The State v Christopher Ndlovu

### Preamble
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HH 149-2013
CRB 6200/08
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THE STATE

versus

CHRISTOPHER NDLOVU

HIGH COURT OF

HLATSHWAYO AND UCHENA JJ

HARARE,

Criminal Review

UCHENA J:  Christopher Ndlovu who I will in this judgment refer to as the convicted person appeared before a regional magistrate sitting at Mutare Magistrate’s Court, charged with the contravention of s 184 of the Criminal Law (Codification and reform Act [Cap 9:23] (defeating the course of justice) and alternatively s180 of the Code (giving false information to the court). He was jointly charged with a co-accused whose fate is not under consideration in this review judgment. The convicted person pleaded not guilty, but was convicted after a trial. It is however not clear as to whether he was convicted on the main charge or the alternative as the record of proceedings has been lost.

The facts on which he was convicted are briefly the following. The convicted person and his co-accused are legal practitioners. His co-accused represented an accused person of Mauritian origin, who was granted bail on . One of the conditions on which he was granted bail was that he was to surrender his passport to the clerk of court at Mutare Magistrate’s Court. The passport was surrendered to the clerk of court as per the bail condition. On 13 May 2008 the convicted person’s co-accused applied for the Mauritian accused’s passport to be temporarily released to him, ( “the co-accused”), on the pretext that he required it for purposes of sorting out certain immigration formalities, but solemnly undertook not to give the passport to the accused, but to return it to the clerk of court. The court’s ruling was deferred. On the date of determination the convicted person appeared for the accused. He signed for the passport after undertaking that he would only use it to sort out immigration formalities, and return it to the clerk of court.

On  the Mauritian accused defaulted court and the convicted person informed the court that the accused had gone to  to consult an Advocate. The convicted person did not return the passport to the clerk of court. The Mauritian accused person did not stand trial as he had left the country. The convicted person and his co-accused where charged with defeating the course of justice and alternatively giving false information to the court.

The convicted person was convicted and sentenced after which he appealed and applied for bail pending appeal before the same regional magistrate who was now sitting at Harare regional court. Things started going wrong when the regional magistrate attended to the record of proceedings which had apparently, been send to him from Mutare as the typist could not read his hand writing. Evidence led to prove and defend against these charges was lost. The trial magistrate wavered over whether or not the record of proceedings could be reconstructed.

The regional magistrate according to his own comments in a letter to the senior regional magistrate Harare dated , said:

“I recall it took me some time to complete the annotations since the record was fairly voluminous, but I think I completed it in late 2008. Unfortunately, and this is where I erred, from that time I got preoccupied with other matters and ceased to attend to it.”

There was no reason why the magistrate kept in his office a record he had finished annotating. He should have sent it back to the clerk of court who is the custodian of court records.

The issue of the disappearance of this record moved a ladder up to the office of the Chief Magistrate who apparently gave a dead line for the reconstruction of the record of proceedings. By letter dated  the regional magistrate wrote to the Chief Magistrate expressing doubts about the possibility of reconstructing the record of proceedings.

On  the Chief Magistrate’s office forwarded the scant remains of the record to the Registrar for review. It landed on HLATSWAYO J’s desk.  During the period 4 February to  I sat with HLATSWAYO J in the Civil Appeals Court. We discussed this review and started working on it together.

The correct reconstruction procedure should have been initiated by the clerk of court Mutare, and not by the regional magistrate, senior regional magistrate and the Chief Magistrate. The clerk of court is the custodian of court records and could still have other documents to augment the scant remains of the proceedings which were forwarded for review by the Chief Magistrate’s office. The last paragraph of the Chief Magistrate’s letter reads:

In light of the above, the matter is being placed before the Honourable Judge for setting aside of the proceedings”--- .

Judges review proceedings to determine the result and not to rubber stamp decisions from administrative offices. We thus ignored his request and proceeded in the manner we deemed fit. Section 29 (1) of the High Court Act [Cap 7:06], which provides for criminal reviews by judges provides as follows:

“(1)	For the purpose of reviewing any criminal proceedings of an inferior court or tribunal, the High Court may exercise any one or more of the following powers—

(a)	direct that any part of the evidence which was taken down in shorthand or recorded by mechanical means be transcribed and that the transcription be forwarded to the registrar of the High Court;

(b) 	hear any evidence in connection with the proceedings, and for that purpose may cause any person to be summoned to appear and give evidence or produce any document or article;

(c) 	where the proceedings are not being reviewed at the instance of the convicted person, direct that any question of law or fact arising from the proceedings be argued before the High Court by the Attorney- General or his deputy and a legal practitioner appointed by the High Court.”

As this case had been forwarded to this court by the Chief Magistrate and was to be reviewed in terms of s 29 (3) of the High Court Act, we in terms of s 29 (1) (c) decided to hear the Attorney General and Mr Mukombe who had represented the convicted person at his trial. We heard Mr Uladi of the Attorney General’s office and Mr Mukombe in JUSTICE HLATSHWAYO’s Chambers and issued an order dated 14 February 2013 in which we required the clerk of court Mutare Magistrate’s Court, to with immediate effect cause the reconstruction of the record of proceedings, and to by 15 March 2013 submit the reconstructed record to the Registrar of the High Court. We even had to refer the clerk of court and those who were to participate in the reconstruction, to the case of S v S (a Juvenile) 1991 (1) ZLR 237 (HC) at p 242 C to E, where ADAM J clearly explained the procedure to be followed when reconstructing a record.

Our effort bore no fruits. On  we received a declaration from the trial magistrate, the trial prosecutor and Mr Mukombe the defense counsel. They without the involvement of the clerk of court declared:

“We the undersigned parties wish to declare the following;

We have met, exchanged notes and deliberated over the order of this Honourable Court in an effort to reconstruct the record of proceedings.

We have come to the respectful view and conclusion that the reconstruction of the record of proceedings is impossible due to the following factors;

A very considerable and long time has lapsed between the trial and to date.

We deal with different and sometimes taxing cases.

Our memories have faded and our recollection of the proceedings is suspect and may result in inaccuracies.

The trial notes by the defence counsel are sketchy and not detailed.

The trial was lengthy and the record of proceedings was voluminous with a number of exhibits.

We are thus unable to reconstruct the record of proceedings.”

The declaration was signed by W Bhila the trial magistrate, O Mabahwana the trial prosecutor and P Makombe the defence counsel. The clerk of court and witnesses’ were not involved in arriving at the need to send the above quoted declaration to the reviewing judges.

ADAM J in the case S v S (a Juvenile) 1991 (1) ZLR 237 (HC) at p 242 C to E, said:

“It is clear from the foregoing that the practice has been for some considerable time well regulated in that the duty of the clerk of the court was to submit the best secondary evidence that he could obtain.

To summarise, where the accused has pleaded guilty, found guilty and sentenced or has pleaded not guilty, been found guilty and sentenced and the record is irretrievably lost prior to review by this court, since the trial court is functus officio, the clerk of the court must by affidavit indicate that the record is irretrievably lost and should obtain from the presiding magistrate,  witnesses and others present at the trial affidavits as to the contents of the record and thereafter he must give both parties an opportunity to peruse this so they may give their version as well. This reconstructed record from the best available secondary evidence must be sent for review.” (emphasis added)

The procedure referred to by ADAM J is not initiated by the officials who made the above mentioned declaration and reconstruction does not only depend on their inputs. The reviewing judge should be informed by the clerk of court about the result of the reconstruction and not by the declarants. The clerk of court should have obtained affidavits from them, the witnesses and others present at the trial. Their inputs should not have been sent directly to the reviewing judge but to the clerk of court who could if the result of his consultation with all he had to consult was in agreement with the view of the declarants have deposed an affidavit to that effect addressed to the Registrar for onward transmission to the reviewing judges.

The declarants should have been guided by our order and our specifically referring them to the case of S v S (supra). In view of their ignoring precedents and our order on how a proper reconstruction whatever its result should have been done, we suspect that their conduct was either presumptuous if they failed to appreciate our order and the precedent we referred them to or at worst protective of the convicted person. A judicial officer should communicate with the State and defence counsels through the clerk of court except if he is conducting a trial in open court. We are surprised that the trial magistrate avoided communicating with his fellow declarants through the clerk of court as we had ordered, choosing to communicate directly with them contrary to judicial ethics. Our order required the clerk of court to obtain from him his views in affidavit form. He was not required to privately meet the State and defence counsels as he did. Our order specifically required the clerk of court to convene the meeting. We did not order them to meet on their own.

The trial magistrate’s earlier communications indicated that the record of proceedings could be reconstructed. In his letter to the Acting Chief Magistrate, dated  he said:

“I however, would like to suggest a reconstruction since this is possible.”

We are surprised by his sudden change of view especially when he did so un procedurally.

In his letter to the Chief Magistrate dated  the trial magistrate said:

“I have to state that although, I gave the deadline of 31 August 2012 as the final day of the reconstruction of the record, we are finding it extremely difficult to recall exactly what the witnesses’ said. The possible result would be that the defence would most likely reject the reconstructed version.

The situation is compounded by fact that although the trial prosecutor Mr Mabhawana wrote hand written notes of the proceedings and these are not comprehensive and some of the notes are even missing from the docket. Further Mr Mabhawana has since left the service and it is now difficult to get him to commit himself seriously to the task.”

The magistrate seems to have already started his un-procedural communications with the State and defence counsel.

The initial view of the trial magistrate was consistent with the facts of this case. The convicted person had signed for his client’s passport from the clerk of court Mutare. He had promised to bring it back after satisfying procedural requirements at the Immigration offices. He did not bring it back. His client skipped bail and left the country. I find it difficult to accept that such a simple case cannot be reconstructed. The witnesses’ are court officials at Mutare Magistrate’s Court and officials from the Immigration department. The necessary evidence is on how the convicted person applied for the release of the passport, and signed for it, failed to return it and the absconding of his client. Most of this evidence should be in the court’s records. The immigration department’s crucial evidence is on whether there was anything the convicted person needed to sort out at their offices, using the convicted person’s client’s passport, whether he attended at their offices for that purpose, whether the convicted person’s client left the country using that passport. The simplicity of the evidence which should have been led at the trial whose record of proceedings has been lost, has a strong bearing on the case with which such proceedings can be reconstructed. The institutional nature of the source of such evidence defeats the declarants’ declaration that exhibits have been irretrievably lost. The above and the trial magistrate’s use of an incorrect procedure to reconstruct the record had convinced us that the record could be reconstructed. I am still of that view, but am cognizant of the fact that the trial magistrate and his co-declarants have so compromised themselves that a reconstructed record in which they are participants can not be of any value at any legal proceedings. It is for these reasons that we reluctantly accept the declarants’ erroneously arrived at declaration that the record can no longer be reconstructed.

We have no option but to set aside the proceedings and leave the fate of the convicted person in the hands of the Attorney General. We felt the urge to order a trial de novo but were restrained by precedents from the Supreme Court. We fear that a guilty man may unfairly escape the net of justice because of the mishandling of the record of proceedings, by the trial magistrate.

In the case of S v Manera 1989 (3) ZLR 92 (SC) at pp 94 H to 95 A to B GUBBAY JA commenting on the possibility of a guilty man escaping the net of justice, when proceedings have to be set aside, because of a record being irretrievably lost said:

“In S v Quali supra, the question was debated whether the matter should be remitted for hearing de novo before another magistrate. MULLINS J (KANNEMEYER JP concurring) held that it ought not. He expressed the view

at 584B-C that the proper course was simply to set aside the proceedings, leaving it open to the Attorney-General to decide whether to prosecute the accused afresh.

That is the course I consider this court must adopt. But I entertain an uneasy feeling that such an order may lead to a failure of justice in that a guilty person  goes free.” (emphasis added)

In spite of the above, we reluctantly set aside the convicted person’s conviction and sentence.

HLATSHWAYO J concurs.