Alteration of judgment (Zimbabwe)

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Section 201(2) CPEA provides that if by mistake a wrong judgment was delivered, the judgment may be altered before or immediately after it is recorded. Not every mistake can be corrected under this provision. There must have been a genuine mistake in delivering the judgment, either in the sense that the magistrate said something different from what he intended to say or that he did something in his judgment which was legally incompetent. For example, a judgment may be corrected if the magistrate intended to acquit the accused and by mistake gave a judgment convicting him. It would seem that ambiguous and obscure aspects of a judgment may be clarified immediately after the judgment is recorded: Sikumbuzo 1967 (4) SA 602 (RA).

In Masundulwane HB-22-06 where in passing sentence on a charge of theft, a magistrate sentenced the accused to one month's imprisonment, wholly suspended on appropriate conditions, plus a fine or in default a period of imprisonment. After sentence was passed the accused asked to magistrate to consider community service because he could not afford the fine, whereupon the magistrate purported to "convert" the fine to a period of community service. This he did by amending the sentence to delete the fine and impose a further 30 days' imprisonment suspended on condition that the accused undertake community service. It was held that the trial court does not have authority to pass two sentences for one offence. Section 358(2) of the Criminal Procedure and Evidence Act does not enable the trial court to impose two sentences for one offence. The sentence for the offence remains one, which is either wholly or partially suspended on appropriate conditions. A magistrate is not entitled to alter either his verdict or his sentence after is has been pronounced. The only exception is provided for in s 201(2) of the Criminal Procedure and Evidence Act, which allows the court to amend a wrong verdict or sentence delivered "by mistake". That implies a misunderstanding or an inadvertency resulting in an order not intended, or a wrong calculation. A verdict or sentence, however, much open to criticism, cannot be altered if it was deliberately given or imposed. The correction must be done immediately on the same day preferably before the magistrate leaves the bench. In casu, the sentence was not delivered by mistake: it was deliberately imposed.

See Zimbabwe Criminal Defense Manual