The State v Cosmas Mazangwa

### Preamble
1
HH 370-12
CRB B 523/11
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THE STATE

versus

COSMAS MAZANGWA

HIGH COURT OF ZIMBABWE

MUTEMA J

HARARE, 13 September, 2012

Criminal Review

MUTEMA J: The record of proceedings in this case is redolent of irregularities. These are they:

The accused was arraigned before a provincial magistrate (G.Gogo) sitting at Bikita facing a charge of contravening s 114 of the Criminal Law (Codification and Reform) Act, [Cap 9:23] on 27 September 2011, it being alleged that he had stolen two head of cattle.

The record of the proceedings goes something like this:

“Court – 	Put the charge

Interpreter – 	charge put to the accused.

Court-		 how do you plead?

Guilty

Facts put to the accused and understood.

Provisions of s 188 and 189 of the code explained to the accused and understood.

Defence outline ………….”

Thereafter a full trial was conducted with the State leading evidence from three witnesses and accused giving his own evidence in his defence.

The legal position in our law is that where an accused pleads guilty, as indicated in casu, the court proceeds in terms of s 271(2)(a) or (b) of the Criminal Procedure and Evidence Act [Cap 9:07] depending on the gravity of the offence being admitted. In the instant case that procedure was not embarked upon. Only a plea of guilty was entered. The record does not indicate whether the guilty plea was ever altered to not guilty in terms of s 272 of [Cap 9:07] to warrant delving into a trial. It indicates only that a plea of guilty was entered, followed by a trial.

I was unable to take up this issue with the trial magistrate because the handwritten notes were indecipherable hence I ordered that the proceedings be typed and resubmitted- another irregularity I shall advert to below. I found it futile to again refer the record back for the trial magistrate’s comment.

The bottom line is that it was an irregularity for the trial magistrate to enter a plea of guilty and not proceed in terms of s 271(2)(a) or (b) of [Cap 9:07] or s 272 and go on to hold a trial as he did.

As stated above, the handwriting was so unreadable that I directed on 24 February, 2012 that the proceedings be typed and the record be resubmitted for review. The resident magistrate at Bikita (who is not the trial magistrate) wrote to the provincial magistrate for Masvingo that:-

“The Clerk of Court has also failed to decipher the handwriting. The record of proceedings is being forwarded to your good office for further directives”

This was on 11 May, 2012. On 5 June, 2012 the Masvingo provincial magistrate had

the record redirected to Zaka Magistrates’ Court “for the clerks there to assist transcribe the record”.

The presumption is that the trial magistrate was now stationed at Zaka.

Whilst the proceedings were duly typed, it appears from the typed notes that the clerks too had difficulty in deciphering the handwriting for there are a number of omissions as well as grammatical errors.

Section 5(1) of the Magistrates’ Court Act, [Cap 7:10] provides that the magistrates’ court shall be a court of record. According to Wikipedia, the Free Encyclopedia, the word record denotes a “collection of data”. And the term data is defined as “factual information used as a basis for reasoning, discussion or calculation”,

Now if the record of proceedings is indecipherable, it means that it cannot pass the definition of collection of data neither can that unreadable data be called factual information to be used as a basis for reasoning or discussion to enable the trier of fact in a court of law to analyse and arrive at an informed or correct decision.

The story is often told of a former magistrate who was discharged from service for his indecipherable handwriting which he himself failed to read!

In the instant case, it cannot be argued that a record let alone a proper one was kept as required by the Act.

The judgment that was written by the trial magistrate can at best be described as an epitome of a bad judgment bordering on incompetence. It is a half page judgment in these words:-

“The accused is facing a charge of stock theft. In trying to present its case the stock had (sic) (supposed to read the State led) the evidence of the complainant who had missed two beast (sic) a black ox and the brown ox with a white patch on the face. The second witness Abigail Mbengo testified that he (sic) had seen a stranger who hides (sic) in a bush with the two beasts fitting complainant’s destination (sic) (supposed to read description). The second witness testified that the stranger later on found (sic) with accused. Accused is saying to have told (sic) Abigail Mbengo that he know (sic) the stranger. Abigail went on to testify that the accused told her not to worry of (sic) the stranger and ever want (sic) his wife to tell her to keep quiet about the stranger (supposed to read – even sent his wife to tell her to keep quiet about the stranger).

On being put to his defence accused denied knowing the stranger who had the cattle saying that he did not know anything of (sic) this. Upon analysing this case if (sic) can be seen that accused was not faithful over his relations with the strange (sic) who had the cattle he could not explain only the …. (sic) the stranger. The State managed to prove its case beyond reasonable doubt in finding ….  (sic) the accused guilty as charged for stock theft”

Even a lay person cannot say that the foregoing is anywhere near a reasoned judgment. Judgment writing is a process of reasoning, giving reasons why and how a particular finding (if of fact) was arrived at. A trier of fact is not expected to simply waffle or regurgitate what witnesses said and then out of the blue baldly and boldly conclude that the State managed to prove its case beyond reasonable doubt and convict an accused person.   A trier of fact is enjoined to deal with the credibility of the witnesses and justify why the evidence of a particular witness is to be preferred to that of the accused and why that of the accused is being rejected. In casu no jot or tille of analysis of the various witnesses’ evidence, including that of accused was ever done.

In the event I am not persuaded that the accused was correctly convicted. The conviction not being safe, should not be allowed to stand.

The hapless accused was sentenced as follows:-

“14 years imprisonment of which 2 years imprisonment is suspended for 3 years on condition you do not within that period commit any offence involving dishonesty to which you would be sentenced to prison (sic) without the option of a fine”.

That the wording is inelegant goes without caevil. Materially, it is sad to note that the trial magistrate had no clue about the issue of special circumstances when it came to sentence. Section 114(2)(e) provides that:

“(e)	if the stock theft involved any bovine or equine animal stolen in the circumstances described in paragraph (a) or (b), and there are no special circumstances in the particular case as provided in subs (3), to imprisonment for a period of not less than nine years or more than twenty-five years;”

Subsection (3) provides as follows:-

“(3)	If a person convicted of stock theft involving any bovine or equine animal stolen in the circumstances described in paragraph (a) or (b) of subs (2) satisfies the court that there are special circumstances peculiar to the case, which circumstances shall be recorded by the court why the penalty provided under para (e) of subs (2) should not be imposed, the convicted person shall be liable to the penalty provided under paragraph (f) of subs (2)”. (emphasis supplied).

In casu the purported record of proceedings does not reveal either at mitigation stage

or even in the reasons for the sentence hat an allusion to special circumstances, was ever made let alone explained to the accused what they entail and inviting him to profer them if any. If the accused had such special circumstances, he was hamstrung in advancing them because, he being a lay unrepresented person, the trial magistrate did not accord him the room and help to articulate the same. This constitutes a serious misdirection on the part of the trial magistrate.

This last misdirection, coupled with the other three alluded to supra, behoves me to set aside both the conviction and sentence and order that accused’s warrant of liberation be issued forthwith.

MATHONSI J, agrees ………………………………