S v Likwenga & Ors 1999 (1) ZLR 498 (H), referred to

S v Tsangaizi 1997 (2) ZLR 247 (H), followed

Legislation considered:

Constitution of Zimbabwe, 2013, ss 69, 171 (1)(a)

Criminal Law (Codification and Reform) Act [Chapter 9:23], s 47 (1)

High Court Act [Chapter 7:06], ss 3 (b), 8, 8 (4), 13, 23

F Chimbari, for the State

C Zindi, for the accused

MAWADZE J:

The legal issue which falls for determination in this criminal trial relates to the proper procedure to be adopted where both assessors are incapacitated or are deceased. Indeed, it would be remiss for me not to pay my heartfelt condolences to both Mr Tutani and Mrs Shava (whom we affectionately referred to as Gogo Shava) for their sterling contribution to the criminal justice system at this Court for many years. Indeed, may their dear souls rest in eternal peace.

A brief background of the matter is in order and would put the issue into its proper prospective.

The accused is facing a charge of murder as defined in s 47 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that on 30 June 2015 at Mupandaguta Farm in Banket he unlawfully and with intent to kill murdered Roza Roki by assaulting her with sticks, a belt and booted feet all over the body causing injuries from which Roza Roki died.

The facts in this matter are largely common cause.

The accused is a member of the Zimbabwe National Army who was based at Magunje. The accused would occasionally visit Plot Number 20 Mupandaguta Farm owned by his uncle, Farai Zharara and would share a room with one of the workers at that farm one Julius Chapwanya.

On 29 June 2014, the accused was at the said farm and went to the bar at the farm where he hooked up with the now deceased, Roza Roki, a lady of the night at about 11:00 pm. The accused took the now deceased to his place of abode at the farm in the room he shared with the said Julius Chapwanya who was already asleep. Both the accused and the now deceased were apparently heavily intoxicated. While in the room a misunderstanding arose between the accused and the now deceased as the now deceased had proceeded to lie on Julius Chapwanya's bed presumably in her drunken stupor. The accused also alleged that the now deceased had stolen his US$ 5. The accused and the now deceased then left the room still quarrelling. The accused armed himself with a belt from his army uniform and started to assault the now deceased using the belt, sticks and booted feet. The now deceased cried out for help and one Tawanda Chigoriro who resides at a neighbouring farm and was coming from a church service with his wife answered to her distress call. He found accused assaulting the now deceased with the belt and booted feet and had uprooted the now deceased's braids. The now deceased was seated bleeding from the head.

Tawanda Chigoriro managed to temporarily persuade the accused to stop the assault but as soon as he left the assault resumed. This prompted Tawanda Chigoriro to rush and alert the accused's uncle one Farai Zharara who rushed to the scene. When accused saw Farai Zharara he fled from the scene and was only arrested the next day. Meanwhile the now deceased who had been badly injured was ferried to hospital where she later died. The post mortem report shows the cause of death as neurogenic shock caused by the injuries inflicted and asphyxia due to neck trauma.

The accused pleads voluntary intoxication and attributes his conduct to his heavy state of intoxication. In fact, the accused pleads guilty to the charge of culpable homicide, a concession not accepted by the State.

The trial commenced on 8 July 2015 and Dr Mawell Mudanwa who compiled the post mortem report, Tawanda Chigororo, Julius Chapwanya and Farai Zharara testified on that day in the morning. When we were about to resume trial in the afternoon, and on our way to the court room Mr Tutani, the assessor, almost collapsed and indicated he was unwell. We then postponed the matter in the hope that he would recover. In fact, this was the last day for Mr Tutani to attend to his duties until his demise. Meanwhile in September 2016 I transferred to the newly opened Masvingo High Court and Mrs Shava passed on during the third term of 2016. I am also informed by Mr Chimbari for the State, that Mr Zindi who was the accused's pro deo counsel resigned from Mtetwa & Nyambirai Legal Practitioners and has since relocated to South Africa. It is therefore a culmination of these tragic and unfortunate developments which made it impossible for this trial to resume when I came on 7 December to deal with my partly heard matters.

I now turn to the legal issue which arises in this matter.

In terms of s 3 (b) of the High Court Act [Chapter 7:06] ("the Act"), the High Court shall be duly constituted for the purposes of hearing a criminal trial if it consists of one judge and two assessors. This means that since the two assessors are now deceased this Court is no longer duly constituted and is incapacitated. It is a rather unusual situation in that the Act seems to only provide for the procedure where only one of the assessors is incapacitated and not both of them.

Section 8 of the Act provides as follows:

"8 Incapacity of assessor in criminal trial

(1) If at any time during a criminal trial in the High Court one of the assessors dies or becomes, in the opinion of the judge, incapable of continuing to act as assessor, the judge may, if he thinks fit, with the consent of the accused and the prosecutor, direct that the trial shall proceed without that assessor.

(2) Where the trial proceeds in pursuance of a direction given in terms of subsection (1), the decision of the court shall be unanimous.

(3) If, in the circumstances referred to in subsection (1) –

(a) the judge does not, in terms of that subsection, direct that the trial shall proceed without the assessor referred to in that subsection; or

(b) the court is unable, as required by subsection (2), to agree on a decision on any charge in the indictment,

the accused, unless already on bail, shall remain in custody and may be tried again:

Provided that a judge of the High Court may, in terms of Part IX of the Criminal Procedure and Evidence Act [Chapter 9:07], release the accused on bail.

(4) If the court is unable, as required by subsection (2), to agree on a decision on any charge in the indictment and the accused is again tried on such charge, the judge and the assessor who were members of the court which failed to agree as aforesaid shall not be competent to be members of any subsequent court constituted to try the accused on that charge."

My view is that by reading s 8 of the Act one may infer that where both the assessors are no longer available the court cannot be properly constituted to hear a criminal matter. While the legislature has for some strange reason not expressly provided for such a scenario, I have no doubt in my mind that the trial in such circumstances cannot proceed and that there must be a trial de novo. I am fortified in this view by using parity of reasoning in the case of
S v Tsangaizi 1997 (2) ZLR 247 (H) at 249D-E where GILLESPIE J said:

"The principle is that if during the course of proceedings a judicial officer ceases to have jurisdiction then the proceedings up to that point are abortive... The part-heard matter is accordingly a nullity and may be commenced afresh. Without any order of a higher court setting aside the incomplete proceedings."

This means that in the absence of the two assessors the proceedings have become a nullity simply by operation of the law. There is, therefore, no need to quash the proceedings as it were. As was said in the case of S v Likwenga & Ors 1999 (1) ZLR 498 (H) at 503-504 there was no need to approach the High Court (in case of proceedings held in the magistrates' court) where the proceedings became a nullity as such a matter could be commenced afresh without obtaining an order of the High Court. In any case the High Court, as provided for in s 171 (1)(a) of the Constitution of Zimbabwe, 2013 ("the Constitution") is a court of inherent jurisdiction. See also ss 13 and 23 of the Act. It would therefore be competent for me to order a trial de novo in the matter. The Prosecutor-General is at liberty to commence the proceedings afresh.

The next issue which exercised my mind is whether this matter should be placed before me if the proceedings are to be commenced afresh. I do not think so. Using the parity of reasoning in s 8 (4) of the Act it would be proper to place this matter before another judge. In terms of s 69 of the Constitution, the accused has a right to a fair hearing. My mind is tainted as I have already heard the evidence of some of the State witnesses. I have already formulated certain impressions on the demeanour of those witnesses. It would therefore be folly to expect that I would approach the same witnesses with a clear mind when they appear again. The justice of the matter demands that a different judge deals with this matter.

Lastly, I am aware the accused has been in custody for a long time waiting for the finalisation of this matter. The accused is at liberty to seek bail pending trial before any other judge.

Accordingly, I have ordered that this matter be heard de novo and before a different judge.

National Prosecuting Authority, counsel for the State's legal practitioner

Mtetwa & Nyambirai, pro deo counsel for the accused's legal practitioner