The State v Frank Madhananga

### Preamble
1
HH 386-21
CRB CHNP 1382/20
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THE STATE

versus

FRANK MADHANANGA

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 13 July 2021

Criminal Review

CHITAPI J: The above record was referred to the Registrar for placement before a judge following a query raised by the scrutinizing magistrate on the impropriety of how the trial magistrate formulated the sentence imposed on the accused following the accused’s conviction.

The accused was convicted on two counts of firstly contravening section 95 (1)(a) of the Criminal Law Codificationa and Reform) Act [Chapter 9:23] (Criminal insult) and secondly, contravening s 140 of the same enactment (malicious damage to property). The facts of the matter were briefly as follows: The accused a male adult of Chinhoyi resided at the same property with the complainant albert in different quarters. On 23 December, 2020, the accused knocked at the door to the complainant’s room. It was alleged that the accused “unlawfully and seriously impaired the dignity of the complainant by use of vulgar words in shona which in the charge were translated into English as follows:

“Your mother’s anus. You are feaces. You are busy having sexual intercourse with my wife and 	today I want to kill you.”

It was averred that when he so uttered the words, the accused intended by his conduct to impair the complainant’s dignity seriously or did so, if not acting intentionally, then with the realization of the real risk or possibility that the complainant’s dignity might be seriously impaired.

In the second count, it was alleged that on the same date, time and place, the accused maliciously damaged the complainant’s door in circumstances where he intended to damage the door or foresaw the real risk or possibility that the door might be damaged. The accused was alleged to have thrown stones at the door causing damage assessed at US$7.00.

The accused was tried and convicted upon a supposed guilty plea in terms of s 271(2) of the Criminal Procedure and Evidence Act, [Chapter 9:07]. The accused was sentenced in count 1 to $5 000 in default 30 days imprisonment. In addition 3 months imprisonment wholly suspended for 5 years on condition of future good behavior. In count 2, the accused was sentenced as follows:

“$1500 fine in default of payment 30 days imprisonment. In addition accused to restitute $7usd to 	the complainant on or before 31/01/20 (sic)” Time to py 31.01.21

The record having been refer for scrunity, the scrutinizing magistrate raised a query with the trial magistrate as follows

“Is the additional sentence in count two (2) properly framed and competent?”

In response the trial magistrate stated

“I omitted the part where I was to mention that the restitution was to be paid through the 	Clerk of 	court Chinhoyi Magistrates Court. It was an oversight on my part. My apologies.”

The scrutinizing Regional Magistrate then addressed a letter to the Registrar to place the record before the judge. The letter dated 22 April, 2021 reads as follows:

“22 April 2021

The Registrar

High Court of Zimbabwe

HARARE

RE:	STATE v FRANK MADHANANGA: CHNP 1382/20

May you, please, lay the above record before the Honourable Reviewing Judge with the following comments;

“In count two the accused was sentenced to $1500 in default of payment 30 days imprisonment. In addition, accused to restitute $7 USD to the complainant on or before 31/01/20 in default of payment 15 days imprisonment.”

The restitution should have been in RTGS not USD. Further it was not competent to then say that failure to pay restitution the accused would undergo 15 days imprisonment. The additional sentence should have been formulated in the following manner;

“15 days imprisonment suspended on condition accused restitutes $574 RTGS (the official currency) through the Clerk of Court – Chinhoyi on or before 31/01/20.”

The trial magistrate admitted that the sentence was not properly formulated.

May we, please, be guided.

................................

T. I Mugova

REGIONAL MAGISTRATE – CHINHOYI

c.c.:	File”

In the first instance the scrutinizing magistrate did not pay attention to detail. Had he done so, he would have noted that, the sentence endorsed on the back of the summary jurisdiction (charge sheet) was not 15 days in default of payment of $1500 but 30 days. It is on the review cover that the number of days endorsed in default of a fine was 15 days. There was no correlation between the 15 days and the 30 days. Since the matters or details recorded on the review cover are supposed to be a carbon copy of what is on record, it must be held that the accused was sentenced to imprisonment of 30 days in default of payment to pay a fine of $1500 as endorsed in the record of proceedings. There is also no correlaction between the trial magistrate’s answer and the question asked by the scrutinizing Regional Magistrate on the competence of the sentence and how it was framed. To the trial magistrate, her error was that she did not indicate that the restitution was to be paid through the Clerk of Court. The scrutinizing Regional Magistrate should have directed the trial magistrate to comment on what the scrutinizing Regional Magistrate was critical of. For example, the query should have been couched in such a manner that the trial magistrate is asked to comment on what the scrutinizing Regional Magistrate was suggesting to be the correct way of framing the sentence and its competence should have been commented on. It has already been stated by this court that the debate on correcting proceedings on scrutiny should start at local level between the trial magistrate and the scrutinizing Regional Magistrate.  It is incumbent on the trial and scrutinizing magistrate to engage in meaningful research and debate on what the positions on the points of departure are. It is not proper to make the judge the research engine that provides answers to the points of departure between the trial magistrate and the scrutinizing magistrate.

After all, by referring the scrutiny proceedings on review, it necessarily means that the scrutinizing Regional Magistrate must have taken a position contrary to that of the trial magistrate. So, where the trial magistrate acknowledges the error made, there is no problem. Where there is disagreement, the scrutinizing Regional Magistrate must support his/her position and quote relevant case law where appropriate to support his/her position. It is wholly unacceptable for the scrutinizing Regional Magistrate to ask for guidance from the judge without placing before the judge the supported and researched different points of view adopted by the trial and scrutinizing magistrates. See Joel Handson v State HH 217/21.

In casu, the scrutinizing Regional Magistrate did not indicate in the review minute as to why he considered it incompetent to order that the accused should restitute the complainant failing which the accused shall serve the given number of days imprisonment. He also did not justify his position on the incompetence of the order by the trial magistrate for the accused to restitute USD$7.00 and why the amount should have been in RTGS. For the avoidance of unnecessary debate, where the fine or restitution has been denominated is USD$, the order should be “X USD$ payable in RTGS calculated at prevailing interbank rate. (See Muchaneta Theodora Chimbandi v Mabel Canvas (Pvt) Ltd SC 18/20).

It is however advised to liquidate the USD on the rate of the day and order the amount of restitution to be paid in RTGS dollars.

The review does not however turn on the issues raised by the magistrate. Upon reviewing the record of proceedings, the proceedings do not comply with the legislated plea procedure set out in s 271(2)(b) as read with s 271(3) of the Criminal Procedure & Evidence Act, [Chapter 9:07] It is trite that in guilty plea trials, all matters set out in s 271(3) aforesaid must be specifically recorded. The magistrate for one must explain the charge. The explanation given must be recorded. A failure to do so necessarily means that the guilty plea trial will not have been conducted in terms of the law and is an unfair trial. The proceedings cannot be allowed to stand see S v Mangwende HH 695/20.

In casu, the trial magistrate recorded as follows:

“crt charge to both counts read and understood.

“count 1. How do you plead

Accused- I admit.

Crt- Guilty s 271(2)(b)

Crt: count 2: How do you plead

Accused: I admit

Crt: Guilty s 271(2)(b)”

It is clear that there was no explanation of the charge given to the accused nor his answer thereto. There is no recording that the peremptory procedure in s 271(3) was followed. I must stress that the previsions of s 271(2)(b) must always be read and applied together with the provisions of s 271(3). A failure to comply with peremptory provisions of s 271(3) invariably results in the setting aside of the conviction and sentence. In casu, there is nothing which can be done to save the proceeding. The approach in S v Mangwende will be followed.

Accordingly this review is determined as follows:

The convictions of and sentences imposed on the accused on both count 1 and count 	2 are hereby set aside.

The accused if in custody is released from custody forthwith and if he paid the fines 	imposed, the amounts paid shall be refunded to him.

The Prosecutor General may in his discretion institute a fresh prosecution against 	the accused before a different magistrate.

If the accused is again convicted on the charge(s), the court shall take into account 	any of the days that the accused may have served imprisonment as part of the served 	portion of any new sentence which may be imposed.

MUSITHU J agrees……………………………..