THE State V Steven Marshal Munemo & Others

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HH 348-2012
CRB No. N804-8/11
THE STATE
versus
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THE STATE
versus
STEVEN MARSHAL MUNEMO & OTHERS

HIGH COURT OF ZIMBABWE
PATEL & KUDYA JJ

Criminal Review

HARARE, 12 September 2012

PATEL J: The Senior Regional Magistrate for the Eastern Division has referred this matter to the Registrar for review and guidance.

The facts of the matter, briefly stated, are as follows. On 19 March 2010, the five accused persons went to the complainant’s homestead in Marufu Village, Mhondoro. They met the complainant’s son and told him that they had come to remove the complainant from his home. They claimed to be acting on the strength of a letter written by the local chief coupled with instructions from the police. They then forcibly entered the premises and proceeded to remove all the property from the homestead and dump it in the yard. They also took away some of that property, valued at US$454, including US$200 in cash. None of the property taken was recovered.

The accuses were subsequently charged with unlawful entry and theft in contravention of section 131 as read with section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They all pleaded not guilty to the charge but were duly convicted. They were then sentenced to 4 months imprisonment of which 2 months were suspended on condition of good behaviour and the remaining 2 months were suspended on condition of restitution.

The learned Senior Regional Magistrate withheld his certificate and queried the conviction on two grounds. The first was that the accuses’ reliance on the letter written by the chief appeared to raise a defence recognised by section 236 of the Criminal Law Code.


The second related to the fact that the convicting court did not give the accuses the right to cross-examine their co-accuses when they turned into witnesses in their respective defence cases.

Section 236 of the Criminal Law Code deals with mistake or ignorance of the law as a defence. It provides as follows:

“(1) Subject to this Part, if a person –

(a) does or omits to do anything which is an essential element of a crime in terms of any law; and

(b) when he or she did or omitted to do the thing, he or she did not know that his or her conduct was unlawful because he or she was genuinely mistaken or ignorant as to the relevant provisions of the law; the person shall not have a complete defence to a charge of committing that crime unless the person’s mistake or ignorance as to the relevant provisions of the law was directly brought about by advice given to him or her by an administrative officer whom he or she had reason to believe was charged with the administration of the law concerned and was familiar with its contents.

(2) In any circumstances other than those affording a complete defence under subsection (1), genuine mistake or ignorance as to the relevant provisions of a law on the part of a person charged with a crime shall merely be a factor to be taken into account in the assessment of sentence.”

In his reasons for judgment, the trial magistrate had this to say:

“The Court is of the view that what actually transpired was that the accused persons had a letter from the chief which they wanted to enforce using the police but this did not materialise and hence they decided to take the law into their own hands.

It is therefore not in dispute that they illegally went to complainant’s house and illegally evicted him using the powers as the committee.”

It seems fairly clear from the above passages that the learned magistrate, while not expressly saying so, did take the chief’s letter into account as not affording any defence to the charge of unlawful entry. His response to the queries raised also suggests that he took it into account as a mitigatory factor in assessing sentence.

I note that the alleged letter from the chief was never produced in evidence at the trial. Indeed, the record of proceedings shows that there were two separate letters written by two different chiefs. In any event, I have no doubt that any such letter per se could not have provided any legal warrant for evicting the complainant from his home or for taking away any of his property. That having been said, it is certainly arguable that a chief holds office as “an administrative officer …….. charged with the administration of the law concerned”. However, even if this were to be accepted, it is difficult to surmise what “advice” the letter in question might have contained so as to induce the accuses into believing that they were acting lawfully. Whatever its contents, it cannot be accepted that they did not know that their conduct was unlawful because they were “genuinely mistaken or ignorant as to the relevant provisions of the law”. On the contrary, it seems to me that they were perfectly aware that their conduct in breaking into the complainant’s home and taking away his belongings was unlawful. This emerges clearly from the fact that they first approached the local police in order solicit their assistance in ejecting the complainant from his homestead. It was only when they failed in that endeavour that they proceeded to take the law into their own hands. Accordingly, I am unable to find any material misdirection in this regard in the conviction of the accuses.

Turning to the right to cross-examine, the trial magistrate concedes in his response that his failure to allow the accuses to cross-examine their co-accused was an oversight on his part. Although this is not explicitly spelt out in the relevant Part XII of the Criminal Procedure and Evidence Act [Chapter 9:07], the practice of allowing such cross-examination is well established in criminal proceedings. See *Swift’s Law of Criminal Procedure* (2nd ed.) at p. 260. Ordinarily, therefore, the failure to allow an accused person to cross-examine his co-accused would amount to a misdirection. However, on full scrutiny of the trial record, I am unable to find anything in it to indicate that any of the accuses said anything in their respective defence cases to implicate or incriminate any one or more of their co-accused. On the contrary, each accused vigorously attempted to corroborate the other accused in their denial of having committed any offence. Consequently, on the facts of this case, and having regard to the testimony that was adduced, I do not think that the accused were prejudiced in any way or that any miscarriage of justice was occasioned by them not having been afforded the opportunity to cross-examine their co-accused. In short, the trial magistrate’s omission in this regard was not fatal to the correctness of his decision to convict.

In the result, the conviction of the accused and the sentence imposed upon them are both confirmed as being in accordance with real and substantial justice.

KUDYA J: I agree.
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