S v Mushoshoma (401 of 2021) [2021] ZWHHC 401 (3 August 2021)

1 HH 401-21 CRB GVE 210/12 B1930/20 CON 131/21 THE STATE versus KELVIN MUSHOSHOMA HIGH COURT OF ZIMBABWE CHAREWA & MUSITHU J HARARE, 3 August 2021 Criminal Review CHAREWA J: The accused was, together with his co-accused, and on 6th March 2012, properly charged with and convicted of two counts of stock theft in contravention of s 114 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Thereafter, the record takes a nightmarish turn. The record reveals that accused was sentenced to 12 years imprisonment and his co- accused to 22 years imprisonment. No rationale is advanced for this differentiation of sentence between two co-accused of similar age (24 and 25 years), who acted in common purpose. As if that was not enough the trial magistrate then ordered as follows “Of the total 36 years imprisonment 14 years is imprisonment is suspended for 5 years on condition accused does not within that period commit any offence involving stock theft for which upon conviction he is sentenced to imprisonment without the option of a fine.” Where the 36 years came from, is anyone’s guess. Even had the magistrate made an error and intended to total 12 and 22, the sum would not amount to 36 years. In any case, there is no rational basis for totalling the sentences of two accused persons. Further, it is not clear to whom the total of 36 years applies: the accused or his co-accused. There was thus a gross incompetence resulting in a grave miscarriage of justice, and which cried out for review. Astonishingly, the matter was never forwarded to this court for review. Instead it was sent to the regional magistrate for scrutiny. Apart from exercising a jurisdiction which he did not have, the regional magistrate confirmed the proceedings and the record was consigned to the archives. HH 401-21 CRB GVE 210/12 B1930/20 CON 131/21 In 2018, accused’s co-accused was released from prison on presidential amnesty. In 2019, accused requested for the trial record in order to appeal his conviction and sentence. In a total breakdown of the justice system, such record was variously held to be lost, in archives and was otherwise not provided to the applicant. In May 2020, applicant then drafted an application for condonation of late noting of appeal and his notice and grounds of appeal. However, the registrar would not accept them for issuing in the absence of the trial record, which was still unavailable. This prompted the applicant to then apply for bail pending condonation on 12 November 2020. At last, his plight came to the attention of this court, resulting in CHITAPI J, on 3 February 2021, in striking the bail application pending condonation off the roll, commenting on the gross injustice perpetrated on the accused. The judge then directed the registrar to write to the Chief Magistrate, recalling the direction to place the trial record before the judge on 7 December 2020, the advice on that date from the Chief Magistrate’s Office that the record had been consigned from Guruve and should be received in a day or two, how by 26 January 2021, the record was still not available and the subsequent advise by Guruve Magistrates Court that the record was missing and was being reconstructed. The judge consequently directed the Chief Magistrate to ensure that the record was availed. The record was only eventually received at the High Court on 11 March 2021. On 22 March, applicant applied to have his bail application placed back on the roll. In his application he pointed out that the sentence he is serving is not the sentence on the record which is 12 years imprisonment, but 34 years which is on the committal warrant which is a result of the erroneous addition of the 22 year sentence of his co-accused to his own 12 years imprisonment. On 31 March 2021, his bail application was once again struck off the roll on the basis that his application for condonation had not yet been determined. The matter came to my attention on 30 June 2021 when, on 23 June 2021, accused once again sought set down of his bail application. Upon perusal of the record, I noted the procedural irregularities regarding the review of the matter by the regional magistrate and the gross sentencing irregularities committed by the trial magistrate. I formed the opinion that this was a matter which was best resolved, in the interests of justice, by a review in terms of s 29(4) of the High Court Act Chapter 7:06 and requested the state to file submissions in that regard. Unfortunately, that did not mark the end accused’s tribulations. Up until 15 July 202, there was no State counsel allocated to deal with the matter, the original counsel, Mr Muzivi, HH 401-21 CRB GVE 210/12 B1930/20 CON 131/21 being on study leave. Mr Kangai was then allocated the matter, but due to the government’s Covid19 protocols on office decongestion, he was not coming to work. He eventually attended on 27 July 2021 and requested time to file submissions. He subsequently filed submissions consenting to the application for condonation of late noting of appeal on 29 July 2021, and filed submissions consenting to the review of the matter in terms of s 29(4) of the High Court Act on 29 and 30 July 2021. The court is nonetheless grateful for his insights which allow it to dispose of this matter, and put the wheels of justice back on track. S29(4) of the High Court Act states (4) Subject to rules of court, the powers conferred by subsections (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review.” A reading of the record reveals gross irregularities in sentencing. Accused’s sentence was added on to his co-accused’s sentence resulting in a shockingly severe and mathematically incorrect total sentence of 36 years. It does not help matters, in the absence of the rectification of the record, that the warrant of committal has the mathematically correct total of 34 years imprisonment. The fact remains that no reasons for this shocking sentence are contained in the record. In the absence of justification, such sentence must perforce be set aside. In addition, no rationale for differentiation of sentence between the two accused persons of similar age who committed the offence in common purpose is made. It is trite that the principle of equality of treatment dictates that unless, reasons for distinguishing between co- accused is made, they must receive the same sentence. By the same token, the unprocedural scrutiny by the regional magistrate when he had no jurisdiction to do so cannot stand. His confirmation of the trial proceedings must thus be set aside. There are thus gross irregularities committed by both the trial magistrate and the scrutinizing magistrate which justify this court reviewing the matter in terms of s 29(4) of the High Court Act even at this late stage. This is more so given that the effect of these irregularities HH 401-21 CRB GVE 210/12 B1930/20 CON 131/21 is that accused’s co-accused who received a longer term of 22 years has already been released, while applicant, who was sentenced to 12 years, is still serving an unjustified global sentence. As noted by state counsel, it appears that accused has been made to serve his co-accused’s sentence and vice versa. In the result, I cannot find that the sentencing proceedings by the trial court and the confirmation proceedings by the regional magistrate were in accordance with real and substantial justice. Disposal order In the premises I make the following order 1. The sentencing proceedings by the trial court and the confirmation proceedings by the regional magistrate are set aside. 2. The sentence imposed by the trial magistrate is set aside and substituted with the following: “Accused 1 is sentenced to 9 years imprisonment on each count. 6 years imprisonment on count 2 shall run concurrently with the 9 years imprisonment on count 1. The accused shall serve an effective sentence of 12 years imprisonment. ” 3. The accused having already served his sentence is entitled to his immediate release. MUSITHU J agrees…………………………….