THE State V Luckmore Mutsindiko

### Preamble
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HCC 86/24
CHN CD 836/24
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THE STATE

Versus

LUCKMORE MUTSINDIKO

HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI, 19 November 2024

Criminal Review Judgment

MUZOFA J: The accused was convicted after a trial for contravening s60 A (3) (1) of the Electricity Act [Chapter 13:19] “the Act” for cutting, destroying or interfering with apparatus used to generate, transmit or supply electricity. He pleaded guilty to the charge. The court found no special circumstances, it then imposed the minimum mandatory sentence of 10 years imprisonment.

Despite preferring a charge under the Electricity Act, the wording of the charge revealed a simple theft. On the other hand the facts on the State Outline showed that an offence under the Electricity Act was committed. The trial Court canvassed the essential elements of theft but convicted the accused on a different charge. The trial court clearly misdirected itself.

It is the Magistrate’s duty to ensure that the accused fully understands the nature of the charge. To do this the Magistrate should examine the charge before it is put to the accused in order to remedy any defects and to clarify any obscure points. See S v Sikarama & Anor 1984 (1) ZLR 170 (H).

The charge was poorly drafted in this case. It is first for the prosecution to make sure that the charge is properly drafted. However the Court as the final arbiter has the ultimate duty to make sure that the charge before it is correct. Most crucially important it is the Court’s duty to make sure that the correct essential elements of the charge are put to the accused. An accused must never be convicted on a charge different from the alleged facts as in this case.

In this case the charge was cited as contravening s60 A (3) (1) there is no such provision in the Act. The correct section is contravening s60 A (3) (b). It provides;

“Any person who, without lawful excuse, the proof whereof shall lie on him or her— (a) tampers with any apparatus for generating, transmitting, distributing or supplying electricity with the result that any supply of electricity is interrupted or cut off; or (b) cuts, damages, destroys or interferes with any apparatus for generating, transmitting, distributing or supplying electricity”

In canvassing the essential elements of an offence, a Court must always be guided by the provision creating the offence. The Court must use the words and terms used in the section or as near as possible to the terms of the provision to make sure the accused understands what he is facing. In this case the essential elements would be,

cutting, damaging, destroying or interfering with;

Apparatus used for generating or distributing electricity;

Without lawful excuse.

This is a strict liability offence, the action part must be established and the type of equipment cut or damaged must be established. The accused must admit that he had lawful excuse to engage in the alleged conduct.

Contrary to this, the first misdirection by the trial court was to proceed with a charge so badly drafted that it could only pass for a charge of theft. It was drafted as follows,

“In that on the 30th day of January 2022 and at Plot 2 Athenzi Farm, Chinhoyi, Luckmore Mutendiko unlawfully took a 30 meter X 50 millimetres core (sic) from Athenzi Farm, Chinhoyi knowing that Benjamin Chimbodza is entitled to own, possess control the property or realising that there was real risk or possibility that Benjamin Chimbodza permanently of its ownership, possession or control or realising that there is a real risk or possibility that Benjamin Chimbodza maybe deprived of its ownership, possession or control”.

The charge does not allege the actus reus that resonate with contravening s60 A (3) (b). The accused allegedly took, that action is not synonymous with cutting to interfere with transmission of power. The charge reveals a simple theft of already cut core armoured cables. Although the charge practically may include theft , the mischief that the legislature intended to address is not difficult to identify. The intention is to punish conduct that interferes with transmission of electricity whether the accused then takes the items or not. The punishable conduct is interference.

After the charge was read to the accused, he pleaded guilty. The trial court then proceeded in terms of s271 (2) (b) of the Criminal Procedure and Evidence Act and canvassed the essential as follows:

“Q.	Confirm that on the 30th of January 2022 you stole (my emphasis) 30 metres X 50 millimetres of Core (sic) at Athenzi Farm, Chinhoyi?

A.	Yes.

Q.	Admit in doing so you realised that there was real risk or possibility that complainant will be permanently deprived of possession, ownership and control?

A.	Yes.

Q.	Any right to act in such a manner?

A.	No.

Q.	Any defence?

A.	No.”

He was then convicted of the serious charge under s60 A (3) (b) of the Act. The court then asked the accused to address it on special circumstances. It concluded there were no special circumstances and sentenced him to 10 years imprisonment.

The proceedings before the trial Court show that it did not address its mind to the facts of the case. The facts as summarised in the State Outline clearly alleged that the accused cut some armoured cables used in the transmission of electricity. That oversight led to the accused being convicted of theft but sentenced for some serious offence.

The procedure under s271(2) (b) enables the Court to deal with a matter otherwise by leading evidence. In S v Magore 1996 (2) ZLR 88 SC the Court warned judicial officers of short-circuiting this procedure which may lead to an injustice. It opined that, magistrates must    be alert to ensure that this truncated form of trial does not result in any injustice taking place. They must be satisfied that the admission of guilt is genuine, unqualified and unequivocal before acting upon it and must establish that the accused fully understands and  admits the charge and all its elements as well as all the facts alleged by the prosecution to have occurred. In addition it must be established that the accused is in fact and in law guilty of the crime charged on his own story. See also S v Chirodzero HH14/88, S v Kambarami HB 119/20; S v Phiri HB133/17.

The conviction and sentence must be set aside.

I considered the appropriate recourse. The facts set out in the state outline show that a serious offence was committed. To alter the charge at this stage is incompetent since the accused did not plead guilty to contravention of s60 A (3) (b) of the Act. Similarly quashing the proceedings and releasing the accused may not be in accordance with real and substantial justice. The Court cannot ignore that an offence was committed.

The best course is to quash the proceedings and remit the matter for a trial de novo before a different Magistrate. In the event the accused is convicted, in sentencing the accused the period already served must be taken into account.

Accordingly, the conviction and sentence are set aside.

The matter is remitted for a trial de novo before a different Magistrate.

BACHI- MZAWAZI Agrees.