S v Nkata and Ors (HB 11 of 2006) [2006] ZWBHC 11 (1 March 2006)

Judgment No. HB 11/06 Case No. HC 1054/05 CRB 1227-29/05 THE STATE Versus ALAN NKATA And TAPIWA RUTAYI And SHADRECH ZULU IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 2 MARCH 2006 J James, for accused 2 Criminal Review NDOU J: This is an application for review embodying a written statement by Mr J James, for accused II , Tapiwa Rutayi. It is possible for a legal practitioner, instead of filing a notice of appeal against conviction and sentence, to embody a written statement on review. This approach is sanctioned by section 57(1)(b)(ii) and (2) of the Magistrates’ Court Act [Chapter 7:10]. This procedure is allowed instead of lodging an appeal against conviction. A Judge may review the matter pursuant to the provisions of section 29(4) of the High Court Act [Chapter 9:05]. It is trite that what the accused is doing in such circumstances is seeking the indulgence of the Judge to review the matter where the propriety of the conviction is being attacked. This court does not readily grant such HB 11/06 indulgence to aggrieved accused persons. The court avoids granting an accused person a cheap form of redress not provided by the legislature by slipping by the back door – R v Chidongo 1939 SR 210; S v Pia & Anor 1967(1) RLR 106(G) at 107H; S v Stockie 1980 ZLR 280(G); S v Runganga 1995(2) ZLR 303(H) at 306G-307E; S v Hulley HB-60-95; S v Nyathi HB-90-03; S v Class HB-43-04 and S v Fikizolo HB-131-04. This court’s wide powers of review should, therefore, be sparingly used to attack a conviction under this procedure. The ideal procedure for attacking the conviction is the appeal against conviction. It is in general, wrong for the accused to try and get the benefit of an appeal against conviction through this review procedure. Appeal procedure is entirely different from review procedure. In casu, I am persuaded to indulge the accused person and allow him to attack the conviction using this procedure. I do so on account of the fact that the accused were jointly charged and allegedly pleaded guilty to the charge of robbery. The issue here is whether the trial magistrate complied with the provisions of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] Briefly, the accused persons were jointly charged before a Bulawayo magistrate of robbery. It was alleged that they robbed a 23 year old man at knife point of a 10 kilogram packet of mealie meal and $1 000,00 on 18 March 2005 at around 1700 hours. Part of the facts accepted by all the three accused persons is as follows: “When he [complainant] was near Monarch Products he met the accused persons who were coming from the opposite direction the three blocked the complainant’s way. Accused one wielded an HB 11/06 orkapi [sic] knife which he used to threaten the complainant and demanded for some cash. The complainant told the accused persons that he did not have any money and accused one forcibly took the 10kg pocket of Red Seal roller meal that the complainant was carrying. He then chased away the complainant threatening to stab him. However, the complainant kept on following the accused persons. At one time accused one gave the mealie meal to accused three and chased away the complainant together with accused two.” (emphasis added). The charge sheet which the accused pleaded to alleged that “one or more of then” committed the robbery. They all pleaded guilty to the said charge. When the essential elements were canvassed with the accused persons the record reveals the following: - - - Do you admit that on 18 March 2005 you assaulted “Q Taurayi Dziva so as to induce him to give you his mealie meal $1 A Yes Yes Yes Do you admit that due to the assault he let you take the Q mealie meal and the money Yes A Yes Yes Do you admit that when you took the money and mealie Q meal you intended to permanently deprive him of the mealie meal and money - A - - Yes Yes Q A Q A - - - - Yes Do you admit you had no lawful right to do that Yes Yes Yes Any defence No No No They were duly convicted of robbery. In mitigation they each specifically asked why they committed the offence and each responded as follows: Accused 1 - “A 11/06 Accused 2 - money” Accused 3 - “A “A - - - We just did it” HB We wanted the mealie meal and I just did it” The first issue raised by Mr James, for accused II is whether there was compliance with section 271(3). Secondly, whether accused II and III were properly convicted of participating in the robbery. From the charge sheet and the highlighted portion of the admitted facts it is clear that the allegations were that accused acted in common purpose. They all admitted these facts from an informed position. Although the articulation of the essential elements was not the best, it nevertheless conveyed to the minds of accused II and III why they were being jointly charged with accused I who produced the knife. This is clear from the questions directed to then by the trial magistrate. All three accused persons admitted blocking the complainant’s way before accused I produced the knife. Accused II and III associated themselves with the robbery by their own admissions in court. All three accused persons admitted to have knowingly participated in the robbery. There was compliance with the provisions of section 271(3). Accordingly, all three were properly convicted – S v Collet (2) 1978 RLR 288 and S v Sibanda 1989 (2) ZLR 329 (S). Accordingly, I confirm these proceedings as being in accordance with true and substantial justice. In concluding I should however, express regret and apologise that this record was misplaced from April 2005. This type of error is detrimental to the interests of justice and the Deputy Registrar is advised to 11/06 HB investigate movement of files and put in place appropriate measures to prevent such occurrences. Bere J ……………………… I agree James, Moyo-Majwabu & Nyoni, accused II’s legal practitioners