The State v Cleopas Chizhanje

Cleopas Chizhanje was convicted and sentenced on his own plea of guilty to four counts of contravening sections 131 and 113 of the Criminal Law (Codification and Reform) Act [Cap 9:23] in the Magistrate's Court. The matter came before the High Court on automatic review. However, the record of proceedings was incomplete - most documents and the record of proceedings that should have been in the review cover were missing. The charge sheets for counts 1-3, the state outlines for counts 3-4, and the magistrate's handwritten record of proceedings (except for a sheet recording mitigation) were all absent from the record. When the trial magistrate was asked to clarify, she confirmed that the accused had pleaded guilty to all four counts and that all essential elements were put to him and recorded. She stated that a full record was brought to her for signature before being forwarded for review, but she was unaware of what happened to parts of the record after it left her office.

• Whether criminal proceedings can be reviewed when the record of proceedings is incomplete or parts are missing
• What procedure should be followed when a record of proceedings or part thereof goes missing before review
• What are the administrative duties of magistrates and clerks of court regarding record keeping and preservation
• What remedial action must be taken to ensure a complete record is placed before a reviewing judge

The matter was remitted back to the magistrate's court to conduct an inquiry as to whether the proceedings can be transcribed or reconstructed, after which it should be resubmitted for review. A copy of the judgment was to be sent to the Chief Magistrate's office for information regarding the administrative issues raised.

Where a criminal record of proceedings or part thereof goes missing before review, the matter cannot be reviewed until remedial action is taken. The conviction and sentence must be set aside only if the record cannot be transcribed (if mechanically recorded) or reconstructed (if handwritten). It is the duty of the trial court, not the reviewing judge, to take remedial action to ensure a complete record is placed before the reviewing court. The proper procedure requires: (1) a diligent search by the clerk of court; (2) transcription or reconstruction if not found; (3) certification and signature by the magistrate of transcribed records; (4) reconstruction following established procedure with affidavits from all relevant parties. While magistrates become functus officio upon sentencing in their judicial capacity, they retain administrative duties to ensure compliance with review procedures. Records must be properly arranged and securely bound before being forwarded for review.

The Court observed that many magistrates incorrectly believe that when faced with a missing record, they can simply state they don't know what happened and leave everything to the reviewing judge. The Court noted with concern the declining standards of record-keeping, with many records being forwarded with papers loosely placed in review covers in disorderly manner. The Court emphasized that a magistrate should not sign a review cover containing loose papers but should administratively instruct the clerk of court to staple or bind them together first. The Court cited S v Manera 1989 (3) ZLR 92 (SC) to emphasize that records must be preserved with meticulous care, and if anything is remiss with the record, the fault must be visited upon the State and not the appellant. The Court suggested that a securely bound review record cannot arrive on a reviewing judge's desk with missing parts, implying negligence in the handling of the record in this case.

This judgment is significant for establishing clear procedural guidelines for dealing with incomplete or missing criminal records before review in Zimbabwean courts. It clarifies the administrative duties of magistrates and clerks of court in ensuring proper record preservation and the remedial steps required when records go missing. The case reinforces the principle that conviction and sentence must be set aside if a proper record cannot be constituted, thereby protecting the rights of accused persons. It also emphasizes the continuing administrative obligations of judicial officers even after becoming functus officio in their judicial capacity. The judgment serves as important guidance on court administration and the preservation of the integrity of criminal proceedings through proper record-keeping.