Criminal
Review
MAWADZE
J: Judicial
officers like magistrates should always appreciate that it is not
every complaint forwarded to them which should be simply forwarded to
this court ostensibly to be resolved by way of this court's
inherent review powers.
This
record was placed before me endorsed with us following comments from
the learned Senior Regional Magistrate in Chiredzi.
“Clerk
of Court send this record for review 2/11/17”
This
matter is not subject to automatic review provided for in the
Magistrates Court Act [Chapter
7:10].
What is attached to the record is a letter by the complainant to the
learned Senior Regional Magistrate at Chiredzi who is the trial
magistrate in which the complainant expressed his displeasure over
the acquittal of the accused on a charge of attempted murder as
defined in section 89 as read with section 47(1) of the Criminal Law
(Codification and Reform) Act [Chapter
9:23].
In that letter the complainant seems to request for what he terms “a
review” of the proceedings. This letter does not at all lay out the
basis or grounds for review and neither does it state how the trial
magistrate misdirected himself or herself. All the complainant states
is that he is disappointed by the acquittal.
Just
like a conveyer belt the trial magistrate simply forwarded the record
of proceedings to this court.
While
it is correct that this court has power to review a matter where an
acquittal has resulted after a full criminal trial even at the behest
of an aggrieved complainant as provided for in section 29 of the High
Court Act [Chapter
7:06]
the basis upon which such review is being sought should be clearly
set out. It should be clear as to whether any procedural irregularity
or misdirection on substantive law or both is being alleged.
See
S v Nivfo Prandini HH94-10 in which my brother KUDYA J extensively
dealt with this aspect.
I
simply decided to deal with this matter in order to give closure to
whatever misgivings complainant may have.
The
facts of this matter are as follows:-
The
accused who is a school teacher is a brother in law to the
complainant (as he is married to the complainant's sister). On 25th
May 2015 the accused was visited at his residence by the complainant
and his wife's relatives including the wife's father. The purpose
of the visit is bitterly contested. This was at accused's residence
in Tshovani Township in Chiredzi. According to the State case a
dispute arose between accused and the complainant over the
sufficiency of transport costs tendered by accused to his wife's
relatives. It is alleged that in the ensuing argument he had stabbed
the complainant on the right rib side and the right elbow with a
knife.
A
medical report compiled by Doctor Ngere however shows only one stab
wound on the right side of the abdomen and not on the elbow. It shows
that moderate force was used and that the injuries though serious
were not life threatening.
This
calls into question the appropriateness of the charge preferred
against the accused moreso as Doctor Ngere was not called to amplify
on the medical report.
The
accused maintained, in his defence, that the misunderstanding between
him and the complainant was centred around demand for outstanding
lobola (bride price) by his wife's relatives and payment of their
transport costs. The accused insisted that the complainant threatened
to harm the accused. The accused's case is that he tried to leave
the house but the complainant blocked him on a number of times. The
accused said as he tried to flee the complainant caught up with him
and attempted to harm him with a sharp object. A tussle ensued
between the two and the accused believes the complainant fell on his
own weapon hence the injury was self-inflicted. The accused said he
managed to flee. The accused who was legally represented said all he
did was to act on self-defence and prevent harm which was about to be
inflicted upon him.
I
find no procedural irregularity in the manner in which this criminal
trial was conducted. The State led evidence from the complainant
Tavonga Varanga and his father Keneth Ndarara. The medical report
referred to earlier on was tendered. The accused gave evidence and
called his brother, one Enock Mapindure, as a defence witness since
he was also part of this gathering. The trial was therefore properly
conducted observing all the dictates of a criminal trial.
The
trial magistrate considered all the evidence led in the judgment. The
applicable law was applied to the facts. I shall simply summarise the
evidence for clarity purposes.
The
complainant's evidence is that the purpose of their visit was not
to demand any lobola but to attend to accused's sick wife. He
disputed that any demand for transport costs was made. In fact, his
version of events is that the meeting was held amicably hence the
attack perpetrated on him was inexplicable.
In
relation to the attack he said as he was going to his motor vehicle
the accused followed him. It was at night. Only the two of them were
present. The complainant said accused suddenly attacked him with what
he later saw to be a knife in the abdomen exposing his bowels after
which the accused fled.
Kenneth
Ndarara, the complainant's father, was clearly a confusing witness.
He testified that the dispute with accused was over his sick
daughter, the accused's wife. He corroborated the complainant that
no demand for lobola or transport costs was made. What was unclear
and consistent about his evidence is whether he witnessed the alleged
attack on the complainant by the accused or how complainant was
injured. Initially he said he witnessed the attack but in cross
examination he said he did not see how the complainant was stabbed.
He was inconsistent on whether he saw the weapon used. Indeed, the
complainant's evidence suggests that only the accused and the
complainant were at the place the complainant was injured.
The
accused maintained his version on how the complainant was injured.
The accused's father, Enock Mapindure, testified that the
complainant was very violent on the night in question and would not
allow the accused to leave the house where the discussions were being
held. He said when accused managed to leave it is the complainant who
persued the accused and that no one else was present when the
complainant got injured except the accused and the complainant.
In
brief this was the evidence placed before the trial magistrate.
As
already alluded to, the trial magistrate gave a very lucid judgment.
The trial court first grappled with the dispute around the purpose of
the visit of the complainant and his relatives at accused's
residence. Was it to attend to accused's sick wife or to demand
outstanding lobola and reimbursement of transport costs? After
dealing with the demeanour and credibility of the witnesses a finding
of fact was made in which the trial court believed the accused's
version as regards the purpose of the visit.
The
next issue dealt with by the trial court is the gravaman of this
matter which is how the complainant was injured.
In
my view a proper finding of fact was made that only the accused and
the complainant were at the place where the complainant was injured.
Secondly, the trial court discussed at length as to why it found
accused's version to be credible. Further, the law in relation to
the defence of self-defence was outlined and applied to the facts
found proved. The trial court rightly concluded that the accused
should be believed in saying he acted in self-defence. The State case
was found to be inadequate. Indeed, it is clear that the State failed
to discharge the onus thrust upon it to found a conviction on a
charge of attempted murder or any other permissible verdict.
It
is not uncommon that any complainant who reports a criminal matter to
the police expects that the alleged culprit should be convicted. In
casu the protestations by the complainant while understandable
clearly lack merit.
The
trial magistrate's findings cannot be faulted.
In
the premise, I confirm the proceedings as in accordance with real and
substantial justice both in relation to the procedural and
substantive aspects of the law.
Mafusire
J. agrees ……………………………………………………..
