THE State V Raphael Tandi, Ravious ZATA AND Dellon Tizora

### Preamble

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HH 642-25

HCHCR 4493/25

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THE STATE

versus

RAPHAEL TANDI

and

RAVIOUS ZATA

and

DELLON TIZORA

HIGH COURT OF ZIMBABWE

MUREMBA & CHITAPI JJ

HARARE; 23 October 2025

Review Judgment

MUREMBA J:

The three accused persons were charged with and subsequently convicted of unlawful entry into premises, as defined under section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Each of them pleaded not guilty, but following a full trial, they were found guilty. Upon conviction, each accused was sentenced to 24 months’ imprisonment, with 3 months suspended on condition of future good behaviour and a further 1 month suspended on condition that restitution is paid to the complainant. This resulted in an effective custodial sentence of 20 months for each accused.

The brief facts of the matter are as follows. The three accused persons and the complainant reside at separate addresses in Waterfalls, Harare. On 26 April 2025, at approximately 2100 hours, while the complainant was asleep in her home, having secured all doors and windows, the accused persons, acting in concert, forcibly opened a window and unlawfully entered the premises. Once inside, they took two cell phones and fled. Upon discovering the offence, the complainant reported the matter to the police. Investigations led to the recovery of one of the stolen phones from one Tatenda Mpofu who implicated accused one as the person who had sold it to him. Following the arrest of accused one, he allegedly implicated accused two and accused three.

I am compelled to express my profound dismay at the judgment rendered by the trial magistrate in this matter. The judgment falls significantly below the standard expected of a judicial officer entrusted with the solemn duty of administering justice. It is structurally incoherent, legally unsound, and devoid of analytical rigour. To compound matters, this is the second review case from the same magistrate that has come before me. On the 16th of October, I dispatched a review judgment in the matter of State v Michael Madzande HH 636-25, wherein the same magistrate authored yet another judgment that was equally devoid of meaning and judicial substance.

The pattern emerging from the judgments of the trial magistrate suggests a troubling lack of understanding of the basic principles of judgment writing. It is deeply concerning that a judicial officer would produce work of such poor quality; work that, quite frankly, falls beneath the competence expected of a law graduate. In light of these repeated deficiencies, it is difficult to justify the continued assignment of adjudicative responsibilities to this magistrate. Judicial decisions require clarity and precision; qualities regrettably lacking in the judgment under review.

Lest there be any misunderstanding as to the source of my dismay, I find it necessary to reproduce verbatim the judgment delivered by the trial magistrate in this matter. To make matters worse, the magistrate does not write legibly. In both this case and the earlier matter of State v Michael Madzande, I was compelled to direct that the proceedings be transcribed due to the illegibility of her handwritten judgments. What follows is the transcribed record of the judgment in the present matter, as signed by the magistrate. I reproduce it exactly as it appears in the official record. No errors have emanated from me in this reproduction. The content speaks for itself and regrettably confirms the serious deficiencies in the magistrate’s understanding of judgment writing.

“JUDGEMENT

All the three accused persons were brought before court facing a charge of unlawful entry into premises in aggravating circumstances. The state alleges that on 26th May 2025 at around 9:00 PM at house number 2840 Mainway, Meadows, waterfalls, one, two or all of them unlawfully and intentionally without permission and authority from Faith Munhira, the lawful occupier of the premises concerned, without other lawful authority entered Faith Munhira's premises by forcing open the window while she's inside. They all indicated that they do not know one Tatenda Mpofu. That they were only implicated by accused one. That they did not unlawfully enter into the complainant's place.

The state case opened and called evidence of Edith Munira.

State alleges that on the day in question accused took complainants property or realizing that Faith Munira was or may be entitled to own process or control of the property, intending to permanently deprive the complainant. State alleges that during the night accused persons in connivance and armed with this criminal mind they proceeded to the crime scene whereupon arrival they forced open the window of the house and gained entry. While inside the house accused persons took the complainant's property and went away. Complainant discovered the offense on 27th May 2025, for a report made to the CID.

Police further made investigations by detectives led to the arrest of accused persons and recovery of iPhone 12 Pro Max cellphone from one Tatenda Mpofu with value stolen is 530 and Robert valued is 430 was recovered. Accused persons denied the offense.

She indicated that she woke up in the morning found that her phone has been stolen. However, she was alerted by her nephew who indicated that he had seen his phone being sold by one of the accused persons. So the his nephew, the complainant's nephew then inquired from accused person number one. They started demanding $200 from the complainant's nephew so that he would release the phone. He had he then indicated to the witness that he had gotten the phone from someone from one And that he could not release the phone unless he was given $200 US dollars. The complainant was called and started negotiating with accused person number one. However, during the negotiations, the complainant then indicated that he was going to take them on taking the money. She gained then came with the police and accused person one was arrested. Then he implicated accused two and accused person number three.

Matter proceeded to trial.

Evidence was led from the second witness who who indicated that the recovery which was made was caused by the accused person number one. He's the one who caused the recovery of the complainant's phone and upon inquiry the IOW investigated the matter indicated that accused person number one caused the recovery of the phone and he had upon inquiry investigation, accused person number one indicated that they stole the phone from the complainant's house together with accused two and accused person number three. During cross-examination, accused person number two and three did not fully cross-examine.

The complainant also assisted investigating officer to the fact that they were found at the scene where they wanted to negotiate a price with the complainant who is the owner of the phone.

They could not dispute that.

Court was left on wondering why the accused persons would want to negotiate the price with the owner of the phone. The accused persons also failed to explain fully and reasonably on how they got to be in possession of the phone. They indicated that they got the phone from the witness. Tatenda mpofu then indicated that she got the phone from the accused persons. And accused persons failed to explain um the circumstances that led them to sell the phone to one Tatenda mpofu. Court observed that accused persons entered unlawfully into the complainant's place of residence and they stole the phones and had no defense. State managed to prove its case beyond reasonable doubt. Accused are found guilty as charged.”

It is apparent that the judgment suffers from significant grammatical and structural deficiencies, rendering it difficult to follow. Numerous sentences are disjointed, or entirely unintelligible. It is difficult to follow the factual narrative of the judgment or understand the legal reasoning employed by the learned magistrate. This suggests that the judgment was neither proofread nor carefully considered. This lack of editorial diligence undermines the credibility of the judicial process and reflects poorly on the standard of adjudication.

The complainant is referred to interchangeably with her nephew, and the narrative surrounding their involvement is confusing and contradictory. The second witness is mentioned but not named, and his/her testimony is described in vague terms. The failure to properly identify and distinguish witnesses makes it impossible to assess the reliability and relevance of their evidence.

The court’s analysis of the evidence is superficial and legally inadequate. The judgment fails to set out the evidentiary foundation upon which the conclusion of unlawful entry was reached in respect of each individual accused. There is no clear reasoning or assessment of how the evidence supports the conviction of each person beyond reasonable doubt. More critically, the judgment entirely overlooks the defence raised by accused two and accused three—that their alleged involvement stemmed solely from being implicated by accused one. The court does not engage with the legal principles governing the admissibility and evidentiary weight of such implications. This omission reflects a failure to apply the law correctly.

Moreover, the judgment raises serious concerns about whether the accused persons understood the basis of their conviction. If the judgment as written reflects what was read out in open court, it is difficult to imagine how the court interpreter could have accurately conveyed its meaning. The language is so disjointed and confusing that it likely compromised the accused’s right to understand the proceedings and the reasons for the verdict. This strikes at the heart of the right to a fair trial and renders the convictions of the accused persons unsafe. I find that the judgment is legally unsound, procedurally defective, and fails to meet the threshold of real and substantial justice. Unfortunately, it is not only the judgment that is flawed. The bulk of the record of proceedings is riddled with irregularities, which I will address in detail below.

The pre-sentence inquiry was conducted in a manner that was procedurally flawed and legally unsatisfactory. Rather than inviting each accused person to address the court in mitigation individually and in sequence, starting with the first accused and proceeding accordingly, the trial magistrate simultaneously posed questions to the first and second accused, both of whom were unrepresented. One-word answers were being recorded from them. The result was a superficial and ineffective mitigation process. This approach not only contravenes established sentencing procedure but also deprived the accused persons of a meaningful opportunity to present their personal circumstances in mitigation.

Following this, a victim impact statement was purportedly recorded from the complainant. However, the court record merely notes “witness sworn,” without identifying the witness by name; an omission that falls short of procedural propriety. Based on the substance of the testimony, one can only infer that the witness was the complainant. Moreover, it remains unclear who led the witness in presenting the victim impact statement—whether it was the magistrate or the prosecutor. The record later states “aggravation – none,” which suggests that the prosecutor did not make submissions in aggravation and was likely not the one leading the complainant’s evidence. To make matters worse, the accused persons were not given an opportunity to cross examine the witness. These procedural deficiencies undermine the transparency and integrity of the sentencing process.

The record reveals that although the third accused was unrepresented during trial, he was legally represented at the pre-sentence inquiry. However, the defence counsel for the third accused only made submissions in mitigation well after the mitigation process for the first and second accused had been completed, and notably, after the complainant had taken the witness stand to give the victim impact statement, and after the prosecution had indicated that there were no aggravating factors to present. This sequencing is procedurally irregular. No explanation is provided in the record as to why the third accused’s mitigation was deferred to the very end, rather than being heard alongside his co-accused. Such a lapse reflects a fundamental misunderstanding of the proper conduct of sentencing proceedings. It is deeply concerning that a judicial officer would preside over sentencing in such a disordered and incoherent manner.

In the sentencing judgment, the trial magistrate merely stated:

“S.I 146/23 on the sentencing guidelines provides for level 4 fine up to 24 months’ imprisonment for unlawful entry into premises.”

This statement constitutes the entirety of the legal framework section of the sentencing judgment. Critically, the magistrate fails to clarify whether the referenced penalty is the statutory penalty or a presumptive penalty, leaving the legal basis for the sentence ambiguous. Such a lack of exposition renders the sentencing analysis both incomplete and legally deficient. A sentencing court is expected to demonstrate a sound understanding of the applicable sentencing regime, including the distinction between statutory penalties, which define the outer limits of punishment and presumptive penalties, which guide the court in determining an appropriate sentence within those limits. The court must then justify the sentence imposed by engaging with these frameworks and by weighing the relevant mitigating and aggravating factors. In this case, the absence of such analysis reflects a troubling disregard for foundational sentencing principles and undermines the transparency and rationality of the sentencing process.

In explaining the purpose of a defence outline the magistrate simply said,

‘Since you are denying offense, court is now giving you an opportunity to explain your denial of the offence, mentioning all material aspects for a court to take it that you committed the offence.”

The explanation given by the trial magistrate is legally flawed, procedurally deficient, and wholly inadequate when measured against the requirements of sections 188 and 189 of the Criminal Procedure and Evidence Act [Chapter 9:07] (CPEA). Firstly, the magistrate failed to inform the accused persons of their right to remain silent, which is a mandatory safeguard under section 188(b) for unrepresented accused. The right to silence is a cornerstone of fair trial rights, and its omission constitutes a serious procedural irregularity. Secondly, the wording used by the magistrate is misleading and prejudicial. It suggests that the purpose of the defence outline is to assist the court in concluding that the accused committed the offence, rather than to provide them with an opportunity to outline the nature of their defence and the material facts they rely upon. This mischaracterization distorts the purpose of the defence outline and risks coercing the accused into making statements against their interest.

Furthermore, the magistrate did not explain the consequences of withholding relevant facts, as required by section 189(2). The accused persons were not informed that failure to mention a fact which they could reasonably have been expected to disclose at that stage could result in adverse inferences being drawn against them, and that such omissions could be treated as corroborative evidence against them. This omission undermines the fairness of the trial and deprived the accused of the opportunity to make informed decisions about their defence strategy. The explanation was also delivered in vague and grammatically awkward terms, without any effort to ensure that the accused understood their rights and options.

In addition, the magistrate failed to explain that the defence outline is a voluntary statement. The language used implies compulsion rather than choice, which is impermissible in criminal proceedings. The accused must be made to understand that they are under no obligation to speak and that any statement that they elect to give must be voluntary and informed. While it is not necessary to cite the provisions of s 188 and 189 of the CPEA verbatim, the magistrate is expected to convey the substance of the law in a manner that reflects its intent and safeguards. The explanation by the magistrate reflects a fundamental misunderstanding of the purpose and implications of a defence outline, particularly in the context of unrepresented accused persons. This failure compromises the integrity of the proceedings and warrants serious concern.

The record of proceedings shows that three witnesses—Faith Munira, Tatenda Mpofu, and T. Zambe testified during the State’s case. However, there is no indication in the court record that any of these witnesses were sworn in, affirmed, or admonished prior to giving evidence. This omission is not a trivial oversight. The magistrates’ court is a court of record, and as such, it is legally obligated to document all procedural steps, especially those that affect the admissibility and credibility of evidence. The failure to record the administration of an oath, or affirmation, or admonition undermines the integrity of the proceedings and casts doubt on the legal validity of the testimonies given.

The magistrate’s conduct in this case reflects a serious procedural irregularity and a disregard for the mandatory provisions of the CPEA. Sections 249 to 251 of the CPEA clearly outline the legal requirements for administering oaths, affirmations, or admonitions before a witness may lawfully give evidence. Section 249(1) stipulates that no person may be examined as a witness unless they have taken an oath, except in circumstances covered by sections 250 and 251. Section 250 provides for affirmations in lieu of oaths for individuals who object to taking an oath. Section 251 allows for unsworn testimony only in cases where the witness does not understand the nature of an oath or affirmation due to youth, defective education, or other causes. In such cases, the magistrate is required to admonish the witness to speak the truth and administer a form of admonition that binds the witness’s conscience. By neglecting to comply with the statutory requirements of the CPEA, the magistrate failed in her duty to uphold the rule of law and ensure that all witnesses were legally bound to tell the truth. It is imperative that judicial officers strictly adhere to procedural safeguards, particularly those that protect the integrity of witness testimony, to maintain the credibility and reliability of the justice system.

The magistrate’s handling of the defence case also reflects a troubling departure from established legal procedure and undermines the integrity of the judicial process. Firstly, the record shows that accused one and two were sworn in before giving evidence, but accused three was not. This is a clear violation of section 249(1) of the (CPEA), which requires that all witnesses, including accused persons who testify in their own defence, must be examined only upon oath unless they fall under the exceptions provided in sections 250 or 251. There is no indication that accused three made an affirmation or was admonished in accordance with these provisions, rendering his testimony procedurally defective.

While the record indicates that accused one and two were sworn in before giving evidence, it is puzzling how this was done without them first stating their names for the court. The administration of an oath is not a mechanical ritual. It is a solemn legal act that must be preceded by the proper identification of the person taking it. In a court of record, it is imperative that every witness, including an accused person who elects to testify, is clearly identified by their full legal name before being sworn. This ensures that the testimony is attributable to a specific individual and that the record reflects who was bound to speak the truth under oath. The failure to record the names of the accused persons and instead refer to them generically as “accused one,” “accused two,” and “accused three” is a serious lapse in judicial record-keeping. It undermines the transparency and reliability of the proceedings and creates ambiguity about who actually testified. This is especially problematic in cases where multiple accused persons are involved, as it impairs the ability of reviewing courts, legal practitioners, and future proceedings to trace and verify the evidence given by each individual. Moreover, the omission of the accused persons’ names is inconsistent with the treatment of witnesses, who are routinely identified by name. This reflects a lack of procedural diligence on the part of the magistrate.

Another area of concern is the magistrate’s handling of the cross-examination process. It reflects a fundamental misunderstanding of her duty to safeguard the rights of unrepresented accused persons and ensure a fair trial. As articulated in S v Michael Madzande, supra and supported by John Reid Rowland’s Criminal Procedure in Zimbabwe, LRF 1997 at p16 -31 when an accused is not legally represented, the magistrate bears a positive obligation to explain the purpose of cross-examination in clear and simple terms. This duty is not discretionary. It is a procedural safeguard designed to ensure that the accused understands his/her right to challenge the evidence presented against him/her and to present his/her own version of events.

In stark contrast to this standard, the magistrate in the present case failed to provide any meaningful explanation of what cross-examination entails. After the first State witness had testified, the magistrate merely said to the accused persons:

“Put question to the witness for a court to take it that you committed the offence.”

This statement is not only vague and confusing, but it also misrepresents the purpose of cross-examination. It suggests that the act of questioning the witness is somehow an admission of guilt, which is both legally incorrect and prejudicial. Such a remark could easily intimidate or confuse an unrepresented accused person, discouraging them from exercising their right to cross-examine altogether.

Moreover, the magistrate’s statement fails to convey the essential functions of cross-examination which are to test the truthfulness, reliability, and accuracy of the witness’s testimony, and to allow the accused to put forward their own version of events where it differs from the witness’s account. There was no guidance on the types of questions that could be asked, no clarification that the accused is not required to cross-examine, and no warning that failure to do so might result in the court accepting the witness’s version unchallenged. The magistrate’s perfunctory and misleading instruction not only failed to meet the standard set out at law, but it also compromised the accused persons’ ability to effectively participate in their own defence. The failure to explain the purpose of cross – examination in the present matter is a serious procedural flaw which amounts to a denial of the right to a fair trial.

The nature of the questions posed by the accused persons clearly illustrates the magistrate’s failure to properly guide them. Each accused person asked one question to the complainant. Accused one asked, “I did not steal your phone,” to which the complainant responded, “You are admitting.” Accused two asked, “Do you know me?” and accused three asked, “Do you know,” both of which elicited the same response from the complainant: “No.” These questions were superficial and did not engage with the substance of the complainant’s testimony. They reflect a lack of understanding of how to test the credibility or reliability of the witness, or how to present an alternative version of events.

The fact that each accused asked only one question, and that none of the questions meaningfully challenged the witness’s account, is compelling evidence that the magistrate did not properly explain the purpose of cross-examination. This failure deprived the accused persons of a critical opportunity to defend themselves and to test the evidence against them. In a court of law, especially where accused persons are unrepresented, the magistrate must take active steps to ensure that they understand their rights and the procedures involved. Anything less risks turning the trial into a mere formality, rather than a genuine inquiry into the truth.

Further, the explanation given by the trial magistrate at the commencement of the defence case was procedurally inadequate and failed to meet the standard required under sections 198(6) to (9) and section 199(1) of the CPEA. As I stated in State v Madzande, when an accused is put on their defence, the court assumes a critical duty to ensure that the transition from the prosecution’s case to the defence is handled fairly, transparently, and in accordance with the law. This duty is heightened where the accused is not legally represented. The magistrate must clearly explain the accused’s right to testify or remain silent, the implications of each choice, and the procedural rules governing the presentation of defence evidence. In the present matter, the magistrate simply stated:

“Court is now giving you an opportunity to explain your defence. You can call witnesses; you can produce exhibits. You can elect to give evidence under oath or without taking oath. Evidence under oath carries more weight than evidence given without taking oath.”

This explanation is deficient in several respects.

Firstly, it fails to inform the accused of their right to remain silent and the fact that choosing not to testify does not amount to an admission of guilt. Secondly, it does not explain the proviso to section 198(8), which requires that no other defence evidence may be led until the accused has either testified or been questioned by the court or prosecutor, unless the court exercises its discretion to allow it. Thirdly, the magistrate omitted any reference to section 198(9), which allows the prosecutor and the court to question the accused even if they decline to testify. Fourthly, there was no explanation of section 199(1), which governs the order and manner in which defence evidence may be presented. Fifthly, the accused were not informed that if they chose to testify, they would be examined like any other witness, including being subject to cross-examination by the prosecutor and possible re-examination. Sixthly, the statement that “evidence under oath carries more weight” is misleading and may have pressured the accused into testifying without fully understanding the implications. Lastly, the magistrate failed to record a proper explanation in the proceedings, which is essential for transparency and for safeguarding the accused’s right to a fair trial.

Overall, the magistrate’s explanations throughout the trial were superficial, legally incomplete, and procedurally flawed. At every critical juncture, whether during cross-examination, the transition to the defence case, or the administration of oaths, the magistrate failed to provide the clarity and guidance required by law, particularly when dealing with unrepresented accused persons. These explanations did not equip the accused with the necessary understanding to make informed decisions about their defence, nor did they reflect the procedural safeguards enshrined in the CPEA. The accused were left to navigate complex legal processes without adequate guidance, resulting in missed opportunities to challenge the prosecution’s case or to present their own version of events effectively.

What is deeply concerning in the present matter is that the procedural shortcomings observed are not isolated incidents. They reflect a recurring pattern of judicial missteps by the same magistrate, previously highlighted in State v Madzande. The magistrate’s repeated inability to provide clear, structured, and legally sound guidance compromises the fairness of trials and raises serious doubts about her understanding of basic procedural safeguards. It also calls into question her commitment to ensuring that justice is not only done but seen to be done. Given the recurrence of these issues, one must ask how many of this magistrate’s matters are being confirmed on review, and whether similar procedural defects are being overlooked in other cases. The consistency of these errors points to a deeper problem, one that cannot be resolved through isolated corrections but requires a comprehensive intervention.

I therefore reiterate, with even greater urgency, the need for the magistrate to undergo structured retraining. This should cover all aspects of criminal adjudication, including trial procedure, evidence handling, sentencing law, and the proper conduct of proceedings involving unrepresented accused pesons. Additionally, focused instruction in judgment writing and English proficiency is essential, as the ability to communicate legal reasoning clearly and coherently is a fundamental judicial skill. Until the magistrate demonstrates meaningful improvement in these areas, I recommend that she should not continue to preside over criminal trials. Judicial competence is not optional; it is the bedrock of a fair and credible justice system. For these reasons, this judgment must be brought to the attention of the Chief Magistrate so that appropriate remedial action can be taken to safeguard the integrity of future proceedings.

In view of the foregoing, it cannot be said that the present proceedings meet the threshold of real and substantial justice. Accordingly, the following orders are made:

The convictions of the three accused persons are hereby quashed.

The sentences of 24 months’ imprisonment, with 3 months suspended on condition of future good behaviour and a further 1 month suspended on condition that restitution is paid to the complainant are hereby set aside.

The accused persons shall be entitled to a refund of the restitution that may have been paid.

Warrants of liberation are hereby issued for the immediate release of the accused persons from custody.

The Prosecutor-General, in the exercise of her discretion, is at liberty to institute fresh proceedings. Should a fresh prosecution be pursued, the matter shall be heard before a different magistrate.

This judgment shall be brought to the attention of both the Chief Magistrate and the Prosecutor-General.

Muremba J: ……………………………

Chitapi J (Agrees): ……………………..