THE State V Ernest Manyika

### Preamble
1
HH 57-22
CRB NO. CHNP 1204-5/20
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THE STATE

versus

ERNEST MANYIKA

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 24 January 2022

Review Judgment

CHITAPI J:  The accused was charged with the offence of Stock Theft as defined in s 114 of the Criminal Law (Codification & Reform) Act, [Chapter 9:23].  He was convicted on his own plea of guilty by the magistrate M Mabika Esquire sitting at Chinhoyi on 24 November 2020 and sentenced to the mandatory minimum sentence of 9 years imprisonment.  The charge alleged that the accused, aged 48 years, in the month of October 2020 at Highbury Farm, Chinhoyi, the accused and an accomplice intending to deprive the complainant of his cattle drove away six (6) herd of cattle belonging to the complainant from the grazing lands.  He chose the six (6) from a herd of fifty (50) cattle which was grazing.  The accused and his accomplice drove the cattle for about 20 kilometres to the home of the accomplice.  The cattle, save for one, were recovered from the home of the accomplice who ran away and is at large.  The accused’s accomplice slaughtered one steer and used the meat to feed a memorial service gathering.  The accused denied that the number of cattle were six but four.  The prosecutor accepted to alter the number from six to four.

On review of the proceedings, I raised a query for the learned magistrate to comment upon as follows:

“Did the magistrate comply with s 271(3) of the Criminal Procedure and Evidence Act that requires that charge is not just explained but the explanation shall be recorded.  See S v Mangwende HH 695-20.”

The learned magistrate responded as follows:

“………I concede that I did not comply with the provisions of s 271(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] as I did not record the explanation of the charge I made to the accused person.

I undertake to apply the correct procedure in my future work.”

Although the learned magistrate committed the irregularity which I pointed out to him, it is refreshing that he acknowledged it and has been properly directed for the future disposal of guilty pleas.  It is important that when disposing of a trial by way of a guilty plea, the magistrate should always appreciate that the provisions of s 271(2)(b) of the Criminal Procedure and Evidence Act shall be read together with the provisions of s 271(3)  of the same enactment.  See S v Matimbe 1984(1) ZLR 283, S v Mangwende HH 695-20, S v Mare & 6 Ors Kenmore Sign and Anor HH 336-21,   S v Liberty Musimwa HH 52/20, S v Dube & Anor 1988 (2) ZLR 365(SC).  Essentially, the cited authorities and others give direction to the magistracy that the magistrate must inter-alia explain the charge to the accused person before the accused is called upon to plead to it.  The ipsissima verba of the explanation given should be recorded by the trial magistrate.

In casu, the learned magistrate simply recorded:

“Charge put to the accused and understood.”

This was inadequate and non-compliant with s 271 (3)(1) of the Criminal Procedure & Evidence Act.  The actual wording of the explanation given was supposed to be recorded.  The learned magistrate also wrote that: “explanation of charge made to accused and understood”.  This was inadequate because the explanation should be recorded.  Such omission has been held to be fatal to the conviction as stated in cited authorities.

The learned magistrate having unprocedurally convicted the accused, committed yet another material irregularity in regard to sentence.  In relation to dealing with special circumstances, the learned magistrate recorded as follows:

“Explanation of special circumstances done for the second time and examples given.

Q.  Do you understand?

A.  Yes.

Q.  Do you have any of these

A.  Yes I was not paid.

That’s not a special circumstance.

Q.  Anything else.

A. None.”

It is trite that the magistrate should record the content of the explanation of special circumstances given to the accused – the decision of MAFUSIRE J in S v Advocate Mhungu HMA 9/2016 and authorities cited therein provides good guidance on how the issue of special circumstances should be dealt with.  The accused must also be advised of his right to plead evidence on special circumstances and call evidence in that respect.  In casu, there is nothing to indicate that there was such direction given to the accused.  The failure to adequately deal with special circumstances vitiated the sentence.  In such a circumstance, the appropriate course would have been to quash the sentence and remit the record of proceeding to the magistrate to properly canvass the question of special circumstances.  In casu, such option has been rendered nugatory because the conviction itself has to be set aside for gross procedural irregularity because of non-compliance with s 271(3)(1) of the Criminal Procedure and Evidence Act.  The failure to conduct a trial as dictated by statutory regulated procedure vitiates such trial.  The result of the mistrial is that, the ensuing conviction cannot stand and must be set aside.

It is accordingly ordered that:

The conviction and sentence imposed on Ernest Manyika in case no. CRB

CHNP 1204-5/20 be and is hereby quashed and set aside.

The accused is entitled to his immediate release.

The Prosecutor-General may in his discretion institute a fresh prosecution of the accused.

In the event that a fresh prosecution is instituted a different magistrate shall preside the accused’s trial and if the magistrate convicts the accused, the sentence already served by the accused should be factored into the new sentence which may be imposed as portion of an already served portion of that new sentence.

MUSITHU J Agrees:…………………………..