The Sunday Mail
Martin Stobart
I refer to Tichawana Nyahuma’s educative article titled “Sentencing in Criminal Cases” which was published on June 26 2016 in The Sunday Mail Extra. I found it really illuminating, even from the point of view of a layperson as I am not a lawyer.
However, I am a voracious and keen reader of matters legal. I would like to elicit your professional comment on the following:
1. Bulawayo High Court: A judge sentenced an accused person to death for the murder of a pregnant woman. On appeal, the sentence was reduced to four years.
2. Lupane Magistrate’s Court: An accused man was slapped with a mandatory nine-year jail term for killing a python, a protected species according to the law of Zimbawe.
3. In the same court, a 21-year-old accused person was sentenced to nine months in prison for armed robbery, of which three months were suspended.
4. South Africa: In a civil court, or rather in a civil case, in a matter involving breach of contract, both the magistrate’s court and the High Court found the seller of the property in contention, resulting in the contract of sale being cancelled, thus ordering the purchaser to vacate the house.
My take on each of the four cases:
1. On the first case, I concur wholly with the trial judge who imposed the death sentence on the accused, principally based on the following analytical evidence.
The deceased was a married woman whose husband worked away from home and only came home irregularly. On the fateful day, the husband had just returned home the previous day.
At about 0600hrs, the accused, the couple’s employee, asked the deceased if she could accompany him to the bush to assist him heave a log onto the cart, a log which he intended to cut. The deceased acceded to the request.
Presenting his “evidence-in-chief”, the accused told the court that upon arrival at the scene, the deceased proceeded to set herself between the object he was intending to cut and himself, therefore, as he attempted to execute his task, he accidentally struck the deceased on the back of the head, causing her death instantly.
Common sense alone tells me that this evidence is utterly bizarre, far-fetched and inadmissible. For starters, this was an upright dead tree trunk. The distance between anyone who is cutting a tree using the conventional standard axe will readily attest to the fact it is no more than one metre at the very longest. Therefore, how could both the deceased and the accused fail to sense the inherent danger in that working arrangement? That is the most bizarre part of this case.
Another theory, very much plausible if not self evident, is that there existed an adulterous relationship between the deceased and accused, which resulted in a pregnancy which the former was keen to obliterate at whatever cost. For was it really out of necessity, was it really respectful for the accused to ask his employer’s wife to accompany him fetch firewood?
The three Appeal Court judges lost their collective script. When I read the judgment, I immediately had the impression of judges who went over the top with their anti-death sentence sentiments and who jettisoned justice as a burden. They struck me as out of touch with reality, judges who do not know what goes on at the farm and in rural lands.
Moreover, the accused was represented pro deo by a legal practice, meaning, as is common cause to most people, that the lawyer was a junior.
2. The PG’s office advised me that since they are the same people who prosecuted in the case, they are “conflicted”. May I, therefore, “approach the director of legal services or some such body or institution who might execute an appeal and secure the release of the convicted man”, they said. If my understanding of how this body works, at best the staff are impossible, or at worst they don’t care. Now, I am poor. The sum total of all this? Justice is for the rich in this country.
3. In the same court and by the same magistrate, a 21-year-old man robbed my wife of $6 at knife-point. I did most of the work in tracking him down, leading to his arrest by the police. The robber was sentenced to nine months in prison, three months of which were suspended . . . blah . . . blah . . . blah, ad nauseum.
“In exercising lenience, which I feel you deserve, I am taking into account the fact that you are a youthful man, a first offender and also that the prejudice to the complainant was insignificant. Furthermore, in your favour is that you pleaded guilty to the charge and did not waste the court’s time . . .”
Mr Nyahuma, I enter a case against the trial magistrate’s summarisation. Whereas he made reference to the “seriousness” of the offence, it sounded more peremptory and standard and, dare I say, suspect, on obiter dictum, as you learned guys say, in your argot.
In my view, the magistrate mollycoddled the “youthful” thief. Yes, I understand that the maximum sentence for this crime in the magistrate’s courts is two years. That’s okay with me.
The magistrate, I submit, failed to analyse the case, preferring to over-indulge himself so inordinately one-sidedly. What I am saying is this — at age 21, the boy (read youthful) thief had learned the art of armed robbery by carrying a lethal object on his person to commit the crime on unsuspecting victims.
He premeditatedly went about in search of victims, vulnerable enough to fall prey to his escapades. In this case, and in many other similar ones, the key element or point of reference, before indulging linguistic niceties and standard run-of-the-mill pronouncements, is the intent by the offender, I would aver.
The intent to commit robbery was premeditated, constructive and actual. The robber, in fact, waylaid the victim after a period of observation. The robber, especially at age 21 when he is considered as an apprentice, is to all intents and purposes, a potential killer and rapist. The carrying of a knife points sufficiently enough in that direction. You called it “planning and execution” in your article. What a fitting phrase!
The summarisation was devoid of research, analysis and objectivity. What about balancing the aggravating features of the case with mitigatory features, I mean the gravity and intention vis-a-vis age?
4. Once again, I attach for your interest as a lawyer an article in a South African weekly, and pose the questions: Excepting the magistrate’s court, did the High Court fail to see the obvious, namely that the seller was taking advantage of the initial breach of contract by the purchaser? The seller was acting in bad faith. One did not need a sangoma to see that. A bad law is just that — a bad law. Did this case have to go all the way to the court?
After reading your article which, once again, I found instructive, I have taken time to put pen to paper.
You distinguished between the two forms of crime. You are a professional, hence your propensity to be technical and scholarly. Intention versus negligence should not be treated or accepted as a logical basis for sentence. In my singular view the extent, or gravity, of the crime should ground the appropriate sentence to be imposed.
It is not always that intention is deliberate, a circumstance, such as dire need, may be cause for one to commit a crime: feed the family, pay tuition fees when one is out of employment, etc. Negligence! For fete’s sake, this is a deliberate crime which most of the time results in death or deaths or maiming of the victim or victims. Negligence is always pre-planned, especially amongst urban drivers, in particular omnibus drivers.
In the case under discussion, the driver deliberately and intentionally exceeds the maximum speed. In my opinion the law should not be convoluted. It must open up to the public. It should not be a subject of capricious interpretation. Judgment should, or should I say must, not be standardised.
There is a limit to the adherence of the phrase or dictum “the law says”, for it is not cast in stone. I am not suggesting that the law be changed like a diaper. No. It must be stable without being rigid. A mandatory nine-year jail term for stealing a meat carcass worth $70 makes the law a mockery and an instrument of injustice and oppression.
The same sentence on a villager for killing an invading and rampaging python should naturally evoke the wrath and ire of society as was the case in the cases cited in your article.
The reaction by the public in such judgments is very useful as it makes a case for the re-examination and scrutiny of the statutes by the powers-that-be.
The general public may, by and large, not understand the law from an intellectual and academic level.
To the general public the law, in particular criminal law, must not be predicated on abstruse intellectual reasoning.
The general public expects and demands that the law reflect the practicality or practicalities of its real experiences. In other words, the law has to have a human face to it.
The law, like democracy, is of the people, by the people (and) for the people and the administrative structures of this institution must reflect this at all times without let or hindrance. I am an enthusiastic admirer of the South African Constitutional Court judges such as former Deputy Chief Justice Dikgang Mosemeke and Edwin Cameroon, to name just a few.
Their judgments are so well reasoned, so pellucid and incisively analysed, they are so down-to-earth that they are a perpetual thorn in the flesh of local authorities in cases involving informal traders and the homeless as applicants and the local authorities or government as respondents. In the latter, the justices are perceived as non-conformist.
Now, in respect of all the cases cited above, there is no way that I can impose a nine-year jail sentence for stealing meat carcass. Justice and humans are not inanimate objects. In the “omnibus case”, I would take a dim view for it is common cause that omnibus drivers pay scant regard to the rules of the road. The motive and purpose are patently clear, to make as much money as possible. Their “negligence” is deliberate and pre-planned.
It has become the sectors’ drivers’ modus operandi. As for the python case, this is a simple, the prosecution or the State would have to prove, not only beyond reasonable doubt, but beyond a shadow of doubt, that the accused villager was aware of the existence of the legislation given his own evidence in defense.
I would unequivocally apply the principle of “onus probandi”. I mean the mere existence of a particular legislation cannot be construed as “racio decindendi”.
Let me quote what you already know, Tichawana Nyahuma, “Justice is not a cloistered virtue: she (meaning Justicia, perhaps?) must be allowed to suffer the scrutiny of ordinary men . . . no court can function without the support of public confidence.”
The public outcry is a useful barometer by which courts, or rather the judiciary, should measure the public confidence/support it enjoys.
