Vusimusi Ndlovu v State

### Preamble
1
HMT 68-20
CA 11/20
---------


VUSIMUSI NDLOVU

Versus

STATE

HIGH COURT OF ZIMBABWE

MWAYERA AND MUZENDA JJ

MUTARE, 30 September 2020 and 8 October 2020

Criminal Appeal

V Chinzamba, for the Appellant

M Musarurwa, for the Respondent

MUZENDA J: This is an appeal against the dismissal of an application for change of plea by the Regional Court sitting at Mutare on 4 February 2020 wherein the appellant was convicted of contravening s 65 as read with s 64 (3) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]

Factual Background

On 4 February 2020 the appellant was arraigned for raping a mentally incompetent person before the Regional Magistrate at Mutare. The state alleged that appellant and complainant are neighbours at Nyamukwarara Village, Chief Mutasa, Penhalonga.

On a date and time unknown to the state but during the period extending from January to August 2019 complainant was left alone at home by her mother whilst the latter went out to look for piece work. Complainant is mentally challenged and a cripple.

The appellant approached complainant during the absence of her mother from home, grabbed and dragged her into a nearby maize field and had unprotected sexual intercourse with her. After the sexual intercourse appellant is alleged to have threatened complainant with death if she divulged the rape to her mother. Complainant did not inform anyone about the matter until the mother discovered that the complainant was pregnant on 03 August 2019. Upon being questioned, she pointed to the appellant. The matter was reported to the police and appellant was arrested.

Proceedings of the court a quo

The appellant who was initially not legally represented pleaded guilty. After the charge had been put by the Learned Regional Magistrate to the appellant, the court a quo gave the following explanation to the appellant:

“A mentally challenged person cannot consent to sexual intercourse. I am saying so, so that if you are to tell me whatever you think in your defence you should put that in mind. How are you going to depart from the fact?

Response by appellant: I cannot be able to discredit the findings of the doctor.”

The court then asked appellant how he was pleading to the charge after the above explanation, appellant pleaded guilty. Facts were read to the appellant and he was asked whether he had understood the facts and agreed to them. The answer was in the affirmative. The medical affidavit was produced by consent of the appellant and read to the appellant. He indicated that he had understood the contents, the court a quo purely out of extra-caution ventured to give a further explanation.

“She is someone who cannot consent and sometimes she cannot even walk on her on. It means there was no consent that is why you are here.”

The court a quo then proceeded to explain the essential elements to the appellant and the following questions among others was put to the appellant:

“Q. Confirm she did not consent to the act taking into account her mental status?

Yes.

Q.   Any defence to offer?

A.   I have no defence your worship.”

The appellant was convicted. The state applied for a postponement of the matter to check the previous convictions of the appellant. When the court resumed, the appellant was then represented by counsel. An application for change of plea was made. The basis of the application for the change of plea of guilty to not guilty was that the appellant was not aware of the fact that the complainant was mentally challenged at the time appellant had sexual intercourse with her.

The court a quo ruled that it was alive to the fact that appellant was initially not legally represented but it went on to explain to the unrepresented appellant and appellant made an informed plea of guilty. The court further added that when it was canvassing the essential elements, it touched on the same question whether appellant knew that he was having sexual intercourse with a mentally incapacitated person, in addition to the explanation the court indicated that appellant was a neighbour to the complainant and he knew the complainant’s status. When the facts of the matter were read to the appellant he agreed to them so the court a quo concluded in its ruling that for the appellant to argue that he was not aware that complainant was mentally challenged was not only unreasonable but a lie. According to the court a quo the plea tendered by the appellant was genuine and unequivocal. The court a quo dismissed the application for change of plea and proceeded to sentence the appellant.

Grounds of Appeal

Against conviction only

The Learned (Regional) Magistrate misdirected herself and thus erred at law by dismissing the application for change of plea by hitherto unrepresented accused.

The Learned (Regional) Magistrate thus erred by rejecting the explanation tendered by the appellant for pleading guilty in the first instance and convicting him on an abandoned plea.

The appellant prayed that the appeal be upheld, and that the conviction be quashed and further that the matter be remitted for trial before a different magistrate.

The appeal is opposed by the respondent.

Submissions by Counsel on Appeal

Mr Chinzamba, appearing for the appellant, submitted that the, Learned Regional Magistrate grossly erred by rejecting the explanation tendered by the appellant for pleading guilty in the first place. Section 272 of the Criminal Procedure and Evidence Act [Chapter 9: 07] permits a trial court to alter the plea of guilty where it is in doubt of the initial plea of guilty, more so where the court is in doubt on the question of how the offence accused pleaded to, or where the court is not satisfied that an accused correctly admitted to the essential elements of the offence, acts or omissions on which the charge is premised and lastly where the court  is not satisfied that the accused has no valid defence to the charge.

Mr Chinzamba went on to aver that it is a settled position of the law that the application for change of plea should only be dismissed if it is clear that the explanation tendered is false beyond a reasonable doubt. To the appellant the record does not show where the appellant was asked if had prior knowledge that the complainant is a mental health patient. The defence went on to submit that the lower court was incompetent to conclude that appellant was not able to do things on her own without testing the correctness or otherwise of the evidence before it. Mr Chinzamba also took exception to the conclusion reached by the court a quo that the appellant only decided to change his plea upon the advice of his lawyer, to the defence appellant was given sound legal advice and realised that he had a defence to the charge and hence resolved to lodge an application to alter his plea.

The onus to disprove the defence proffered by the appellant that he had no prior knowledge of the fact that complainant was a mental patient lies with the state, he submitted and went on to refer the court to the case of S v Chiwoza. It was also argued by the appellant that the lower court erred when it ruled that the reasons offered by the appellant in his application for change of plea are false beyond reasonable doubt in that he had admitted to the facts and the charge. The appellant would not have understood the nature of the offence by a mere reading of the charge sheet, state outline and the essential elements, it was submitted.  To the defence the offence preferred against the appellant by its very nature is complex such that an unsophisticated, unrepresented accused will not be able to appreciate its meaning, he could not know the meaning of an imbecile in terms of the medical affidavit and s 64 of the Code requires knowledge and intention on the part of the appellant, a fact which he would not have known. It was further submitted on behalf of the appellant that in cases where unrepresented accused tenders a plea of guilty and decides to change his plea upon receiving legal advice, the court should allow the state to prove its case beyond a reasonable doubt. Hence it was concluded by the appellant the lower court reached its findings wrongly and warrants the interference by this court.

Counsel for the respondent per contra submitted that the lower court took its time to explain to the unrepresented appellant the charge, the facts and the medical reports. The appellant never at any point told the lower court that he did not know that the complainant was mentally challenged. To the state appellant was well aware of what he was pleading to. The factual findings of the lower court cannot easily be reversed by a superior court unless the lower court’s findings are so outrageous or irrational that no tribunal would act upon it. Mr Musarurwa for the State also submitted that a judge of this court should not quash a conviction on the grounds of irregularity unless he considers that substantial miscarriage of justice has occurred. The decision of the lower court can be disturbed by a higher court if it is clear from what is presented in the record of proceedings that his conclusion was erroneous, there must be compelling reasons on record justifying it, he submitted.

The state insisted that the plea was a genuine plea and the court a quo did not misdirect itself in finding the appellant guilty. The state also submitted that the facts in the matter S v Chinoza supra are different from this case. Appellant in this case never raised a defence at any stage of the proceedings. The appellant was a neighbour to complainant, he cannot suddenly say he was not aware that the complainant was mentally challenged, the court a quo ruled. To the state, the appeal has no merit.

Issues for determination

The issue for determination by this court can be summarised as whether the Learned Regional Magistrate erred at law by dismissing the application for change of plea by an un represented accused.

The law

When an accused is unrepresented, and when he is not well educated, not the sort of men who he is likely to understand clearly intricacies of court procedures, terminologies and niceties, the trial court is obliged as far as it can, to assist the unrepresented accused of this description.

Section 272 of the Criminal Procedure and Evidence Act, supra, governs the withdrawals of a plea. In the matter of S v Matare supra Gubbay c j crisply stated the law as follows.

“the phrases “if the court is not satisfied that the accused has correctly admitted all the essential elements of the offence” and “has no valid defence to the charge,” in paragraphs (b) and (c) respectively, deal with the situation where the accused does not dispute any of the essential elements of his guilty, but during the proceedings it becomes apparent that he has wrongly or mistakenly pleaded guilty. The court is then obliged to change the plea. The word “satisfied” means that the court must have a reasonable doubt about the correctness of an admission or of the conviction it returned.”

In the matter of S v Nyathi and Another  Sansole J aptly dealt with changes of plea as follows:

“But where the application to withdraw a plea is made after verdict but before sentence, the court has a discretion in appropriate cases to allow a withdrawal of plea. This discretion is exercisable only in clear cases and very sparingly. For here different considerations apply and the presumption of innocence no longer applies. In this situation the accused is required to show, on a balance of probabilities that the plea that he made was not made voluntarily, understandingly and correctly.

See Friedman v United States (1954) 99 US Led 222, where it is put as follows:

‘the issue for determination by the court is whether the plea was voluntarily, advisedly intentionally and understandingly entered or whether it was at the time of its entry attributable to force, fear, fraud, ignorance, inadvertence or mistake such as would justify the court in concluding that it ought to be permitted to stand”

Van Duckhorst J in S v Mazwi 1982 (2) SA 344 (T) at 352 put it this way:

‘The onus only arises after conviction. By that time the court will be satisfied that the accused is guilty and will have brought out a verdict accordingly, surely, it is not inequitable to require that in these circumstances anyone who wants to set aside the conviction and install a plea of not guilty should satisfy the court that there are good grounds for doing so’ (my emphasis)”

It is settled that an appeal court will not lightly interfere with the factual findings of a lower court. It will only interfere where the factual findings are so grossly unreasonable that no reasonable person applying his or he mind to the facts would have reached the same decision.

Application of the law to the facts

As expounded in the case of S v Mutimhodyo supra a court has a duty to assist an unsophisticated, uneducated accused in explaining the charge, the facts, the essential elements of that charge as well as the medical report, if any. The whole idea behind this obligation is to ensure that an accused in return gives an informed plea.

In casu the Learned Regional Magistrate on pages 20 to 21 of the record took her time in explaining the nature of the offence, the facts as well as the essential elements of the charge faced by the appellant. Before the appellant pleaded to the charge the medical affidavit of the Psychiatrist was explained to the appellant where after he was asked to plead to the charge. In covering the essential elements of the charge more clarifications were done to the appellant and the appellant responded affirmatively. He did not advance any reason except to say that he wanted to marry the complainant. I am satisfied that the lower court went an extra-mile to ensure that appellant comprehended the nature of the charge. He was pleading guilty and the court a quo judiciously met its obligations of assisting an unrepresented accused in this matter.

In the matter of S v Matare supra, the Supreme Court exhaustively covered the rationale and basis where s 272 of the Criminal procedure and Evidence Act applies more particularly where there is doubt in relation to plea of guilty. The doubt arises where it becomes apparent that an accused has wrongly or mistakenly pleaded guilty. As clearly pointed out in the matter of S v Nyathi and Another supra there is an onus on the accused to justify the alteration. In this instance, where the presumption of innocence no longer applies, the accused is required to show on the balance of probabilities that the plea of guilty was not made voluntarily correctly and with understanding. He should satisfy the court that there are good grounds for doing so.

I did not hear the appellant alleging grounds “of force, fear, fraud, ignorance, inadvertence or mistake” as would justify the court in accepting that it ought not to be permitted to stand. The court a quo after looking at all the facts placed before together with the reasons advanced by the appellant in the application for the change of plea concluded that the appellant had failed to satisfy the court a quo the basis of his withdrawal. Having carefully looked at the proceedings below I have failed to discern any error nor misdirection on the part of the lower court. In any case this court cannot find any evidence that the factual findings of the lower court were “grossly unreasonable that no reasonable person applying his or her mind to the facts would have reached the same decision.”

The dismissal of the application for change of plea is at the discretion of the trial court and I am satisfied that the court a quo’s discretion was reasonably and judiciously exercised in my view and there is no basis to interfere with it. The appeal against the dismissal of the application has no merit. I am satisfied further that the plea of guilty by the appellant was well informed and in his application for change of plea he failed to advance a reasonable explanation why he had pleaded guilty in the first instance.

Disposition

It is ordered that the appeal against the dismissal of the change of plea has no merit and it is dismissed.

MWAYERA J agrees

Mugadza Chinzamba and Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners