MAVANGIRA
J: The accused was, on his own plea of guilty, convicted of unlawful possession
of dagga as defined in s 157 of the Criminal Law (Codification and Reform) Act,
[Cap 9:23].
The
facts placed before the court a quo are:
“1 . ….
2. Accused person is a
male adult who resides at Dzitiro village, Chief Muusha, Changadzi and not
employed.
3. On the 4th
day of April 2010 at about 1000 hours, police details manning a roadblock at
Chiriga turnoff, Chipinge stopped a motor vehicle which was ferrying passengers
to Chipinge town and a search was conducted resulting in accused person being
arrested as he had a satchel on his lap/legs full of dagga.
4.
The dagga weighed 1625 grammes ….” (sic)
The
conviction is in order. It is what happened after his conviction that causes
great concern in this matter. This appears in the magistrates reasons for
sentence. He stated inter alia;
“This court had
decided that accused be sentenced to pay a fine with a jail term as an
alternative. In addition (he) would get a prison term with a portion suspended
on the usual conditions. The fiscus would be enhanced since he is benefiting
from the illegal dealings. Some quarters thought that it amounts to a double
punishment and hence a straightforward custodial term was granted with a
portion suspended on the usual conditions”.
The
words “some quarters” are underlined in red ink. It is not clear at what stage this
was done or by whom. But the immediate questions that these words raise is what
“quarters” was the trial magistrate referring to and at what stage did these
“quarters” make known their thoughts to the trial magistrate and in what
capacity. The gravity of this becomes even more pronounced when note is made
that on 7 April 2010 the trial magistrate passed the following sentence:
“Accused is
sentenced to $50/6 months imprisonment. In addition (he) is sentenced to 12
months of which 6 months is suspended for 3 years on condition that he is not
within that period convicted of an offence of which possession or dealing in
dagga will be an element and will be sentenced to a term of imprisonment
without the option of a fine”. (sic)
The
said sentence is then cancelled and the following is passed on 9 April 2010,
i.e. two days later:
“Accused is
sentenced to 24 months imprisonment of which 8 months is suspended for 3 years
on condition that he is not within that period convicted of an offence of which
dealing or possession of dagga is an element and will be sentenced to a term of
imprisonment without the option of a fine” (sic).
Among
the review matters brought for my attention this week this is the second matter
in which the sentence initially imposed by a trial magistrate in court on the
day of the hearing and in the presence and hearing of the accused, is altered a
few days later apparently in the absence of the accused.
This
amounts to a gross irregularity. It was stated in S v Liver 1992(2) ZLR 332(H) at 333 C:
“Once a trial
magistrate has completed a matter and passed sentence, he is functus officio and should there be any
need for any alterations to be made the record must be referred to the High
Court.
In S v Davy 1988 (1) ZLR 386 (SC) at 391E
–G the following is stated:
“Upon the fair
assumption then that recourse to the above procedure was not open to the
appellant, he ought to have invoked the jurisdiction of the High Court in terms
of s 27 of the High Court of Zimbabwe Act 1981 and Order 33 Rule 256 of the
Rules of the High Court on review, as the power to rectify a record is
exercisable by the High Court. See Joseph Baynes
Ltd v Minister of Justice 1926 TPD 390 at 397; S v Moikabi 1964 (1) SA 228 (O); S v Booi 1972 (4) SA 68 (NC) at 69H; Mrazuli v Attorney-General & Anor 1973 (4) SA 134 (E); S v Siwela 1981 (2) SA 56 (T) at
58G-59C; S v Maruziva S-51-84 (not
reported).”
The
cases of S v Zindonda AD15/79 and S v
Sailos Ndlovu HH219/03 are also pertinent on this aspect.
It
is incompetent for the magistrate to purport to do what the trial magistrate
did in this matter i.e. alter the sentence he had passed initially and
substitute it with another sentence.
In
the result both the initial and the later sentences passed on 7 April and 9
April 2010 respectively are hereby set aside.
In
order to avoid any further prejudice to the accused this court will, in the
exercise of its review powers pass an appropriate sentence in this matter.
Possession
of dagga is a serious offence and the quantity involved in this matter, 1625
grammes is so large as to justify the presumption that it could not have been
intended for the accused's personal consumption but for supply or sale to
others. It is trite that a custodial sentence is called for in such
circumstances.
The
accused is sentenced as follows:
12
months imprisonment of which 6 months imprisonment is suspended for 3 years on
condition that within that period, the accused does not commit an offence
involving the possession of or dealing in dagga and for which upon conviction
he is sentenced to a term of imprisonment without the option of a fine.
MAVANGIRA J:
…………………….
BERE J, agrees ………………………
