NDOU J: This
matter was dealt with by a Beitbridge Magistrate and referred to me on
automatic review. The accused was
charged of undermining the authority of or insulting the President in
contravention of section 33 (2) of the Criminal Law (Codification and reform)
Act [Chapter 9:23], (the “Act”). The
accused pleaded guilty and he was convicted and sentenced to 8 months
imprisonment of which 4 months were suspended on the usual conditions of good
future behavior. The major flaw in these proceedings is the learned
magistrate's failure to comply with the provisions of section 34 of the Act.
Section 34 states:
“34. Attorney
General to authorize prosecution under Chapter 111
No proceedings shall be instituted or continued against any
person in respect of a crime in terms of this chapter, other than proceedings
in respect of the crime of possessing a dangerous weapon or unlawfully
possessing or wearing a camouflage uniform or for the purpose of remand,
without the authority of the Attorney General.”
In
casu, the authority of the Attorney general was not sought and
obtained. For the record, section 33
under which the accused was charged is in Chapter 111 of the Act. The accused person's conduct is not an
exception in terms of section 34.
It is very important that the
magistrates and prosecutors be familiar with the provisions of section 34.
Accordingly, the conviction is
quashed and the sentence set aside.
Should the Attorney General decide to prosecute the accused afresh, the
period already served shall be taken into account in any subsequent
sentence. The accused is entitled to his
immediate release.
Mathonsi J
……………………………………… I agree
