The State v Shephered Sibanda

The accused appeared before a magistrate at Filabusi facing two counts: (1) unlawful entry into premises at Denje Primary School contrary to section 131(1)(b) of the Criminal Law (Codification & Reform) Act, and (2) theft contrary to section 113(1) of the same Act. Both offences allegedly occurred between 12 December 2017 and 5 January 2018. The accused pleaded not guilty to both counts. After hearing evidence from three state witnesses and two defense witnesses (including the accused), the magistrate delivered a verdict of "guilty as charged" with reasons to follow, and remanded the matter for sentence. At a later stage, the magistrate wrote what he termed a "judgment" in which he returned a verdict of "not guilty and acquitted", thereby altering his original verdict. The National Prosecuting Authority requested the High Court to review the proceedings on the basis that the magistrate's alteration of his own conviction constituted a procedural irregularity.

• Whether a magistrate is entitled to alter his verdict after it has been pronounced
• Whether the alteration of the verdict in this case fell within the exception provided by section 201(2) of the Criminal Procedure and Evidence Act
• What constitutes a 'mistake' for purposes of section 201(2) of the Criminal Procedure and Evidence Act
• What remedy is appropriate where a magistrate has improperly altered a verdict

1. The proceedings before the court a quo were quashed. 2. The matter was remitted to the court a quo for a trial de novo before a different magistrate. 3. A copy of the judgment was to be referred to the Chief Magistrate.

A magistrate is not entitled to alter a verdict or sentence after it has been pronounced, except under section 201(2) of the Criminal Procedure and Evidence Act. The exception in section 201(2) only applies to judgments or sentences delivered "by mistake" - meaning a misunderstanding, inadvertency, or wrong calculation resulting in an order not intended. The correction must be made immediately, preferably on the same day before the magistrate leaves the bench. The term "mistake" does not encompass a verdict arrived at deliberately after assessment of evidence, nor does it permit a magistrate to alter a verdict based on taking a different view of the evidence upon reconsideration. A deliberate verdict that is later reconsidered does not fall within the scope of section 201(2).

The court observed that while the first verdict (guilty) was competent in terms of procedure, its correctness was now in serious doubt given the subsequent events. The court noted that judicial officers cannot be allowed to change verdicts based on second thoughts or reconsideration of evidence. TAKUVA J also made an implicit observation about the importance of finality in judicial decisions and the need to maintain the integrity of the judicial process. The reference of the judgment to the Chief Magistrate suggests concern about the magistrate's understanding of proper procedure and the need for administrative oversight.

This case is significant in Zimbabwean criminal procedure law (which shares similar principles with South African law) as it clarifies the limited circumstances under which a magistrate may alter a verdict after it has been pronounced. It reinforces the principle of finality in judicial decisions and establishes that judicial officers cannot simply change their minds about verdicts based on a reassessment of evidence. The case provides important guidance on the interpretation of provisions allowing correction of judgments, emphasizing that such provisions are meant for inadvertent errors, not reconsideration of deliberate findings. The judgment promotes legal certainty and protects the integrity of the judicial process by preventing magistrates from arbitrarily reversing their own decisions after reflection.