Review
Judgment
TAKUVA
J: This
matter was placed before me in terms of section 57(1)(b) of the
Magistrates' Court Act [Chapter 7:10].
The
facts are that the accused was charged with and convicted of
contravening section 114(2)(b) of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] (stock theft).
It
was alleged in the summary jurisdiction that on a date unknown to the
prosecutor but during the month of February 2013 and at plot 10
Egypt, Inyathi, Zondiwe Ncube unlawfully and intentionally took four
heifers the property of Mnkandla Mbokodo either intending to
permanently deprive him of his ownership, possession or control or
realizing that there is real risk or possibility that she may so
deprive Mnkandla Mbokodo of his ownership, possession or control.
The
circumstances as outlined by the state are that the complainant is
accused's brother. On 3 November, 2012 the complainant bought six
heifers from one Morros Mguni. Subsequently on a date unknown to the
prosecutor but during the month of February 2013, the complainant
tasked the accused person to transport the cattle from plot 10 Egypt
Inyathi to plot 13 Esimnyangeni, Shangani. Instead, the accused
person transported four heifers to Kennilworth Resettlements, Inyathi
without the knowledge of the complainant.
The
four heifers are valued at $1,600,00 and they were not recovered.
The
accused appeared before a magistrate and pleaded guilty. She was
found guilty as charged and sentenced to 15 years imprisonment after
the court made a finding that there were no special circumstances.
All the essential elements of the charge were put and admitted by the
accused.
However,
in mitigation the accused said, “I took the cattle with an
intention to recover a debt owed by the complainant.”
Further
during the inquiry into whether or not special circumstances exist,
the accused stated; “The complainant owed me $1,454,00 and I
thought of recovering my money from the cattle. My brother
(complainant) kept on changing goal posts.”
It
has been said time and again that there is an inherent danger of
convicting persons upon guilty pleas. This is so because this
procedure may result in injustice if not properly followed.
It
is true that before acting on a plea of guilty the court must be
satisfied that the admission of guilt is genuine, unqualified and
unequivocal. Put differently the court must be satisfied that the
accused is guilty in fact and in law. See S
v Chirodzero
HH14-88 and S
v Kawocha
S-22-92.
In
respect of property crimes, such as theft, robbery or malicious
damage to property, the court should always investigate whether the
accused committed the crime under any sort of claim of right.
A
claim of right is a “decently clothed” ignorance or mistake of
law.
Such
an ignorance or mistake of law is said to be decently clothed where
the accused either knows or suspects that his actions would normally
be illegal but due to some extraneous factual basis, he believes that
his actions will not be unlawful in present circumstances.
Where
there is doubt as a result of this defence, the court should alter
the plea to one of not guilty in order to determine the contentious
issues.
The
rationale for this principle is to ensure that there is a fair trial
especially where an accused is unrepresented and/or where the case
involves a mandatory minimum sentence.
On
a charge of stock theft a defence of claim of right must be
sufficiently investigated – see Kawocha's
case supra.
In
casu,
the accused's explanation amounts to an extraneous factor that made
her believe that her actions will not be unlawful. This defence
should have been investigated and a plea of not guilty entered.
It
was not, and that is a misdirection.
Consequently,
the proceedings are not in accordance with real and substantial
justice. The conviction is quashed and the sentence set aside. The
matter is remitted to the magistrates' court for a trial upon a
plea of not guilty.
Mutema
J: I agree
