The above two applications have been consolidated only for purposes of preparing one judgment that disposes of both applications. The motivation for the consolidation is based upon the considerations that both applicants are co-accused in case No. Harare Magistrates court CRB 4105 – 4113/15 wherein they were arraigned for trial with six other co-accused. They are also co-applicants with their co-accused in case No. HC 4098/19 wherein they seek a review of the criminal proceedings. More
The above record of proceedings pertain to trials presided over by the same magistrate at Murehwa Magistrate Court. They suffer from the same irregularity of a procedural error which vitiates the proceedings. In all the cases, the accused persons were convicted on their own pleas of guilty purportedly done in terms of s 271 (2) (b) of the Criminal Procedure and Evidence Act, [Chapter 9:07] . When the records were initially placed before me to review in July, 2021, I raised in respect of each record of proceedings, a similar query on whether or not the trial magistrate had complied... More
TAKUVA J: The two records were placed before me by the Registrar. They had been referred to this Court by the Learned Scrutinising Regional Magistrate at Gwanda with the following comment:
“Both matters came to me by way of scrutiny and were dealt with by the same Magistrate. I queried the correctness of the convictions seeing it was quite clear from the record of proceedings that the accused persons were raising defences. In response to the queries raised the trial Court conceded.
If the learned Judge is with me may corrective measures be taken.” More
The proceedings in the two matters under review suffer from the same irregularity. They were dealt with by the same learned provincial magistrate who to her credit has acknowledged her acts of omission. Upon my perusal of the two records on review, I raised a query that it did not appear on record that the learned provincial magistrate had complied with the provisions of s 163A of the Criminal Procedure and Evidence Act, [Chapter 9:07] at the commencement of the two trials. I therefore revert to s 163A aforesaid. More
I have deliberately consolidated both bail applications because they are related and interlinked. In case number 309/13 the firstappellant ThabaniMpofu is jointly charged with Felix Matsinde, Warship Dumba and MethuliTshuma with contravening s 4 (3) of the official Secrets Act [Cap.11: 09], Contravening s 179 (1) of theCriminal Law (Codification and Reform) Act [Cap:9:23] and s 40 (1) of the same Act. The offences have to do with the unlawful communication of certain official Information and possession of certain articles for criminal use. More
Change is a complex topic. It baffled even Aristotle and his predecessors. For instance Plato argued that real things do not change. He confined change to the realm of appearances; that is the physical world. Parmenides rejected the concept altogether and argued that change did not exist. Although those early scholars were dealing with the metaphysical, in the modern world of administration of justice, change also remains a frightening proposal. Judicial officers are naturally comfortable with the old, tried and tested systems. They do not want to create new problems. It is one of the reasons why precedent is regarded... More
The accused persons in the two separate matters, (which I will refer to as S v Shonhiwa and S v Docklands respectively) were each convicted of theft of trust property as defined in s 113 (2) of the Criminal Law (Codification and Reform) Act [ Chapter 9:13] (the “Code”). The proceedings in S v Shonhiwa were referred to a regional magistrate for scrutiny in terms of s 58 of the Magistrates Court Act [ Chapter 7 :10]. The learned regional magistrate correctly queried the propriety of the conviction and in turn sought the High Court`s intervention. More
All these three matters were submitted to me by the learned Regional magistrate ostensibly for review purposes.
All these three matters were dealt with by the Resident Magistrate at Bikita. Due to the sentences imposed by the trial Magistrate of 3 months imprisonment wholly suspended on the usual conditions for 5 years in all these matters, the cases would not ordinarily be subject to scrutiny or review. More
This review judgement has been necessitated by the apparent conflation of the provisions of the Criminal Procedure and Evidence Act [Chapter 9:07] and the Children’s Act [Chapter 5:06] exhibited by the learned trial magistrate in sentencing a juvenile offender. More
Both matters were dealt with by the same provincial magistrate sitting at Kwekwe and the issues which exercised my mind are common to both cases.
The facts giving rise to the charges and convictions in both matters can be summarised as follows:
1. MORRISON NCUBE AND 3 ORS
All the four accused persons are juveniles attending school at Fatima High School and are in Form 4. Accused 1 is aged 17 years, accused 2, 16 years, accused 3, 17 years and accused 4, 16 years. They all pleaded guilty to the charge of contravening s 113 (1) of the Criminal... More
All these three records were referred to me on 29th March, 2021 by the Acting Resident Magistrate, Gutu under cover of a Minute stated as follows;
“May the following records be placed before a Judge. The Magistrate who dealt with the matters has since left service before responding to the queries. We are therefore referring the records for further directions.” More
The sole issue which fails for determination in all these twelve (12) cases is the correct procedure to be followed where a trial magistrate resigns and leaves uncompleted criminal proceedings or matters.
All these twelve records were referred to this court by the Gutu Resident Magistrate under cover of a minute dated 28 April 2021 which I received on 5 May 2021. The said minute reads as follows;
"Please place these records of proceedings before a High Court Judge with the following request.
The magistrate who dealt with the matters has since left service without having finalised the cases. We... More
The above two applications were consolidated by consent of counsel on application by the prosecutor Mr Murevanhema. Mr Murevanhema submitted that the two applicants were co-accused in the matter in regard to which they have applied for bail pending trial. The prosecutor had summoned the Investigating Officer to give evidence on both applications in regard to the bail applications. It was thereof convenient for the investigating officer to give evidence in regard to both applications instead of giving evidence in each application separately. The consolidation was for purposes of hearing and judgment. More
The 29 accused persons are in custody on allegations of murdering a law enforcement officer in the course of duty as defined in s 47 of the Criminal Law (Codification and Reform) Act [Cap 9:23] alternatively public violence as defined in s 36 of the Act. They are alleged to have killed a police officer on duty in the course of politically motivated violence. Their trial is currently under way but they have all been remanded in custody by operation of law. More
This is an application for leave to appeal against my judgment of 19 June 2012 denying the 29 accused persons bail on account that they had failed to discharge the onus of proving on a balance of probabilities that they are entitled to bail in terms of s 117 (6) of the Criminal Procedure and Evidence Act [Cap. 9:23]. That section requires that an accused person alleged to have killed a law enforcement officer in the course of duty be detained in custody until he or she has been dealt with in accordance with the law unless the accused having... More
