Court name
Harare High Court
Case number
CRB KK 1062 of 2010
CRB KK 1063 of 2010

S v Ncube & Ors (CRB KK 1062 of 2010, CRB KK 1063 of 2010) [2011] ZWHHC 139 (23 June 2011);

Law report citations
Media neutral citation
[2011] ZWHHC 139
  1. THE STATE

versus

MORRISON NCUBE

and

IGNATIOUS SIBANDA

and

BHEKEZELA MOYO

and

PARABLE MAPOSA

 

  1. THE STATE

Versus                                                                                                

MICHAEL RUSONDO

and

TAMUKA KENNETH

 

HIGH COURT OF ZIMBABWE

MAWADZE J

HARARE, 24 June 2011

 

Criminal Review

 

MAWADZE J:  Both matters were dealt with by the same provincial magistrate sitting at Kwekwe and the issues which exercised my mind are common to both cases.

The facts giving rise to the charges and convictions in both matters can be summarised as follows:

 

  1. MORRISON NCUBE AND 3 ORS

All the four accused persons are juveniles attending school at Fatima High School and are in Form 4. Accused 1 is aged 17 years, accused 2, 16 years, accused 3, 17 years and accused 4, 16 years. They all pleaded guilty to the charge of contravening s 113 (1) of the Criminal Law (Codification and Reform) Act [Cap 923] (theft). They were duly convicted and each accused was sentenced to corporal punishment of two strokes on 6 October 2010.

The brief facts outlined are that on dates unknown to the State but between November 2008 and April 2009 the accused persons stole 20 computer speakers, one monitor, one mouse and two keyboards, the property belonging to the school valued at R2000-00. The theft was only discovered by the School Development committee after an audit of assets was done and a report was made to the police leading to the arrest of the four juveniles. Property valued at R400-00 was recovered.

The circumstances surrounding the commission of the offence had not been fully outlined in the statement of agreed facts and no meaningful mitigation was recorded by the learned magistrate. I therefore raised the following issues with the trial magistrate:

“1.Who represented or assisted the four minor children during the proceedings?

  1. Where were the two keyboards and the monitors when they were stolen as the State outline is silent on this.
  2. What did the four minors do with the property which was not recovered and where was the other property recovered?
  3. Why did the trial magistrate not record meaningful mitigation to ascertain circumstances surrounding the commission of the offence or reasons for committing the offence. In the alternative why were probation officers’ reports not sought?”

 

The response by the learned magistrate is as follows:

 

“1.The four minor children were not represented or assisted during the proceedings.

 

  1. The keyboard and monitor were at Mr Mlotshwa, a teacher’s house. It is not very clear where exactly they were at Mr Mlotshwa’s house.

 

  1. This was not canvassed.
  2. It had taken hours before a probation officer’s report could be availed. I agree that it was a misdirection on my part not to canvass meaningful mitigation to ascertain the circumstances surrounding the commission of the offence. I am grateful to the observations made and I have taken note”.

 

Let me hasten to point out that the record of proceedings does not show that a requests for a probation officer’s reports was ever made as all the four juveniles pleaded guilty on 6 October 2010 and were duly convicted and sentenced on that same day.

I turn to the second matter.

 

  1. MICHAEL RUSONDO AND ANOR

Both the accused’s ages in the charge sheet and State outline are given as 18 years. Accused 1 who stays with his parents was a form 3 student at Manunure High School in Kwekwe at material time and accused 2 also in form 3 at a local private college in Kwekwe and was staying with his mother.

Both accused were charged and convicted on their own pleas of guilty of two counts involving firstly contravening s 131 (1) of the Criminal Law (Codification and Reform) Act Chapter 9:23 – unlawful entry and secondly contravening s 113 (1) of the same Act – theft. Both counts were treated as one for purposes of sentence and each accused was sentenced to corporal punishment of two strokes. In addition each accused was sentenced to three months imprisonment wholly suspended on the usual conditions of good behaviour.

The agreed facts are that on 16 July 2010 at about 2030 hours the accused persons scaled the durawall of Booms College in Kwekwe to access the premises. They approached a window which was secured with a wire, untied it to effect entry through the window. One of the accused stood guard outside whilst the other entered into the college premises wherein they stole an L.G. flat screen monitor, a keyboard, a mouse all valued at US$200-00. They later sold the property to one Amos Mhembere and all the property was recovered.

I raised the following issue with the learned magistrate:

“How old are the two accused persons. Both the charge sheet and the State outline indicate that they are 18 years old. It was only in mitigation that both said they were 17 years old. No attempt was made by the court to clarify this contradiction or to seek the State’s views or to inquire into their dates of birth. No proof of age was sought by way of a dentist reports or birth certificates as both accused are pupils in Kwekwe. No reasons are given why the magistrate believe they are not 18 years old but 17 years old. Their parents or guardians were not called and asked about the issue of age despite that the parents were said to be at home. Is there no danger of treating 18 year old persons as 17 year old persons thereby imposing an incompetent sentence?”

 

The response by the learned magistrate is very brief and is as follows:

 

“I agree that I could have done more to ascertain the actual correct age of the accuseds. I just took the word of the accuseds. I have noted this shortcoming I am sorry”.

 

The common thread which runs through both matters in casu is the failure by the learned magistrate to properly deal with cases involving children in conflict with the criminal law. Judicial officers should always understand and bear in mind that children in conflict with the criminal law are a special category of offenders for which there are specific and peculiar legislative provisions designed to deal with such offenders both within our jurisdiction and other international conventions.

Useful guidance can be sought from both the United Nations Convention on the Rights of the Child (1990) and the African Charter on the Rights and Welfare of the Child (1999) (hereinafter the convention and the charter respectively. In specific terms Article 17 of the Charter deals in some useful detail with the administration of juvenile justice in relation to children in conflict with the criminal law. Guidelines are given on issues like arrest, detention, presumption of innocence, legal representation and other related matters. Article 40 of the Convention sets out what may be deemed to be minimum standards to be met by the criminal justice system in dealing with children in conflict with the criminal law.

In our jurisdiction the Criminal Procedure and Evidence Act [Cap 9:07]. See ss 191, 195, 196, 197, 351, 352 and 353 and the Criminal Law (Codification and Reform Act) [Cap 9:23]. (See ss 6, 7, 8, 63 and 70) have a number of sections that specifically provide for how the courts should deal with juvenile offenders and juvenile witnesses who are both in contact or in conflict with the criminal law.

Let me now turn to the misdirection I noted in the matters in casu. The convictions in both cases are in order and raise no issues save to indicate that the trial magistrate should as a matter of practice indicate that the proceedings involving a juvenile or juveniles were held in camera. I presume magistrates are adhering to this requirement and that the omission only relates to failure to so endorse on the record of proceedings. I hope and pray I am correct in this regard.

Section 191 of the Criminal Procedure and Evidence Act [Cap 9:07] provides that if a child is below 16 years and is being tried in the magistrates court he/she may be assisted by a natural or legal guardian or the court may appoint another person to assist the juvenile. In both matters dealt with by the trial magistrate the natural or legal guardians of the juveniles were not even present during the proceedings. One may argue that in casu the juveniles were 16 years or above but my strong view is that this practice should be extended to all juveniles. In fact it is desirable for such children to be legally represented. I am persuaded in this view by the fact that in our civil law it is clear that minors or juveniles cannot represent themselves in any proceedings but in our criminal justice system such minors are given capacity to represent themselves as it were. I find this to be harsh and in violation of the children’s rights as enshrined in both the Charter and the Convention. GILLESPIE J in the case of S v C 1997 (2) ZLR 395 H made this poignant observations:

 

“The concept of placing of a juvenile particularly a very young child unrepresented and unassisted by its parents on trial before a magistrate is one that is inherently repugnant. The same juvenile would be regarded in civil court as incapable of enforcing or defending its rights. What is different is that the criminal system of justice affords the unassisted minor the capacity to defend himself. It might well be thought that to place such a child in a position where he or she is expected to conduct his own defence in an alien environment in adversary proceedings is to expect far too much” at p 400 G – 401 A.

 

In the case of S v Michael Rusondo & Anor the trial magistrate did not ascertain the ages of the accused persons. The query I raised and the trial magistrate’s response fully canvases this point. The issue of age of a juvenile offender is a very crucial factor to which the court should apply its mind in all criminal proceedings. In fact I would venture to suggest that the inquiry into the juvenile offender’s age should start at the time of arrest if we are to properly protect the rights of children in conflict with the criminal law. I cannot do no more than to associate myself with the incisive views of GILLESPIE J in S v C supra  in which the learned judge stated that where a child is put on trial an inquiry into the child’s age must be made because from that inquiry many other important considerations flow. If the child is under 14 years at the time of the alleged offence, the first decision is whether there is evidence to displace the presumption that the child did not have criminal capacity. Even if such evidence is available, the next question is whether as a matter of policy such a young person should be subjected to the might of the criminal justice system. Other methods of dealing with such an offender might be appropriate. It is my fervent hope that the proposed system of diversion which currently at pilot stage earmarked for Harare, Bulawayo and Gweru would be implemented with due haste.

In the case of S v Michael Rusondo & Anor the trial magistrate proceeded to deal with the offenders without even knowing if they are juveniles or not. The misdirection is obvious. The sentence of corporal punishment is for male persons under the age of 18 years. See s 353 (1) of The Criminal Procedure and Evidence Act [Cap 9:07]. The real danger is that the trial magistrate most probably subjected the accused persons to an improper and incompetent penalty or sentence. I am therefore unable to certify such proceedings to be in accordance with real and substantial justice.

In the case of S v Morrison Ncube & 3 Ors the trial magistrate firstly did not request and or obtain the probation officers’ reports in respect of the four juveniles. No good cause is given for such an omission. Secondly, no meaningful inquiry was made either in relation to the circumstances surrounding the commission of the offence or circumstances peculiar to the offenders. Their parents or guardians were not called to assist nor were school authorities called to shed light in the matter.

Our courts have always emphasised the need for the trial court to carry out a full and meaningful pre-sentence inquiry in order to arrive at an appropriate sentence. See S v Sparks 1972 (3) SA 396, S v Manwere 1972 RLR 139 (A), S v Shariwa 2003 (1) ZLR 314 (H), S v Ngulube 2002 (1) ZLR 316.

The need for the probation officer’s reports in cases of this nature cannot be emphasized. See S v Tendai & Anor 1998 (2) ZLR 423 (H). I am aware of the challenges the magistrates face in their dealings with other stakeholders like the department of Social Welfare. In my view that can never be a just cause to proceed and sentence juvenile offenders without gathering all useful information to guide the court on the question of sentence. I totally associate myself with the views expressed by MAKARAU JP (as she then was) in S v Moffat Mavasa HH 13-2010 at pp 3 -4 of the cycostyled judgment wherein the learned JP said:

 

“The issue that has presented itself to me is that even in the absence of a probation officer and probation officers’ reports, a trial court handling the matter of a juvenile may be innovative and seek to involve the family of the juvenile before coming up with a management scheme or sentence. To simply proceed without both the probation officer’s report and involvement of the juvenile’s family is in my view akin to proceedings in complete darkness ………… I would venture to suggest that trial magistrates in similar positions should be innovative and seek to gain an insight into the circumstances of the juvenile before them from other reliable sources such as school, family or community of the accused. A little bit of light is always better than no light at all in my view”.

 

I have noted with great concern the enthusiasm by quite a number of magistrates to sentence juvenile offenders to corporal punishment even for non serious offences. This may be an easy way out in disposing of a matter. My strong conviction however is that in dealing with juveniles in conflict with the criminal law our primary concern is to safeguard the rights of these children rather than to complete the proceedings as quickly as possible. By doing so we may end up imposing a retributive rather than a rehabilitative type of sentence.

While it remains debatable if corporal punishment was suitable in both cases in casu, magistrates should in most cases involving juveniles in conflict with the criminal law refer such cases to the children’s court where other various options of dealing with the juveniles are available. Magistrates should note that it is not possible to correct a misdirection on review where corporal punishment has been imposed except for academic purposes.

On the basis of the foregoing I am unable to confirm the proceedings in both cases as in accordance with real and substantial justice. I therefore withhold my certificate in respect of both matters.