S v NDEBELE 1988 (2) ZLR 249 (HC)

Flynote

Criminal procedure — courts — record of proceedings — requirement to keep full and comprehensive record — effect of failure to do so — amendment of record — effect of informal amendments — prosecutor — duties of — concessions by — impropriety of accepting unjustified or unsupportable allegations by defence.

Criminal procedure (sentence) — road traffic cases — previous convictions over ten years old — not to be ignored — all convictions to be taken into account had disregarded only after judicious examination.

Headnote

All courts are courts of record and are required to keep full and comprehensive records of all proceedings. Failure to do so amounts to gross irregularity. In addition, ss 163(4), 190 and 255(3) of the Criminal Procedure and Evidence Act [Chapter 59] specifically require a magistrate to record the matters there mentioned. The need to keep a record is obvious: in the absence of such a record, how is a review or appellate tribunal to assess the correctness and validity of any proceedings placed before it? There also exists a prohibition against correction or reconstruction of the record, except in accordance with defined rules and only in exceptional cases.

Although a prosecutor is dominus litis, he is not entitled thereby to accept as evidence allegations which are unjustified or unsupported by the probabilities or other evidence. Like a magistrate, he is required to bring his mind to bear on the case before him and to exercise his discretion within the framework of his role and the law. He is not entitled to make concessions merely to get rid of a case. On the question of evidence in mitigation, he is required to adopt the same stance; he cannot stand passively by and let the accused present a one-sided picture. To do so is a failure to discharge his duties correctly.

Where an accused person pleads guilty before a magistrate and the prosecutor accepts the plea, it is the magistrate's duty to determine which of paras (a) or (b) of s 255(2) of the Criminal Procedure and Evidence Act is the more appropriate procedure to adopt. The prosecutor may oust that discretion by categorically and unequivocally electing to proceed on a certain charge, but the view that the magistrate is an automated slot machine, designed to dispense a required item at the request of the State or the defence, is patently wrong. A note of caution should be sounded against the mechanical application by sentencing authorities of the practice, in road traffic cases, of disregarding convictions ten or more years old. Sections 45(4) and 46(4) of the Road Traffic Act 1976 require a court convicting any person of contravening those sections to take into account any previous convictions for the same or similar offences committed at any time within the previous ten years, while ss 54 and 55 entitle a court to take into account any previous convictions in respect of any offence under the Act. Having regard to those provisions and the interests that the legislature seeks to safeguard through the enforcement of the Road Traffic Act, all previous convictions, regardless of their age, which are connected with the driving of motor vehicles, are to be taken into account and should be disregarded only after a judicious examination and a judicial appreciation of their relevance.