Outline, the accused gave a detailed defence covering about three (3) pages of handwritten notes recorded by the trial magistrate.

What then is the issue raised by the learned Regional Magistrate?

It is clear the accused understood what a Defence Outline is and proceeded to give one. The citation of the relevant sections would be unhelpful to a lay person like the accused. This query clearly lacks merit and the learned Regional Magistrate is advised not to raise such frivolous issues with no bearing to real and substantial justice.

(b) That the exhibits were improperly produced:-

This presumably relates to the medical report.

Again, the query lacks merit. The record of proceedings, on p 8 of handwritten notes, reflect the following;

“State applies to produce the medical report affidavit in evidence.

No objection from the accused. He had been served with the affidavit.

Medical report accepted as Exh I.”

The trial magistrate should be praised for keeping such a detailed record of proceedings. The learned Regional Magistrate does not explain which provisions of the Criminal Procedure and Evidence Act [Chapter 9:07] were violated, how they were violated, how that would prejudice either the State or the accused's case and how it affects the propriety of the conviction of the accused on the charge of assault in view of both the oral evidence led and the medical evidence. No possible remedy is suggested by the learned Regional Magistrate.

I find no merit in relation to this query.

(c) That after the close of the defence case, both the State and the accused were not invited to address the court or make submissions:-

The learned Regional Magistrate does not cite the relevant provision in the Criminal Procedure and Evidence Act [Chapter 9:07] which makes it mandatory for the State and the Defence to addresses the court at this stage and that failure to do so is fatal to the proceedings.

I do not believe that this query deserves further comment….,.

1….,.

In an application for review, in terms of section 26 of the High Court Act [Chapter 7:06], the High Court may only rely on the record of proceedings as the only official record of what occurred in the court a quo. 

The court may not look beyond what is contained in the official transcript and an allegation made by a litigant that the record does not provide an accurate reflection of the proceedings would have to be supported by other evidence, more particularly, the exchanges between the trial magistrate and the accused person as recorded in the court record.

The applicant appeared before a magistrate sitting at Zvishavane on 19 September 2015 facing one Count of unlawful entry, as defined in section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and a further Count of theft in contravention of section 113 of the same Act. The accused and his co-accused, Tapiwanshe Muzvondiwa, pleaded guilty to both Counts and were sentenced to 18 months imprisonment of which 6 months was suspended for 5 years on the usual conditions.

The applicant filed an application for review on 24 September 2015, through his legal counsel, complaining that the trial magistrate failed to properly record the applicant's response, in particular that the applicant had not tendered a guilty plea as reflected by the record of proceedings. 

The relief sought by the applicant is an order for the quashing of the entire proceedings and an order for the matter to be tried de novo before a different magistrate.

I requested the trial magistrate and the public prosecutor to file written responses to the allegations made. 

A perusal of the record indicates that the learned magistrate put to the accused persons the charge and the applicant and his co-accused gave unequivocal pleas of guilty in respect of both Counts. The accused persons seem to have freely and voluntarily, and without any undue influence, pleaded to the charges. 

The following exchange took place between the magistrate and the applicant, if one goes by the record;

“Q. Are the facts true and correct?

A. Accused 1 – Yes.

A. Accused 2 – Yes.

Q. Do you admit that on the 2nd of September 2015, and at Village Mbwende, Chief Negove, you broke into the complainant's house as alleged?

A. Accused 1 – Yes.

A. Accused 2 – Yes.

Q. How did you gain entry?

A Accused 1- we used an iron bar to break the door and gain entry.

Q. What did you want to do in the house?

A. Accused 1 – to steal.

A. Accused 2 – to steal.

Q. Do you admit that upon gaining entry into the house upon then stole complainant's property in the manner alleged?

A. Accused 1 - Yes.

A. Accused 2 – Yes.

Q. What did you want to do with the property?

A. Accused 1 – to sell it.

A. Accused 2 – to sell it.

Q. You therefore admit that your intention was to permanently deprive the owner of his property.

A. Accused 1 – Yes.

A. Accused 2 – Yes.

Q. Any defence to offer?

A. Accused 1 – none.

A. Accused 2 – none.

Verdict – Both guilty as pleaded.”

A further perusal of the record reflects that the applicant made submissions in mitigation and this is what he had to say:

“Aged 26 years. Not married. Survives as a cross-border trader and realizes an average of R2,500= per month. No money in person. No savings. No assets of value.”

On being asked by the trial magistrate why he committed the offence, the applicant stated that he had erred and asked for forgiveness.

The State prosecutor who handled the proceedings filed a response to the allegations being made by the applicant in this matter and stated, in part, as follows:

“…,. As already mentioned, when the accused person was arraigned before Mr Story Rushambwa, who was the presiding magistrate, the charges were put to them, he was then asked to tender his plea. He then tendered guilty pleas to both Counts. The facts were read and explained to him in terms of section 188 and 189 of the Criminal Procedure and Evidence Act [Chapter 9:07].  He was then asked whether he had understood the facts to which he answered in the positive. The court then proceeded to record the rest of his pleas. In as far as I am concerned, the accused tendered unequivocal guilty pleas. He did so freely and voluntarily without any undue influence exerted on him.

Had it been that the applicant pleaded not guilty to both Counts; I, as the trial prosecutor, would have made an application for separation of trial as provided for in section 190 of the Criminal Procedure and Evidence Act [Chapter 9:07].

I am therefore surprised as to why the applicant is now making an about turn.”

It is important to observe that, in its exercise of its review powers, this court is empowered, in terms of section 26 of the High Court Act [Chapter 7:06], to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within and under its jurisdiction.

Section 27 of the High Court Act [Chapter 7:06] provides as follows:

“(1) Subject to this Act, and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned.

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be.

(c) Gross irregularity in the proceedings or the decision…,.”

Upon a careful perusal of the record of proceedings, I cannot find anything to suggest that there was any irregularity in the manner in which the proceedings were conducted. I must observe that I am confined to the record of proceedings and I am bound by what appears in the record. 

See the cases of S v Ncube 2012 (1) ZLR 422 (H) and S v Davy 1988 (1) ZLR 386 (S).

In all the circumstances of the case, I make a finding that the application for review has no basis both at law and in fact.

Section 29(4) of the High Court Act [Chapter 7:06] which provides as follows;

“29 Powers of review of criminal proceedings

(1) Not relevant.

(2) Not relevant.

(3) Not relevant.

Having declined to certify the proceedings, the scrutinizing magistrate referred the record of proceedings to this court in terms of section 58(3)(b) of the Magistrates Court Act [Chapter 7:10]….,.

Regional Magistrate's power of scrutiny

In terms of section 58 of the Magistrates Court Act [Chapter 7:10], the court of a Regional Magistrate is empowered to scrutinise, automatically, the criminal proceedings of any court of the magistrate, other than itself, where the sentence imposed on a convicted person who is not represented at the trial, or which is not a company, is imprisonment for any period in excess of three months, but not exceeding twelve months, or is a fine in excess of level four ($100=) but not exceeding level six ($300=).

What is scrutiny?

In terms of section 58(3) of the Magistrates Court Act [Chapter 7:10], a scrutinising magistrate is required to satisfy himself that the proceedings of the trial court are in accordance with real and substantial justice. The section reads:

“(3) The regional magistrate shall, as soon as possible after receiving the papers referred to in subsection (1), upon considering the proceedings –

(a) If he is satisfied that the proceedings are in accordance with real and substantial justice, endorse his certificate to that effect upon the proceedings which shall then be returned to the court from which they were transmitted;

(b) If it appears to him that doubt exists whether the proceedings are in accordance with real and substantial justice, cause the papers to be forwarded to the registrar, who shall lay them before a judge of the High Court in chambers for review in accordance with the High Court Act [Cap 7:06].”

Where the record has been placed before him for review, the judge has also to satisfy himself that the proceedings were in accordance with real and substantial justice. Section 29(2) of the High Court Act [Chapter 7:06]:

“(2) If, on review of any criminal proceedings of an inferior court or tribunal, the High Court considers that the proceedings-

(a) Are in accordance with real and substantial justice, it shall confirm the proceedings;”

If he is not satisfied that the proceedings were in accordance with real and substantial justice, the reviewing judge exercises any of the powers set out in paragraph (b) of subsection (2) of section 29. These include the power to alter or quash the conviction; reducing the sentence; correcting the proceedings, et cetera, subject to the guidelines set out therein.

Commendably, the legislature refrained from defining what “real and substantial justice” means. But case law has. What is “real and substantial justice” is left entirely to the scrutinizing magistrate or reviewing judge. He makes a value judgment and exercises his judicial discretion, of course, guided by certain principles. In the case of S v Chidodo & Anor 1988 (1) ZLR 299 (H) GREENLAND J said…,:

“The power of certifying proceedings as being in accordance with real and substantial justice is an additional power more particularly viewed as a prerogative. It seems clear from the words employed, ie 'in accordance with real substantial justice', that a judge (and regional magistrate) is required to make a value judgement on the question. He must be satisfied that everything that transpired at the criminal trial conforms with the notions of justice that these words imply.”

The test of what is real and substantial justice is an objective one. What is considered to be just depends on the norms and sense of values generally prevailing in society. Per GREENLAND J in S v Chidodo 1988 (1) ZLR 299 (H)…,.

In ordinary parlance, “scrutiny” means “a careful and thorough examination”. To “scrutinize” is “to look at, or examine something carefully”. Oxford Advanced Learner's Dictionary.

Thus, under the ordinary meaning of scrutiny the microscopic eye will pick out even the most minute infraction. But legal scrutiny, under section 58 of the Magistrates Court Act [Chapter 7:10], is something less exacting. It excludes a pettifogging analysis.

In S v Kawareware 2011 (2) ZLR 281 (H), UCHENA J held that for the purposes of both section 58(3) of the Magistrates Court Act [Chapter 7:10] and section 29(2) of the High Court Act [Chapter 7:06], “real and substantial justice” is the considerable judicious exercise of judicial authority by the trial court, which satisfies, in the main, the essential requirements of the law and procedure. The failure to comply with minor requirements, minor mistakes and immaterial irregularities should not result in the scrutinizing or reviewing judicial officer refusing to certify the proceedings as being in accordance with “real and substantial justice”. The learned judge said that the critical consideration is whether the proceedings broadly satisfy the requirements of justice…,.

At p 289C – E of the judgment, the learned judge laid down some guidelines on the main features to look for when scrutinising or reviewing proceedings. These are:

(i) The correctness of the charge preferred;

(ii) The agreed facts or the State and Defence outlines;

(iii) Compliance with statutory requirements in taking a plea of guilty or in conducting a trial where the accused pleads not guilty;

(iv) The acceptance or proof of the facts on which the charge is based;

(v) The assessment of evidence, i.e. matching the law and the accepted or proved facts;

(vi) The trial court's reasons for judgment;

(vii) The correctness or otherwise of the conviction; and

(viii) The justifiability of the charge or sentence.

I now turn to the particular queries raised by the Regional Magistrate on scrutiny. In my view, the errors were either non-existent or so minor as not to warrant the withholding of his certificate….,.

2. There is no indication that the State had closed its case when the defence case opened

3. At the end of the defence case there appears the endorsement “close of State case.”

I am satisfied by the explanation proffered by the trial magistrate that he simply made a mistake by failing to note, before the opening of the defence case, that the State had closed its case, and for recording “close of State case” at the end of the defence case. Such an explanation is consistent with probability given that in reality the State had indeed closed its case when the defence case had opened. The accused had indicated that he would be calling no witnesses. So he would have closed his case after declining to re-examine himself following his cross-examination of himself by the State. The trial magistrate's errors are insignificant. They are no more than what GILLESPIE J referred to as mere “technical imperfections”: See S v Gore 1999 (1) ZLR 177 (H). Such mistakes are easily explained by the overwhelming pressure that judicial officers always operate under.

4. Accused was asked only once, at the start of the defence case, whether he wished to call any witnesses

Admittedly, courts do try and lean more in favour of unrepresented persons. But this is simply to ensure fair play in order to achieve justice. In this case, the trial court did ask the accused whether he intended to call any witnesses. That in his own discretion the scrutinising magistrate, if he had conducted the trial, could have asked the accused again after his cross-examination by the prosecutor, would not be a reason to withhold the certificate. The discretion under scrutiny is not that of the scrutinising magistrate but that of the trial magistrate. There was no misdirection by the trial magistrate. Just like an Appeal Court, a scrutinizing magistrate or reviewing judge, should not lightly interfere with the trial court's sentencing discretion unless there was manifest misdirection which induces a sense of shock: See S v de Jager & Anor 1965 (2) SA 616 (A); S v Mugwenhe & Anor 1991 (2) ZLR 66 (S); S v Mundova 1998 (2) ZLR 392 (H) and S v Kawarware 2011 (2) ZLR 281 (H).

I must mention, in passing, that when issues are raised by a review Judge, the motive is not to belittle the trial magistrate or to try and find fault where none exists. Quite often, some minor omissions are noted and ignored with the result that the proceedings are confirmed.

This is not one such a case.

This matter was placed before me in chambers for review, in terms of section 57(1), as read with section 57(4) of the Magistrates Court Act [Chapter 7:10], as read with section 29(1), and section 29(5) of the High Court Act [Chapter 7:06]. The High Court is cloaked with powers to automatically review any and all matters in which a magistrate passes a sentence of twelve months imprisonment or more, and where the accused person was not legally represented, or a private (limited) company.

In the Magistrates Courts accused persons are not denied access to court records where they will be applying for review or appealing.

Judicial officers, like magistrates, should always appreciate that it is not every complaint forwarded to them which should be simply forwarded to this court ostensibly to be resolved by way of this court's inherent review powers.

This record was placed before me endorsed with us following comments from the learned Senior Regional Magistrate in Chiredzi.

“Clerk of Court send this record for review 2/11/17”

This matter is not subject to automatic review provided for in the Magistrates Court Act [Chapter 7:10]. What is attached to the record is a letter by the complainant to the learned Senior Regional Magistrate at Chiredzi, who is the trial magistrate, in which the complainant expressed his displeasure over the acquittal of the accused on a charge of attempted murder as defined in section 89 as read with section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In that letter, the complainant seems to request for what he terms “a review” of the proceedings. This letter does not at all lay out the basis or grounds for review and neither does it state how the trial magistrate misdirected himself or herself. All the complainant states is that he is disappointed by the acquittal.

Just like a conveyer belt the trial magistrate simply forwarded the record of proceedings to this court.

While it is correct that this court has power to review a matter where an acquittal has resulted after a full criminal trial, even at the behest of an aggrieved complainant, as provided for in section 29 of the High Court Act [Chapter 7:06], the basis upon which such review is being sought should be clearly set out. It should be clear as to whether any procedural irregularity or misdirection on substantive law or both is being alleged. See S v Nivfo Prandini HH94-10 in which my brother KUDYA J extensively dealt with this aspect.

I simply decided to deal with this matter in order to give closure to whatever misgivings the complainant may have.

The accused was charged with rape. Following a trial in which a total of seven witnesses testified the accused was found not guilty.

Dissatisfied with the acquittal, the complainant's mother addressed a letter of complaint to the Area Prosecutor, Masvingo. Whilst noting that there were no grounds for appeal, the Area Prosecutor, in a letter addressed to the trial magistrate, suggested that the proceedings be submitted for review. The trial magistrate agreed on this course of action and addressed a minute to the Registrar. In that minute the trial magistrate cited S v Prandini HH94-10.

As was correctly noted by KUDYA J in S v Prandini HH94-10 the High Court has wide powers of review. This finds expression in section 26 of the High Court Act [Chapter 7:06] which provides that -

“Subject to this Act and any other law, the High Court shall have power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.”

The grounds for review are to be found in section 27 of the High Court Act [Chapter 7:06] which provides that -

“(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.”

In addition to the above provision, it must be viewed in conjunction with section 29(1) of the High Court Act [Chapter 7:06] which provides that -

“(1) For the purpose of reviewing any criminal proceedings of an inferior court or tribunal, the High Court may exercise any one or more of the following powers -

(a) Direct that any part of the evidence which was taken down in shorthand or recorded by mechanical means be transcribed and that the transcription be forwarded to the registrar of the High Court;

(b) Hear any evidence in connection with the proceedings, and, for that purpose, may cause any person to be summoned to appear and give evidence or produce any document or article;

(c) Where the proceedings are not being reviewed at the instance of the convicted person, direct that any question of law or fact arising from the proceedings be argued before the High Court by the Attorney-General or his deputy and a legal practitioner appointed by the High Court.”

The wide powers of review provided in section 26 of the High Court Act [Chapter 7:06] may be exercised any time and section 29(4) of the High Court Act [Chapter 7:06] provides that -

“Subject to rules of court, the powers conferred by subsections (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review.”

The charge that was preferred against the accused person alleged that “on a date to the prosecutor unknown but during 2004 and at village Homera, Chief Charumbira, Masvingo, Joseph Murashi unlawfully and intentionally had sexual intercourse on diverse occasions with Tariro Fambirai, a girl who was incapable in (sic) law of consenting to sexual intercourse.”

It is common cause that the accused was a cattle herder at a nearby homestead. From his defence and the evidence that emerged he arrived in the village in 2005 having previously resided in Chivi. He resided alone. It appears he was engaged to herd the complainant's grandfather's cattle.

The complainant was born on 1 June 2003, which meant in 2004 she was one year old. She used to reside with her grandmother in the village. She subsequently relocated to Harare, most likely to attend school where her mother was a teacher. The offence was only reported in 2013 following a discussion the complainant had with her aunt and this triggered memories of her sexual abuse. The complainant also wrote a note to her mother in which she explained the abuse. She is said to have placed the note in her homework book for the mother's attention.

During the trial, the complainant explained how she was raped. A younger aunt with whom the complainant resided in the village also testified. She moved to the village in 2007. She testified that there were occasions the complainant would request for guavas and she would go to the accused's residence. She never observed any abnormalities on the complainant when she returned home.

The trial court noted the unreliability of the complainant's testimony. This was viewed in the context of the time it was alleged the offences took place, her age at the time, and the delay in making a report.

The complainant's aunt, Evelyn Mutakwa, testified that the complainant reported the matter to her during the first term holiday in 2013. On the other hand, the complainant's mother testified that a letter was written to her in June 2013. She is adamant that there was no delay in actioning the report.

What is apparent is that the report made in Masvingo triggered the charges. This is evidenced by the venue of trial which is Masvingo.

The complaints raised by the complainant's mother do not relate to the manner in which the proceedings were conducted. They relate to the trial court's findings of fact and conclusions arising from those facts. Essentially, the complainant's mother has always wanted the acquittal to be taken on appeal. It is unfortunate that the Area Prosecutor and trial magistrate then sought a review of the proceedings where no such grounds have been articulated.

The issue of whether or not the matter is appealable should be addressed to the Prosecutor General. This is irrespective of the conclusion reached by the Area Prosecutor. Ideally, the Area Prosecutor should have articulated his reasons for not taking the matter on appeal for the benefit of the complainant's mother. Alternatively, the Area Prosecutor could have addressed the matter to the Director of Public Prosecutions. It does not necessarily follow that a final decision not to prosecute an appeal lies with the Area Prosecutor.

In S v Prandini HH94-10 KUDYA J noted that the letter of complaint written on behalf of the complainant did not set out the grounds of review. It did not attack the findings of the trial court. There was a vague allegation of bias. KUDYA J concluded that the proceedings were in accordance with both procedural and substantive law.

The Prosecutor General can appeal against a decision of the Magistrates Court on a point of law or against acquittal of an accused arising from a view of facts which cannot reasonably be entertained. In this respect see section 61 of the Magistrates Court Act [Chapter 7.10].

In the result, there are no cogent grounds on which the proceedings are reviewable.

The Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04..., dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal....,.

In exercising review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion of the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

This matter was placed before me for review by the Regional Magistrate for the Eastern Division in Mutare. In his letter to the Review Judge, penned ten days after the accused was sentenced, on 7 November 2014, the Regional Magistrate advised that he had sent the record for review without seeking comments from the trial magistrate for fear of further prejudicing the accused because of lapse of time....,.

It is unfortunate that the Regional Magistrate, in his wisdom, decided not to solicit the views of the trial magistrate before referring the record of proceedings to us. It is also unfortunate that the record of proceedings relating to the accused's previous conviction was not referred to us. We are hamstrung by the lack of detail regarding the circumstances of the accused's initial conviction..

The grounds for review are set out in section 27(1) of the High Court Act [Chapter 7:06] as follows:

“(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.”

Both the conviction and sentence in this case offend against norms of justice. It is imperative that this court should intervene.

Section 70(5) of the Constitution provides that;

“(5) Any person who has been tried and convicted of an offence has the right, subject to reasonable restrictions that may be prescribed by law, to —

(a) Have the case reviewed by a higher court; or

(b) Appeal to a higher court against the conviction and sentence.”

The appellant filed an appeal under Rule 6 of the High Court of Zimbabwe Bail Rules, S.I.109 of 1991. The appeal itself was defective as commented above. The determination by the Acting Chief Magistrate on the certificate by the Prosecutor General was not appealed against. The court a quo was invited and persuaded to set it aside on the basis of submissions made to it by the appellant's counsel premised on the alleged constitutional invalidity of section 32(3b) of the Criminal Procedure and Evidence Act. I have already found that those remarks by the court a quo have no legal justification.

In my view, as a result of these comments the court a quo proceeded to set aside the certificate in the absence of an appeal against the decision of the Magistrates' Court to accept or a challenge properly mounted to have it set aside. It was never placed before the court a quo by the appellant as an issue for determination justifying its setting aside. It was merely discussed as an issue for consideration during the purported bail hearing. In my view, the court a quo was not properly seized with this matter and the decision to set aside was a gross irregularity.

There was no legal premise before the court a quo to interfere with the certificate.

Its acceptance by the Acting Chief Magistrate was an exercise of his discretion in terms of the Criminal Procedure and Evidence Act - which exercise was never challenged. The decision by the court a quo to set the certificate aside without interfering with the Acting Chief Magistrate's decision is an irregularity.

In circumstances such as these, the Supreme Court, or a judge of the Supreme Court, would be called upon to invoke review powers in terms of section 25 of the Supreme Court Act [Chapter 7:13]. In my view, this is a proper case for the invocation of this provision. It is couched as follows:

“25 Review powers

1. Subject to this section, the Supreme Court and every judge of the Supreme Court shall have the same power, jurisdiction and authority as are vested in the High Court and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals and administrative authorities.

2. The power, jurisdiction and authority conferred by subsection (1) may be exercised whenever it comes to the notice of the Supreme Court or a judge of the Supreme Court that an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is not the subject of an appeal or application to the Supreme Court.

3. Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the Supreme Court or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or any particular review shall be instituted before or shall be referred or remitted to the High Court for determination.”

It admits of no doubt, therefore, that in terms of section 25(2) of the Supreme Court Act a judge of the court is imbued with powers to set aside proceedings that are irregular even if those proceedings are not the subject of an appeal or application before the Court or the judge. I am fortified in this view by the remarks of ZIYAMBI JA in The Chairman, Zimbabwe Electoral Commission & 2 Ors v Roy Bennet & Anor SC48-05. The learned Judge of Appeal said:

“Section 25(2) confers additional jurisdiction which may be exercised when it comes to the notice of the Supreme Court or a judge of that court that an irregularity has occurred in proceedings not before it on appeal or application. Thus, section 25(2) deals with irregularities in respect of which no appeal or application is before the Supreme Court and the review is undertaken at the instance of the Supreme Court and not of any litigant.”

In Zimasco v Marikano SC06-14, GARWE JA made remarks that are apposite and pertinent to this principle…, to the following effect:

“In other words, the Supreme Court has the power of review over matters coming before it for adjudication by way of appeal or whenever it comes to the notice of the court that an irregularity has occurred in any proceedings or in the making of a decision and it is felt that such an irregularity should not be allowed to stand.”

In PG Industries v Bvekerwa SC53-16 this Court held that due to the irregularity in the proceedings in the court a quo, the appeal could not be decided on the merits. In that case, the Judge of the Labour Court had failed to provide reasons for his judgement. This Court went on to say that the absence of reasons made the task of the court even more difficult as the reasons for the decision by the court a quo remained locked in the mind of the judicial officer.

In view of all the defects and irregularities set out above, the only course open to me is to set the proceedings of the High Court aside. This includes the decision of the court a quo setting aside the certificate issued by the Prosecutor General resulting in its revival. The effect of the setting aside of the decision of the court a quo in this respect is the reinstatement of the certificate….,.

1….,.

2. In the exercise of my review powers under section 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings of the High Court brought by the appellant under Case No. HREP 10641/19 be and are hereby set aside.

3. For the avoidance of doubt, the decision by the High Court, to set aside the certificate issued by the Prosecutor General and produced to the Acting Chief Magistrate on 26 July 2019, is hereby set aside in accordance with the provisions of section 25(2) of the Supreme Court Act.

This appeal is against both conviction and sentence.

In his notice of appeal the appellant has laid basically three grounds of appeal, viz;

(i)…,.

(ii)…,.

(iii) Finally, it was contended that the court a quo misdirected itself by failing to give reasons for the conviction of the appellant….,.

It might well be true that at the time the appellant's counsel perused the court record the written reasons were not there but I find it inconceivable that the appellant's counsel would have come to the conclusion that when the magistrate convicted the appellant he just did that with no reasons at all.

In any event, the proper procedure to have adopted if indeed there were no reasons for judgement would have been for the appellants counsel to file an application for review for such a procedural irregularity. An appeal could only have been an attack on the reasons for judgment, which, incidentally, the appellant's counsel did which presupposes that there must have been reasons somewhere which led to the framing of the grounds of appeal.

The irony is that the reasons for judgement given by the learned magistrate properly fit into the evidence that was led at trial making it highly improbable for one to imagine that those reasons were manufactured or created after the conviction of the appellant.

In the case of State v Mundondo Zava HMA15-17 I bemoaned the failure by magistrates to properly consider the noble concept of community service. I also referred to a number of cases which clearly outline that failure to consider community service constitutes a reviewable irregularity and a misdirection.

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.

The background facts in this matter are as follows;

The accused was arraigned before the learned Provincial Magistrate sitting at Masvingo on 6 April 2018 facing a charge of culpable homicide arising from a road traffic accident. The matter proceeded by way of trial as the accused pleaded not guilty to the charge.

The facts giving rise to the charge are that on 7 January 2018 the 49-year-old accused, at about 15:10hrs, was driving a public service vehicle, a Higer bus, registration number ABX 6489 along the Beit Bridge-Masvingo Road towards Masvingo and had 27 passengers on board. At about the 3km peg from Masvingo the accused was driving behind a DNC bus going in the same direction. In front of that DNC bus was also a small motor vehicle also travelling towards Masvingo. The accused decided to overtake both vehicles at an open curve with his vision clearly impaired. Unknown to the accused there was another bus belonging to Khaye Bus Company, registration number HD 77 HG GP, which had broken down near the 3km peg as it was also travelling towards Masvingo and was encroaching on to the Masvingo bound lane. There were triangle reflective signs placed near this bus to warn other motorists of the hazard. This prompted the small vehicle and the DNC bus in front of the accused to stop as there was a Land Rover Discovery, registration number AEB 0047, driven by Kudakwashe Jani, travelling in the opposite direction towards Beit Bridge.

The accused, in total disregard of basic road rules, and oblivious of this danger, proceeded to overtake both the DNC bus and the small vehicle which had stopped to allow safe passage of the Land Rover Discovery vehicle. The driver of the Land Rover vehicle, upon realising that a head on collision with the accused's bus was imminent, swerved to his far left and off the road but his valiant efforts were in vain as the accused, also in panic, swerved to the same direction. This resulted in a head on collision.

The accused's bus literally climbed over the Land Rover vehicle and dragged it for about 18 metres. The bus only stopped when its front axle was suspended in the air and its rear axle suspended in a ditch. Tragically, all the six (6) people in the Land Rover Discovery vehicle died. These were Kudakwashe Jani, Savanna Jani, Cecilia Mpalisa, Beatrice Mpalisa, Fungai Manyangadze and one Mahera. Three of them died on the spot and the other three on admission at Masvingo General Hospital. Fortunately, no one in the accused's bus was injured.

It is clear from these facts that the accused was negligent. This is so because the accused, inter alia, decided to overtake on a bend; was following too close to the DNC bus; was over speeding in an 80km zone without keeping a proper lookout, hence he failed to stop or act reasonably when the accident was imminent. The accused clearly disregarded other road users.

Despite his rather misplaced protestations the accused, who was legally represented during the trial, was properly convicted of the charge. The evidence against him was simply overwhelming and the facts simply did speak for themselves.

The only issue which may arise is whether the accused should have been charged of one (1) Count of culpable homicide or six (6) Counts of culpable homicide as six (6) people died, albeit arising from the same bad driving conduct.

This issue may be properly resolved after informed argument and is not the gist of this review judgment.

The accused was surprisingly sentenced to a fine of $1,000, or, in default of payment, to serve 6 months imprisonment with additional 6 months wholly suspended for 5 years on the usual condition of good behaviour.

Again, not surprising, the accused paid the fine. Further, the accused's licence was spared and the accused was only prohibited from driving any motor vehicle for 6 months !! Needless to say this sentence induces a sense of shock for its leniency.

Instead of simply allowing sleeping dogs to lie as it were the accused had the temerity to approach this court on appeal in respect of both the conviction and sentence. The accused even callously suggested that a fine of $400 was appropriate in this case.

The accused's sense of justice is warped to say the least and his lack of contrition is beyond measure.

This matter was set before my brother MAFUSIRE J and myself, on appeal, on 3 October 2018 for argument. Both my brother MAFUSIRE J and myself felt that grave injustice had been done in this case and eagerly wanted to hear what meaningful argument counsel for the accused would advance. Apparently, the State counsel…, as per the heads of argument filed of record, had also glossed over such grave injustice and simply submitted that the appeal in respect of both conviction and sentence lacked merit without dealing with other anomalies evident in this matter. This is precisely why we were both eager to hear what counsel for the accused would say.

For reasons yet to be explained, the accused's counsel decided not to turn up for the appeal hearing despite being properly served for the hearing.

One may simply suspect that the accused and his legal practitioner realised the folly of their decision to proceed with the appeal. Counsel for the State rightly applied to have the appeal dismissed for want of prosecution.

Be that as it may, we inquired from counsel for the State about the other anomalies in this matter and sought his views. This related to the manifestly lenient sentence, the failure by the trial court to make a clear finding of the accused's gross negligence, and the failure to impose mandatory sanctions provided for in terms of section 64 of the Road Traffic Act [Chapter 13:11] relating to cancellation of the accused's driver's licence and prohibition from driving commuter omnibus and heavy vehicles for life.

We pointed out to counsel for the State that his approach in this matter was perfunctory as he did not address these mundane issues. We thus inquired from counsel for the State as to the proper way forward. Counsel for the State agreed that this matter be remitted to the trial court to remedy the omissions of failure to comply with the provisions of the Road Traffic Act [Chapter 13:11].

Our view in this matter was that despite the manifestly lenient sentence which raised our judicial eyebrows we were hamstrung to increase the sentence as the accused was in default. Fairness and justice would demand that before such a drastic action could be taken, as provided for in section 38(4) of the High Court Act [Chapter 7:06] the accused should be heard.

Indeed, if the accused or his counsel were present we would have, without doubt, interfered with the substantive sentence of the court a quo by setting aside and substituting it with a custodial sentence of not less than two years.

This is informed by the fact that the accused was grossly negligent while driving a public service vehicle carrying passengers and totally disregarded road regulations causing the loss of six innocent lives without even being contrite. Be that as it may, we still felt that the accused could not escape the sanctions provided for in terms of section 64(3) of the Road Traffic Act [Chapter 13:11]. The provisions of section 65(6) of the Road Traffic Act [Chapter 13:11] should therefore be invoked.

In the result, we granted the following Order in default:

“In default

IT IS ORDERED THAT;

1. The appeal be and is hereby dismissed for want of prosecution. It is however noted that the sentence passed is manifestly lenient.

2. The matter be and is hereby remitted to the trial court for purposes of complying with the provisions of section 64 of the Road Traffic Act [Cap 13:11] relating to a proper order on prohibition and cancellation of the driver's licence.

3. That the degree of negligence is reckless and that the provisions of section 53 of the Road Traffic Act [Cap 13:11] should be invoked in the absence of special circumstances.

4. That counsel for the State be and is hereby directed to summon the appellant (the accused) within 14 days of granting of this order for purposes of complying with paragraphs (2) to (4) of this order.”

The drama in this matter continued.

We were pleasantly bemused when, on 8 October 2018, we received a letter from counsel for the State dated 4 October 2018 requesting a written judgment and full reasons thereof in respect of the Order we had granted. We responded the same day and politely reminded counsel for the State that we granted the Order for dismissal of the matter for want of prosecution after he had made the application for such an Order as the counsel for the appellant (accused) was in default and that the remittal of the matter to the trial Magistrate was for purposes of complying with the law relating to assessment of prohibition from driving motor vehicles and cancellation of the driver's licence in accordance with the provisions of section 64 of the Road Traffic Act [Chapter 13:11]. Further, we pointed out that we gave these brief reasons in the presence of counsel for the State himself and that we had directed him, as counsel for the State present, to ensure compliance with the Order or to give teeth to the Order as it were.

The accused was subsequently summoned and the brief notes by the learned Provincial Magistrate reflect that he protested that his legal practitioner was the author of his problems. Surprisingly, the learned Provincial Magistrate did not probe as to what the accused meant by this or why the accused was blaming his legal practitioner…,. Thereafter, the accused opted to proceed without legal representation.

The record of proceedings reflects the following;

“What special circumstances are explained to the accused and understood.

By Court

Do special circumstances exist in this case?

A. Yes, it was an accident. I did not think that such an accident was going to happen. This problem was caused by my lawyer. I have 3 wives and 11 children.

Findings

No special circumstances in this case.

Sentence altered as per Judge's request to imprisonment.

3 years imprisonment of which 6 months is suspended for 5 years on condition accused does not contravene section 51, 52, 53 of the Road Traffic Act or driving under influence of a drug for which upon conviction accused is sentenced to imprisonment without the option of a fine.

In addition, accused is prohibited from driving a motor vehicle, other than a commuter omnibus or a heavy vehicle, for a period of 2 years and is prohibited from driving a commuter omnibus or a heavy vehicle during his life time. Accused person's licence is declared cancelled. Further, the Clerk of Court is instructed to refund accused $1,000 within 7 days.

Accused to surrender his licence with the Clerk of Court within 7 days.” (sic)

It is indeed mind boggling as to how the learned Provincial Magistrate proceeded in this manner. A number of issues arise from this.

In terms of procedure, the learned Provincial Magistrate should have explained to the accused why he had been summoned and to read out the High Court order to the accused. Probably this was done but the record reflects otherwise.

The learned Provincial Magistrate was enjoined to fully and properly explain to the accused, who was now unrepresented, what special circumstances entail and the consequences arising from an absence of such special circumstances: See S v Manase 2015 (1) ZLR 160 (H) as per MUREMBA J.

The accused's right to a fair hearing, as enshrined in section 69 of the Constitution, cannot be taken lightly. As an experienced magistrate one would not expect the learned Provincial Magistrate to approach proceedings in such a cursory manner.

It is important to note that in the initial reasons for judgment, soon after the trial, the learned Provincial Magistrate had not specifically dealt with the factual finding in relation to the accused's degree of negligence other than simply mentioning, in passing, that the accused's degree of negligence was high (whatever that means). Again, there are a plethora of cases from this court dealing with this aspect. See S v Dzvatu 1984 (2) ZLR 136 (H); S v Mtizwa 1984 (1) ZLR 230 (H); S v Chaita & Ors. 2001 (2) ZLR 90 (H).

What is even worrying is that the trial prosecutor, while addressing the court in aggravation soon after the accused's conviction, specifically referred the learned Provincial Magistrate to the provisions of section 64 of the Road Traffic Act [Chapter 13:11]. Apparently, this still did not find traction with the learned Provincial Magistrate who simply proceeded to prohibit the accused from driving any class of motor vehicle for 6 months after imposing a fine of $1,000 - which sentence was manifestly lenient.

The major concern, however, is why, in purporting to comply with the Order of this court, the learned Provincial Magistrate decided to mislead the accused that this court had directed that the accused should be sentenced to a term of imprisonment.

He then proceeded to impose a sentence of 3 years imprisonment - without even asking the accused to show cause why such a sentence should not imposed.

In fact, it is difficult to appreciate why the learned Provincial Magistrate deemed it fit to deal with paragraph (1) of our Order which relates to the substantive sentence. That Order is crystal clear that the accused was to be summoned by the trial court for purposes of complying with paragraphs (2) to (4) of that Order and not paragraph (1). It is therefore disingenuous for the learned Provincial Magistrate to untruthfully suggest, let alone allege that this court ordered him to alter the accused's substantive sentence. As already said, the learned Provincial Magistrate simply decided to take leave of his senses and cause further confusion in this matter by embarking on a frolic of his own.

The learned Provincial Magistrate should have appreciated that he was now functus officio in relation to the substantive sentence he had imposed on the accused of a fine of $1,000. As a result, he could only competently revisit that sentence after being ordered to do so by this court and after this court had interfered with such a sentence and setting it aside. This court had clearly not done so for obvious reasons despite noting that a clear injustice had been occasioned by imposing a manifestly lenient sentence.

The effect of the conduct of the learned Provincial Magistrate is not only to taint the image of this court but to ignore all basic aspects of procedural law.

In essence, therefore, the accused now has two separate sentences on the same matter, one of a fine of $1,000 and the other of a custodial term of 3 years. Both sentences are extant. Such conduct is clearly improper and incompetent. This court is enjoined to correct such an anomaly by exercising its review powers to ensure that basic tenets of justice are adhered to.

This court is quite alive to the fact that the accused deserved a harsher penalty other than the fine initially imposed. However, as things stand, this court is unable to correct such an injustice in relation to the substantive sentence for reasons already stated.

What is proper in the circumstances is to now correct all these anomalies by setting aside the sentence of 3 years imprisonment imposed by the learned Provincial Magistrate, the order relating to prohibition from driving any motor vehicle for 6 months and the order in relation to the refund of $1,000.

The order in relation to prohibition from driving any motor vehicle other than and/or commuter omnibus or a heavy vehicle for 2 years and from driving a commuter omnibus or a heavy vehicle for life and the cancellation of the accused's driver's licence should be upheld.

In view of the aforementioned, we are still unable to certify the proceedings as in accordance with real and substantial justice in relation to the substantive sentence of a fine of $1,000 which sentence shall remain operational despite the misplaced endeavour by the learned Provincial Magistrate to alter that sentence improperly.

In the result, the following order is made;

IT IS ORDERED THAT;

1. The conviction of the accused be and is hereby confirmed.

2. The sentence of 3 years imprisonment of which 6 months imprisonment is suspended for 5 years on the usual conditions be and is hereby set aside.

3. The initial sentence imposed by the court a quo, of a fine of $1,000 or in default of payment 6 months imprisonment with additional 6 months imprisonment suspended for 5 years on condition accused does not negligently cause the death of another person arising from a road traffic accident be and is hereby reinstated.

4. The accused be and is hereby prohibited from driving any motor vehicle other than a commuter omnibus or a heavy vehicle for a period of 2 years and is prohibited from driving a commuter omnibus or a heavy vehicle during his lifetime.

5. The accused's driver's licence be and is hereby cancelled.

6. In relation to the substantive sentence of a fine of $1,000 or in default of payment 6 months imprisonment with additional 6 months wholly suspended, we are unable to certify that sentence as being in accordance with real and substantive justice and therefore we withhold our certificate.

7. The Registrar be and is hereby directed to bring this review judgment to the attention of the Chief Magistrate to ensure that the conduct of the learned Provincial Magistrate is not repeated.

The accused should again be recalled and advised of this outcome. If the accused pays the fine he should be released from prison forthwith.