STATE

versus

MUNYARADZI NHIRA

HIGH COURT OF ZIMBABWE

UCHENA J

HARARE, 30 May 2006

Criminal Review

UCHENA J: The accused person was charged with the crime of housebreaking with intent to steal and theft. He pleaded not guilty but was at the end of a trial convicted of receiving stolen property knowing it to have been stolen. At his trial he was represented by Mr Chirambasukwa of Chirambasukwa and Associates.

The accused who is a recidivist was sentenced to 10 months imprisonment of which 6 months were suspended on conditions of good behaviour. A sentence of 6 months imprisonment which had been suspended in 2004 was brought into effect. The accused was sentenced on 23 February 2006.

The record of proceedings was sent for scrutiny and a Regional Magistrate certified them as being in accordance with real and substantial justice.

The proceedings should not have been send for scrutiny because the accused person was represented at his trial. The proviso to section 58(1)(ii)(a)(i) [Chapter 7:10] provides that subsection (1) shall not apply in relation to:

“(a) any person

(1) who is represented by a legal practitioner.”

The Regional Magistrate should therefore have declined to scrutinise the proceedings. The proviso to section 57(1)(ii) of the Magistrate’s Court Act also provides that such a case is not subject to an automatic review. It provides as follows:

“57(1)(ii)(a) “this subsection shall not apply in relation to any person;

1. who is represented by a legal practitioner

2. …….

Unless within three days after the determination of the case the legal practitioner of the accused or the person representing the company in terms of subsection (2) of section 385 of the Criminal Procedure and Evidence Act [Chapter 9:07] as the case may be, in terms of subsection (2) requests the Clerk of the Court to forward the case on review.”

In the present case the legal practitioner fell into two errors:

1. He did not make a request to the Clerk of Court. He merely submitted papers headed notice of submissions upon review which contains submissions justifying the review.

2. If his submissions can stand as a request to the Clerk of Court he did not make a request for review within three days of the determination of the case. The accused was sentenced on the 23^rd February 2006. The legal practitioner’s submissions are dated 8 March 2006.

I however appreciate that I could have reviewed these proceedings in terms of section 29(4) of the High Court Act [Chapter 7:06], if the proceedings were not in accordance with real and substantial justice.

Section 29(4) provides as follows:

“Subject to rules no court, the powers conferred by subsection (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of an inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court or the judge for review.” (emphasis added).

In the present case the proceedings have been confirmed by a Regional Magistrate as being in accordance with real and substantial justice. The accused’s sentence is in my view within the magistrate’s discretion. The accused inspite of his young age which the legal practitioner relies on has three relevant previous convictions. He has twice had sentences of imprisonment suspended to deter him but he has reoffended. He has been sentenced to corporal punishment but that did not deter him. In the circumstances, I see no misdirection in the magistrate’s decision to impose a prison sentence.

As the proceedings cannot be said to be not in accordance with real and substantial justice, I decline to review them for the reasons already given.

BHUNU J, agree: …………………………………..