THE State V Nigel Sibanda AND Stephen Ncube

### Preamble
1
HB 56/22
HCAR 501/22
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THE STATE

Versus

NIGEL SIBANDA

And

STEPHEN NCUBE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 25 FEBRUARY 2022

Criminal Review

MAKONESE J: 	A record of proceedings must correctly reflect what has been recorded by the judicial officer during the course of proceedings.  Where a Magistrate records in long hand what has transpired during proceedings it is desirable to record the proceedings in legible and uniform handwriting.  Whilst it is possible, but certainly not desirable, for a Magistrate to vary his writing style in the same proceedings, it is not desirable to do so.  A record of proceedings in long hand must have a uniform style, clearly reflecting that the same judicial officer is the one whose proceedings have been recorded.  The state of the record in this matter leaves a lot to be desired.  The accused persons aged 24 years and 52 years respectively appeared before a Magistrate at Tredgold, Bulawayo on the 19th of January 2022 facing two counts of theft in contravention of section 113 of the Criminal Law Codification Reform Act (Chapter 9:23).  Accused persons pleaded guilty and were each sentenced to 10 months imprisonment of which 4 months imprisonment was suspended for 5 years on condition the accused persons do not during this period commit any offence involving dishonesty.  A further 4 months was suspended on condition of restitution.  Nothing turns on the conviction in this matter.

The scrutinising Regional Magistrate has raised certain pertinent issues regarding the propriety of the proceedings.  Firstly, that the record of proceedings seems to have been written in two different and distinct handwritings.  The trial Magistrate’s explanation is that she was under a lot of pressure whilst writing.  The explanation is not convincing at all.  A perusal of the record reflects clearly that two persons wrote portions of the same record.  The plea recording and mitigation was written in black ink and by the trial Magistrate.  The reasons for sentence were written in blue ink and the handwriting is completely different.  This suggests that the reasons for sentence were recorded by some other person or some other judicial officer. This raises very serious ethical issues if indeed the trial magistrate asked someone else to endorse the reasons for sentence.  It must be emphasised that it is highly irregular for a Magistrate to have the proceedings written by some other person other than the judicial officer presiding over the matter.  The explanation that the trial Magistrate was under pressure does not withstand scrutiny because the second handwriting indicates that whoever wrote the reasons for sentence had a lot of time as a number of decided cases were referred to with full citations and quotes from these decided cases.

Secondly, the two accused persons who are both first offenders were each sentenced to an effective 2 months imprisonment.  On being asked if she had considered Community Service, the learned Magistrate indicated that she considered Community Service (albeit in her mind) though she did not endorse it.  The learned Magistrate went on to lament how serious an offence of theft from an employer was.

A judicial officer’s reasons for sentence cannot be kept in the mind of the sentencing officer.  The record must reflect the reasons why community service was not considered.  These reasons cannot be kept in someone’s mind, but must be expressed in the record in writing.  The approach taken by the learned Magistrate is to say the least unheard of and constitutes a misdirection.

Lastly, the order for restitution is worded as follows:

“A further 4 months imprisonment is suspended on condition accused restitutes the complainant half of the value $69 690.00 through the Clerk of Court on or before the 18th April 2022.

The remaining 2 months each person is to serve effective.”

The learned Magistrate concedes that on the wording of restitution she did not properly craft it and she has begun to seek help on crafting of sentences.  It is important for trial Magistrates to word their sentences clearly and accurately. As for the sentence itself, a custodial sentence of 2 months imprisonment serves   no useful purpose. In S v Zikhali 2017 (1) ZLR 845 (H), the magistrate defended the sentence, saying that theft from employer was a serious offence. The High Court held that the concept of a short and sharp sentence has long been discarded. It is archaic and does not accord with current sentencing trends.

In the circumstances, I find that these proceedings are not in accordance with real and substantial justice and I withhold my certificate.

There is need to correct the sentence and in this regard, the sentence of the learned Magistrate is set aside and substituted as follows:

“Each accused is sentenced to 10 months imprisonment of which 4 months imprisonment is suspended for 5 years on condition accused persons do not within that period commit any offence involving dishonesty and for which upon conviction accused persons are sentenced to a term of imprisonment without the option of a fine.

A further 4 months imprisonment is suspended on condition each accused restitutes the complainant through the Clerk of Court Bulawayo the sum of $34845.00, being half of the value of the stolen property on or before 18 April 2022”

The effective sentence is 2 months imprisonment.

Makonese J…………………………………………………….

Takuva J……………………………………………….concurs