REPORTABLE (3)

Judgment No. SC 4/08

Crim. Appeal No. 169/06

THE STATE v NQOBILE SIBANDA

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA  JA & GWAUNZA  JA

HARARE, FEBRUARY 19 & MARCH 10, 2008

C Mutangadura, for the appellant

L Mazonde, for the respondent

CHIDYAUSIKU  CJ:

This is an appeal against the judgment of GARWE JP (as he then was) that there be a trial de novo in this matter.

The facts of the matter were very ably summarised by the court a quo, to be the following -

The respondent was on 16 July 2002 convicted of murder with actual intent following a trial. The proceedings were thereafter adjourned at the instance of the respondent to enable him to submit evidence on the question of extenuation. On 18 July 2002, however, JUSTICE BLACKIE retired from the High Court Bench before the issue of extenuation had been determined. The matter has to date not been finalised owing to developments that occurred not long after the trial Judge retired.

In September 2002 JUSTICE BLACKIE was arrested on allegations that he had attempted to defeat the course of justice in a matter involving one Tara White. He was thereafter placed on remand. In response to a query by the Registrar of the High Court as to when he would be available to complete six part-heard criminal and civil matters, the Judge advised the Registrar in November 2002 that since he was facing criminal charges he would not be coming back to finalise these matters until he was cleared of those charges.

In June 2003 the charges against JUSTICE BLACKIE were withdrawn before plea. In response to a further minute from the Registrar the Judge advised in a letter dated 20 January 2004 that although the charges against him had been withdrawn before plea he would not be returning to deal with any matter since the State had refused to withdraw the charges after plea and had reserved to itself the right to proceed against him in future. Further attempts by the Registrar to communicate with the Judge proved fruitless. The Registrar would deliver mail at a local address but the Judge would post his response from South Africa, without giving his contact address or telephone numbers.

In February 2005 the Director of Public Prosecutions advised by letter that “prosecution had been declined”. A letter to this effect was sent to JUSTICE BLACKIE using his local address. In the letter the Registrar also requested the Judge to indicate when he would be available to finalise his part-heard matters since the State had now indicated it was no longer proceeding with the prosecution. The letter was returned to the Registrar with the inscription “Based in South Africa”.

The current situation therefore is that there is no realistic chance that the Registrar can communicate with the Judge or that the Judge will be coming back to determine his part-heard matters. Some of the judgments have been pending since the year 2000. Even at the time the Judge retired there had been undue delays in the handing down of some judgments but this only came to light after his retirement.

It is therefore common cause that the trial Judge became unavailable upon delivery of the verdict but before extenuation and sentence. The issue that fell for determination was set out by the learned JUDGE PRESIDENT in the following terms at p 2 of the cyclostyled judgment:

“In the case under consideration the trial Judge convicted the accused of murder with actual intent. He then retired before determining the issue of extenuation. The question that now arises is whether another Judge can take over the proceedings at this stage and thereafter determine the matter.”

The learned JUDGE PRESIDENT concluded that the proceedings before BLACKIE J had become a nullity and that another Judge could not take over the proceedings and conclude them. The learned JUDGE PRESIDENT cited a number of authorities in support of his conclusion. I shall revert to those authorities later in my judgment.

The State submitted that once the juridical verdict of murder had been entered, the second enquiry as to whether or not extenuating circumstance exist is a sentencing issue, which issue another Judge can deal with in terms of s 337 of the Criminal Procedure and Evidence Act [Cap. 9:07] (hereinafter referred to as “the Act”. The court a quo rejected this submission. The appellant advanced the same submissions before us.

The reasoning of the learned JUDGE PRESIDENT in rejecting the contention of the State is set out at pp 4-6 of the cyclostyled judgment. He reasoned thus:

“In terms of s 3(b) of the High Court Act [Chapter 7:06] the High Court shall be duly constituted, for the purposes of hearing a criminal trial, if it consists of one Judge of the High Court and two assessors. In terms of subsection (2) of the Act, any question of fact arising at a criminal trial in the High Court shall be decided by the majority of the court. In terms of subsection (3), at any criminal trial in the High Court, the Judge shall have the sole responsibility for fixing of the sentence, but he may consult the assessors if he thinks fit. From the above provisions it is clear that whilst the question of sentence is to be determined by the Judge, issues of fact arising during the trial are to be decided by the Judge and the two assessors. As stated by Gardiner and Lansdown, South African Criminal Law and Procedure 6 ed vol 1, at p 348:

‘It is to be observed that the assessors are members of the Court only for purposes of the trial, and that their oath is to give a true verdict according to the evidence upon the issues to be tried …’.

On what constitutes ‘a trial’ the learned authors state on the same page:

‘A trial is the determination of the matters put in issue, and it concludes with the verdict or, in the case of a verdict of guilty of murder, with the decision of the question whether there are extenuating circumstances.’

On a careful analysis of the law, it is clear that although the Judge and the assessors are required, after convicting an accused person of murder, to consider the question of extenuation, in reality there is but one composite verdict of guilty with or without extenuating circumstances.

In R v Taylor 1949 (4) SA 702 (at) 717 SHCREINER JA stated:

‘It is clear that in arriving at a conclusion as to whether to express the opinion that extenuating circumstances are or are not present a jury, or court of judge and assessors, has not only to find facts relevant to the subject of extenuation but has also, after considering those facts and the extent of their probable influence on the accused’s conduct, to form what is essentially a moral judgment as to whether the circumstances ought to be characterised as extenuating. … The expressed opinion by the triers of fact that extenuating circumstances are or are not present is not part of the sentence or part of the Judge’s reasons for sentence; it is a distinct procedural step in relation to the power to sentence a convicted murderer …’.

In S v Dehwe 1987 (2) ZLR 231 (SC) McNALLY JA stated at p 242 B-C:

‘A murder trial differs from other trials, not only in the sense that it involves a possible death sentence, but also in that it involves a consideration of extenuating circumstances at a separate and distinct stage of the trial. Because murder, more than other crimes, involves human passions whose operation may often give rise to circumstances of extenuation, it is vitally important, before a decision on extenuation is made, that the court has some impression of the motives and relationships which had led to the killing …’.

The learned JUDGE OF APPEAL went on to stress the need for the trial court:

‘… to assess the character of the witnesses, to absorb the atmosphere of the time, to gain some impression of the relationships between the accused and his fellow workers, between the deceased and the accused or indeed between the deceased and the other witnesses.’

In the case of S v Sparks and Anor 1972 (3) SA 395A (at) 404 C-G HOLMES JA had the following to say:

‘… In particular, “verdict” is traditionally understood to refer to the decision whether the accused is guilty or not guilty. Indeed, on a plea of guilty being entered, the “trial” ends, since there are then no further issues to be tried in regard to verdict; cf. sec 173. This leaves the question of sentence, including facts relating thereto, exclusively within the jurisdiction of the Judge. Findings of extenuating circumstances in murder trial provide no exception. Whether made together with the verdict of guilty or thereafter, that finding is part of the verdict …

In the result we hold that an assessor’s function does not extend beyond verdict.’

Attention is also drawn to Du Toit et al Commentary on the Criminal Procedure Act 1993 ed at 21-5.

The conclusion must inevitably be reached that a murder trial ends with the Judge and assessors making findings on the existence or otherwise of extenuating circumstances following a conviction for murder. Until that stage is reached the trial is not complete. Nor can the presiding Judge proceed on his own to determine the question of extenuation without consulting the assessors in order to assess an appropriate sentence in a given case.”

I agree with the learned JUDGE PRESIDENT’S conclusion that a murder trial ends with the Judge and the assessors making a finding on extenuating circumstances. But that is not the issue in this case. The issue in this case is not when does a trial conclude. The issue in this case is when does it become permissible in terms of the relevant statute for a Judge to take over a trial started by another Judge.

The learned JUDGE PRESIDENT accepted that the circumstances under which one Judge can take over a case commenced by another Judge were governed by ss 333 and 337 of the Act. He further concluded that in terms of the above sections this can only happen at the conclusion of the trial and in the case of a murder case at the end of the trial means after a determination on extenuation.

I have no problem in accepting that the end of a trial in a murder case includes a determination on extenuation. Put differently, I accept that a trial in a murder case concludes when the court determines the issue of extenuation.

I, however, do not accept that ss 333 and 337 of the Act provide that a Judge can only take over a case commenced by another Judge at the conclusion of a trial, in the case of a murder trial after the determination on extenuation. I say so for a number of reasons.

The word “trial” does not appear anywhere in ss 333 and 337 of the Act. If the legislature had used words to the effect that a Judge can take over a case commenced by another Judge at the end of the trial I would have no difficulty in agreeing with the conclusion of the court a quo, as it would then be abundantly clear that the intention of the legislature is that another Judge can only take over a case at the conclusion of the trial.

Section 180(6) of the Act clearly indicates that the legislature never intended to limit the take-over of a trial by another Judge to the conclusion of a trial. Section 180(6) provides as follows:

“180 (6) Any person who has been called upon to plead to any indictment, summons or charge shall, except as is otherwise provided in this Act or in any other enactment, be entitled to demand that he be either acquitted or found guilty by the judge or magistrate before whom he pleaded:

Provided that –

(i) where a plea of not guilty has been recorded, whether in terms of section two hundred and seventy-two or otherwise, the trial may be continued before another judge or magistrate if no evidence has been adduced;

(ii) where a plea of guilty has been recorded, the trial may be continued before another judge or magistrate if no evidence has been adduced or no explanation has been given or inquiry made in terms of paragraph (b) of subsection (2) of section two hundred and seventy-one.”

The above section makes it permissible for one Judge to take over a trial commenced by one Judge long before completion. The only proviso in terms of the above section is that no evidence or explanation of the plea should have been led for another Judge to take over the trial.

The respondent was found guilty by the Judge before whom he pleaded. Thus, there was full compliance with s 180(6) of the Act. Having been found guilty, can another Judge take over and hear extenuation and sentence the respondent? That situation is provided for in ss 333 and 337 of the Act, which provide as follows:

“333 Sentence in High Court

(1) If an application for arrest of judgment is not made or is dismissed, the High Court may either pass sentence upon the convicted person forthwith or may discharge him on his recognizance, as provided in Part XVIII, on condition that he shall appear and receive judgment at some future session of the court or when called upon.

(2) If sentence is not passed forthwith, any judge may pass sentence upon the convicted person. …

337 Sentence of death for murder

Subject to section three hundred and thirty-eight, the High Court –

(a) shall pass sentence of death upon an offender convicted by it of murder:

Provided that, if the High Court is of the opinion that there are extenuating circumstances or if the offender is a woman convicted of the murder of her newly-born child, the court may impose –

(i) a sentence of imprisonment for life; or

(ii) any sentence other than the death sentence or imprisonment for life, if the court considers such a sentence appropriate in all the circumstances of the case.”

I see nothing in the language of the above sections that suggests that a Judge can only take over a murder case commenced before another Judge at the conclusion of the trial or after the determination of extenuation. If the words of ss 333 and 337 are given their primary meaning, the inescapable conclusion is that the legislature authorises the take-over of a murder trial after the verdict of guilty has been reached.

Section 331 of the Act, which precedes s 333, clearly suggests that the point in time at which another Judge can take over a case is upon postponement after pronouncement of the verdict of guilty. The section provides as follows:

“331 Arrest of judgment

(1) A person convicted of an offence by the High Court, whether on his plea of guilty or otherwise, may at any time before sentence apply to that court that judgment be arrested on the ground that the indictment does not disclose an offence.

(2) Upon the hearing of the application, the court may allow any such amendment to the indictment as it might have allowed before the verdict.

(3) The court may either hear and determine the application forthwith or may reserve the question of law for the consideration of the Supreme Court and may nevertheless pass sentence forthwith.”

In terms of the above section, a person convicted of an offence by the High Court, whether on his plea of guilty or otherwise, may at any time before sentence apply to that court that judgment be arrested on the ground that the indictment does not disclose an offence. It is quite clear from the language of this section that the point in time being referred to therein is immediately after a verdict of guilty is pronounced. Upon the pronouncement of that verdict, a convicted person is entitled to make the application. The section further provides that upon hearing such an application, the court may allow the application or any such amendment to the indictment as it might have allowed before the verdict. The section further provides that the court may either hear and determine the application forthwith, or may reserve the question of law for consideration by the Supreme Court and may nevertheless pass sentence forthwith. Where a court has not passed sentence forthwith s 333 is activated. It authorises another Judge to take over the proceedings and pass sentence.

Section 332 of the Act deals with the reservation of judgment and does not really assist in determining the true meaning to be ascribed to s 333.

It is also interesting to note that s 333 is specifically headed “Sentence in the High Court” and provides in subs (1) that if an application for the arrest of judgment is not made, or is dismissed, the High Court may either pass sentence upon a convicted person forthwith or may grant him bail. The word “forthwith” can only refer to immediately after conviction. I see nothing that suggests that “forthwith” in the case of a murder trial means after determination of the issue of extenuation.

Subsection (2) of s 333 provides that if sentence is not passed forthwith, any Judge may pass sentence upon the convicted person. There is no reference therein to completion of the trial, which in turn would mean in a murder trial at the conclusion of extenuation. The critical issue is whether sentence has been passed forthwith after conviction. If sentence is not passed forthwith after conviction, s 333(2) authorises any other Judge to pass sentence upon the convicted person later on.

As I have already stated, s 333 specifically refers to sentence in the High Court. The Legislature must have known that sentencing in the High Court in murder cases involves the consideration of the existence or otherwise of extenuating circumstances. If it had been the intention of the legislature that another Judge be barred from taking over proceedings until after the determination of extenuation, I would have expected the legislature to have used more explicit language to express that intention.

To read into the language of s 333 the intention to bar a Judge from taking over a trial until after extenuation has been completed would be to stretch the ordinary meaning of the language used in that section to an extent that, in my view, would not be permissible.

The authorities cited by the learned JUDGE PRESIDENT in his reasons for judgment are indeed authorities on what constitutes a trial and when it is that a trial comes to an end.

Sections 333 and 337 of the Act are not about what constitutes a trial but are about at what point a Judge can take over a case. It is quite clear from the cited authorities that they are referring to a trial in the context of the function of assessors and when that function comes to an end, namely at the conclusion of the trial, that is, upon verdict or conviction and, in the case of murder, after a finding on extenuation.

The authorities cited by the learned JUDGE PRESIDENT relate to a South African statutory provision, whose wording bears no resemblance to s 333 of the Act. The authorities relate to ss 109(3) and 329(1) of the South African Criminal Procedure Act, No. 56 of 55. The relevant portions of the above sections provide as follows:

“109 (3) Before the trial the said judge shall administer an oath to the person or persons whom he has so called to his assistance that he or they will give a true verdict, according to the evidence upon the issues to be tried, and thereupon he or they shall be a member or members of the court subject to the following provisions:

(a) any matter of law arising for decision at such trial, and any question arising thereat as to whether a matter for decision is a matter of fact or a matter of law, shall be decided by the presiding judge and no assessor shall have a voice in any such decision; …

329 (1) Sentence of death by hanging shall be passed by a superior court upon a person convicted before or by it of murder, and sentence of death by hanging may be passed by a superior court upon a person convicted before or by it of treason or rape:

Provided that where a woman is convicted of the murder of her newly born child, or where a person under sixteen years of age is convicted of murder or where the jury, in convicting the accused of murder, expresses, in terms of subsection (2) of section one hundred and forty-one, the opinion that there are extenuating circumstances, or in the case of a trial without a jury, where the court is of opinion that there are extenuating circumstances, the court may impose any sentence other than the death sentence.”

It is quite clear from the above provisions that the passage from Gardiner and Lansdown, South African Criminal Law and Procedure 6 ed vol 1 at p 348, cited by the learned JUDGE PRESIDENT in support of what constitutes a trial, paraphrases the provisions of s 109(3), as read with s 329(1) of the South African Act.

A similar provision to s 109(3) of the South African Act is to be found in our law in s 7 of the High Court Act [Cap. 7:06], which provides as follows:

“7 Swearing in of assessor in criminal trial

Before the commencement of a criminal trial in the High Court the judge shall administer an oath to the assessors that they will give a true verdict according to the evidence upon the issues to be tried and thereupon they shall, subject to this Part, be members of the Court.”

It is quite apparent from the above that the authorities cited and referred to by the learned JUDGE PRESIDENT are relevant to sections of the South African Act which deal with what constitutes a trial in the context of the function of assessors. The South African provisions bear no resemblance to ss 333 and 337 of the Act. Indeed, the cited authorities would be very persuasive if the issue in casu were the interpretation of the provisions of s 7 of the High Court Act, whose wording is very similar to the South African provisions. The said authorities cannot be persuasive in interpreting ss 333 and 337 of the Act, whose wording bears no resemblance whatsoever to the cited South African provisions.

Further, as stated by SCHREINER JA in R v Taylor supra:

“The expressed opinion by the triers of fact that extenuating circumstances are or are not present is not part of the sentence or part of the Judge’s reasons for sentence; it is a distinct procedural step in relation to the power to sentence a convicted murderer …“. (the emphasis is mine)

I agree with the learned JUDGE OF APPEAL that determining the issue of extenuation is a process in relation to sentencing and not conviction.

I have no doubt that the language used by the legislature in ss 333 and 337 is sufficiently clear. It authorises another Judge to participate in the sentencing process after the verdict of guilty has been returned by the trial court. I accordingly will allow the appeal.

Before concluding, I wish to refer to the point in limine which was raised by the respondent.

The respondent submitted that the appellant has not complied with the Rules of the Supreme Court. In particular, the respondent contends the appeal was noted out of time and no condonation has been granted for the late noting of the appeal.

In my view, there is substance in the submission of the respondent. The Attorney-General has broken every requirement of the Rules of this Court in bringing this matter before this Court. However, in my view, a very important legal point is involved in this case and its determination is imperative. This matter has been outstanding for a very long time and dismissal of this matter for non-compliance with the Rules of this Court would lead to a serious miscarriage of justice. It would mean that the judgment of GARWE JP stands and a trial de novo takes place when in fact there should be no such trial. There is also the possibility that such trial will be set aside in the event of an appeal against the judgment in the trial de novo. In my view, this is a proper case for this Court to depart from the Rules in the interest of justice.

In the result, the appeal is allowed and the matter is remitted to the High Court for it to be completed before another Judge.

SANDURA  JA: I agree

GWAUNZA  JA: I agree

Attorney-General’s Office, appellant's legal practitioners

Gill, Godlonton & Gerrans, respondent's legal practitioners