State v Jeremia Zhanje

### Preamble
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HH 311-13
CRB 4732/12
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STATE

versus

JEREMIA ZHANJE

HIGH COURT OF ZIMBABWE

HUNGWE J

HARARE, 25 September 2013

Criminal Review

HUNGWE J	The trial magistrate convicted the accused in this case for robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act, [Cap9:23]. He sentenced the accused to 16 years imprisonment of which 4 years imprisonment were suspended on condition that the accused makes restitution through the clerk of court in favour of the complainant before a specified date. The trial magistrate thereafter realised that in passing the sentence, he had exceeded his sentencing jurisdiction set out in the Magistrates Court Act, [Cap 7: 10]. He then addressed correspondence to the registrar of this court in the following terms:

“The accused was arraigned before me facing allegations of robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. I convicted the accused after a full trial on overwhelming evidence and sentenced him to 16 years imprisonment of which 4 years is suspended on condition he restitutes (sic) the complainant in the sum of $14 785,00 on or before the 31st of D3ecember 2012 through the clerk of court, Harare, leaving the accused with 12 years’ imprisonment.

As a Provincial Magistrate, my jurisdiction on a charge of robbery would ordinarily be 5 years. However, because my mind was over influenced by the element of theft in respect of which my jurisdiction is extended to a maximum of 20 years imprisonment in terms of section 52 of the magistrates Court Act, I ended up imposing a sentence in excess of my jurisdiction which I realised later after I had already passed the sentence.

Would you kindly exercise your powers of review in this matter and I accordingly stand guided.”

In short the learned trial magistrate is drawing this court’s attention to an incompetent sentence imposed in the court a quo and seeks this court’s intervention to correct the procedural irregularity committed. As the sentence imposed is incompetent, it is a nullity and stands to be set aside and have, in its place, a competent sentence imposed. The magistrate assessed that a sentence in the region of 16 years was merited for the crime committed. In such circumstances, the appropriate course to adopt is to proceed in terms of s 54(2) of the Magistrates Court Act, [Cap 7:10]. In the circumstances, I make the following order:

“The conviction is confirmed. The sentence imposed upon the accused be and is hereby set aside. The record of proceedings is remitted to the trial court.The magistrate is directed to proceed in terms of section 54(2) of the Magistrates Court Act, [Cap 7:10].”

BHUNU J agrees.