S v Thebe (HB 16 of 2006) [2006] ZWBHC 16 (6 March 2006)

Judgment No. HB 16/06 Case No. HC 85/06 CRB FIL 452/05 THE STATE Versus GIFT THEBE IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 7 MARCH 2006 Criminal Review CHEDA J: This is a review judgment. Accused, a man of 30 years was charged with arson to which charge he pleaded guilty, was duly convicted and sentenced to 24 months imprisonment of which 6 months imprisonment was suspended for 5 years on the usual conditions. The brief facts of the matter are that accused and the complainant’s wife were in love but later fell out. Complainant’s wife later decided to break the relationship. This did not go down well with the accused who then decided to set the hut where the complainant and her family were sleeping. Before setting the hut on fire, he made sure that the complainants were asleep. Accused’s conduct of ensuring that complainant and her family were asleep, in my view, has all the ingredients of the mental element (mens rea) of murder. However, the fact that he did not kill anyone, the correct charge therefore should have been that of attempted murder. While it is part of our criminal procedure that the state is dominus litis, this rule is not absolute. The trial court, as a trier of facts whose main 16/06 HB object is to do justice between man and man, it therefore has inherent powers to ensure that suitable charges are preferred against those who appear before it. It is, therefore, within its power to prevent the state from proceeding with the prosecution on a lesser charge where justice clearly requires a more serious one. The reason is simply that where the state fails to prove the serious charge, the court in most cases, where provided can always convict on a lesser charge. It is therefore the duty of every judicial officer to guard against the pitfalls of being misled by a prosecutor who opts for a lesser charge thereby avoiding the rigours of engaging in a fully fledged trial. In casu, the charge of arson where the facts point to the contrary is clearly incompetent. In this regard, I am therefore unable to certify these proceedings as being in accordance with true and substantial justice. I withhold my certificate. 3