Moiten Siabulembo and Richard Hajey and Christopher Mafungautsi and Kebey Kagwamuna v The State

### Preamble
1
HH 769-18
CA 760/12
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MOITEN SIABULEMBO

and

RICHARD HAJEY

and

CHRISTOPHER MAFUNGAUTSI

and

KEBEY KAGWAMUNA

versus

THE STATE

THE HIGH COURT OF ZIMBABWE

HUNGWE and WAMAMBO JJ

HARARE, 20 September 2018 and 14 November 2018

Criminal Appeal

F. Murisi, for the appellants

T. Mapfuwa, for the respondent

HUNGWE J: At the hearing of this appeal we dismissed in its entirety on the turn. We indicated then that our reasons for that decision will follow. These are they.

The four appellants were convicted on their own pleas of guilty to one count of contravening s 182 of the Customs and Excise Act, [Chapter 23:02] and another of contravening s 48 of the Customs and Excise Act [Chapter 23:02] as read with s 1 of Statutory Instruments 19 of 2016 of the Control of Goods Act, [Chapter 14:05].

The learned trial magistrate, upon recording the guilty pleas, proceeded to canvass with the accused the essential elements of both counts as he was obliged to do in terms of s 271 (2) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. After ascertaining that the accused pleas were genuine, he convicted all four and sentenced them to a fine. That sentence is not subject of this appeal as Mr. Murisi, for the appellants, abandoned that leg of the appeal. Initially, he had noted an appeal against both conviction and sentence.

At the hearing Mr Murisi indicated that he will argue only one ground of appeal and would abandon the rest of the grounds of appeal. The ground of appeal which he chose to base the appeal was that the court erred at law in that it failed to ascertain whether the appellants knew that the goods in count (1) were goods required to be accounted for under the Act.

The appellants argued that the nature of the questions put to each of them were too vague for the court to have satisfied itself that they were aware of the requirement to account for the goods in their possession. As such, the argument went, one of the essential elements of the offence was not met. Mr Murisi, for the appellants, cited as an example, the following exchange:-

“Q. Do you admit that you on or 18 November 2017 imported these goods from Zambia 	into Zimbabwe?

A. Yes.

Q. Did you declare the goods to Zimra officers at the border?

A. No.”

The appellants argued that because the question of knowledge of the fact that these were goods required to be accounted for was not put therefore the court did not comply with the mandatory requirements in s 271 (2) (b) of the Criminal Procedure and Evidence Act       [Chapter 9:07]. As such, they argued, there was a denial of the right to be informed in detail of the nature of the offence charged as guaranteed by s 69 (1) of the Constitution.

In Mr Murisi’s view, the court ought to have required the appellants to have responded to the specific question of whether they intended, by smuggling the goods, to defraud the State or to evade any prohibition of restriction on or regulation as to the importation, introduction or exportation of any goods required to be accounted for under the Act. According to this argument, because the definition in s 182 does not refer to intention to defraud, it was incumbent on the trial court to make sure that this element was admitted.

This court could have done this by simply asking each of them whether they were aware or knew that the goods in question were goods required to be accounted for.

It is true that the court of the Magistrate owes an enormous duty towards an unrepresented accused who appear before it.

As was pointed out in S v Tau 1997 (1) ZLR 93 (H):

“The vast majority of criminal prosecutions are against unrepresented persons. The magistrate is the primary bulwark defending the ignorant or impoverished against the potential injustices wrought through an excess of zeal; pressure of work; administration inefficiency or plain ineptitude in the investigation and prosecution of offences.”

Where an accused person pleads guilty to the offence charged the trial court is obliged to canvass the essential elements of that offence. In doing so it is not expected that the magistrate puts complicated questions such as would confuse the unrepresented accused. Plain questions which would enable the accused person to understand what was required of him, is sufficient. If by so doing the trial court is able to objectively confirm that the accused’s plea of guilt is knowingly, understandably, freely and  genuinely made, the requirements of s 271 (2) (b) would have been met. In any event the evidential burden in the present matter is expressly shifted to the accused by reason of section 204 of the Customs and Excise Act, to show that the goods subject of the charge were not goods required to be accounted for in terms of the Act. It provides:

204 Burden of proof

When any goods are stopped, seized or placed under embargo under this Act or would have been so stopped, seized or placed under embargo but for the fact that they could not be found or recovered, and in any proceedings under this Act other than a prosecution, if any question arises as to whether the duties have been paid on the goods or whether the goods have been lawfully imported or lawfully laden or are being lawfully exported, the burden of proof of the affirmative of these facts shall be on the person who owns, owned or claims such goods, as the case may be.

We find that on the record the magistrate did comply with the peremptory requirements of the Act.

In any event, we are also of the view that in light of the guilty pleas tendered it was not open to the appellants to approach this court by way of appeal when nothing in their answers to simple questions suggested any defence to the charges that they faced. In our view an accused who freely, genuinely and understandingly pleaded guilty to a charge is not entitled to approach the court by way of an appeal, unless it appears clearly from his answers or other submission in the proceedings in the court below, that he was raising some known defence to the offence with which he was charged.

In the present case the argument presented related to whether on the record, it can be said that the essential element relating to an intention to defraud the State or to smuggle was put or admitted by the appellants. In our view, where a plea of guilty is tendered and recorded but for some reason the accused decides to appeal the conviction, there is a heavier onus which the appellant bears, to satisfying the court on appeal that notwithstanding the plea of guilty should nevertheless be found not guilty.

That this must be so is clear from the wording of s 38 (2) the High Court Act        [Chapter 7:06] which directs that:-

38 Determination of appeals in ordinary cases

“(1) Subject to this section and section thirty-nine, on an appeal against conviction the High Court 	shall allow the appeal and quash the conviction if it thinks that the judgment of the court or tribunal 	before which the appellant was convicted should be set aside—

(a) on the ground that—

(i) it is unreasonable; or

(ii) it is not justified, having regard to the evidence; or

(b) on the ground of a wrong decision on any question of law; or

(c) because on any other ground there was a miscarriage of justice;

and in any other case shall dismiss the appeal.

(2) Notwithstanding that the High Court is of the opinion that any point raised might be decided in 	favour of the appellant, no conviction or sentence shall be set aside or altered unless the High Court 	considers that a substantial miscarriage of justice has actually occurred.

(3) If any point raised is decided in favour of the appellant and it consists of a misdirection by the trial 	court or tribunal of itself on a question of law or a question of fact or a question of mixed law and fact, 	the High Court shall dismiss the appeal if it is satisfied that the evidence which has to be considered 	has not been substantially affected by the misdirection and that the conviction is justified having 	regard to the evidence.

(4) On an appeal against sentence the High Court shall, if it thinks that a different sentence should be

passed—

(a) quash the sentence passed at the trial and pass such other sentence warranted in law in substitution

therefor, whether more or less severe, as it thinks ought to be passed, having regard to all the circumstances, including events which have occurred after the date of sentence:

Provided that in no case shall any sentence be increased by reason of or in consideration of any 	evidence that was not given at the trial;

(b) without altering the sentence passed at the trial, declare what sentence the court or tribunal of first

instance should have passed;

and in any other case shall dismiss the appeal.”

In light of the provisions of that section the burden is much higher than just satisfying the court that the essential element was not clearly put or admitted. The accused must show, additionally, that a substantial miscarriage of justice has actually occurred as a result of an alleged error.

The appellants are Zambian citizens resident in Chirundu, Zambia. They know, or are expected to know, that movement of goods and people between Zambia and Zimbabwe is through a designated entry point at Chirundu. None of the appellants indicated that he was unaware that cross border movement was to be conducted only through a designated point.

In our view, it would be to stretch common sense too far to reason that the conviction on the facts admitted by that appellants resulted in a substantial miscarriage of justice. It simply did not.

It was for these reasons that we dismissed the appeal on the turn.

wamambo J agrees  ………………

Muzisi & Associates, appellant’s legal practitioners

N.P.A, respondents’ legal practitioners