REGINA v JAMES 1980 ZLR 52 (G) REGINA v JAMES 1980 ZLR 52 (G)

Author: Trodat Zimbabwe

REGINA v JAMES 1980 ZLR 52 (G) REGINA v JAMES 1980 ZLR 52 (G)

1980 ZLR p52

Citation                     1980 ZLR 52 (G)

Case No                     Details not supplied

Court                    General Division, Salisbury

Flynote

Criminal procedure — award of compensation in terms of section 341 of Criminal Procedure and Evidence Act [Chapter 59] — meaning of “forthwith” in section 341 (1) — when award may be made — D whether omission to make award may be rectified on review.

Headnote

The word “forthwith” in section 341 (1) of the Criminal Procedure and Evidence Act [Chapter 59] does not mean that a trial Court may make an award of compensation immediately after conviction only. In proper cases an omission _E to make an award due solely to the trial Court’s forgetfulness may be rectified on review in terms of section 64 (2) (c) of the Magistrates Court Act [Chapter 18].

Cases cited

R v Mkize, 1961 (2) SA 769 (D.). _F

Judgment

Waddington J: The accused, a member of the Army, pleaded guilty to and was properly convicted of the theft of the sum of $10 in cash from the complainant committed during a search of her hut. _G After conviction the accused stated that he had repaid $6 to the complainant. At that point, acting in terms of section 341 (1) of the Criminal Procedure and Evidence Act [Chapter 59], the prosecutor made an application for an award of compensation in favour of the complainant in the amount of the outstanding balance of $4. The accused indicated _H that he had no objection to the making of such an award. Thereafter the accused made a number of statements in mitigation. The magistrate thereupon proceeded to sentence the accused but forgot to make the order of compensation.

1980 ZLR p53

Waddington J

The trial magistrate, in submitting the case for scrutiny to a regional magistrate, has suggested that the matter be referred for review in the _A ordinary way so that his omission may be corrected. Section 341 (1) of the Code provides, inter alia, when any person is convicted by any Court with jurisdiction in civil cases of an offence which has caused loss of property belonging to some other person the Court trying the case may, “after recording the conviction” and upon the application of the injured _B party or of the prosecutor acting on the instructions of such party, “forthwith award him compensation for such damage or loss”. The question which arises is whether, in the exercise of the powers conferred upon a reviewing Judge by section 64 of the Magistrates Court Act [Chapter 18], I am entitled to supply the omission in view of the fact _C that an award of compensation should be made “forthwith”. Subsection (4) of section 341 of the Code reads:

“For the purposes of determining the amount of compensation or the liability of the accused therefor, the Court may refer to the proceedings and D evidence at the trial or hear further evidence, either upon affidavit or verbal.”

It appears, therefore, that despite the use of the word “forthwith” in subsection (1) of section 341, a trial Court may make an award of compensation even though it might first be necessary to adjourn the proceedings _E for the purpose of hearing verbal evidence or evidence upon affidavit. In my view section 341 (1) should in consequence not be construed as meaning that the trial Court may make an award of compensation immediately after conviction only. (Cf. R v Mkize, 1961 (2) SA 769 (D.), where an award of compensation was made following an _F application after the passing of sentence.) In proper cases I can see no reason why an omission to make an award of compensation due solely to the forgetfulness of the trial Court should not be rectified on review in terms of section 64 (2) (c) of the Magistrates Court Act _G [Chapter 18].

In the instant case all the conditions precedent to the making of an award of condensation were present. The value of the loss was clearly established? application for the award was, in conformity with the Code, made after conviction and the accused had no objection to the making _H of the award. The complainant was a peasant who would have viewed the loss of the sum of $4 with concern and the recovery of that sum by the exercise of her civil remedies with even more concern. I consider that the unusual circumstances of this case justify me in supplying the omission in the interests of real and substantial justice.

1980 ZLR p54

Waddington J

I am indebted to the Attorney­General for his assistance in this matter.

The conviction and sentence are confirmed, but the following award of _A compensation is made: “The accused shall repay the sum of $4,00 to the complainant.” My brother Goldin agrees with this judgment.