The State v Collen Banda

### Preamble
1
HH 170-18
CRB CHTP 2461/17
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THE STATE

versus

COLLEN BANDA

HIGH COURT OF ZIMBABWE

HUNGWE & MANGOTA JJ

HARARE, 28 March 2018

Criminal Review

HUNGWE J: This matter was placed before me on automatic review in terms of s 57 of the Magistrate Court Act [Chapter 7:10] as the unrepresented accused had been sentenced to a period in excess of twelve months imprisonment. The accused was charged with public indecency as defined in s 77 (1) (a) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. After a contested trial he was found guilty and sentenced as follows:

“6 months imprisonment. In addition to pay $500-00 fine in default of payment 6 months imprisonment.”

Attached to the record of proceedings is a document penned by the accused in long

hand. He wrote from Harare Central Prison. He titled the document.

“Supplement Affidavit for Review: S v Collen Banda”

In it the accused states that he feels that he was wrongly convicted. He gives the reasons why he felt this way in nine paragraphs. This document left Prison on 21 September 2017 but was received by the Registrar on 2 October 2017 some eleven days later. On the same day it was also received by the National Prosecuting Authority. The accused is entitled, by s 59 of the Magistrate Court Act, to submit such a statement. However, that section restricts matters which the statement or arguments by an unrepresented accused can address on review. The accused can only advance his reasons for the view that the sentence is excessive. In other words an unrepresented accused may not attack the conviction in his written submissions. Where, as here, a person convicted in the Magistrate Court wishes to have his conviction quashed, he must appeals his conviction in terms of s 60 of the Magistrates Court Act. The procedure to be followed by an accused who is aggrieved by a conviction in the Magistrates Court is set out in Supreme Court, (Magistrates Court) (Criminal Appeals) Rules in Statutory Instrument 504 of 1979.

Where a statement by an accused is filed with the Registrar and served on the National Prosecuting Authority, the rules of court require that the prosecuting authority as well as the magistrate, respond to the issues raised in that statement. Unfortunately there has been a disturbing trend by both the National Prosecuting Authority as well as the magistratery to ignore this duty. In doing so these offices do not only flout the law that they are sworn to uphold but also permit a disservice to the interests of justice to prevail. I make this observation in light of the fact that in the majority of cases, the review record is in long hand. As such the magistrate prosecutor’s input in that typecrafted responses will serve to throw some light to the generally illegible records that a reviewing judge will be hard put to decipher. Thankfully, I am able to read the present manuscript well enough to get the feel of the evidence led, the reasons for both judgment and sentence.

I will consider the accused’s submissions as I peruse the record and assess the propriety of the proceedings.

The trial court relied on the evidence of one Zvidzai Dimingo who observed the accused in the act of urinating.  As the accused did this, the complainant, a five year old girl child was facing him. The witness loudly called out her husband. Upon realising that he had been seen, the accused jumped out of the toilet where he had lured the complainant to on the pretext that he would buy her some snacks. Her husband chased and apprehended the accused as he tied to run away. She remained with the complainant. A report was made to Police.

The complainant confirmed that the accused asked her to come along so that h would buy her some snacks. She complied. Accused asked her if he wanted to see him urinate. She declined this obscene offer but he dragged her to a point where he then removed his pants and produced his private parts. When she tried to cry he ordered her to be quiet. The first witness then arrived. She called out for help and the accused fled.

This is the basis upon which the accused was convicted.

In his written statement the accused complains that the complainant’s evidence was clearly rehearsed. He also points to what really is a typographic error in the State Outline where the complainant is referred to as Adelaide Banda. She is Adelaide Simba as the charge states. I am unable to find any inconsistencies which he says is replete in the State case. In fact the complainant and Zvidzai had no opportunity to rehearse their evidence as they proceeded to the Police Station immediately after the accused was apprehended. This was a few minutes after the incident.

There is no basis, in my view for the averment that his right to a fair hearing was violated by an unsafe conviction. His arrest was prompted by his criminal conduct. He was properly convicted after a fair trial in which he was confronted with his accusers and given the opportunity to challenge them. He dismally failed to discredit the two important witnesses. The court explained his rights, as set out in s 188 and 189 of the Criminal Procedure and Evidence Act, [Chapter 9:07]. He gave his evidence and was allowed to call witnesses to vouch for him. He had not witnesses to call to his defence.

I am therefore satisfied that the proceedings, that far, were in accordance with real and substantial justice.  I therefore confirm the conviction.

As for the sentence, I am unable to certify it in its present form.

I make this remark because in essence, the accused was sentenced twice for one offence. The first sentence is a straight custodial term of six months. The second sentence is a fine with an alternative of an imprisonment term if the fine is not paid.

Clearly the sentence is incompetent.

It would appear that the trial court was moved by the fact that the accused was a repeat offender. He had a previous conviction for a similar offence committed earlier that year 2017 for which he was sentenced to 18 months imprisonment. Six months were suspended for five year on condition of good behaviour.

In light of the above the accused cannot benefit from a suspended sentence as he had breached the condition of imprisonment of the six month jail term on CRB 1047/17. The suspended sentence ought to be brought into effect.

Consequently the sentence imposed in the court a quo is set aside and the following is imposed

“6 months imprisonment. The 6 months imprisonment imposed on accused on CRB 	1047/17 on 12 April 2017 is ordered to be brought into effect.”

MANGOTA J: agrees …………………………………