THE State V Shepherd Guzha AND Joseph Nhema

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HH 368-2012
CRB No. K1397-1402/11
THE STATE
versus
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THE STATE
versus
SHEPHERD GUZHA
and
JOSEPH NHEMA

HIGH COURT OF ZIMBABWE
PATEL & MTSHIYA JJ

Criminal Review

HARARE, 21 September 2012

PATEL J: At the inception of this matter, in August 2011, there were four accused persons charged with one count of unlawful entry in aggravating circumstances. The first accused (Guzha) pleaded guilty, while the second accused (Nhema) pleaded guilty and then appears to have changed his plea to one of not guilty. The third and fourth accused (Chikochi and Masiwa) pleaded guilty and were separated for trial.

The trial magistrate then proceeded to canvass the essential elements with the first accused and found him guilty as pleaded. This was followed by the first accused’s submissions in mitigation. Thereafter, wholly inexplicably, the trial magistrate delivered his reasons for sentence covering the first and second accuses, and sentenced them both to 24 months imprisonment with 6 months suspended on condition of good behaviour.

In November 2011, the trial magistrate was directed to explain the above discrepancy. He responded to state that both first and second accuses were duly convicted and sentenced. In February 2012, he was directed to clarify the record of proceedings after investigating what actually transpired at the hearing. He eventually responded in July 2012 to state that he had verified the record of proceedings. He confirmed that the first and second accuses were both convicted and sentenced but that the proceedings were not properly recorded.


Although the trial magistrate admits his blatant error, he does not proffer any explanation as to what actually happened at the hearing of the matter. It is highly probable that he did not record the proceedings as they actually took place and later attempted to recreate them from his evidently faulty recollection.

As is succinctly spelt out in section 5 of the Magistrates Court Act [Chapter 7:10], a magistrates court is a court of record with the attendant obligation to ensure that every relevant detail is duly recorded. This obligation is unquestionably critical, not only so that justice is seen to be done but also so that it is competently and effectively done.

The record in casu has nothing that can be relied upon to show that the second accused was properly convicted and sentenced. It does however indicate that the first accused might have been appropriately dealt with. Nevertheless, given the obvious omissions and contradictions in the record, coupled with the absence of any satisfactory explanation of what actually transpired, there can be no assurance that even the first accused was duly convicted and sentenced.

In the result, the convictions of both accused and the sentences imposed upon them are set aside. The trial magistrate is directed to conduct the trial proceedings de novo and, if either or both accused are properly convicted, to take into account in assessing sentence the length of time that they have already spent in prison.

MTSHIYA J: I agree.
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