Three men from Masvingo who were convicted of contravening a section of the Witchcraft Suppression Ac spent almost three months in jail when the maximum penalty for their offence was a fine not exceeding $50, or in default of payment, imprisonment for a period not exceeding six months.
The three men were convicted by a magistrate in Masvingo who sentenced them to “12 months of which four months imprisonment with labour (was) suspended for five years….”
Judge Robinson who reviewed the case said what was of immediate and very great concern in this case was that, because the magistrate obviously did not bother to refer to the section of the Act under which the accused were being charged, he failed to note that the maximum penalty he could impose, upon convicting the accused, was a fine not exceeding $50 or, in default of payment, imprisonment for a period not exceeding six months.
Worse still, he said, because there had been a delay in sending the case for review, it had not been possible to remedy the magistrate’s grave error earlier, thereby resulting in the three being unjustly incarcerated for close to three months.
With the concurrence of Judge Adam, he therefore quashed the previous sentence and instead sentenced each of them to a fine of $30, or in default of payment, 10 days imprisonment with labour.
“The accused having served in excess of 10 days’ imprisonment, there is, therefore no need for them to pay the fine of $30, in addition to which they are entitled to their immediate release from prison for which I have issued a warrant for their liberation,” Judge Robinson said.
“I trust that this case will be a salutary and sobering lesson, not only to the magistrate concerned but also for all magistrates, never to venture into court when an accused is facing a criminal charge or charges under a statute without first familiarising themselves fully with all relevant provisions of the statute in question,” he said.
“Indeed, the same advice should be heeded by legal practitioners before they set foot in court to represent an accused otherwise they could have befall them what I observed befall a certain legal practitioner in this court in June last year.”
Judge Robinson said in that case, the legal practitioner had advised his female client to plead guilty to a charge of infanticide under the Infanticide Act, which came into operation on January 18, 1991.
“When, at a later stage, the court pointed out to the legal practitioners that one of the essential elements of the charge had not been proved and that, therefore, the court could not find his client guilty in terms of her plea, the legal practitioner sought to explain his oversight in this regard by saying that he had not consulted the Act before coming to court because of its having become law only recently -about five months before the case, I would add- he had not been able to procure a copy of the Act! And so he had advised his client blindly on how to plead to the charge.
“Fortunately for his client, however, for the reason explained, the court was able to save the day for her by acquitting her, notwithstanding her plea of guilty in accordance with her legal practitioner’s advice.
“Inexcusable as both the legal practitioner’s behaviour was in that case and the magistrate’s was in this case, I suppose the legal practitioner’s behaviour was compounded by the fact that he was being remunerated by the accused for his services or, perhaps, one should say, his non-services.”
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