S V MUROMO & ORS 2012 (2) ZLR 24 (H)

Flynote

Criminal procedure — charge — prosecutor's duty to prefer appropriate charge — charging accused with culpable homicide when murder was clearly the appropriate charge — a dereliction of duty on part of prosecutor

Criminal procedure — trial — stopping of — lesser charge brought when facts showed that more serious charge appropriate — duty of magistrate to stop trial and refer matter to Attorney-General

Legal practitioner — prosecutor — dominus litis — limits to — lesser charge brought when facts showed that more serious charge appropriate — court's power and duty to ensure that trial proceeds on appropriate charge

Legal practitioner — prosecutor — duty — to ensure that correct charges are brought against offenders — bringing lesser charge when serious one appropriate — failure of duty on part of prosecutor

Headnote

The accused were charged with and convicted of culpable homicide in the magistrates court and sentenced to terms of imprisonment. The trial took place over ten years after the killings took place. The killings were politically motivated and the beatings which lead to the deaths of the victims were committed right under the noses of police officers. One of the victims actually ran from his assailants to hide behind a police officer. This did not deter the assailants from dragging him from there and severely assaulting him inflicting fatal injuries. When the assailants were working on their second victim, a hapless young woman whose braids they had pulled off her head, and they were assaulting her with logs even on her private parts, police officers arrived. The assailants were even urinating in her mouth. This did not stop the savagery as they went further to dump her lifeless body at her homestead.

Held, that it was amazing that, armed with these facts, the prosecution decided to prefer lesser charges of culpable homicide when it should have charged the accused persons with murder. Although the prosecutor is dominus litis, he has a responsibility, delegated to him by the Attorney-General, to discharge a public function of prosecuting offenders. In doing so, the prosecutor must ensure that the correct charges are preferred against offenders. He fails in his duty if, for some unknown reason, he trivialises the offences by opting for lesser charges where serious ones should be levelled against the offender.

Held, further, that the magistrate, as the trier of facts with the objective of doing justice between man and man, should not have allowed the prosecutor to abuse his prosecutorial mandate in this way. A magistrate has a responsibility to ensure that suitable charges are preferred against accused persons who appear before him. He must prevent the prosecutor from proceeding on a lesser charge where justice clearly requires that a more serious charge be preferred. Here, the magistrate should have realised that the facts pointed to a charge of murder and that prosecution on charges of culpable homicide was a sheer dereliction of duty on the part of the prosecution. He should have stopped the trial in terms of s 54 of the Magistrates Court Act [Chapter 7:10] and referred the matter to the Attorney-General.

Held, further, that the result was that the offences committed were trivialised and the outcome offended all sense of justice.