State v Claudius Zuze

### Preamble
1
HH 274/13
H.C.R.B 2857/13
STATE
versus
---------


==============================

STATE
versus
CLAUDIUS ZUZE

HIGH COURT OF ZIMBABWE
UCHENA J
HARARE, 10 July 2013

Criminal Review

UCHENA J: The accused person who I will refer to as the convicted person was charged for the contravention of s 4 (1), as read with 3 (1) (a) of the Domestic Violence Act [Cap 5:16]. The facts on which he was charged are that he assaulted Velonica Mushambadoro several times on the face, with clenched fists.

He pleaded guilty and was convicted on his own plea the court having proceeded in terms of s 271 (2) (a) of the Criminal Procedure and Evidence Act [Cap 9:07]. He was sentenced to a fine of US$150-00 in default of payment 30 days imprisonment.

The record of proceedings was forwarded to the Senior Regional Magistrate Harare for scrutiny, who raised the issue of the appropriateness of the fine of US$150-00, as the Magistrate had proceeded in terms of s 271 (2) (a) of the CP&E Act.

In his response the trial Magistrate, argued that he had proceeded in terms of s 271 (2) (b). The Senior Regional Magistrate did not accept that explanation. He forwarded the record of proceedings for review pointing out the obvious alterations the trial Magistrate had made to the record, after it had been referred back to him by the scrutinising Senior Regional Magistrate.

Section 271 (2) (a) is applicable when the sentence to be imposed is not of imprisonment without the option of a fine, and if the fine to be imposed does not exceed level 3. Section 271 (2) (a) provides as follows;

“(2) Where a person arraigned before a magistrates court on any charge pleads guilty to the offence charged or to any other offence of which he might be found guilty on that charge and the prosecutor accepts that plea—
(a) the court may, if it is of the opinion that the offence does not merit punishment of imprisonment without the option of a fine or of a fine exceeding level three, convict the accused of the offence to which he has pleaded guilty and impose any competent sentence other than—

(i) imprisonment without the option of a fine; or

(ii) a fine exceeding level three;or deal with the accused otherwise in accordance with the law;”

The provisions of s 271 (2) (a) are so notorious that any magistrate is expected to be aware of them. In this case the magistrate imposed a fine which far exceeded that which can be imposed in terms of s 271 (2) (a) (ii). A fine under level 3 should not exceed US$20-00.

This case would not have warranted a review judgment but for the intransigency of the trial Magistrate which calls for the reinforcement of judicial ethics, and the sanctity of a court record.

The Senior Regional Magistrate raised the issue of the fine exceeding level three. Instead of conceding the magistrate altered and falsified the record. He changed the (a) to a (b) on the record of proceedings, but forgot to alter the 271 (2) (a) he had recorded at the back of the charge sheet. He in his response to the Senior Regional Magistrate argued that he had proceeded in terms of s 271 (2) (b). To justify his argument he purported to have canvassed the essential elements, after he had already convicted the accused. The Magistrate’s notes reads as follows;

“Q How do you plead,

A Guilty s 271 (2) (b) CPEA

C 1

Guilty as pleaded.”

This was followed by what the Senior Regional Magistrate said was not part of the record when it was first submitted for scrutiny. The Regional Magistrate’s recollection that the canvassing of the elements was not part of the record which he initially received for scrutiny is confirmed by the apparent alteration of the (a) to (b). The loop of the former (a) remains visible and the (b) is clearly a result of several repeated acts of changing an (a) to a (b), which leaves the letter (b) prominently darker than the rest of the magistrate’s handwriting. It was a shoddy attempt at misleading the Senior Regional Magistrate. The attempt is further exposed by what he endorsed at the back of the charge sheet, and the canvassing of essential elements after convicting the offender.


Judicial office calls for absolute honesty. A judicial officer’s record of proceedings must be trustworthy. It should not be treated with caution because of a judicial officer’s lack of integrity. His record must be trusted and relied on as the truth of what happened during the proceedings. A judicial officer becomes *functus officio* on concluding the proceedings before him. He can not, and should never alter the record when issues are raised by the scrutinising regional Magistrate or reviewing Judge. All he can do is explain what happened without altering the record. If anything is to be changed that can only be done by a reviewing Judge. In terms of s 58 (3) (b) of The Magistrate’s Court Act [*Cap 7:10*]) the Regional Magistrate should refer the proceedings for review if, he thinks anything in the proceedings, has to be corrected. Section 58 (3) (b) provides as follows;

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

(a) ---
(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 [*Chapter 7:06*].”

The alteration of the record of proceedings after it has been send back to the trial magistrate by the scrutinising Regional Magistrate or reviewing Judge was dealt with in the case of *S v Liver* 1992 (2) ZLR 332 at p 333 B- C where MUTAMBANENGWE J said;

“I entirely agree and for everyone’s benefit would like to draw attention to the fact that tampering with a record of proceedings is an offence and might result in prosecution.

Once the magistrate has finalised the matter, as was the case here, he or she is functus officio and any errors that need to be corrected must be referred to the High Court.”

The same sentiments were expressed by CHINENGUNDU J in the case of *S v Charuma* 1992 (2) ZLR 162 at p163 A-B, where he said;

“The trial magistrate should have known that he had no right to tamper with the record of proceedings by destroying certain papers and replacing them with others as he did in this case. He can not just tamper with the record of proceedings as he wishes. If he had realised later that he had made a mistake he should have drawn this to the attention of the Regional Magistrate for corrective measures to be taken. Alternatively he should have sought advice and guidance from other senior members of the bench which is the normal course to follow when in doubt.”

It is unfortunate that a judicial officer whose office must be respected and fully trusted can tamper with and falsify the record of proceedings. It is not necessary for a judicial officer to pretend that he or she can not make a mistake. The fact that mistakes can be made is demonstrated by the provision of scrutiny, review and appeal procedures. It is infact honourable to admit a mistake and learn from it. A good judicial officer, can even voluntarily point out his or her mistakes and refer the case for review so that the errors can be corrected. This is consistent with the need to dispense justice to all litigants, as every judicial officer takes an oath to do justice to all those who appear before him or her.

The trial magistrate therefore acted contrary to his oath of office, and committed an act which can lead to his prosecution.

The trial magistrate sentenced the convicted person to an incompetent sentence. The maximum fine he could have imposed after proceeding in terms of section 271 (2) (a) is US$20-00.

In the result the sentence imposed by the trial magistrate is set aside.

The convicted person is sentenced to a fine of US$20-00 in default of payment 5 days imprisonment.

The amount of US$130-00 by which the appropriate fine was exceeded must be refunded to the convicted person.
--- END OCR FALLBACK ---