Difference between revisions of "Referral from Magistrates court to High court for sentence (Zimbabwe)"

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Revision as of 10:08, 14 April 2010

When a magistrate is of the opinion that the appropriate sentence which is warranted in the case he is trying is beyond his sentencing jurisdiction, he can refer the case to the High Court under s 54(2) MCA. If he does this the correct procedure to adopt is as follows:

  • He must submit a report to the Attorney-General, setting out why he is of the opinion that a sentence in excess of his jurisdiction is justified. The record of the proceedings must accompany the report.
  • X and his lawyer are entitled to be informed on what basis the trial magistrate has decided to decline jurisdiction to sentence him and to proceed under s 54(2) MCA, since X now faces the prospect of a higher sentence. This must be done so that the defence has the opportunity to make proper submissions on sentence. The magistrate must therefore give his reasons for opting to proceed under s 54(2) MCA.
  • If the Attorney-General under s 225 CPEA directs that the case be transferred to the High Court for sentence, the magistrate must then comply with s 226(b) CPEA by informing X of the Attorney-General's direction and then committing X to prison until he is sentenced by the High Court or is granted bail. He must also ensure that the record of the criminal proceedings, together with the reasons for conviction, are transmitted to the High Court. The record should include the report sent to the Attorney-General setting out why the magistrate was of the opinion that a sentence in excess of that which he could impose within his jurisdiction was called for.

The magistrate must base his or her decision to refer the matter to the High Court on all relevant factors and give reasons for invoking the section, Dangarembizi & Anor 1987 (2) ZLR 196 (H); Mandizha HH-275-90; Julieta & Anor 1998(1) ZLR 432 (H). Defence counsel must object to such referral if there is no proper basis for so referring it.