Judgment record
Muchineripi Mukwenha and Donald Makumbe and Douglas Mandere v The State
HH 283-21HH 283-212021
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HH 283-21
CRB BNP 3222/20
CRB BNP 2902/20
CRB BNP 65/21
MUCHINERIPI MUKWENHA
and
DONALD MAKUMBE
and
DOUGLAS MANDIRE
versus
THE STATE
HIGH COURT OF ZIMBABWE
CHITAPI J
HARARE, 20 May 2021
Review Judgment
CHITAPI J: The three cases above listed were placed before me on automatic review.
On 12 March 2021 I issued a directive that the records be transcribed because I had
difficulties in reading the handwriting of the learned provincial magistrate T. Chifamba,
Esquire. The learned provincial magistrate dealt with all the three cases at Bindura
Magistrates Court on guilty plea procedure. All the three cases suffer from the same
procedural defect in the proceedings. The learned provincial magistrate did not comply with
the peremptory provisions of s 271 (3) of the Criminal Procedure & Evidence Act, [Chapter
9:07].
It is worthy to repent the provisions of the section. They provide as follows
“(3) Where a magistrate proceeds in terms of paragraph (b) of subsection (2).
(a) the explanation of the charge and the essential elements of the offence; and
(b) any statement of the acts or omissions on which the charge is based referred to in
subparagraph (1) of that paragraph; and
(c) the reply by the accused to the enquiry referred to in subparagraph (ii) of that
paragraph; and
(d) any statement made to the court by the accused in connection with the offence to
which he has pleaded guilty;
Shall be recorded (own underlining)
In each of the three records, the learned provincial magistrate did not record the
explanations of the charges. In respect to the three cases, the following is recorded:
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HH 283-21
CRB BNP 3222/20
CRB BNP 2902/20
CRB BNP 65/21
“Charge put to accused person and he understood”.
This was then followed by the accused being asked to enter a plea. The accused
pleaded guilty. In consequence of the guilty plea the learned provincial magistrate then
recorded that the proceedings are to be in accordance with the provisions of s 271 (2)(b). I
think that for the learned provincial magistrate and indeed for his peers of judicial officers,
the problem starts at this juncture because they take for granted that the guilty plea procedure
is a simple one, yet it is not. S 271 (2(b) is resorted to where the accused is pleading guilty
and the court is of the opinion that the punishment likely to be imposed exceeds a level three
fine or imprisonment without the option of a fine. The procedure should also be followed in
every case where the prosecutor requests the court to proceed in terms of that section.
The provisions of subsection (2)(b) needs restating as well. They read as follows-
“271 (2) (b) the court shall, if it is of the opinion that the offence merits any punishment
referred to in subparagraph (i) or (ii) of paragraph (a) or if requested thereto by the
prosecutors-
(i) explain the charge and the essential elements to the accused and to that end require
the prosecutor to state, in so far as the acts or omissions on which the charge is based are
not apparent from the charge, on what acts or omissions the charge is based; and
(ii) inquire from the accused whether he understands the charge and the essential
elements of the offence and whether his plea of guilty is an admission of the elements of
the offence and of the acts or omissions stated in the charge or by the prosecutor;
and may, if satisfied that the accused understands the charge and the essential elements of
the offence and that he admits. The elements of the offence and the acts or omissions on
which the charge is based as stated in the charge or by the prosecutor, convict the accused
of the offence to which he has pleaded guilty on his plea of guilty and impose any
competent sentence or deal with the accused otherwise in accordance with the law...
………….” (own underlining)
There is a proviso to para (b) above that allows the court in circumstances where
the accused is legally represented to dispense with the steps set out above. The court may
enquire of the accused’s legal practitioner whether the accused understands the charge and
essential elements and that the accused admits the acts or omissions on which the charge is
based as stated in the charge or by the prosecutor. If the legal practitioner confirms that he or
she has done the motions set out with the accused, the magistrate will proceed to rely on the
legal practitioners confirmation or statement to that effect and convict and sentence the
accused.
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HH 283-21
CRB BNP 3222/20
CRB BNP 2902/20
CRB BNP 65/21
It is essential that the learned magistrate and his peers appreciate that it is a
peremptory requirement to explain the charge and the essential elements of the charge. To
explain means to describe the offence or charge in more detail. Some peers of the learned
regional magistrate are innovative. They record the words “charge read, explained to the accused
and understood.” For argument’s purposes, I will accept that the judicial officer who has
recorded these words will indeed have explained the charge to the accused. That is however
not the end of the matter. Another peremptory requirement is then to be found in subs (3) of s
271 which mandates the magistrate to record the explanation given. The accused’s response
to the explanation must be separately recorded and form part of the record of proceedings. It
is therefore not sufficient to record that the charge has been explained without recording
ipsissima verba or the very words of the explanation given.
The process of explaining the charge may seem to be and in all fairness is perhaps
onerous. Unfortunately, the law must be followed to the letter. Short cuts or other procedures
not provided for in s 271(2)(b) as read with 271(3) cannot be condoned given that the
procedures are peremptory. If a procedure which does not strictly comply with the motions of
trial on guilty pleas is followed, the resultant trial is a nullity. It would be a trial invented by
the court and not the one envisaged in the two subsections herein. It is an unfair trial which
cannot be salvaged by the application of s 29(2) of the High Court, [Chapter 7:06] which
provides that the criminal proceedings on review cannot be set aside for procedural or
substantive irregularity unless a substantial miscarriage of justice has in fact resulted. A
mistrial cannot give rise to considerations of substantial miscarriage of justice. There is no
valid trial to consider. There is nothing for the court to review because nothing arises out of
nothing. The court has nothing before it and cannot consider whether from a “nothing” there
is any justice which can then be said to have been miscarried substantially. Going forward,
when disposing of a trial by way of guilty plea in terms of s 271(2)(b) it may assist to jog the
memory of the magistrate, if instead of simply endorsing that the matter is to be disposed of
in terms of s 271(2)(b) the magistrates endorses, “as read with s 271(3)”. Section 271(2)(b) is
the enabling section whilst subsection (3) of the same section sets out the procedure to be
followed on disposal of the trial of an argued by guilty plea procedure.
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HH 283-21
CRB BNP 3222/20
CRB BNP 2902/20
CRB BNP 65/21
Reverting to the substance of the facts of the cases, the details of the convictions were
as follows. In the first case S v Muneripi Mukwesha BNP 3222/20, the accused was on his
own guilty plea convicted of contravening s 157(1)(a) of the Criminal Law (Codification &
Reform), Act [Chapter 9:23], that is “unlawful possession of dangerous drugs”. It was
alleged that police recovered from the accused’s possession at the accused house, three
plastic bags containing dagga which weighed 1.98 kilogrames. The accused was sentenced to
36 months imprisonment with 6 months suspended on the usual conditions of good
behaviour. I have already pointed out that the explanation of the charge was not recorded
even assuming that it was given. Using this case as an example, it is common cause that
crimes are codified in the Criminal Law (Codification & Reform) Act. The crimes are
described therein in relation to both the mens rea and the acts or omissions which ground the
offences. I was nearly tempted to attempt an explanation of the charge of contravening s
157(1)(a) as aforesaid on which the accused was convicted. I thought it better not to do so to
avoid tying magistrates who have to explain the charge being bound to the content of my
explanation. What however remains key is for magistrates to explain the charge in their
words as they understand it upon a reading of the definition of the charge as given in the
instrument that creates the charge and to record the explanation. There is really nothing
unusual about this provision because magistrates are already recording explanations given to
the accused, say in regard to special circumstances which the accused must adduce to avoid
being sentenced to a mandatory minimum imprisonment sentence where the law provides that
an accused may be sentenced to a sentence other them the mandatory minimum sentence if he
establishes the existence of special circumstances to avoid the imposition of the minimum
mandatory sentence.
In case No. B 2905/20, S v Donald Muomba, the accused and his co-accused were
charged with three counts of stock theft as defined in s 114(2)(a)(1)(ii) of the Criminal Law
(Codification & Reform) Act. The accused pleaded guilty and the co-accused not guilty.
Their trials were separated. The record showed the following recorded:
“charge put to accused persons and they understood.”
Needless to state that the learned provincial magistrate fell foul of the statutory
requirements to explain the charge and to record the explanation given by the said learned
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HH 283-21
CRB BNP 3222/20
CRB BNP 2902/20
CRB BNP 65/21
provincial magistrate. Interestingly the learned magistrate recorded the following before
charges were put to the accused.
“Court to accused persons
The offence you are being charged with attracts a minimum mandatory sentence of 9 years in
absence of special circumstances. As you plead, you should know that the offence is a serious
offence. It attracts a minimum sentence of 9 years.”
There was certainly nothing wrong with warning the accused of the serious nature of
the offence before the accused was called upon to enter a plea. The law however requires that
the serious offence as noted by the magistrate should be explained to the accused. In fact, the
explanation will include the penalty as provided for in the relevant section of the Criminal
Code which creates the offence. What is significant is that the learned provincial magistrate
recorded his explanation of the seriousness of the offence. The explanation of the charge
should just be recorded. Complying with the requirement to explain the charge appears to be
something which can be done as a matter of routine. The process may be cumbersome, yes,
but then that is the problem with the law. It is applied as given by the law giver and not as
what the court or judicial officer considers to be convenient or expedient.
In the last case, CRB BNP 65/21 S v Douglas Mandere, the accused was charged with
Theft of Trust Property as defined in s 113 (2) (d) of the Criminal Law (Codification and
Reform) Act. He pleaded guilty to the charge. The learned provincial magistrate as in the
other two cases recorded “charge put to accused person and he understood”. There was no
recording of the explanation of the charge given to the accused assuming that such
explanation was proferred. I repeat by reference, the same comments I have already made
herein on the procedure adopted by the learned provincial magistrate being irregular. Nothing
further needs be said.
Having determined that the procedures adopted were irregular, I must express concern
that there appears to be a measure of defiance of superior court judgments by some judicial
officers in the magistracy as shown by continued omissions to record the actual explanation
of the charge given by the magistrate to the accused despite this courts pronouncements
without regard. I do not however intend to adopt a one jacket fits all criticism because I have
received quite a number of records of proceedings for review wherein the provisions of s 271
(2) (b) (i) as read with s 271 (23) have been complied with.
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HH 283-21
CRB BNP 3222/20
CRB BNP 2902/20
CRB BNP 65/21
In the case of S v Enock Manngwende HH 895/20, a review judgment by myself with
MUSITHU J agreeing on 2 October, 2020, the issue of how magistrates should deal with a
guilty plea is discussed extensively. After quoting the provisions of s 271 (3) of the Criminal
Procedure and Evidence Act, the following is stated at page 6 of the cyclostyled judgment
“In casu, the learned regional magistrate recorded that “charges-Put to the accused
understood.” That is not what the learned regional magistrate was supposed to do. He was in
terms of the provisions of s 271 (3) required to inter alia explain the charge to the accused and
record the explanation so given in content. This and other requirements in s 271 (3) aforesaid
make the plea procedure cumbersome and involved. The rationale is understandable. The
accused would by his admission essentially be convicting himself and relieving the State of
the burden to prove the charge against the accused beyond a reasonable doubt. The provisions
of subsection (3) of s 271 aforesaid are intended to ensure fairness to the accused by ensuring
that the guilty plea is tendered deliberately and knowingly…….”
On page 7
“It is very unfortunate that the convictions and sentences on very serious charges are set aside
on account of procedural irregularities. In casu, the irregularities were committed by the
regional magistrate who is charged with scrutinizing cases concluded by his subordinate
magistrates where the case does not qualify to automatic review by a judge of the High Court.
It is very important that a judicial officer always keeps abreast with the law. The failure to
comply with peremptory procedural trial steps have resulted in a setting aside of the
unprocedural trial. The failure to comply with s 271 (3) of the Criminal Procedure and
Evidence Act, has again further rendered the trial unfair because it cannot without the charge
having been explained to him be proper, to hold that the accused understood what the charge
entailed since no explanation as required in terms of s 271 (3) was recorded as having been
given to the accused.”
In the above case, the convictions and sentences on the two counts of rape involved in
the proceedings on review were set aside and the accused released from custody. It was left to
the Prosecutor General in his discretion to mount a fresh prosecution of the accused. It should
also be recorded that in the cited case, it was stated that the provisions of s 29 (3) of the High
Court, [Chapter 7:06] to the effect that no conviction or sentence may be set aside on review
for any irregularity unless the judge considered that a substantial miscarriage of justice had
resulted, was not applicable to an unprocedural trial. An unprocedural trial is an unfair trial.
An accused’s rights to a fair trial in terms of section 86 (3) (e) of the Constitution is absolute
or entrenched. The right cannot be limited or qualified by any law.
In the case of S v Moyo HH 697/20 being a review judgment by myself dated 29
October, 2020, I again emphasized the requirement that the provisions of s 271(2)(b) and s
271(3) be complied with to the letter. On p 5 of the cyclostyled judgment, the following is
stated
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HH 283-21
CRB BNP 3222/20
CRB BNP 2902/20
CRB BNP 65/21
“The other issue pertains to non-compliance with the provisions of s 271(3) of the Criminal
Procedure and Evidence Act. The learned magistrate in casu simply recorded “P – Guilty s
271(2)(b)”
Amongst other peremptory requirements, s 271 (2)(b) sets out what the trial magistrate should
do by way of exchange between him or her and the accused. The section provides that the
magistrate shall explain the charge and the essential elements of the offence to the accused.
The magistrate then must enquire from the accused whether the accused understands the
charge and the essential elements. Section 271(3) however lists the matters which should be
recorded in the process of the guilty plea disposal. For example, para (a) of subs (3) of s
271 requires that
“The explanation of the charge and essential elements of the offence .. shall be recorded .”
In other words, the full contents of the explanation given be recorded. The reason for this is
simple. Again because magistrates court proceedings are susceptible to scrutiny and review,
which are quality control measures imposed by statute and are peremptory, the scrutinizing
magistrate or review judge should be satisfied that the correct explanation of the charge was
given to the accused. If properly explained, there would be no doubt arising that the accused
who pleaded guilty did so well aware of what constitutes the offence. It is not in my view too
onerous a duty to explain the charge and record it (the explanation) because the criminal
offences are codified in this jurisdiction.”
I determined in the above case that the proceedings were not in accordance with real
and substantial justice and withheld my certificate.
In respect to the three cases under review the same approach adopted in S v Enock
Mangwende HH 895/20 and S v Moyo HH 697/20 will be followed. The convictions and
sentences cannot stand and should be set aside for gross procedural irregularity which offends
the right of the accused to a fair trial. The following order will be made
ORDER
1. The proceedings in case Nos. BNP 3222/20; BNP 2902/20 and BNP 65/21 are
hereby quashed and convictions and sentences set aside.
2. The Prosecutor General retains his discretion to prosecute the accused in each
of the three cases afresh, subject however to the condition that should retrials
be instituted, then,
(i) A different magistrate will preside over them
(ii) If a conviction ensues, the accused shall not be sentenced to greater
punishment than the sentence which has been set aside and any served
portion thereof on account of the set aside sentence shall be taken into
account when assessing the new sentence.
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CRB BNP 3222/20
CRB BNP 2902/20
CRB BNP 65/21
3. A copy of this judgment and copies of the judgments S v Mangwende HH
695/20 and S v Moyo HH 697/20 should be sent to the Chief Magistrate with
an instruction that the learned Chief Magistrate takes steps to bring these
judgments to the attention of all magistrates to avoid the continued mistrials
that result by failure to follow strictly the provisions of s 271(2)(b) as read
with ss (3) of the same section.
MUSITHU J agrees………………………………………