THE STATE

versus

SHINGIRAI MUENDAWOGA

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE,  28 January 2004

Criminal Review

          BHUNU J: The accused was charged and convicted of theft on the 4^thof  September 2003.  Nothing much turns on conviction.

          It is the sentencing procedure adopted by the trial magistrate which the learned scrutinising Regional Magistrate has brought to question.

          The record shows that on the 4^thof September 2003 the accused was remanded to 8^thSeptember for sentence.  On the 8^ththe accused was further remanded to the 10^thfor sentence.

          He was eventually sentenced on the 10^thSeptember 2003.  Against that date the trial magistrate endorsed:

          "Sent(enced) in absentia."

Upon a query being raised by the learned Regional Magistrate whether it was appropriate  to sentence a convict in absentia, the trial magistrate made an about turn and denied that he sentenced the accused in absentia.

          He explained that the endorsement related to the 8^thSeptember because  on that date the accused was not brought to court from prison necessitating a further remand to the 10^thSeptember.  He was adamant that the accused appeared before him on the 10^thSeptember when he sentenced him.

          That might very well be so, but the trial magistrate is bound by the four corners of the written record of proceedings.  He cannot supplement or correct it by written or oral evidence.

          In the recent case of Sailos Ndlovu v The State and  The State v Tawanda Mataruse, HH 219/2003, UCHENA J after surveying a number of authorities was  at pains to emphasise the need for magistrates to keep a comprehensive and accurate record of proceedings made at the time of the proceedings.

          It is not necessary  to regurgitate what the learned judge said in that judgment as it is sufficiently lucid, self-explanatory and instructive.

          The long and short of it all, is that judicial officers save in exceptional circumstances are strictly bound by the four corners of the written record of proceedings made during the course of proceedings.  They cannot subsequently supplement, amend or vary the record of proceedings.  Once the proceedings are recorded the record becomes res ipsa loquitor, that is, it speaks for itself.  No one can speak on its behalf including the author.  The record should be left to speak for itself at all material times without interference or adultration.

          A record of proceedings is evidence of the proceedings presided over by the magistrate.  That being the case the rules of evidence come into play.  The rule forbidding the supplementing of the record of proceedings is akin to the parole evidence rule.

This rule is a rule of contract which stipulates that once a contract is reduced to writing the written document is deemed to be the exclusive memorial of the parties' agreement.  No evidence to prove its terms may be given - See Union Government v Vianini Ferro Concrete Pipes (Pty) Ltd 1941 AD 43. In the context of court proceedings the general rule becomes:

          "Once a judicial officer has made a written record of court

proceedings the written record shall constitute the exclusive

memorial of the proceedings."

          It is a legal requirement that the court proceedings be recorded in writing.  Section 5(1) of the Magistrates' Court Act [Chapter 7:10] provides that every magistrate's court shall be a court of record.

Thus the trial magistrate is required to keep a comprehensive and accurate record of proceedings. It is also trite that

the proceedings are as recorded by the magistrate.  That being so noone can alter, vary, amend or rectify the record of proceedings without the consent of all the parties concerned without offending against the record as contemporaneously recorded by the magistrate.

          To allow the record to be amended willy-nilly after the proceedings is to open the door to errors, distortions and inaccuracies arising from faulty memory or down right dishonesty.

          In so saying I am by no means suggesting that patent errors many not be corrected or rectified.  This may be done with the concurrence of all the parties concerned.  The trial court may seek rectification of the record from the reviewing court after providing sufficient basis for the amendment or variation sought.

          For instance if the trial magistrate apart from his mere say so had produced prison records showing that the accused was not brought to court on the  8^thbut on the 10^thwhen he was sentenced the reviewing court could accept that the endorsement on the record was a patent error and allow rectification of the record.  This he did not do.

          His explanation defies logic and as such cannot possibly be correct.  If the endorsement was prompted by the accused's non appearance at court on the 8^ththen the magistrate would undoubtedly have recorded "remanded in absentia" against that date instead of recording "Sent(enced)  in absentia" against the 10^th.

          The accused was sentenced to a wholly suspended sentence.  In the normal run of things I would have quashed the proceedings and remitted the matter to the trial court to reconsider sentence in the presence of the accused as is required by law.  I however consider it unduly vexatious to  recall the accused when he now considers the mater to be over and done with.  There will be no serious prejudice because from the record it appears that the accused had addressed the court in mitigation of sentence at the time of his conviction on the 4^thSeptember 2003.  The fact however still remains that there was no strict adherence to the legal requirements in that  according to the record sentence was pronounced in his absence without him being appraised

   of the reasons thereof.  That being the case I am unable to certify these proceedings as  being in accordance with real and substantial justice.

I accordingly withhold my certificate.

BHUNU J:………………………………………….

UCHENA J, agrees:……………………………….