REGINA v NDHLOVU (2) 1980 ZLR 105 (G)

Author: Trodat Zimbabwe

REGINA v NDHLOVU (2) 1980 ZLR 105 (G)

1980 ZLR p105

Flynote

Criminal  procedure — court must return verdict on all charges brought against accused.

Headnote

The accused was charged in the magistrates Court with three counts of robbery and one of assault, all the offences being alleged to have been committed on the same day. Despite the complainants’ unsatisfactory evidence the magistrate was satisfied that one or other of them had been robbed of two dollars, so he convicted the accused of robbery of two dollars from a person unknown and did not return a specific verdict on any of the four charges. None of the _E charges was amended before verdict. On review.

Held that the accused was entitled to a verdict of guilty or not guilty on each of the four charges, and it was not permissible for the magistrate to formulate a new charge, convict him of it, and leave the others in abeyance. _F

Cases cited

S v Collett (2), 1978 RLR 288 (GD)? 1978 (4) SA 324 (R)?

S v Moyo (2), 1978 RLR 469 (GD)? 1979 (1) SA 1024 (R)

Judgment

Gubbay J: This is an unusual case. The accused was charged in _G the Court of the regional magistrate with three counts of robbery and one count of assault, it being averred that the offences had been perpetrated on the same day. In pleading to the first count of robbery, the accused said:

“I deny committing this offence myself. It was committed by others in my H presence. I took money from the complainant and handed it over to Mzizi. We were not acting in concert. We only went to drink beer in the shebeen.”

For the rest, he denied any knowledge of the allegations contained in the charges and refused to outline his defence.

1980 ZLR p106

Gubbay J

The Crown adduced the evidence of the four complainants, and a warned­and­cautioned statement recorded from the accused was produced by consent. It reads: _A

“I admit being at the shebeen house. I was directed to the shebeen house by Abe Mlotshwa. We entered the shebeen house being three of us. We were myself, Abe and Jack Mzizi. Abe bought two quarts of beer. We drank the beer being three of us. The one who stole the money was Jack Mzizi. I did not steal that money. When we went outside the house, I was given the sum of $2 by Jack Mzizi and there I also gave the sum of $1 to Abe Mlotshwa. I B did not at any time mention that I was a terrorist, that was said by Jack Mzizi at the time we were inside the house.”

The regional magistrate, with ample justification, was unfavourably impressed with the testimony of each complainant, although he was apparently satisfied that one or other of the complainants had been robbed _C of an amount of $2. Accordingly he convicted the accused of “one count of robbery ($2) from a person unknown”, and imposed a sentence of 12 months’ imprisonment with labour, of which nine months was conditionally suspended. He did not return a verdict in respect of any of the four charges.

That the procedure adopted by the regional magistrate was demonstrably wrong, is clear upon a reading of section 163 (5) of the Criminal Procedure and Evidence Act [Chapter 59]. Having been charged with four counts, the accused was entitled as of right to four verdicts, either _E of guilty or of not guilty. It was not permissible to leave any of the charges in a state of animated suspension, as it were, and at the same time to formulate a new charge out of the charges of robbery and convict the accused of it. As I stressed in the recent cases of S v Collett (2), 1978 RLR 288 (GD)?

1978 (4) SA 324 (R), and S v Moyo (2), _F 1978 RLR 469 (GD)? 1979 (1) SA 1024 (R), once an accused has pleaded to a charge a verdict must be pronounced on that charge, with any amendment which may have been made thereto. In the present case, no amendment to any of the robbery charges was effected. _G

The regional magistrate based his conviction upon the accused’s extra curial statement and the explanation which accompanied the plea. I entertain no doubt, however, that the extra­curial statement was not a confession to robbery. At best it was a confession to theft. The brief utterance which the accused made upon pleading is ambiguous and _H certainly does not amount to an unequivocal admission of robbery. In the circumstances, the most the Crown could possibly establish from either or both these brief statements was the commission of a rather trivial theft of $2.

1980 ZLR p107

Gubbay J

Bearing in mind that theft is a competent verdict on a charge of robbery, it would be competent for me, in terms of section 191 (1) of the Criminal _A Code as read with section 64 (2) (c) of the Magistrates Court Act [Chapter 18], to amend one of the robbery charges so as to make proper the conviction for theft of the sum of $2 from a person unknown. I have discussed the justification of that course with the Attorney­General. In his view such an amendment would be somewhat contrived. The offence _B was petty and the accused has had his just deserts in the form of a short period of incarceration. In the result, he suggested that I do no more than quash the purported conviction and sentence, and record a verdict of not guilty on each of the four counts.

On the 24th March, 1980, and with the concurrence of my brother _C NEWHAM, I  issued an order in accordance with the Attorney­General’s recommendation. This judgment serves to confirm that order.