Febbie Mukotodzi and Nyasha Jordan and Rodrick Tichaona v The State

1
                                                                                          HH 299-21
                                                                                       CRB 2422/21
                                                                                        CRB 991/21
                                                                                       CRB 2281/21


FEBBIE MUKOTODZI
and
NYASHA JORDAN
and
RODRICK TICHAONA
versus
THE STATE


HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 15 May 2021


Criminal Review


        CHITAPI J:       The three matters above were dealt with by the same Provincial
Magistrate sitting at Mbare. The trials of the accused persons were disposed of by guilty plea
procedure in terms of s 271(2)(b) as read with s 271(3) of the Criminal Procedure & Evidence
Act, ([Chapter 9:07]. In the case of S v Febbie Mukotodzi CRB 2422/21 the accused on his
guilty plea was convicted of assault as defined in s 89(1)(a) of the Criminal Law (Codification &
Reform) Act, [Chapter 9:23] (“Criminal Code”). It was alleged that the accused slapped the
complainant several times on the face on 15 April 2021 at Glen Norah B Shopping Centre. The
accused was sentenced to 18 months imprisonment wholly suspended in part on condition of good
behaviour and in part on condition that the accused performed community service.
        In the case of S v Nyasha Jordan CRB 991/21 the accused was convicted of theft as defined
in s 113(1)(a) of the Criminal Code. It was alleged that on 24 February 2021 the accused stole a purse
with money at Mbudzi roundabout, Waterfalls, Harare. The accused was sentenced to 24 months
imprisonment. 12 months of the sentence was suspended on conditions of restitution and a further 6
months on condition of good behaviour leaving an effective sentence of 6 months imprisonment.
        In the case of S v Roderick Tichaona Meki CRB 228/21, the accused was on his plea
of guilty convicted of robbery as defined in s 126 of the Criminal Code. It was alleged that he
robbed the complainant of a lap top, phone handset and charging accessories on 9 April, 2021
at Lord Malvern High School in Waterfalls. The accused was sentenced to 36 months
imprisonment with 6 months suspended on conditions of future good behavior leaving an
effective prison term of 30 months.
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                                                                                      HH 299-21
                                                                                  CRB 2422/21
                                                                                   CRB 991/21
                                                                                  CRB 2281/21


       In the case of Nyasha Jordan, the accused was charged with and convicted of the
offence of theft as defined on s 113 (1) (a) and (b) and of the Criminal Code. The allegations
against him were that the accused was self-employed as a tout at Mbudzi roundabout,
Waterfall, Harare. On 24 February, 2021, he stole the complainant’s satchel with US$2
000.00 and ZAR 2000.00. The complainant was a traveller looking for transport. The accused
was convicted on his plea of guilty and sentenced to 24 months imprisonment of which six
months was suspended on conditions of future good behavior and 12 months on conditions of
restitutions leaving an effective prison term of 6 months imprisonment.
       In all the three records of proceedings, the trial on plea was done in the same fashion
or pattern. The following appears recorded:
       “charges – put and understood
       Plea – G 271 (2)(b)
       Facts – read and understood
       …………………………………..”

       The procedure followed was wrong. It did not conform to the peremptory provisions
of s 271(3) of the Criminal Procedure and Evidence which sets out what the court is required
to do in guilty plea proceedings. There have now been several review judgments of this court
wherein proper direction has been given on how guilty plea proceedings ought to be
conducted.
       The guilty plea procedure is simple and straight forward but cumbersome or involved
in terms of what the court is required to do. Whenever a case is to be disposed by way of
guilty plea other than summarily in terms of s 271(1)(a), that is if the plea proceedings are to
be conducted in terms of s 271(2)(b), the court should always keep in mind the provisions of
s 271(2)(b); 271(3) and 272 of the Criminal Procedure and Evidence Act. It is not necessary
to quote the sections extenso. Section 271 (2)(b) is the enabling section in regard to the guilty
plea procedure whilst s 271(3) provides for the procedure to follow. Central to s 271(3) is that
the matters provided for therein must be recorded. Critically, and relevant to the review
herein is the provision which requires that the magistrate must “EXPLAIN THE CHARGE
and RECORD THE EXPLANATION MADE.” (own emphasis.) This is what the magistrate
failed or omitted to do in all the three cases. The omission to do so is a gross irregularity
because firstly the requirement to do so is peremptory. Secondly, the procedure ensures a fair
trial which is an inalienable right of the accused. No law may qualify the right as is evident
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                                                                                       HH 299-21
                                                                                   CRB 2422/21
                                                                                    CRB 991/21
                                                                                   CRB 2281/21


upon a reading of s 86(3)(e) of the Constitution. Section 272 of the Criminal Procedure &
Evidence Act provides for the requirement that in dealing with a trial on a guilty plea basis, if
in the course of proceedings, there is doubt on the part of the court that the accused’s guilty
plea is genuine or that he is guilty as pleaded, the court should alter the plea to not guilty and
direct the prosecutor to proceed to trial. Significantly, any admission made by the accused up
to the stage of the change of plea are treated as evidence against the accused. S v Enock
Mangwende HH 895/20, S v Moyo 697/20.
       It appears to me that despite this court’s guidance on the need for magistrates to
strictly comply with the provisions of s 271 (2) (b), 271 (3) and 272, the guidance falls on
deaf ears and the blind. The situation is akin to a refusal to heed the advice or to read cases
where such direction has been given. The trend wherein the same errors in procedure are
made is worrying and constitute threat to the criminal justice system. The threat arises from
the fact that the irregular proceedings are invariably set aside on review and the accused
persons are released back into society without serving their sentences in full. Re-trials are
then instituted by the Prosecutor General in his discretion. The retrials clog the court rolls and
increase the backlog. All this can be avoided if the magistrates properly and procedurally
conduct the guilty plea trials. Such trials form the bulk of cases disposed of in the magistrates
court. It is unacceptable for the court to preside over an irregular trial on account of lack of
knowledge of trial provisions. It is in my view an act of incompetence for a judicial officer to
fail to comprehend steps required to be followed in holding a guilty plea trial when such
procedure is legislated in black and white in s 271(2)(b) as read with s 271(3) of the Criminal
Procedure & Evidence Act. It is worse so where the superior court has interpreted the trial
procedure and given guidance to the magistrates through judgments issued and the judicial
officer is not guided by the judgements either by design or by default to keep abreast with
important judgments of this court on procedure.
       The failure by the magistrate to strictly comply with the provisions of s 272 (2) (b) as
read with s 271 (3) should be censured because the accused person was by such failure to
comply with the law subjected to an unfair trial. As has been done in proceedings where the
misdirection by the magistrate pertains to a procedural irregularity in the nature of a failure to
comply with s 271 (3), the impugned proceedings have invariably been set aside. The same
process will ensue.
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                                                                                  HH 299-21
                                                                               CRB 2422/21
                                                                                CRB 991/21
                                                                               CRB 2281/21


       The following order, made-
       (a) The convictions and sentences in the following cases
          (i)     S v Febbie Mukotodzi MBR CRB 2422/21
          (ii)    S v Roderick Tichaona Meki MBR CRB 2281/21
          (iii)   S v Nyasha Jordan MBR CRB 991/21
       are set aside and the accused persons entitled to their immediate release from serving
the imposed sentences.
       (b) The Prosecutor General may in his absolute discretion institute fresh prosecutions
          against the accused persons in the same matters, subject to the proviso that if the
          accused persons are retried, they shall not be sentenced to sentences more severe
          than the ones to which they were sentenced and the served portions of their
          sentences shall be taken into account in any sentence which may be imposed.
       (c) The Registrar shall forward a copy of this judgmental to the Chief Magistrate for
          dissemination to magistrates for continued guidance.




MUSITHU J agrees……………………………………………..