Zim man’s jail term too harsh

Judges criticise magistrate

‘JUDGES’ disease”, which sometimes rears its head among irritated judicial officers, came to the fore when two judges criticised a magistrate for her unfortunate remarks about Zimbabweans.

The magistrate, referred to only as “learned magistrate” in the judgment, was sentencing a Zimbabwean national for theft. It was not indicated in the judgment form in which court.

“You are the third Zimbabwean I see today and it is forever housebreaking and theft. And I understand why. It is because maybe in your own country circumstances are dire, there is no economy left. And now people seem to steal in this country. Before too long we would be like Zimbabwe; there will be no economy,” the learned magistrate told Fortune Dube before sentencing him to 15 years in jail.

Dube turned to the high court in Pretoria to appeal the sentence meted out last year, after he was convicted of stealing a truck and groceries from a supermarket chain store.

Acting Judge N Nkosi said the common-law right of each accused to a fair trial must be respected.

If there was any suspicion that a presiding officer had shown bias on facts which had nothing to do with the case, then this right was interfered with, the judge said.

“The magistrate had no right to have uttered these words… She generalised about Zimbabweans… That statement may well be understood in certain quarters to be promoting xenophobia,” Judge Nkosi elaborated.

He referred to remarks earlier made by a Supreme Court of Appeal judge, who said “… Judicial officers sometimes develop ‘judges’ disease’ – the symptoms of which are pomposity, irritability, talkativeness, and proneness to express opinions or statements made in passing.

“If anything, the present case demonstrated just that about the magistrate. It was unnecessary to have made such remarks…,” Judge Nkosi said.

The judge added that as if this were not enough, the magistrate further made a note to the prison authorities: “Please note, the accused is a Zimbabwean national and when paroled must be handed to the Department of Immigration.”

Judge Nkosi said there was no legal or factual basis for the magistrate to make this order, as it was not her duty to deal with immigration issues.

“There is a government department that is empowered to deal with such issues. That order is unconstitutional and must be set aside.”

It emerged that Dube was in any event legally in the country.

The judge found the magistrate was too harsh on Dube in sending him to prison for 15 years, as there were mitigating factors, such as that he was taking care of eight children. The magistrate commented that “every criminal has children”.

Judge Nkosi reduced the sentence to 10 years’ imprisonment.