MATHONSI
J:
This
is an appeal against the decision of the Provincial Magistrate
sitting at Harare delivered on 30 March 2012 in which he dismissed an
application by the appellants for the suspension of their sentence of
12 months imprisonment or 420 hours of community service at
institutions in Harare and Chinhoyi.
The
appellants had approached the court a
quo seeking
that suspension pending an appeal which they noted to this court on
22 March 2012.
As
stated their application did not find favour with that court as a
result of which they have approached this court as an Appeal Court.
Mr
Nyazamba for the State has raised 2 points in
limine
namely:
1.
That the appeal noted by the appellant against conviction and
sentence is defective by reason that the appellants did not deposit
with the Clerk of Court the costs for the preparation of the appeal
record and did not make a written undertaking to make payment of the
costs of such preparation.
2.
That the appellants adopted the wrong procedure by bringing their
appeal in terms of the Bail Rules instead of the ordinary appeal
rules given that this appeal is against the sentence of community
service as opposed to a sentence of a fine or imprisonment.
The
first point in
limine
relating to the costs of preparation of the appeal record is based on
the requirement that an appellant should pay the costs of
transcription of the record or undertake to pay.
In
his submissions Mr Nyazamba cited Rule 24(1) of the Supreme Court
(Magistrates Court) (Criminal Appeal) Rules, 1979 which provides;
“The
clerk of the court shall, on receipt of the payment or undertaking,
as the case may be, referred to in subr (2) of Rule 22, give
instructions for the preparation of the record.”
Subrule
(2) of Rule 22 referred to therein provides:
“The
appellant shall, at the time of the noting of an appeal in terms of
subr (1) or within such period thereof, not exceeding 5 days, as the
clerk of the court may allow, deposit with the clerk of the court the
cost as estimated by the clerk of the court of one certified copy of
the record in the case concerned.”
Subrule
(4) of Rule 22 renders the appeal invalid by reason of failure to
comply with the foregoing provisions.
Mr
Muchadehama for the appellants produced a letter dated 22 March 2012,
the same day the appeal was noted, addressed to the Clerk of Court
which undertakes to pay the cost of transcription. That letter was
received by the Clerk of Court the same day.
Faced
with that letter Mr Nyazamba for the State was forced to abandon his
first point in
limine.
The
second point in
limine relates
to the procedure adopted and it is premised upon the notion that a
sentence of community service is not a prison sentence or a fine as
to entitle an aggrieved party to approach the court in terms of the
Bail Rules.
In
my view that argument is devoid of merit.
The
sentence imposed on the appellants is both a fine and imprisonment.
The court a
quo
sentenced the appellants to a fine of US$500-00 each or in default of
payment 10 months imprisonment. In addition to that they were
sentenced to 24 months imprisonment of which 12 months was suspended
on condition of future good behaviour. The remaining 12 months was
suspended on condition they complete 420 hours of community service.
The
appellants are seeking the suspension of the effective sentence of 12
months alternatively community service, which they would otherwise
have to serve in spite of the appeal in terms of section 63 of the
Magistrates Court Act.
I
do not agree that they have adopted the wrong procedure or used the
wrong platform. The Bail Court is the competent tribunal to entertain
the matter. In any event, community service is a deprivation of
liberty just like imprisonment.
When
this was drawn to the attention of State counsel, he was constrained
to abandon that point as well.
Regarding
the merits of the matter, the appellants have attacked the decision
to dismiss their application on the grounds, inter
alia,
that the court a
quo
misdirected itself in dismissing the application without a finding
that the appeal had no prospects of success at the Appellate Court.
It
has been submitted on behalf of the appellants that the court a
quo did
not properly apply its mind to the application before it especially
as it did not consider all the factors placed before it in that
application including the prejudice likely to be visited upon the
appellants if they perform community service before the appeal is
determined given the obvious delays that occur.
On
the other hand, the State is of the view that the appeal against both
conviction and sentence is without merit, has no prospects of success
whatsoever and for that reason the appellants should be made to serve
their sentences.
Mr
Nyazamba relies on the authority of S
v
Kilpin
1978 RLR 282 (AD) where the Appeal Court pronounced at 286A as
follows:
“The
principles governing the grant of bail before conviction are entirely
different from those governing the grant of bail after conviction and
the difference is even more marked when the guilt of the accused is
not in issue and the usual sentence for the offence is an effective
prison sentence of substantial duration. It is wrong that a person
who should properly be in goal should be at large and nothing is more
likely to encourage frivolous and vexatious appeals than the attitude
adopted by the magistrate in the present case.”
In
the present case, the application for a stay of sentence was made
after the notice of appeal had been lodged and the court
a quo had
the benefit of that detailed appeal when considering the application.
It also had the benefit of lengthy oral submissions made by both
counsel. In fact the submissions by counsel run into 10 pages of the
transcribed record from page 75 to 85.
It
is therefore curious that the judgment of the court is spectacular by
its brevity - it being only 16 lines of the record. It reads as
follows:
“Right,
listen to the ruling.
The
court considered the submissions made by both counsels (sic) and in
applications of this nature, some of the factors to be considered are
whether there are prospects of success on appeal and the likely delay
before the appeal is heard.
The
accused were convicted of contravening section 188 as read with
section 36 of the Criminal Law (Codification and Reform) Act. The
evidence analysed in the judgment revealed that the key State witness
was present in the room and narrated all that transpired and this was
further corroborated by the accused themselves during their defence
cases. It must be reiterated again that the accused were not found
guilty of watching a video footage but that the video was just played
to arouse feelings of hostility amongst those who attended as
analysed in the judgment and the reasons for sentence.
The
accused were found guilty after the State proved its case beyond a
reasonable doubt. The essential elements of the offence were
satisfied as clearly shown by the evidence on record. Hence, this
court did not misdirected (sic) itself in any way by arriving at the
verdict of guilty.
The
application for the suspension of performing community service is
hereby dismissed.
So
that is the ruling.”
This
is the entire judgment of the court a
quo
which is now being challenged on appeal.
It
is difficult to understand how anyone can attempt to defend this
judgment. While the magistrate made reference to matters to be
considered in an application of the nature before him, he did not
even attempt to deal with them. The magistrate busied himself with a
narrative of how he arrived at the verdict and the sentence at the
expense of the relevant considerations.
The
appellants had raised essentially 3 issues in their application
namely:
1.
That they have prospects of success on appeal for a variety of
reasons contained in their notice of appeal.
At
the risk of commenting on issues still to be placed before the Appeal
Court, I may hazard an example, being the contested issue of whether
their conduct, be it “watching” or “playing” a video,
constituted an offence as defined in section 188 as read with section
36 of the Criminal Law Code. In my view this is a critical issue
which calls for interrogation by the Appellate Court.
2.
That should they be made to commence performing community service
they will suffer prejudice in the event that their appeal is
successful as they would have served a substantial part of the
sentence which may be overturned on appeal and yet no prejudice will
be suffered by the State if the sentence is suspended.
3.
That there is no risk of abscondment given that they had piously
complied with their bail conditions and attended court even when they
were facing more serious charges.
In
my view these are the issues which should have occupied the mind of
the court a
quo
in considering the merits of the application. It did not. Instead, as
stated by Mr Muchadehama for the appellants, the court pre-occupied
itself with justifying its judgment.
This
was a misdirection.
Indeed,
there are no reasons for dismissing the application at all.
State
counsel has conceded that the court a
quo
did not give reasons for dismissing the application and in a way,
although with tounge in cheek, he does concede that the points raised
by the appellants were not addressed at all. He has however asked me
to reconsider the evidence which he says will persuade me to uphold
the decision of the magistrate.
I
had occasion in the matter of S
vNdlovu
and Anor HB90/11
at p 3-4 of that judgment to comment on the failure by a magistrate
to give reasons for a decision. In that matter I stated quoting S
vMapiye
S-
214-88:
“It
is therefore not easy to ignore the possibility that the magistrate
did not apply her mind at all to the case before her. Courts have
repeatedly stated the need for judgments to be reasoned and for those
reasons to be stated. As stated in S
vMapiye
S-214-88:
'To
confirm the conviction on the second count, would in my view, result
in a failure of justice. The omission to consider and to give reasons
for convicting the appellant on Count Two is fatal to the prosecution
case. It is a gross irregularity. Appeals are argued and decided on
the contents of a certified record of the trial proceedings. If those
contents are stored in the mind of the trial magistrate, they are not
enough.'
It
is a gross irregularity for a magistrate to omit to give reasons
which reasons remain stored in his/her mind without being committed
to paper.”
The
decision of the court a quo, to the extent that it dealt with
extraneous issues and contains no reasons for the result is
impeachable. I am of the view that the court a quo addressed the
wrong issues.
Having
gone through the record I am satisfied that the appellants raise
pertinent legal arguments especially relating to the legality or
otherwise of their actions. Their appeal has merit and is indeed
arguable. I am also of the view that the points raised in support of
the application for a stay are very compelling indeed. Clearly they
will suffer prejudice if they serve the sentence which might be
overturned.
On
the other hand, there is absolutely no prejudice that will be
suffered by the State by the suspension of the sentence. The
appellants have been shown to be committed to the finalisation of the
matter and cannot be said to be flight risks. Indeed the State has
not even attempted to argue along those lines.
I
therefore come to the conclusion that the court a
quo
misdirected itself in dismissing the application which should have
been granted.
In
the result I ordered that:
1.
The appeal is hereby upheld.
2.
The performance of community service by the appellants is hereby
stayed/suspended pending the determination of the appeal in case
number HCCA248/12.
MbidzoMuchadehama&Makoni,
appellant's legal practitioners
The
Attorney General's Office respondent's
legal practitioners
