Court name
Supreme Court of Zimbabwe
Case number
SC 4 of 2008
Crim. Appeal 169 of 2006
Case name
S v Sibanda (Crim. Appeal No. 169/06 )
Law report citations
Media neutral citation
[2008] ZWSC 4







REPORTABLE (3)


Judgment
No. SC 4/08


Crim.
Appeal No. 169/06








THE
STATE v NQOBILE SIBANDA








SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ,
SANDURA  JA & GWAUNZA  JA


HARARE, FEBRUARY 19
& MARCH 10, 2008








C Mutangadura,
for the appellant





L Mazonde,
for the respondent






CHIDYAUSIKU  CJ:







This is an appeal against the judgment of GARWE JP (as he then
was) that there be a trial de novo in this matter.




The facts of the matter were very ably summarised by the court
a quo, to be the following -







The respondent was on 16 July 2002 convicted of murder with
actual intent following a trial. The proceedings were thereafter

adjourned at the instance of the respondent to enable him to submit
evidence on the question of extenuation. On 18 July
2002,
however, JUSTICE BLACKIE retired from the High Court Bench
before the issue of extenuation had been determined. The
matter has
to date not been finalised owing to developments that occurred not
long after the trial Judge retired.





In September 2002 JUSTICE BLACKIE was arrested on allegations that
he had attempted to defeat the course of justice in a matter

involving one Tara White. He was thereafter placed on remand.
In response to a query by the Registrar of the High Court
as to
when he would be available to complete six part-heard criminal and
civil matters, the Judge advised the Registrar in November
2002 that
since he was facing criminal charges he would not be coming back to
finalise these matters until he was cleared of those
charges.







In June 2003 the charges against JUSTICE BLACKIE were withdrawn
before plea. In response to a further minute from the Registrar
the
Judge advised in a letter dated 20 January 2004 that although
the charges against him had been withdrawn before plea he
would not
be returning to deal with any matter since the State had refused to
withdraw the charges after plea and had reserved
to itself the right
to proceed against him in future. Further attempts by the Registrar
to communicate with the Judge proved
fruitless. The Registrar would
deliver mail at a local address but the Judge would post his response
from South Africa,
without giving his contact address or
telephone numbers.







In February 2005 the Director of Public Prosecutions advised by
letter that “prosecution had been declined”. A letter

to this effect was sent to JUSTICE BLACKIE using his local
address. In the letter the Registrar also requested the Judge
to
indicate when he would be available to finalise his part-heard
matters since the State had now indicated it was no longer proceeding

with the prosecution. The letter was returned to the Registrar with
the inscription “Based in South Africa”.







The current situation therefore is that there is no realistic chance
that the Registrar can communicate with the Judge or that
the Judge
will be coming back to determine his part-heard matters. Some of
the judgments have been pending since the year 2000.
Even at the
time the Judge retired there had been undue delays in the handing
down of some judgments but this only came to light
after his
retirement.











It is therefore common cause that the trial Judge became
unavailable upon delivery of the verdict but before extenuation and

sentence. The issue that fell for determination was set out by the
learned JUDGE PRESIDENT in the following terms at p 2
of
the cyclostyled judgment:







“In the case under consideration the trial Judge convicted the
accused of murder with actual intent. He then retired before

determining the issue of extenuation. The question that now arises
is whether another Judge can take over the proceedings at
this stage
and thereafter determine the matter.”










The learned JUDGE PRESIDENT concluded that the proceedings
before BLACKIE J had become a nullity and that another Judge

could not take over the proceedings and conclude them. The learned
JUDGE PRESIDENT cited a number of authorities in support
of his
conclusion. I shall revert to those authorities later in my
judgment.







The State submitted that once the juridical verdict of murder had
been entered, the second enquiry as to whether or not extenuating

circumstance exist is a sentencing issue, which issue another Judge
can deal with in terms of s 337 of the Criminal Procedure
and
Evidence Act [Cap. 9:07] (hereinafter referred to as “the
Act”. The court a quo rejected this submission.
The appellant advanced the same submissions before us.







The reasoning of the learned JUDGE PRESIDENT in rejecting the
contention of the State is set out at pp 4-6 of the cyclostyled

judgment. He reasoned thus:






“In terms of s 3(b) of the High Court Act [Chapter 7:06]
the High Court shall be duly constituted, for the purposes of hearing
a criminal trial, if it consists of one Judge of the High
Court and
two assessors. In terms of subsection (2) of the Act, any question
of fact arising at a criminal trial in the High
Court shall be
decided by the majority of the court. In terms of subsection (3),
at any criminal trial in the High Court,
the Judge shall have the
sole responsibility for fixing of the sentence, but he may consult
the assessors if he thinks fit. From
the above provisions it is
clear that whilst the question of sentence is to be determined by the
Judge, issues of fact arising
during the trial are to be decided by
the Judge and the two assessors. As stated by Gardiner and
Lansdown, South African Criminal Law and Procedure 6 ed
vol 1, at p 348:







‘It is to be observed that the assessors are members of the
Court only for purposes of the trial, and that their oath is
to give
a true verdict according to the evidence upon the issues to be tried
…’.







On what constitutes ‘a trial’ the learned authors state
on the same page:







‘A trial is the determination of the matters put in issue, and
it concludes with the verdict or, in the case of a verdict
of guilty
of murder, with the decision of the question whether there are
extenuating circumstances.’







On a careful analysis of the law, it is clear that although the
Judge and the assessors are required, after convicting an accused

person of murder, to consider the question of extenuation, in reality
there is but one composite verdict of guilty with or without

extenuating circumstances.







In R v Taylor 1949 (4) SA 702 (at) 717 SHCREINER JA
stated:







‘It is clear that in arriving at a conclusion as to whether to
express the opinion that extenuating circumstances are or
are not
present a jury, or court of judge and assessors, has not only to find
facts relevant to the subject of extenuation but
has also, after
considering those facts and the extent of their probable influence on
the accused’s conduct, to form what
is essentially a moral
judgment as to whether the circumstances ought to be characterised as
extenuating. … The expressed
opinion by the triers of fact
that extenuating circumstances are or are not present is not part of
the sentence or part of the
Judge’s reasons for sentence; it is
a distinct procedural step in relation to the power to sentence a
convicted murderer
…’.







In S v Dehwe 1987 (2) ZLR 231 (SC) McNALLY JA stated at
p 242 B-C:







‘A murder trial differs from other trials, not only in the
sense that it involves a possible death sentence, but also in
that it
involves a consideration of extenuating circumstances at a separate
and distinct stage of the trial. Because murder,
more than other
crimes, involves human passions whose operation may often give rise
to circumstances of extenuation, it is vitally
important, before a
decision on extenuation is made, that the court has some impression
of the motives and relationships which
had led to the killing …’.







The learned JUDGE OF APPEAL went on to stress the need for
the trial court:







‘… to assess the character of the witnesses, to absorb
the atmosphere of the time, to gain some impression of the

relationships between the accused and his fellow workers, between the
deceased and the accused or indeed between the deceased and
the other
witnesses.’







In the case of S v Sparks and Anor 1972 (3) SA 395A (at)
404 C-G HOLMES JA had the following to say:







‘… In particular, “verdict” is traditionally
understood to refer to the decision whether the accused is
guilty or
not guilty. Indeed, on a plea of guilty being entered, the “trial”
ends, since there are then no further
issues to be tried in regard to
verdict; cf. sec 173. This leaves the question of sentence,
including facts relating thereto,
exclusively within the jurisdiction
of the Judge. Findings of extenuating circumstances in murder trial
provide no exception.
Whether made together with the verdict of
guilty or thereafter, that finding is part of the verdict …







In the result we hold that an assessor’s function does not
extend beyond verdict.’







Attention is also drawn to Du Toit et al Commentary on the
Criminal Procedure Act
1993 ed at 21-5.







The conclusion must inevitably be reached that a murder trial ends
with the Judge and assessors making findings on the existence
or
otherwise of extenuating circumstances following a conviction for
murder. Until that stage is reached the trial is not complete.

Nor can the presiding Judge proceed on his own to determine the
question of extenuation without consulting the assessors in order
to
assess an appropriate sentence in a given case.”







I agree with the learned JUDGE PRESIDENT’S conclusion that
a murder trial ends with the Judge and the assessors making
a finding
on extenuating circumstances. But that is not the issue in this
case. The issue in this case is not when does a trial
conclude.
The issue in this case is when does it become permissible in terms of
the relevant statute for a Judge to take over
a trial started by
another Judge.







The learned JUDGE PRESIDENT accepted that the circumstances
under which one Judge can take over a case commenced by another
Judge
were governed by ss 333 and 337 of the Act. He further
concluded that in terms of the above sections this can only
happen at
the conclusion of the trial and in the case of a murder case at the
end of the trial means after a determination on extenuation.







I have no problem in accepting that the end of a trial in a murder
case includes a determination on extenuation. Put differently,
I
accept that a trial in a murder case concludes when the court
determines the issue of extenuation.







I, however, do not accept that ss 333 and 337 of the Act
provide that a Judge can only take over a case commenced by another

Judge at the conclusion of a trial, in the case of a murder trial
after the determination on extenuation. I say so for a number
of
reasons.







The word “trial” does not appear anywhere in ss 333
and 337 of the Act. If the legislature had used words
to the effect
that a Judge can take over a case commenced by another Judge at the
end of the trial I would have no difficulty in
agreeing with the
conclusion of the court a quo, as it would then be
abundantly clear that the intention of the legislature is that
another Judge can only take over a case at
the conclusion of the
trial.







Section 180(6) of the Act clearly indicates that the
legislature never intended to limit the take-over of a trial by
another
Judge to the conclusion of a trial. Section 180(6)
provides as follows:



180 (6) Any person who has been called upon to plead
to any indictment, summons or charge shall, except as is otherwise
provided in
this Act or in any other enactment, be entitled to demand
that he be either acquitted or found guilty by the judge or
magistrate
before whom he pleaded:







Provided that –







(i) where a plea of not guilty has been recorded, whether in terms of
section two hundred and seventy-two or otherwise, the trial
may be continued before another judge or magistrate if no evidence
has been adduced;







(ii) where a plea of guilty has been recorded, the trial may be
continued before another judge or magistrate if no evidence has
been
adduced or no explanation has been given or inquiry made in terms of
paragraph (b) of subsection (2) of section two
hundred and seventy-one
.”







The above section makes it permissible for one Judge to take over a
trial commenced by one Judge long before completion. The
only
proviso in terms of the above section is that no evidence or
explanation of the plea should have been led for another Judge
to
take over the trial.




The respondent was found guilty by the Judge before whom he pleaded.
Thus, there was full compliance with s 180(6) of the
Act.
Having been found guilty, can another Judge take over and hear
extenuation and sentence the respondent? That situation
is provided
for in ss 333 and 337 of the Act, which provide as follows:



333 Sentence in High Court



(1) If an application for arrest of judgment is not made or
is dismissed, the High Court may either pass sentence upon the
convicted
person forthwith or may discharge him on his recognizance,
as provided in Part XVIII, on condition that he shall appear and

receive judgment at some future session of the court or when called
upon.







(2) If sentence is not passed forthwith, any judge may pass sentence
upon the convicted person. …







337 Sentence of death for murder







Subject to section three hundred and thirty-eight, the High
Court –







(a) shall pass sentence of death upon an offender convicted by it of
murder:







Provided that, if the High Court is of the opinion that there are
extenuating circumstances or if the offender is a woman convicted
of
the murder of her newly-born child, the court may impose –







(i) a sentence of imprisonment for life; or







(ii) any sentence other than the death sentence or imprisonment for
life, if the court considers such a sentence appropriate in
all the
circumstances of the case.”




I see nothing in the language of the above sections that suggests
that a Judge can only take over a murder case commenced before

another Judge at the conclusion of the trial or after the
determination of extenuation. If the words of ss 333 and 337
are given their primary meaning, the inescapable conclusion is that
the legislature authorises the take-over of a murder trial after
the
verdict of guilty has been reached.







Section 331 of the Act, which precedes s 333, clearly
suggests that the point in time at which another Judge can take
over
a case is upon postponement after pronouncement of the verdict of
guilty. The section provides as follows:







331 Arrest of judgment



(1) A person convicted of an offence by the High Court, whether on
his plea of guilty or otherwise, may at any time before sentence

apply to that court that judgment be arrested on the ground that the
indictment does not disclose an offence.







(2) Upon the hearing of the application, the court may allow any such
amendment to the indictment as it might have allowed before
the
verdict.







(3) The court may either hear and determine the application forthwith
or may reserve the question of law for the consideration
of the
Supreme Court and may nevertheless pass sentence forthwith.”







In terms of the above section, a person convicted of an offence by
the High Court, whether on his plea of guilty or otherwise,
may at
any time before sentence apply to that court that judgment be
arrested on the ground that the indictment does not disclose
an
offence. It is quite clear from the language of this section that
the point in time being referred to therein is immediately
after a
verdict of guilty is pronounced. Upon the pronouncement of that
verdict, a convicted person is entitled to make the application.

The section further provides that upon hearing such an application,
the court may allow the application or any such amendment
to the
indictment as it might have allowed before the verdict. The section
further provides that the court may either hear and
determine the
application forthwith, or may reserve the question of law for
consideration by the Supreme Court and may nevertheless
pass sentence
forthwith. Where a court has not passed sentence forthwith s 333
is activated. It authorises another Judge
to take over the
proceedings and pass sentence.







Section 332 of the Act deals with the reservation of judgment
and does not really assist in determining the true meaning to
be
ascribed to s 333.







It is also interesting to note that s 333 is specifically
headed “Sentence in the High Court” and provides
in subs (1) that if an application for the arrest of judgment is
not made, or is dismissed, the High Court
may either pass sentence
upon a convicted person forthwith or may grant him bail. The word
“forthwith” can only refer
to immediately after
conviction. I see nothing that suggests that “forthwith”
in the case of a murder trial means
after determination of the issue
of extenuation.







Subsection (2) of s 333 provides that if sentence is not
passed forthwith, any Judge may pass sentence upon the convicted

person. There is no reference therein to completion of the trial,
which in turn would mean in a murder trial at the conclusion
of
extenuation. The critical issue is whether sentence has been passed
forthwith after conviction. If sentence is not passed
forthwith
after conviction, s 333(2) authorises any other Judge to pass
sentence upon the convicted person later on.







As I have already stated, s 333 specifically refers to
sentence in the High Court. The Legislature must have known that

sentencing in the High Court in murder cases involves the
consideration of the existence or otherwise of extenuating
circumstances.
If it had been the intention of the legislature that
another Judge be barred from taking over proceedings until after the
determination
of extenuation, I would have expected the legislature
to have used more explicit language to express that intention.







To read into the language of s 333 the intention to bar a
Judge from taking over a trial until after extenuation has been

completed would be to stretch the ordinary meaning of the language
used in that section to an extent that, in my view, would not
be
permissible.







The authorities cited by the learned JUDGE PRESIDENT in his
reasons for judgment are indeed authorities on what constitutes
a
trial and when it is that a trial comes to an end.







Sections 333 and 337 of the Act are not about what constitutes a
trial but are about at what point a Judge can take over a
case. It
is quite clear from the cited authorities that they are referring to
a trial in the context of the function of assessors
and when that
function comes to an end, namely at the conclusion of the trial, that
is, upon verdict or conviction and, in the
case of murder, after a
finding on extenuation.







The authorities cited by the learned JUDGE PRESIDENT relate to
a South African statutory provision, whose wording bears
no
resemblance to s 333 of the Act. The authorities relate to
ss 109(3) and 329(1) of the South African Criminal

Procedure Act, No. 56 of 55. The relevant portions of the
above sections provide as follows:







109 (3) Before the trial the said judge shall
administer an oath to the person or persons whom he has so called to
his assistance that
he or they will give a true verdict, according to
the evidence upon the issues to be tried, and thereupon he or they
shall be a
member or members of the court subject to the following
provisions:







(a) any matter of law arising for decision at such trial, and any
question arising thereat as to whether a matter for decision
is a
matter of fact or a matter of law, shall be decided by the presiding
judge and no assessor shall have a voice in any such
decision; …







329 (1) Sentence of death by hanging shall be passed by a
superior court upon a person convicted before or by it of murder, and
sentence
of death by hanging may be passed by a superior court upon a
person convicted before or by it of treason or rape:







Provided that where a woman is convicted of the murder of her newly
born child, or where a person under sixteen years of age is
convicted
of murder or where the jury, in convicting the accused of murder,
expresses, in terms of subsection (2) of section
one hundred
and forty-one
, the opinion that there are extenuating
circumstances, or in the case of a trial without a jury, where the
court is of opinion
that there are extenuating circumstances, the
court may impose any sentence other than the death sentence.”







It is quite clear from the above provisions that the passage from
Gardiner and Lansdown, South African Criminal Law and
Procedure
6 ed vol 1 at p 348, cited by the
learned JUDGE PRESIDENT in support of what constitutes a trial,
paraphrases
the provisions of s 109(3), as read with s 329(1)
of the South African Act.







A similar provision to s 109(3) of the South African Act
is to be found in our law in s 7 of the High Court Act

[Cap. 7:06], which provides as follows:







7 Swearing in of assessor in criminal trial







Before the commencement of a criminal trial in the High Court the
judge shall administer an oath to the assessors that they will
give a
true verdict according to the evidence upon the issues to be tried
and thereupon they shall, subject to this Part, be members
of the
Court.”







It is quite apparent from the above that the authorities cited and
referred to by the learned JUDGE PRESIDENT are relevant
to
sections of the South African Act which deal with what
constitutes a trial in the context of the function of assessors.

The South African provisions bear no resemblance to ss 333
and 337 of the Act. Indeed, the cited authorities would
be very
persuasive if the issue in casu were the interpretation
of the provisions of s 7 of the High Court Act, whose wording is
very similar to the South African
provisions. The said
authorities cannot be persuasive in interpreting ss 333 and 337
of the Act, whose wording bears no
resemblance whatsoever to the
cited South African provisions.







Further, as stated by SCHREINER JA in R v Taylor supra:



“The expressed opinion by the triers of fact that extenuating
circumstances are or are not present is not part of the sentence
or
part of the Judge’s reasons for sentence; it is a distinct
procedural step in relation to the power to sentence a convicted
murderer
…“. (the emphasis is mine)







I agree with the learned JUDGE OF APPEAL that determining the issue
of extenuation is a process in relation to sentencing and not

conviction.







I have no doubt that the language used by the legislature in ss 333
and 337 is sufficiently clear. It authorises another
Judge to
participate in the sentencing process after the verdict of guilty has
been returned by the trial court. I accordingly
will allow the
appeal.







Before concluding, I wish to refer to the point in limine
which was raised by the respondent.







The respondent submitted that the appellant has not complied with
the Rules of the Supreme Court. In particular, the respondent

contends the appeal was noted out of time and no condonation has been
granted for the late noting of the appeal.







In my view, there is substance in the submission of the respondent.
The Attorney-General has broken every requirement of the
Rules of
this Court in bringing this matter before this Court. However, in
my view, a very important legal point is involved
in this case and
its determination is imperative. This matter has been outstanding
for a very long time and dismissal of this
matter for non-compliance
with the Rules of this Court would lead to a serious miscarriage of
justice. It would mean that the
judgment of GARWE JP stands
and a trial de novo takes place when in fact there should
be no such trial. There is also the possibility that such trial will
be set aside in the
event of an appeal against the judgment in the
trial de novo. In my view, this is a proper case for
this Court to depart from the Rules in the interest of justice.




In the result, the appeal is allowed and the matter is remitted to
the High Court for it to be completed before another Judge.



















SANDURA  JA: I agree



















GWAUNZA  JA: I agree



















Attorney-General’s Office, appellant's legal
practitioners



Gill, Godlonton & Gerrans, respondent's legal
practitioners