Judges lash ‘disingenuous’ magistrate for ‘mind-boggling’ action

22 February 2019 · Carmel Rickard

A provincial magistrate has come under fire from two judges of the high court in Zimbabwe for “conducting himself as a loose cannon” and for not telling the truth to an accused about what the judges had ordered in their review of the original trial court sentence. The magistrate first imposed a hopelessly lenient sentence on a bus driver whose negligence directly caused the death of six people and then misrepresented to the accused the high court’s order on review. The judges said the magistrate’s behaviour was “mind boggling”, that he had been “untruthful”, had “taken leave of his senses” and “embarked on a frolic of his own”. They also ordered that their judgment be brought to the attention of the chief magistrate who was to ensure that the conduct of the magistrate concerned “is not repeated”.

Read the judgment on ZimLII here

THE unusually strong criticism of the high court judges in this matter was directed at an unnamed provincial magistrate who made a mess of sentencing an accused and then made the situation worse by not following the order of the judges in their review of the case.

In April 2018 the accused pleaded not guilty to charges of culpable homicide. He had been driving a bus with 27 passengers on board and overtook a number of vehicles on a curve where he could not see what was ahead. As a result, he had a head-on collision with another vehicle, killing all six people in that vehicle.

The facts made his negligence abundantly clear and he was convicted of culpable homicide. But his sentence was a mere $1000 fine or six months in prison.

Despite the provisions of the law, his licence was not revoked and he was only prohibited from driving any vehicle for six months. At this point in the review decision Judge Garainesu Mawadze, who wrote the decision with the agreement of Judge Joseph Mafusire, added two exclamation marks, adding “Needless to say this sentence induces a sense of shock for its leniency.”

But the accused obviously did not see things in the same light and, as the judges put it, “had the temerity” to challenge both conviction and sentence, “callously suggesting” that a fine of just $400 would have been more appropriate.

“The accused’s sense of justice is warped to say the least,” commented the judges, “and his lack of contrition is beyond measure.”

The two judges slated to hear the matter both “eagerly” wanted to hear what argument would be advanced on behalf of the accused to justify his claim that a lesser fine should have been imposed. But neither the accused nor his counsel pitched up in court and the appeal was dismissed.

During the hearing, however, the court asked counsel for the state about the sentencing anomalies: the “manifestly lenient” sentence and the failure to apply the law making it mandatory in such cases to cancel the driver’s licence of the accused, and to bar him for life from driving public service vehicles and other heavy vehicles.

There was general agreement in court that the way forward would be for the judges to send the matter back to the magistrate to deal with the question of the compulsory licence cancellation. As to the lenient sentence, the judges said they could do nothing about increasing it because neither the accused nor his lawyers had been present in court. If they had been there “we would have, without doubt, interfered with the substantive sentence … by setting (it) aside and substituting it with a custodial sentence of not less than two years”.

They therefore granted an order in default, noting that the sentence passed was “manifestly lenient” and sending the case back so the trial court could comply with the Road Traffic Act in relation to cancelling the driver’s licence.

What actually happened, however, is that when the accused was called back to court, his original sentence was changed. The record reads, “Sentence altered as per Judge’s request to imprisonment,” with the accused now given three years in jail, six months of which were suspended.

When they discovered what had happened the two judges said it was a “mind boggling” development. Why, in claiming to carry out the high court’s order, had the magistrate “decided to mislead the accused” by saying that the judge had directed him to be sentenced to jail? It was “disingenuous” for the magistrate “to untruthfully suggest, let alone allege that this court ordered him to alter the … substantive sentence”.

The magistrate had obviously “simply decided to take leave of his senses and cause further confusion in this matter by embarking on a frolic of his own.”

The accused now had two separate sentences for the same matter, something that was “clearly improper and incompetent”, and the high court had to fix the problem. Though it was clear that the accused should have had a “harsher penalty” than that initially imposed, the high court could do nothing about the resulting injustice. But it would have to fix the situation created by the second sentence though setting aside the jail term, the refund of the fine and the incorrect order about a six-month driving prohibition, while upholding the correct prohibition and cancellation of the driver’s licence as provided under the Road Safety Act.

Even after these changes, however, the judges said they would still not be able to certify that the proceedings were “in accordance with real and substantial justice” because of the paltry sentence imposed by the magistrate – a sentence that had to remain in place despite the magistrate’s “improper” and “misplaced endeavour” to alter it.

* First appeared as "A matter of justice" in Legalbrief

Carmel Rickard

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