The appellant was convicted on a charge of contravening section 3(1)(a) of the Sexual Offences Act [Chapter 9:21].

He appealed to this court against both conviction and sentence.

After hearing submissions from counsel for the parties we upheld his appeal and set aside his conviction and sentence. We indicated that our reasons for judgment would follow. These are they:

The appellant fell in love with the complainant who was then aged thirteen. He, early in the morning of 17 April 2006, invited her to his house where it is alleged he raped her. He was charged with rape, but, was convicted of contravening section 3(1)(a) of the Sexual Offences Act [Chapter 9:21]. He was convicted by a Regional Magistrate sitting at Harare Regional Magistrate's Court, who sentenced him to 36 months imprisonment of which 12 months were suspended on conditions of good behaviour.

The appellant appealed to this court against conviction and sentence. His appeal against conviction is based on irregularities and evidential deficit.

On irregularities, the appellant alleged that his trial was fast tracked to his prejudice and the State failed to produce the complainant's first statement to the police in which she denied having been raped by the appellant. Counsel for the appellant also challenges the medical report on the ground that it was produced without giving the appellant three days' notice as required by section 278(11) of the Criminal Procedure and Evidence Act [Chapter 9:07], and, without seeking his consent for its production without the requisite notice.

On evidential deficit, counsel for the appellant submitted, that, the trial court erred by relying on the evidence of the complainant who came to court with visible injuries, having been assaulted by her uncle for this case; that the complainant had freely and voluntarily made an initial statement to the police denying having been raped by the appellant. He submitted that the complaint was examined by a doctor four days later and the report does not state that the appellant is the one who had sexual intercourse with her. He also argued that there was no basis for the magistrate preferring the complainant's and her uncle's evidence to that of the appellant and his witness.

Irregularities

Counsel for the appellant raised two main grounds on which he alleged that there were irregularities in the appellant's trial before the court a quo:

(i) He submitted that the case was unduly fast-tracked;...,.

Counsel for the appellant submitted, that, the appellant was brought to court by the police and his case was heard on the same day.

This is not disputed by the respondent. It is, in fact, confirmed by the record of proceedings.

The issue is simply whether or not it is permissible to fast track trials in the Magistrate's Court in the manner the appellant's trial was conducted.

The fast-tracking of cases started in the early 1990's as a means of reducing the courts' backlog. It is not specifically provided for by that name in the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act). This however does not mean it is an unlawful procedure.

It is, in fact, a useful procedure, which, if well managed, helps to contain and/or reduce the courts' backlogs of criminal cases, and ensures the delivery of timeous justice. All that has to be done is to ensure that it is used in compliance with the provisions of the Criminal Procedure and Evidence Act and other laws which provide for a fair trial.

Section 163 of the Criminal Procedure and Evidence Act provides for the timing of an accused person's trial in the Magistrate's Court as follows:

“Any person to be prosecuted on a criminal charge in a magistrate's court shall be brought for trial at the next possible court day.”

This, in my view, means, when an accused person is arrested and is to be prosecuted in the Magistrate's Court, he shall be brought to trial on the next possible court date, which means on the day when the court will be sitting next after the decision to prosecute him in the Magistrates Court will have been made. This, however, does not mean the trial has to start on that day without fail. It is desirable that it should, but, regard should be had to the provisions of section 165 of the Criminal Procedure and Evidence Act which provides for postponements where necessary.

The provisions of section 163 of the Criminal Procedure and Evidence Act are, therefore, in general, consistent with the fast tracking of trials in the Magistrate's Court. The wording is such as can justify the trial of an accused person once he is brought before a magistrate.

JOHN REID ROWLAND in his book “Criminal Procedure in Zimbabwe” commenting on section 163 of the Criminal Procedure and Evidence Act said:

“This does not necessarily mean that his trial will take place on that date, it may very well be postponed. Undue haste in bringing a case to court may be prejudicial to the accused and thus constitute an irregularity.”

Undue haste can be due to the refusal of an accused person's request for a postponement to enable him to prepare for the trial or to engage the services of a legal practitioner. It can also be due to the trial proceeding without complying with the requirements of a fair trial.

In the absence of a valid request for the postponement of the pending trial, and if the trial complies with the requirements of a fair trial, a Magistrates Court can proceed with an accused person's trial on the “next possible court day” as provided by section 163 of the Criminal Procedure and Evidence Act.

In the present case, counsel for the appellant argued, that, the trial court should have asked the appellant, who was facing a serious charge of rape, whether or not he wanted to be legally represented, and if he had said he did, the case should have been postponed for that purpose. He argued that the fact that the appellant needed the services of a legal practitioner is confirmed by his engaging one on the following day - but when his trial had already been completed.

He submitted that the appellant's friend discovered that the appellant was being tried without legal representation, and arranged for it.

He also submitted, that, the appellant was not given three days' notice for the production of the Doctor's report, and that even though he consented to the production of the report he did so without having been advised that he was entitled to three days' notice of its production.

Every accused person is, ideally, entitled to legal representation at his trial.

This becomes more compelling if he is facing a serious charge for which, if convicted, he can be sentenced to a long term of imprisonment.

Generally, such legal representation would be at the accused's own expense. It is only in exceptional cases when a magistrate may be required to order legal representation through the Legal Aid system.

Judicial officers should, in appropriate cases, ask the accused person if he needs the services of a legal practitioner at his own expense. Justice can, however, still be done if the trial magistrate ensures that justice is done by making sure the trial complies with the statutory requirements for a fair trial.

This issue was dealt with by the Supreme Court in the case of S v Dube & Anor 1988 (2) ZLR 385 (SC)…, where DUMBUTSHENA CJ, without laying a hard and fast rule, said:

“In our view, judicial officers trying such cases should ask themselves three questions:

1. Where the accused has pleaded guilty, would it be appropriate, nonetheless, to enter a plea of not guilty in terms of the provisions of section 255A of the Criminal Procedure and Evidence Act?

2. Where the accused is unrepresented, would it be fair and appropriate to advise him of the complexities of the matter and enquire whether he has considered obtaining legal representation?

3. If satisfied that the accused should have legal representation but cannot afford it, should the court certify that he should have legal representation in terms of the provisions of section 3 of the Legal Assistance and Representation Act [Cap 66], as amended by section 2 of Act 21 of 1974.

We do not mean to suggest, far less to lay it down as a rule of practice, that magistrates should recommend legal aid in every case where a long sentence is possible. In most cases, a plea of guilty is quite clear and unequivocal, and the procedures laid down in section 255 will ensure a fair hearing. Equally, there will be many cases where a fair hearing can be ensured by using the procedure set out in section 255A and changing the plea to 'not guilty' so that questions of law and admissions of fact can be explored and clarified: see S v Nyamweda 1983 (1) ZLR 131 (SC); S v Malili & Anor 1988 (4) SA 620 (T).

Finally, there will be some cases where it will be enough for the magistrate to explain the complexities and enquire whether the accused does not want to engage legal representation at his own expense. This should be done at the earliest possible stage - ideally when the accused is first remanded.

It will thus only be in a minority of cases that the magistrate will conclude that there cannot be a fair trial without representation. In such cases his duty is to act in terms of Chapter 66 and recommend legal aid. Even then, of course, an accused person can waive his right to representation, provided, he does so on a properly informed basis.”

I am therefore satisfied that the magistrate's failure to ask the appellant if he needed the services of a legal practitioner is, on its own, not a sound ground for upsetting the appellant's conviction.

The commencement of the trial without affording the appellant a postponement for him to engage the services of a legal practitioner is also not an irregularity as the appellant had not asked for a postponement.

In South African Criminal Law and Procedure by LANSDAWN and CAMPBELL (Volume V) (1981)..., the learned authors had this to say -

“The material to satisfy the court of the guilt of the accused is not found in evidence, for section 112(1)(b) [section 271(2)(b) in this jurisdiction] dispenses with evidence, nor is it found in the plea of guilty itself, for the court is required, in peremptory language, to go behind the plea by asking prescribed questions. It is clear that the crucial information on which the court is to satisfy itself of the guilt of the accused is to be found in the answers to the court's questioning. Before, however, these answers can be capable of satisfying the court that the accused is actually guilty of the offence to which he has pleaded guilty, they must, at least, cover all the essential elements of the offence which the State would otherwise have been required to prove. If any of these is not admitted, the court cannot be satisfied of the guilt of the accused, and it may not convict him in terms of the subsection or his plea of guilt.”

The accused was charged with murder. In response to the charge, he stated -

“I understand the charge and I admit it.”

His defence counsel..., advised the court that, in fact, the accused was pleading guilty to culpable homicide.

In the case of State v David Dhliwayo the forty-one year old accused initially pleaded not guilty to assault as defined in section 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The matter went into a trial. Soon after cross-examining the first State witness the accused indicated to the trial court that he wished to alter his initial plea to one of guilty. He was asked why and his answer was that he had found the evidence overwhelming.

The trial court altered the plea as requested.

The astute public prosecutor requested the trial court to proceed in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The trial court took no heed and proceeded to find the accused guilty as pleaded.

This constitutes the first misdirection.

Regarding the first misdirection; where an accused enters a plea of not guilty and subsequently alters that plea to guilty during the course of the trial, section 271(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] must be invoked. In casu, the trial magistrate seemed to have invoked para (a) of that section but went on to impose a sentence as if he had proceeded in terms of para (b). 

After hearing the parties' legal practitioners, we dismissed the appeal against both the conviction and sentence and indicated that our reasons for doing so will follow. These are our reasons. 

The salient facts of the case are the following.

The appellant and his co-accused were convicted by a Bulawayo Regional Magistrate of armed robbery on 3^rd November 2008….,.

The two were convicted after their pleas of guilty, canvassed in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. During their plea recording, both admitted that on 27 September 2008 they had approached the complainant, a taxi driver, at the Rainbow Hotel, Bulawayo. They pretended that they were hiring the complainant's taxi for a fare. On entering the vehicle they led the complainant to a spot in Parklands suburb. They ordered the complainant to stop.  They suddenly produced knives, and, using violence, managed to overpower the complainant and made off with the vehicle. The vehicle was taken to Goromonzi in Mashonaland East Province. The vehicle was being stripped at the time of recovery.

In essence, the appellant wants the conviction to be quashed and sentence set aside so that a fresh trial takes place before a different magistrate. He is attacking the propriety of his guilty plea. This is what transpired when his guilty plea was canvassed by the learned Regional Magistrate –

“Plea…, Guilty Se 271(2)(b)…,.

Facts read and explained

Marked as Annexure “A”

Q - Have you understood the facts…,.?

A – Yes.

Q - Do you have anything in the facts?

A - No.

Q - Do you have anything to add or subtract?

A - No.

Q - Do you agree with entire facts?

A - Yes.

Essential Elements

Q - Correct, that on the 27^th September 2008 you approached complainant at 2100 hours who was on duty and parked at Rainbow Hotel, Bulawayo?

A - Yes.

Q - Correct you hired the complainant?

A - Yes.

Q - Correct that the complainant then drove you two to Parklands, Bulawayo as your instruction?

A - Yes.

Q - Correct that when the complainant was along St Faith Road, you ordered him to stop?

A - Yes.

Q - Correct that the complainant then stopped the motor vehicle?

A - Yes.

Q - Correct that Accused 1 [not appellant] got out of the motor vehicle and went to the driver's door?

A - Yes.

Q - Correct, that Accused 1 then produced a pistol?

A - [Accused 1] I produced a US Walkman knife which looked like a gun…,.

Q - Accused Two,[appellant] what were you doing when Accused One was pointing this knife at the complainant?

A - I was standing outside the motor vehicle just next to Accused One…,.

Q - Correct that you demanded the complainant's cell [sic] phone?

A - Yes.

Q - Correct that you fought with the complainant?

A - Yes.

Q - Correct that the two of you overpowered the complainant?

A - Yes.

Q - Correct that you pulled the complainant out of the car?

A - Yes.

Q - Correct that you drove off the motor vehicle leaving the complainant behind?

A - Yes.

Q - Correct that motor vehicle was later recovered at Accused Oone's brother's farm in Goromonzi?

A - Yes.

Q - Correct that the complainant's motor vehicle had been stripped?

A - Yes.

Q - Why were you using the knife?

A - To scare the complainant.

Q - What happened to the knife after using it?

A - We threw it in front of Shangani Shops [i.e. about 100 kilometres from the scene].

Q - Correct that you intended to rob complainant of his vehicle?

A - Yes.

Q - Correct that the two of you were acting in common purpose to get the vehicle?

A – Yes.

Q - Did you have any lawful right to carry the knife to complainant's motor vehicle?

A – No.

Q - Did you have any lawful right to threaten the complainant with a knife?

A – No.

Q - Any defence to offer?

A – No.

Q - Is your plea of guilty a genuine admission of facts and elements as read to you?

A – Yes.”

In the face of such a question and answer dialogue between the Regional Magistrate and the appellant the conviction cannot be faulted. There is no merit in the appeal against conviction. It is not surprising that the appellant initially appealed against sentence only. This plea was not induced by force, fear, fraud, ignorance or mistake – S v Mudambi 1995 (2) ZLR 274 (S). Has an innocent man been convicted? Or is there even any reasonable possibility that an innocent man has been convicted? 

The answer to these two questions is in the negative.

The conviction is unassailable – see also S v Muchamba 1992 (1) ZLR 102 (S) and S v Matanhire 1992 (1) ZLR 336 (S).

The record of proceedings was forwarded to an Acting Regional Magistrate for scrutiny. The Acting Regional Magistrate raised issues on the propriety of the procedure followed by the trial magistrate and ultimately the conviction. Her letter to the trial magistrate reads as follows;

“It is the propriety of the procedure and ultimately the conviction which I am concerned with. The trial Magistrate proceeded in terms of s271(2)(b) and in terms of that law, accused's responses should amount to an irrevocable admission of the essential elements of the offence and where there is doubt, and where the accused raises a defence, the plea should be altered to not guilty.

The cases of State v Ndlovu and Another HB30-02 and State v Makuvatsine HH102-04 are relevant.

In canvassing the essential elements, the following exchange took place between the magistrate and the accused person;

'Q. Any variations to make? 

A. I did not intend to cause the accident. I did not do it deliberately.

Despite the fact that accused said he did not intend to cause the accident and thereby raising a defence at law which should have led to the alteration of the plea to not guilty. The trial Magistrate still proceeded with “canvassing essential elements.”

Q. Why did you fail to stop your car before hitting the pedestrians?

A. I saw him when he was only about 3 meters away, I could not stop in time.

Q. Why did you not see him in time?

A. I had dipped my lights. There was another kombi that had stopped, it was coming from the opposite direction and its lights were flashing into my eyes, I could not see properly.'

The following further exchange clearly shows that the trial Magistrate had serious doubts. Instead of canvassing essential elements I cannot be faulted to conclude that this was now cross-examination of the accused by the trial Magistrate.

'Q. Why did you not stop?

A. There were other vehicles behind me.

Q. What did you do after seeing the kombi that had stopped?

A. I reduced my speed to about 60km/hr.

Q. Why did you reduce your speed?

A. As a person who had seen that there was a kombi that had stopped I did not know if it was picking or dropping a passenger.

Q. Do you admit that Crispen Mukize died as a result of the accident in which your vehicle hit him?

A. Yes I had 18 passengers onboard.

Q. Did you have a right to drive in the manner you did, not keeping a proper lookout on the road, not stopping when you were not seeing properly etc?

A. No.

Q. Any defence to offer?

A. No.'

The accused was nevertheless convicted despite raising what I believe were triable issues. After convicting the accused person the trial Magistrate then decided to explain himself, which is not normally done if the proper procedure in s271(2)(b) is followed or adopted, which I concluded was now his reasons for the judgment.

If the trial Magistrate can comment.

Was the proper procedure followed, was the accused not raising triable issues which can only be resolved in a trial, was the accused therefore properly convicted and sentenced?”

The trial Magistrate, courteously, boldly and confidently, responded as follows;

“I must start by apologizing for responding to your query late. What happened is that I received the query on 2 November 2012, which was a Friday. Then I went to Mutoko on Sunday 4 November 2012 and was there until 09 November 2012 doing partly heard cases. Any inconveniences caused by the delay are sincerely regretted.

You raised issue with the propriety of the procedure, and ultimately the conviction, in the above matter. My response to the issue you raised is found hereunder.

I will begin by an exposition of my understanding of the offence of culpable homicide. This offence consists in causing the death of a human being through negligence. Where negligence is an element, as is the case in culpable homicide cases, it is not what the accused person intended that is relevant, but what a reasonable person would say about what the accused person did. So, an accused person might not intend to cause an accident, yet he drives his motor vehicle at an excessive speed in the circumstances. If he hits and kills a person, he will be guilty of culpable homicide, even though he never intended to cause the accident. A person does not plan to be negligent. All that happens is that his actions, as he is going about his business, fail to measure up to the reasonable expectations of others. If those actions cause the death of a person, then the accused will be guilty of culpable homicide.

Another important aspect of negligence is that it is not factual, but is inferred. It all depends on the circumstances. I would thus not expect an accused person to be asked: “Do you admit that you were negligent?” in canvassing essential elements of culpable homicide. Such a question would not be clear because negligence is relative. Indeed,  if an accused person is asked if he was negligent and he says “Yes” , we should be worried because his “Yes” might well be inappropriate, regard being had to the circumstances of the case.

It follows, therefore, that a court must ask an accused to admit the facts, and then infer negligence from the admitted facts, in a case of culpable homicide. Instead of asking, “Do you admit that you were traveling at an excessive speed in the circumstances?” I would rather ask, “What speed were you traveling at? What time of the day was it? How was visibility? How busy was the road at the time?” Etc, and then infer from the answers given if the accused's speed was excessive in the circumstances.

I will deal with the issues you raised;

(a) That the accused person was raising a defence when he said “I did not intend to cause the accident. I did not do it deliberately.”

With all due respect, I do not think this was a defence. Indeed, accused would not have been charged with culpable homicide, but murder, if he had intended to cause the accident and caused it deliberately. Like I explained above, it is not what the accused intends to do that is relevant, but what a reasonable man would say about what the accused has done. It is therefore not a defence for the accused to say he did not intend to cause the accident, because specific intent is not an element in a case of culpable homicide.

(b) “Instead of canvassing essential elements, I cannot be faulted to conclude that this was now cross-examination of the accused by the trial Magistrate.”

As I explained above, I do not believe in asking an accused to admit negligence directly, because such an admission would be very doubtful. The approach that I adopt is to ascertain the facts from the accused, and then decide if negligence can be inferred from them. This approach necessarily entails asking the accused several questions. So, for example, I asked, “Why did you fail to stop your vehicle before hitting the pedestrian?” The answer the accused gave, “I saw him when he was only 3 meters away, I could not stop in time,” would suggest that he had not been keeping a proper look out on the road. A person who only sees a pedestrian when he is only 3 meters away must have been inattentive. But I would not ask the accused, “Do you admit that you had not been keeping a proper lookout on the road?”

Now having ascertained the facts, I would then need to state the inferences I would have made.

(c) “After convicting the accused person, the trial Magistrate then decided to explain himself.”

Like I said above, the approach I adopt is that I would not ask the accused person to admit negligence directly. It follows, therefore, that after getting the facts, I must then state the conclusions I draw from the facts. I do not know if that would amount to explaining myself.

In conclusion, I believe that I properly convicted the accused person. I would also suggest that you assist me in formulating the questions (just as an illustration) that you would consider proper and the answers to those questions you would also consider proper for a conviction on a charge of culpable homicide.”

On receipt of this response, the Acting Regional Magistrate remained of the view that the accused person's plea should have been altered to one of not guilty. She forwarded the record of proceedings for review by a judge of this court with a request that she and the trial magistrate be guided on whether or not the convicted person was correctly convicted and sentenced. The lot fell on me. I have to determine whether or not the trial magistrate followed the correct procedure and correctly convicted the accused.

The trial magistrate, courteously and confidently defended his work. He did not merely reply “I stand guided” as most magistrates do. His response is well-reasoned and explains why he conducted the proceedings in the manner he did. He clearly and respectfully responded to the issues raised by the Acting Regional Magistrate.

I fully quoted the correspondence between the scrutinising Acting Regional Magistrate and the trial magistrate to lay the basis for this judgment. There is a lot to be learnt from their exchange of ideas on how to conduct a plea in general and particularly on a charge of culpable homicide.

Canvassing of Essential Elements in general

The Acting Regional Magistrate seems to suggest that the trial magistrate should have asked direct questions and altered the plea to one of not guilty when the convicted person's answers seemed to raise triable issues. The trial magistrate said he uses indirect questions and infers from them the guilt of an accused person. He said he does so to get the facts from which he can infer the accused's guilt or innocence. He assesses the accused's answers to determine whether or not they raise real triable issues.

I agree with the trial magistrate that it is permissible to ask indirect questions and infer from them the accused's guilt or innocence. An indirect question usually brings out the truth as it does not warn the accused of the effect his answer may have. It overcomes the problem of an accused person's appreciation of legal concepts. It brings out real justice as it seeks facts without cloathing the question in legal jargon. This approach is preferable because legal concepts are not easy to master. In the case of unrepresented accused persons the explanations of the charge and its elements should not be expected to fully inform them of the offence to the extent of expecting them to correctly, and from an informed position, answer direct questions based on legal concepts. In the case of S v Nyambo 1997 (2) ZLR 333 (HC)…, SMITH J, commenting on how to deal with difficult legal concepts, said -

“The accused was not represented. He is hardly likely to have appreciated the significance of the word `prepared' in this context…,. I agree with the opinion expressed by the Attorney-General that preparation envisages some process or activity which is intended to ensure that the dagga is ready for smoking.”

Judicial officers should therefore always be careful when canvassing essential elements to avoid being satisfied by an accused's admission or denial of facts couched in legal jargon. They should ensure, through careful probing, that the accused is admitting or denying such facts.

In the case of S v Tichaona & Anor 1994 (2) ZLR 402 (HC)…, CHATIKOBO J said -

“If the magistrate thinks that the accused's denial of foresight might be the result of a lack of appreciation of the import of the question, he should probe further. There is no exhaustive list of questions, nor any limit to the ways in which the questions should be put.”

It is not, therefore, helpful for the Acting Regional Magistrate and trial magistrate to dispute over how questions should have been put to Maxim Matsetu (the convicted person). The trial magistrate explained why he does not ask direct questions. He is of the view that if an accused person is asked whether he admits that he was negligent, and he answers “yes”, that answer does not mean that he was indeed negligent. The magistrate, who fully appreciates what negligence means, must ask questions which will enable him to establish whether or not the accused was negligent. In the case of S v Dube & Anor 1988 (2) ZLR 385 (SC)…, DUMBUTSHENA CJ said -

“There have been a number of recent judgments in which it has been pointed out how careful a judicial officer must be when faced with a plea of guilty. Not every fact should be regarded as proved simply because it is admitted. Thus, an admission of "being in a prohibited area" should not be blindly accepted. The court should require proof that the area was indeed a prohibited area - S v Deka & Anor SC199-88. The same is true of an admission of "possession." The court must be careful to establish what it is that the accused is admitting, because possession is a difficult legal concept - Attorney General v Chimwadze 1982 (2) ZLR 218 (SC); S v Zvinyenge & Anor supra; S v Hoareau SC143-88; S v Dyer SC204-88*. And see generally the remarks of REYNOLDS J in S v Chirodzero HH14-88.”..,.

In this case, the trial magistrate convincingly explained his approach in dealing with pleas to a charge of culpable homicide. His explanation is logical and well-grounded in a desire to dispense real and substantial justice. It cannot be faulted. It should, in fact, be encouraged.

Accident not intended and not deliberate

The Acting Regional Magistrate said; “Despite the fact that accused said he did not intend to cause the accident and thereby raising a defence at law which should have led to the alteration of the plea to not guilty” the trial Magistrate proceeded with the canvassing of essential elements.”

She thus reasoned that when Maxim Matsetu (the convicted person) said he did not intend to cause the accident and that his actions were not deliberate the trial magistrate should have altered the plea to one of not guilty. The trial magistrate's response was an explanation of the difference between murder and culpable homicide. He concluded that what the Acting Regional Magistrate suggested would have been correct if Maxim Matsetu (the convicted person) was facing a murder charge. He was, again, correct - even though a plea of guilty cannot be accepted on a charge of murder. He was merely pointing out that if Maxim Matsetu (the convicted person) had deliberately intended to cause the accident he should have been charged with the crime of murder.

A judicial officer is expected to know the law applicable to the offence charged. That will enable him to avoid being distracted by answers not relevant to the issues before him. In fact, section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] requires a judicial officer to have such knowledge as it requires him to explain the charge and its essential elements to the accused and to be satisfied by the facts he gathers during the canvassing of essential elements of the accused's guilty. Section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides as follows;

“(2) Where a person arraigned before a magistrates court on any charge pleads guilty to the offence charged or to any other offence of which he might be found guilty on that charge and the prosecutor accepts that plea -

(a) …,.

(b) The court shall, if it is of the opinion that the offence merits any punishment referred to in subpara (i) or (ii) of para (a) or if requested thereto by the prosecutor -

(i) Explain the charge and the essential elements of the offence to the accused and to that end require the prosecutor to state, in so far as the acts or omissions on which the charge is based are not apparent from the charge, on what acts or omissions the charge is based; and

(ii) Inquire from the accused whether he understands the charge and the essential elements of the offence and whether his plea of guilty is an admission of the elements of the offence and of the acts or omissions stated in the charge or by the prosecutor; and may, if satisfied that the accused understands the charge and the essential elements of the offence and that he admits the elements of the offence and the acts or omissions on which the charge is based as stated in the charge or by the prosecutor, convict the accused of the offence to which he has pleaded guilty on his plea of guilty and impose any competent sentence or deal with the accused otherwise in accordance

with the law:” …,.

The trial magistrate's approach to Maxim Matsetu's (the convicted person) answer indicates that he knew the elements of culpable homicide hence his proceeding with the canvassing of essential elements in spite of Maxim Matsetu's (the convicted person) abovementioned response….,.

The offence which was before the trial magistrate was culpable homicide. He therefore correctly carried on with the canvassing of essential elements because the accused's answer was not a valid defence to the offence charged.

Section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07], on the basis of which a judicial officer alters a guilty plea to one of not guilty, provides as follows;

“If the court, at any stage of the proceedings, in terms of section two hundred and seventy-one and before sentence is passed - 

(a) Is in doubt whether the accused is, in law, guilty of the offence to which he has pleaded guilty; or

(b) Is not satisfied that the accused has admitted or correctly admitted all the essential elements of the offence or all the acts or omissions on which the charge is based; or

(c) Is not satisfied that the accused has no valid defence to the charge;

the court shall record a plea of not guilty and require the prosecution to proceed with the trial:.”…,.

The provisions of this section are triggered by;

(a) A judicious doubt as to whether the accused is, in law, guilty of the offence to which he has pleaded guilty. The doubt must be grounded in the law.

In this case, the law on culpable homicide justified the trial magistrate's proceeding with the canvassing of essential elements. 

(b) Lack of the judicial officer's satisfaction that the accused has admitted, or correctly admitted, all the essential elements of the offence charged or all the facts or omissions which prove the offence charged.

In this case, the trial magistrate was correctly satisfied that the convicted person was correctly admitting the elements of culpable homicide.

(c) Lack of the judicial officer's satisfaction that the accused does not have a valid defence.

It is not every seeming defence which justifies the alteration of a plea of guilty to one of not guilty. If the judicial officer is not satisfied that the accused does not have a valid defence, he should alter the plea to one of not guilty. If he is, however, satisfied that what seems to be a defence is not a valid defence at law he should not alter the plea to one of not guilty.

The whole exercise therefore depends on the judicial officer's knowledge of the law.

Where the judicial officer is not in doubt, as the trial magistrate was, and he was satisfied, as he said he was, there was no need to alter the plea to one of not guilty. In the case of State v Makuvatsine HH102-04, reported as S v Makuvatsine 2004 (1) ZLR 459…., referred to by the Acting Regional Magistrate I said -

“Magistrates must be alert to the provisions of s272 to enable them to guard against the conviction of persons whose answers to questions raise doubt, or do not satisfy them of the accused's guilt or whose answers reveal that the accused may have a defence.”

In this case, the accused's answer did not raise any doubt in law as regards culpable homicide. It satisfied the trial magistrate of its irrelevance to culpable homicide. It did not reveal a valid defence to culpable homicide.

Dazzled by the lights of an oncoming motor vehicle

The Acting Regional Magistrate also believed the trial magistrate should have altered the plea to not guilty as the accused seemed to be raising a defence of sudden emergency.

Again, ones knowledge of the law is an aid to knowing when to alter an accused's plea to one of not guilty.

Maxim Matsetu (the convicted person) told the magistrate that he reduced his speed to 60 km/hour. He thus proceeded into the accident at 60km/hour unable to see ahead. That is the maximum speed one should travel at in an urban area. He was driving along Simon Mazorodze Road in Waterfalls Harare. Travelling at such a speed on a busy urban road, when he could not see what was happening on the road, ahead was therefore clearly negligent. His own words justified the trial magistrate's continuing with the canvassing of essential elements. The trial magistrate asked Maxim Matsetu (the convicted person) if he had a right to drive in the manner he did, “not keeping a proper lookout on the road, not stopping when he was not seeing properly.” Maxim Matsetu's (the convicted person) response was that he did not have such a right. A reasonable driver would have slowed down and stopped. Driving on blindly at 60km/hr, as Maxim Matsetu (the convicted person) did, had the effect of endangering the lives of his 18 passengers.

There was no need to alter his plea to one of not guilty….,.

Cross examination

In view of my finding that the trial magistrate correctly continued with his canvassing of essential elements, he cannot be said to have cross examined the convicted person. Judicial officers, when proceeding in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], are free to ask the questions they deem fit to ascertain the guilt or innocence of an accused person. See the case of S v Tichaona & Anor 1994 (2) ZLR 402 (HC) …, where CHATIKOBO J said -

“If the magistrate thinks that the accused's denial of foresight might be the result of a lack of appreciation of the import of the question he should probe further. There is no exhaustive list of questions nor any limit to the ways in which the questions should be put.”

Explanation

The Acting Regional Magistrate is of the view that the trial magistrate was aware that he had crossed the red line hence his unnecessary explanation of the reasons why he convicted the accused.

It is contended, on behalf of the appellant, that the trial court erred in not permitting the appellant to alter his plea to not guilty. This is because the appellant did not understand the essential elements of the offence.

In order to appreciate the issue at stake it is pertinent to consider the relevant provision of the Criminal Procedure and Evidence Act [Chapter 9:07]. In this respect, section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that -

“If the court, at any stage of the proceedings, in terms of section two hundred and seventy-one and before sentence is passed -

(a) Is in doubt whether the accused is, in law, guilty of the offence to which he has pleaded guilty; or

(b) Is not satisfied that the accused has admitted or correctly admitted all the essential elements of the

offence or all the acts or omissions on which the charge is based; or

(c) Is not satisfied that the accused has no valid defence to the charge;

the court shall record a plea of not guilty and require the prosecution to proceed with the trial:

Provided that any element or act or omission correctly admitted by the accused up to the stage at which the court records a plea of not guilty and which has been recorded in terms of subsection (3) of section two hundred and seventy-one shall be sufficient proof in any court of that element or act or omission.”

The following exchange transpired during the recording of the appellant's mitigation -

“Q. Why did you commit the offence?

A. It's negligence. I left the firearm in the motor vehicle bonnet locked (sic), but it was broken by unknown thieves and the firearm stolen.”

It was only during the course of applying for change of plea after engaging legal counsel that an additional explanation was proffered by the appellant. This was to the effect that the firearm was in a briefcase which was hidden behind the seat. This sharply contrasts with the answer the appellant gave during mitigation.

Section 28 of the Firearms Act [Chapter 10:09] provides that -

“(1) In this section -

“unauthorized person”, in relation to any firearm or ammunition, means any person other than the person lawfully entitled under this Act to possess that particular firearm or ammunition.

(2) Any person having in his possession any firearm or ammunition shall take all such precautions as may be reasonably necessary to prevent such firearm or ammunition falling into the possession of any unauthorized person and shall comply with such security measures, both with regard to the safekeeping thereof and the condition in which it may be kept, as may be prescribed.

(3) When in any prosecution under this section it is alleged in any indictment, summons or charge that all such precautions as were reasonably necessary to prevent a firearm or ammunition from falling into the possession of an unauthorized person were not taken or that any security measure prescribed was not complied with, it shall be presumed, unless the contrary is proved, that all such precautions were not taken or that such security measure was not complied with, as the case may be.

(4) Where any firearm or ammunition is lost or stolen, it shall be presumed, unless the contrary is proved, that it has fallen into the possession of an unauthorized person.

(5) If any person fails to comply with this section, he shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.”

The charge alleges that the appellant left the firearm in the vehicle unattended. This averment was repeated in the outline of the State case, and, in addition, it was further alleged that the appellant had no right to leave the firearm in the vehicle even though its doors were locked. In light of the provisions of section 28 of the Firearms Act [Chapter 10:09], leaving a firearm in a locked motor vehicle does not amount to taking all precautions that are reasonably necessary to prevent it from falling into the possession of an unauthorized person. It is well known that a motor vehicle may be broken into despite it being locked.

Although the facts put to the appellant were brief it cannot be said that they were insufficient to properly inform him of the essential elements of the offence. This is because during mitigation the appellant was given an additional opportunity to explain why he committed the offence. This is the stage at which he should have further explained that the firearm was in a briefcase which was behind the seat as he subsequently claimed through his counsel….,.

The question to pause here, as stated by McNALLY JA in S v Mudambi 1995 (2) ZLR 274 (S) is; is there a reasonable possibility that an innocent person was convicted?

I would answer in the negative.

Unlike in S v Mudambi 1995 (2) ZLR 274 (S), in the present case, the reasons for seeking change of plea were simply explained by counsel from the bar. This should have been done under oath as in S v Mudambi 1995 (2) ZLR 274 (S) and even in S v Matare 1993 (2) ZLR 88 (S). We are therefore not convinced that the appellant did not understandingly and voluntarily plead to the charge to warrant a change of plea.

This is perhaps a classical case of how not to conduct a trial based on a plea of guilty in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

In this case, the accused, a 17 year old juvenile, had consensual sexual intercourse with a fellow juvenile in contravention of section 70(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The complainant's age was assessed by a medical practitioner to be between 14½ and 15½. He appeared before the trial magistrate at Rusape Magistrates court on a plea of guilty. The section requires the trial magistrate to canvass the essential elements of the offence charged and for him to satisfy himself that the plea of guilty is an unequivocal admission of the accused's guilt. The section is designed to avoid the conviction of an unrepresented accused person through ignorance or inadvertence. It reads:

“271 Procedure on plea of guilty

(1) …,. 

(2) When a person arraigned before a magistrates court on any charge pleads guilty to the offence charged or to any other offence of which he might be found guilty on that charge and the prosecutor accepts that plea -

(a) …,.

(b) The court shall, if it is of the opinion that the offence merits any punishment referred in subpara (i) of para (a) or if requested thereto by the prosecutor -

(i) Explain the charge and the  essential elements of the offence to the accused and to that end require the prosecutor to state, in so far as the acts or omissions on which the charge is based are not apparent from the charge, on what acts or omissions the charge is based; and

(ii) Enquire from the accused whether he understands the charge and the essential elements of the offence and whether his plea of guilty is an admission of the elements of the offence and of the acts or omissions stated in the charge or by the prosecutor;

And may, if satisfied that the accused understands the charge and the essential elements of the offence and the acts or omissions the charge is based as stated in the charge or by the prosecutor, convict the accused of the offence to which he has pleaded guilty on his plea of guilty and impose any competent sentence or deal with the accused otherwise in accordance with the law.”

In short, a trial magistrate is obliged to strictly observe the above laid down procedures before convicting an accused person on his own plea of guilty.

The procedure to be followed was amply summarised by GUBBAY CJ in the case of William Ndlovu v The State SC223-91. In that case, the learned CHIEF JUSTICE made it clear that the section enjoins the trial court, before convicting an accused person on his own plea of guilty, to:

(a) Explain the charge and the essential elements of the offence to the accused;

(b) Ask the accused person if he understands the charge and whether his plea is an admission of all the elements of the offence;

(c) Record the explanation of the charge, the essential elements and any explanation the accused may give.

Unlike in the William Ndlovu v The State SC223-91 case, the trial magistrate, to his credit, substantially complied with the need to maintain a full and comprehensive record of the proceedings. In canvassing the essential elements of the offence he, however, misdirected himself and went overboard resulting in a serious miscarriage of justice. The relevant portion of the record of proceeding reads as follows:

“E/E

Q. Correct on 26/08/11 you unlawfully had extra marital sexual intercourse with a girl under the age of 16?

A. Yes.

Q. You knew very well she was below the age of 16?

A. I was not aware.

Q. Does she go to school?

A. No.

Q. What is she doing for a leaving?

A. She is a vendor.

Q. But you could see that she was a young girl?

A. No.

Q. Did you pay lobola for her?

A. No.

Q. So you knew very well what you were doing was unlawful?

A. No Yes.

Q. Any right to behave in that manner?

A. No.

Q. Any defence to offer?

A. No.

Guilty as charged

PP I intend to tender medical report.

Q. Were you served with a medical affidavit?

A. Yes.

Q. Did you read it?

A. I did not read it.

Q. Why?

A. I did not have the time to read.

Q. When were you served?

A. June last year.

Q. It's almost a year now?

A. I was only shown once.”

Without much ado, the affidavit was then read to the accused, tendered in evidence as an exhibit and he was then found guilt - purportedly on his own plea of guilty. It is needless to say that before an accused person can be found guilty on his own plea of guilty the court must satisfy itself that his plea of guilty is an unequivocal admission of his guilt.

The purpose of canvassing essential elements of the offence is for the court to satisfy itself that the accused is tendering a genuine plea of guilty from an informed position of his liability at law. Where an accused person pleads guilty but goes on to deny an essential element of the offence charged, the court is duty bound to alter the plea to one of not guilty and proceed to trial in the normal way. It is not the duty of the presiding magistrate to panel beat the accused into submission in order to convict the accused on his own plea of guilty as happened in this case.

It is trite that an act does not constitute guilt unless done with a guilty frame of mind. Thus, in this case, it was not enough for the accused to admit that he had sexual intercourse with the minor child below the age of consent. He had also to admit the mental aspect of the offence in the sense that he intentionally had sexual intercourse with the minor child well knowing that she was below the age of 16 years.

To this end section 70(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides that; “It shall be a defence to a charge under subsection (1) for the accused person to satisfy the court that he or she had reasonable cause to believe that the young person concerned was of or above the age of sixteen years at the time of the alleged offence.”….,.

It follows, therefore, as a matter of logic and common sense that once the accused had stated that he did not appreciate that the complainant was below the age of sixteen years at the material time, he was proffering a valid defence to the charge. In legal parlance, he was denying that he had the requisite mens rea, that is to say, the necessary intention to commit the crime. At that juncture, the trial magistrate was duty bound to alter the plea of guilty to one of not guilty instead of embarking on a lengthy cross-examination of the accused apparently calculated to extort a confession from him so as to avoid the rigors of a fully-fledged trial.

For that reason alone, I come to the conclusion that it was a serious misdirection and fatal miscarriage of justice for the trial magistrate to convict an accused person on a plea of guilty in circumstances where he was tendering a valid defence to the charge. That being the case, the conviction and sentence cannot stand. It is accordingly ordered:

1. That the conviction and sentence be and are hereby quashed and set aside.

2. That the decision as to whether or not to prosecute the accused person on the same charge be left entirely to the discretion of the Attorney-General.

The appellant was convicted on his own plea of guilty to a charge of stock theft as defined in section 114(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The matter was adjourned prior to sentencing. In between time, the appellant, then unrepresented, applied for a change of plea unsuccessfully. The trial court, finding that there were no special circumstances, imposed the minimum sentence of 9 years imprisonment. The appellant thereafter engaged legal counsel who applied for alteration of a guilty plea to one of not guilty.

The appellant's application was made in terms of section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Three grounds were advanced in explanation of the tendering on a guilty plea. The first reason was that the appellant alleged intimidation and undue influence by the police; secondly, the appellant claimed that he was ignorant of the consequences of the plea of guilty; and, finally, the appellant contends that the facts which he admitted to did not disclose an offence in light of the decision of this court in S v Machokoto 1996 (2) ZLR 190.

That application suffered the same fate.

He now appeals to this court against his conviction.

Five grounds of appeal are advanced on behalf of the appellant. The first, and main, ground of appeal is that the court a quo erred in dismissing the appellant's application to withdraw his plea of guilty. The remaining grounds are a rehash of the same reasons put forward on the appellant's behalf regarding his earlier application. The notice and grounds of appeal appear to be muddled up. The reasons could be that the appellant's legal practitioner was unsure as to what it was he was now bringing, on appeal, the refusal to grant the application to withdraw the guilty plea before counsel was engaged or the subsequent dismissal of counsel's application for changing of the plea? What would constitute the proper grounds of appeal in the present appeal? The appellant's apparent confusion would have been much less if counsel had borne in mind that the reasons given in the final determination by the court a quo, dismissing the application for change of plea, provided him with the reason why he was approaching this court by way of an appeal rather than review.

I will proceed to determine whether the concession by the respondent was well made.

In terms of section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07], the court is required to record a plea of not guilty if any of three situations become apparent at any stage before sentence is pronounced:

(i) The first situation is when the court, for any reason, entertains doubt that the accused is, in law, guilty of any offence to which he has pleaded guilty.

(ii) The second situation is where the court is not satisfied that the accused has correctly admitted all the essential elements of the offence or all the acts or omissions on which the charge is based.

(iii) Finally, the court is bound to alter the plea to one of not guilty if it is not satisfied that the accused has no valid defence to the charge.

In S v Maseko 1986 (2) ZLR 52 (SC) it was held that an accused who wishes to change a plea of guilty after verdict has been given must discharge an onus showing, on a balance of probabilities, that the plea was not voluntarily, understandingly, and correctly made. In order to succeed, the accused only needed to show, on a balance of probabilities, that the plea was not voluntarily and correctly made. However, that position was significantly altered by the same court in S v Matare 1993 (2) ZLR 88 (SC) when it was held that the accused has no onus cast on him before his wish to change his plea can be granted. All that he is required to do is to give a reasonable explanation of why, in the first place, he has pleaded guilty to the offence charged. It is only when the court is satisfied that the explanation tendered by the accused is, beyond a reasonable doubt, false that the court can refuse to alter the guilty plea to one of not guilty.

In the present case, once the accused made an application to change his plea before sentence, as he did, the court a quo was required to determine whether the explanation he gave for pleading guilty initially was, beyond reasonable doubt, false.

In S v Matare 1993 (2) ZLR 88 (SC), after discussing the different approaches dictated by either the common law or the statutory provisions here and in South Africa, GUBBAY CJ stated…,:

“Third, in my view s255A, construed in the context against which it was introduced to the Act, contains no indication of an intention on the part of the legislature to cast an onus on the accused. That this is so is evident from the following factors:

(1) The phrase "if the court…, is in doubt whether the accused is, in law, guilty of the offence to which he has pleaded guilty" in para (a), merely requires that a doubt alone, and not a probability, is sufficient to oblige the court to change the plea. No onus of proof needs to be discharged before this safety device becomes operational. See S v Malili en 'n Ander supra at 624A.

(2) The phrase "if the court…., is not satisfied that the accused has admitted "all the essential elements of the offence" in para (b) requires no more than that the accused reveals that he does not admit an essential element of the offence. See S v Malili en 'n Ander supra at 624C.

(3) 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 para (a) (b) and (c) respectively, deal with the situation where the accused does not dispute any of the essential elements of his guilt, 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. See S v Malili en 'n Ander supra at 625F-I.

It is apparent to me that sec (s) 255(2)(b) and 255A were enacted to provide greater protection to the undefended accused by establishing an inquisitorial procedure, as were sec (s) 112(1)(b) and 113 of the South African Act. See S v Dingile supra at 258B-G. Not only, therefore, is the placing of an onus of proof on the accused incompatible with such a procedure, it undermines the protection the accused enjoyed prior to 19 September 1975, when guilty-plea proceedings were framed in the adversarial mould. The court placed no onus on an accused who wished to change his plea; a reasonable doubt as to its correctness sufficed. If it became apparent that an undefended accused had wrongly or mistakenly pleaded guilty, the court was required to investigate the matter inquisitorially, and, if necessary, change the plea mero motu. See S v Terblanche 1971 (3) SA 231 (O) at 235C; S v Hendriks 1977 (4) SA 78(C) at 80F.

In sum, I can do no better than to repeat the words of VAN ZYL J in S v Fourie supra at 23h, that:

'(there is) no more of a burden of proof in an application under s113 than the burden placed on the accused by the common law in these circumstances. In fact, in my respectful opinion, it is even wrong to talk of an onus at all in these circumstances because this is not like the ordinary case of the burden of proof. All that can be expected of an accused is to give an explanation or clarification of his change of plea, and, if the court is satisfied that it is a reasonable explanation on clarification, then the plea ought to be changed. There is no question of a burden of proof that is discharged in such a case (in translation).'”

It is clear that the trial magistrate fell into error when he delved into the merits of the appellant's case in order to determine whether his application for a change of guilty plea ought to succeed. The question was not whether the appellant's case, as explained by his counsel during submissions in the hearing, carried with it any prospects of success. The issue remained whether he had put forward an explanation for the guilty plea, which, in the circumstances, was beyond reasonable doubt false. If an unrepresented accused states that he tendered the plea in the belief that he had no defence and it appeared, upon being counseled, that there is doubt as to whether the accused is indeed guilty of the offence charged, in my view, the application ought to succeed.

An admission by an accused to essential averments not linked to the offence charged cannot be an admission of guilt to the offence charged. Such an admission does not cure the defect in the charge. An offender cannot be convicted of a crime in circumstances where he is unaware of the full allegations that make the conduct complained against criminal.

In this case, the accused did not admit that he drove a public service vehicle or a commuter omnibus. The information was just thrust down his throat. He was not afforded an opportunity to respond to the suggestion. I am not satisfied that the accused was properly advised of the nature of charges he was facing and that his admission of guilt is a genuine and unequivocal plea of guilt to the offence of driving a public service vehicle negligently.

Section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07] says:

“272 Procedure where there is doubt in relation to plea of guilty

If the court, at any stage of the proceedings in terms of section two hundred and seventy-one and before sentence is passed -

[a] Is in doubt whether the accused is, in law, guilty of the offence to which he has pleaded guilty; or

[b] Is not satisfied that the accused has admitted or correctly admitted all the essential elements of the offence or all the acts or omissions on which the charge is based; or

[c] Is not satisfied that the accused has no valid defence to the charge;

the court shall record a plea of not guilty and require the prosecution to proceed with the trial:

Provided that…,.”

The accused person was arraigned before the Magistrates Court on a charge of possessing property reasonably suspected of being stolen in contravention of section 125(a)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was convicted of the charge…,.

The magistrate accepted the plea in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act, and, on putting elements of the offence to the accused he posed the following questions;

“Q. Admit that on 8 August 2014, at Matangira Complex, Bindura you had in your possession the alleged Samsung Dual Sim cell phone.

A. Yes.

Q. Where had you got it from?

A. I stole it from Musiiwa night club.

Q. So you took it without permission from the owner?

A. Yes.

…,.

….,.

Q. What did you want to do with this cell phone?

A. To use it forever.

…,.”

The magistrate proceeded to find the accused guilty as charged.

The above facts do not disclose an offence of possessing property believed to be stolen but theft. The conviction cannot therefore stand.

The magistrate explained that he made an error of omission. According to him he convicted the accused on a charge of theft. In his mind that is what he said he did. He claims theft is a competent verdict of the charge of possessing property believed to have been stolen. The correct position is that possessing property believed to have been stolen is a competent verdict of a theft charge and not vice versa.

Where a person is charged with a particular offence, he or she could still be convicted on a competent verdict to that offence where the evidence is sufficient to prove the accused's guilt to the competent verdict. See Doma v S (2013) ZAGP JHC 116.

The meaning of competent verdict, put in simple terms, is compromised verdict. It can only be a lesser charge than the one preferred against the accused person. See S v Masuku HB02-04.

In this instance, the magistrate purports to have convicted the accused on the charge of theft. As I have said above, this could never be interpreted as a competent verdict and the conviction cannot be allowed to stand.

The magistrate was supposed to stop the trial and refer the matter to the Prosecutor-General for directions if he felt he needed to convict on theft. However, overally, I see no prejudice suffered by the accused to warrant my intervention at this stage.

Accordingly I withhold my certificate.

The driver's licence for a tractor is class 5. But, in terms of the Road Traffic Act [Chapter 13:11], a tractor driver does not always have to have a licence. In terms of section 8 of the Road Traffic Act all that an employee of a farmer or of a miner, or a self-employed farmer or miner, as defined, needs in order to legally drive a tractor belonging to, or possessed by them, on any road, for farming purposes, up to a belt of ten kilometres of the farm or the mine boundary, is a tractor driver's permit issued in accordance with that section….,.

In this case, the omission relating to section 8 permits was all the more glaring given what the accused said when the court canvassed the essential elements:

“Q. Why did you drive without a licence?

A. I have a reference to drive without a licence.”…,.

Immediately, the court should have stopped to enter a plea of not guilty in terms of section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07] so that the issue could be properly investigated. What was that 'reference' the accused mentioned? Could it be the section 8 permit? It was more likely it was. But the court just went straight ahead:

“Q. Any right?

A. No.

Q. Any defence?

A. No.”

Since the accused was not represented, the court should have doubted the genuineness of his plea of guilt. It was not informed. Section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07] says:

“272 Procedure where there is doubt in relation to plea of guilty

If the court, at any stage of the proceedings, in terms of section two hundred and seventy-one and before sentence is passed -

[a] Is in doubt whether the accused is, in law, guilty of the offence to which he has pleaded guilty; or

[b] Is not satisfied that the accused has admitted or correctly admitted all the essential elements of the offence or all the acts or omissions on which the charge is based; or

[c] Is not satisfied that the accused has no valid defence to the charge;

the court shall record a plea of not guilty and require the prosecution to proceed with the trial:

Provided that…,.”