Both accused persons are charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They are alleged to have, on various occasions, during the period extending from 29 March 2009 to 14 August 2009, defrauded the Government of Zimbabwe of two billion United States Dollars.

The charge sheet is framed as follows:

“Accused are guilty of FRAUD as defined in s136 of the Criminal Law (Codification and Reform) Act [Cap 09:23].

In that, on various separate occasions, but during a period beginning 29 March 2009 to 14 August 2009, and at the Ministry of Mines and Mining Development and at Zimbabwe Mining Development Corporation's Offices in Harare, both accused persons, and in common purpose, unlawfully and fraudulently made misrepresentations with intent to defraud the Government of Zimbabwe, that is to say, Lovemore Kurotwi misrepresented to the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation that Core-Mining and Mineral Resources (Pty) Limited (a shelf company in South Africa) was a special purpose vehicle of a company known as Benny Steinmeitz Group Resources (BSGR) (which was supposed to be the Guarantor in a Joint Venture Agreement between Core-Mining and ZMDC) in common purpose with Dominic Mubaiwa who later joined in the criminal enterprise and unlawfully prepared and entered into an unapproved and uncirculated Memorandum of Agreement between Marange Resources (Pty) Ltd signed on 24 July 2009 and later acquired a cabinet authority to proceed to South Africa to conduct a due diligence exercise on Co-Mining (a mere shelf company) which both accused persons purported to be a Special Purpose Vehicle of Benny Steimeitz Group (BSGR) thereby ending up concluding a share holder Agreement between Zimbabwe Mining Development Corporation and Core Mining and Mineral Resources (Pty) Limited instead of Benny Steinmeitz Group (BSGR) which all along had been held out by both accused persons as the Guarantor of Core Mining thereby causing an actual prejudice of two billion United States Dollars to the Government of Zimbabwe.”

Both accused persons pleaded not guilty, and, thereafter, proceeded to except to the charge.

Their main complaint is that although the charge makes allegations of misrepresentation to the Ministry of Mines and the Zimbabwe Mining Development Corporation none of the papers indicate to which natural person the misrepresentation was made. It was argued that both entities, being artificial persons, could only act though natural persons. It was therefore necessary to specify the natural person to whom the misrepresentation was made otherwise the accused will be prejudiced in their defense if they were left in the dark or to speculate as to which natural person they are alleged to have made the misrepresentation.

The accused's second complaint is that although the State alleges actual prejudice of two billion United States Dollars, it does not inform them as to how the prejudice came about.

In light of such objections, the accused requested the Court to order the delivery of the relevant particulars in terms of section 177 of the Criminal Procedure and Evidence Act [Chapter 9:07] to enable them to prepare their defence. That section reads:

“177 Court may order delivery of particulars

(1) The court may either before or at the trial, in any case, if it thinks fit, direct that particulars be delivered to the accused of any matter alleged in the indictment, summons or charge, and may, if necessary, adjourn the trial for the purpose of the delivery of such particulars.

(2) Such particulars shall be delivered to the accused or to his legal representative without charge, and shall be entered in the record, and the trial shall proceed in all respects as if the indictment, summons or charge had been amended in conformity with such particulars.

(3)…,.”

Section 146 of the Criminal Procedure and Evidence Act [Chapter 9:07] prescribes the essentials of a valid and competent charge. It states that:

“146 Essentials of indictment summons or charge

(1) Subject to this Act, and except as otherwise provided in any other enactment, each count of the indictment, summons or charge shall set forth the offence with which the accused is charged in such manner, and with such particulars as to the alleged time and place of committing the offence and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.”

Thus, the State is under an obligation to frame a charge, among other things, so as to inform the accused person of the offence he is facing together with the particulars or essential elements of that offence. The section also requires the State to inform the accused of the person against whom the offence was committed and the nature of the property involved, if any.

Failure to give such particulars would render the charge defective and exceptiable.

It is therefore necessary to examine and see if the charge complies with the essentials laid down in section 146 of the Criminal Procedure and Evidence Act.

It is common cause that the accused were informed that the offence they were facing is fraud committed against the Government of Zimbabwe in the sum of two billion United States Dollars. In short, they are being accused of defrauding the Government of Zimbabwe of two billion United States Dollars.

It is trite that the Government of Zimbabwe is a legal entity with full legal persona capable of suing and being sued in its own name. It has a separate legal existence from its officials and servants. The Government of Zimbabwe, duly constituted by the Constitution of Zimbabwe, is, therefore, undoubtedly, a juristic person.

HALO's South African Company Law through the cases, 6th ed, 1999 defines a juristic person as:

“a body corporate or association other than a natural person, that is endowed by law with the capacity to have rights and duties apart from its members.”

The State, being a juristic person, ought to be treated like any other juristic person: TETT and CHADWICK, Zimbabwe Company Law, 2nd ed…, states that:

“The effect of a company having separate legal personality is that it can engage in any activity and is entitled to the same rights and remedies as any other juristic person.”

The law, therefore, makes no distinction between the framing of charges involving natural persons and artificial persons. Thus, the Government of Zimbabwe, like any other juristic person, has the full locus standi in judicio to appear and be heard as the complainant in any Court without being carried on the back of any natural person.

Thus, it is sufficient for the State to allege that the misrepresentation was made to a juristic or artificial person without naming any natural person.

It is instructive to note that section 146 of the Criminal Procedure and Evidence Act does not make it a requirement that where the complainant is a juristic person the charge must specify the natural person to whom the misrepresentation was made.

The failure to mention or specify the natural person to whom the alleged misrepresentation was made cannot possibly prejudice the accused in their defence because the State elaborated, in its summary, that, the misrepresentation was made to the juristic persons through written letters which will be produced in court through named competent witnesses, including the Permanent Secretary in the Ministry of Mines.

Written documents which the accused can interrogate speak for themselves in the normal run of things: letters disclose their author, addressee, and the communication conveyed from one party to the other.

I can therefore perceive no prejudice to the accused if they have been provided with access to the relevant documents upon which the alleged misrepresentations are founded.

As regards the quantum of prejudice, the State elaborated that the amount of prejudice was occasioned in one capital sum arising from the misrepresentation. In the light of that explanation, it will be illogical to order the State to provide a non-existent break down when it alleges that the prejudice was not incurred in instalments.

The purpose of an indictment is to inform the accused of the case he is going to meet in Court without necessarily providing the evidence required to prove the allegations.

The summary of the State case provides a precis of the evidence upon which the State intends to rely on in proving its case.

Viva voce evidence, documents, exhibits, and any other evidence constitute the actual poof of the allegations against the accused as alleged in the indictment and summarized in the outline of the State case.

It is important not to confuse one stage from the other.

Having carefully perused the charge sheet and the State's response, it appears to me that the particulars required by the accused person, in respect of the indictment, are properly contained in the summary of the State case that is yet to be read in open Court.

For that reason alone, both the exception and application for further particulars cannot succeed. Both objections are accordingly dismissed.

There are two issues in this matter.

Firstly, there is no section 42(2)(a) in the Reserve Bank of Zimbabwe Act [Chapter 22:10], as it ends with section 30. Therefore, the accused has been charged with the non-existent section.

The accused should have been charged with contravening section 14(1)(a) as read with section 14(1)(a) (i) of the Reserve Bank of Zimbabwe Act [Chapter 22:10] which reads -

“14. Offences relating to Bank Notes

(1) Any person who -

(a) Without the authority of the Bank, engraves, or makes upon any material whatsoever, any words, figures, letters, marks, lines, or devices, the print of which resembles in whole, or in part, any words, figures, letters, marks, lines or devices, peculiar to and used in, or upon, any note; or

(b) Uses for an unlawful purpose, or knowing that it is to be used for an unlawful purpose, has in his possession any material whatsoever upon which has been engraved, or made, any words, figures, letters, marks, lines, or devices as are mentioned in paragraph (a); or

(c) Willfully defaces, soils, or damages, any note, or writes, or places any drawing thereon, or attaches thereto anything in the nature of an advertisement;

shall be guilty of an offence and liable -

The charge on which the accused persons were convicted in Count One reads as follows:-

“In that on the night between 16 and 17 July 2007 and at No.17 Arkden Road, Sunridge, Mabelreign, both Edwin Dino Hunda and Abison George Kariwo, unlawfully, intentionally, and without permission from Martin Dangeni, the lawful occupier of the premises concerned, or without lawful authority, entered Martin Dangeni's premises at No.17 Arkden Road, Sunridge Mabelreign and stole seven long-sleeved shirts, four pairs of trousers, two-plate stove and car keys of a Peugeot 306XN, knowing Martin Dangeni was entitled to possess, or own, or control the property and intending to deprive Martin Dangeni permanently of his ownership, possession, or control of the property.”

The charge was framed as if it was for what used to be the crime of house-breaking and theft. That offence no longer exists. It was replaced by two separate offences of contravening section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] for unlawful entry and contravening section 113(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] for theft.

There will, however, be no prejudice to the accused persons if the charge is amended on review. They admitted to unlawfully entering the complainant's premises. That constitutes a contravention of section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They, by admitting that they stole the property..., admitted committing an offence within the complainant's house. The unlawful entry was therefore aggravated, and they should therefore, in Count One, have been charged with contravening section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The correct framing of charges for the contravention of section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] was dealt with in S v S. Chirinda HH87-09...,. The charge in Count One is therefore, amended to read as follows:-

“Charged with unlawful entry into premises as defined in section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as read with section 131(2)(e) of the Criminal Law (Codification and Reform ) Act [Chapter 9:23].

Re: State v Francis Muchamba

The accused was charged with assault. The charge appearing on the summary jurisdiction states -

“assault as defined in section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].”

On the scrutiny cover it reads -

“assault as defined in section 80 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].”

This constitutes the first irregularity.

Section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] has three subsections some of which have paragraphs. To simply prefer a charge of contravening that section without specifying the offence-creating subsection and paragraph is not only vague but wrong. The correct charge should read contravening section 89(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] – the offence creating provision.

As for the section 80 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which was quoted on the scrutiny case cover, it has nothing to do with assault at all. It deals with “sentence for certain crimes where accused is infected with HIV.”

This exposes the lack of diligence and thoroughness on the part of the trial magistrate.

Be that as it may, the issue of sentence in casu is rendered academic as the conviction itself cannot stand.

This is so because section 46(b) of the Parks and Wildlife Act [Chapter 20:14] does not create an offence.  It deals with the Minister's powers to issue permits “to keep, have in his possession, or sell, any specially protected animal or the meat or trophy of any such animal.” An impala is not a specially protected animal as defined in section 43 of the Parks and Wildlife Act [Chapter 20:14]. All specially protected animals are specified in the Sixth Schedule of the Parks and Wildlife Act [Chapter 20:14]; and impala is not specified therein.

The accused should have been charged either under section 33 of the Parks and Wildlife Act [Chapter 20:14] (if the area in question is a sanctuary) or under section 38 of the Parks and Wildlife Act [Chapter 20:14] (if the area is a safari area). The trial record does not state whether the area in question is a sanctuary or a safari area. From the foregoing, the conviction cannot stand.

This matter was referred to me by the scrutinising Regional Magistrate who found himself unable to certify the proceedings as being in accordance with real and substantial justice for two reasons.

The first reason is that the Regional Magistrate felt that the accused should have been charged with rape as provided for in Section 64(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as opposed to being charged with contravening section 70(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The second reason is that the Regional Magistrate was of the view that the accused person had not admitted an essential element of the charge relating to the issue that the complainant was below the age of sixteen (16) years. In view of that, he strongly felt that the plea should have been altered to that of not guilty.

Defending his actions, the trial magistrate argued that there is a conflict between section 64(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and section 70(4)(a)(i) of the Criminal Law Code. He reasoned that while the former section brings under the ambit of the crime of rape sexual intercourse with a female of or under the age of twelve (12) years, the latter section seems permissive in that it provides that rape is a competent charge for intercourse with a female person below the age of twelve (12) years. The trial magistrate felt he was therefore at liberty to proceed under section 70(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] because the complainant was aged twelve (12) years and not below the age of twelve (12) years.

The scrutinising Regional Magistrate then sought assistance in resolving these issues and referred the matter to me…..,.

In going through the essential elements of the offence with the accused person, the dialogue between the magistrate and the accused went like this;

“Facts read and understood. Annexure “A”

Q. Are they true and correct?

A. Yes.

Q. Anything to add or subtract?

A. When I committed the offence, I did not set out to do it. I had paid them a visit and whilst whiling up time she approached me and started caressing me holding my private parts. I remonstrated and asked why she was doing that and she told me she was more experienced and there was nothing she did not know. She let go of me and I was given a room to put up at her homestead. Whilst asleep, she came to the bedroom naked without anything in her undergarments. I asked her to go away and (she) told me not to panic and not to be afraid. I was…., (illegible)…., and I knew she had a lot of boyfriends. I had sex with her once and I went back home. She was not a virgin…,. Her physical appearance she seemed mature.

Essential Elements

Q. Correct you were at Malibeng Area, Beitbridge on the 16^th December 2009?

A. Yes.

Q. Whilst there you had sexual intercourse with Lungisani Ndlovu?

A. Yes.

Q. You knew she was a juvenile or minor below 16 years?

A. I was not aware, I saw her body.

Q. She is your relative and you visit each other?

A. Yes.

Q. You knew she was attending primary school?

A. Yes.

Q. What grade?

A. Seven.

Q. For how long have you known her?

A. I saw her grow up from childhood.

Q. You knew she was younger than you?

A. Yes.

Q. By how many years?

A. I am not sure.

Q. When did she start school?

A. I do not remember but I was in grade seven when she started school.

Q. How old are you?

A. I am 18 years old.

Q. So you see she is a young person?

A. I skipped grade six so I should have been in grade six. I however understand the offence.

Q. Any right to do what you did?

A. No.

Q. Is your plea of guilty an admission of the charge, facts and….,. (illegible)?

A. Yes.

Q. Any defence to offer?

A. No.

V- guilty as pleaded.”

It is clear from this dialogue that the accused did not admit knowledge that the complainant was a young person as defined in the Criminal Law Code. In fact, the trial magistrate resorted to cross examining the accused who clearly denied knowledge of the age of the complainant. This was an unrepresented accused person and it was the duty of the magistrate to assist him. The moment the accused challenged the age of the complainant, in fact, he said, the complainant “seemed mature” from her physical appearance, the magistrate should have altered the plea to that of not guilty….,.

Looking at the charge itself, I have already stated that no investigation whatsoever was conducted on the exact age of the complainant. The magistrate merely relied on the charge sheet which was not explicit in its wording only alleging that the complainant was twelve (12) years old. It is always critical to determine the exact age of the complainant in cases involving the sexual abuse of children. This derives from the intricate provisions of the Criminal Law Code which give rise to varying types of charges and indeed penalties to be meted out.

What was placed before the court was patently incomplete if not inaccurate information.

To say the complainant was aged twelve (12) years was as inaccurate as it was problematic. Just what does it mean? Could it be that she was celebrating her 12^th birthday on the day of the offence, or had already attained that age or was in her 12^th year? It was therefore necessary to ascertain the exact age by means of her birth certificate and/or medical evidence as to her probable age if the date of birth was not known. None of this was done.

The same goes for the accused person.

The magistrate contented himself with accepting his evidence that he was eighteen (18) years old. It was necessary to clarify his exact age as it would have gone a long way in assisting the court in assessing sentence.

Section 61 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which is the definition section of Part III of the Criminal Law Code, defines “young person” as “a boy or girl under the age of 16 years.” It therefore puts a lid on what a young person is without specifically providing a minimum age. For one to determine how to apply the provisions of Sections 64 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and section 70 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], it is imperative to conduct an investigation of what the intention of the legislature was.

Section 64(1) provides of the Criminal Law (Codification and Reform) Act [Chapter 9:23] –

“A person accused of engaging in sexual intercourse, anal sexual intercourse or other sexual conduct with a young person of or under the age of twelve years shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, and not with sexual intercourse or performing an indecent act with a young person or sodomy, unless there is evidence that the young person -

(a) Was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct; and

(b) Gave his or her consent thereto.”

This provision is peremptory by virtue of the use of the word “shall” in the section and literally interpreted it means that as long as it cannot be shown that a young person was capable of consenting then the accused person should be charged with rape.

Young persons of and under the age of twelve (12) are incapable of consenting to sexual intercourse in our law. By parity of reasoning, offenders against this group should not be charged under section 70(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which relates to sexual intercourse with a young person.

It was the intention of the legislature to give effect to that common law position and it specifically provides that both young persons under and aged twelve (12) years are covered by that section. That position is buttressed by an examination of section 70(4)(a)(i) of the Criminal Law Code which provides -

“For the avoidance of doubt it is declared that the competent charge against a person who has sexual intercourse with a female person below the age of twelve years shall be rape.”

That whole section deals with offences against “young persons.”

I have already stated that section 61 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] limits the definition of young person to sixteen (16) years while not setting a minimum cut off. For it to be understood, it must be read in conjunction with section 64(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which includes those aged twelve (12) in the group of those incapable of consenting to the extent that an offender against that group should be charged with rape.

It must follow, therefore, that for all intents and purposes those falling under the definition of young persons are those of thirteen (13) years and below sixteen (16) years. Any other construction of these provisions will not effectively address the mischief the legislature intended to address - namely to punish attackers of young persons of and below the age of twelve (12) severely.

On initial review, a query was raised through the Registrar. It was noted that the accused was charged and convicted of unlawful entry in aggravating circumstances. The charge avers unlawful entry but is silent on the theft of property within the premises in question. The trial magistrate was directed to explain why this omission was not corrected.

In his response, the trial magistrate states that in his understanding of the charge “what should be established are the essential elements of unlawful entry. The issue of theft can only arise as an aggravating circumstance in the commission of the offence. Furthermore, theft may nonetheless be taken into account in assessing sentence only.” In support of these propositions, the learned magistrate relies upon the decision of UCHENA J (with BHUNU J concurring) in The State v Chirinda & Others HH87-09.

Section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows:

“(1) Any person who, intentionally and without permission or authority from the lawful occupier of the premises concerned, or without other lawful authority, enters the premises shall be guilty of unlawful entry into premises and liable –

(a) To a fine not exceeding level thirteen or not exceeding twice the value of any property stolen, destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding fifteen years, or both, if the crime was committed in any one or more of the aggravating circumstances set out in subsection (2); or

(b) In any other case, to a fine not exceeding level ten or not exceeding twice the value of any property destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding ten years, or both.

(2) For the purposes of paragraph (a) of subsection (1), the crime of unlawful entry into premises is committed in aggravating circumstances if, on the occasion on which the crime was committed, the convicted person –

(a) Entered a dwelling-house; or

(b) Knew there were people present in the premises; or

(c) Carried a weapon; or

(d) Used violence against any person, or damaged or destroyed any property, in effecting the entry; or

(e) Committed or intended to commit some other crime.”

A plain reading of section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] makes it clear that it enacts the crime of unlawful entry, the essential elements of which are intentional entry without permission or authority. This statutory offence repeals and replaces the common law crime of burglary or housebreaking with intent to steal, but with certain additional features. By virtue of paragraph (a) of subsection (1), as read with paragraphs (a) to (e) of subsection (2), the offence is aggravated by any of the circumstances set out in subsection (2). As was made abundantly clear in The State v Chirinda & Others HH87-09 case, section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not create a combined offence of unlawful entry and theft. What it does is to aggravate the offence of unlawful entry, by prescribing a more severe penalty therefor, in the event of any one or more of the circumstances enumerated in subsection (2) being established. 

To this extent, I am in total agreement with the very detailed views expressed by UCHENA J in The State v Chirinda & Others HH87-09 case. However, I must respectfully disagree with the position that the elements of theft or other aggravating circumstance need not be stated in the charge and can merely be mentioned in the State outline or agreed facts or in the prosecutor's address in aggravation. I note that this position accords with the comments elicited from the Attorney-General on the interpretation of section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In my view, it is necessary for the State to prove, or otherwise establish, the relevant aggravating factor if it is to sustain a charge under section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. If it fails to do so, that factor cannot be taken into account for the purposes of assessing and imposing the more severe sentence stipulated by that provision (or for ordering restitution as was done in the case under review). Once this is accepted, it seems to me unavoidable that the aggravating factor or circumstance be specifically pleaded and spelt out in any charge under section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It cannot simply be left to be dealt with at some later stage in the proceedings. In the event that the State fails to prove, or otherwise establish, the aggravating circumstance stated in the charge, this will not be fatal to the conviction of the accused on the primary charge. It would still be possible to properly convict him of unlawful entry simpliciter under section 131(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

It is axiomatic that a criminal indictment must clearly set out all the particulars of the charge so that the accused fully grasps the basis of the charge so as to enable him to prepare his defence. If the charge does not allude to the alleged aggravating circumstance, the accused would obviously be prejudiced in the preparation and presentation of his defence. For instance, the crime of robbery under section 126 of the Criminal Law Code attracts a considerably more severe punishment if the crime is committed in aggravating circumstances, such as possession of a firearm or dangerous weapon or the infliction of serious bodily injury. In any such case, it cannot be doubted that the State must both charge the particular aggravating factor alleged and prove it in order to invoke the more severe penalty prescribed.

In my view, the same principle must apply to all crimes that provide for increased sentences when those crimes are committed in aggravating circumstances.

This is clearly recognised in section 146(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] and section 146(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] which delineate the essentials of an indictment or charge as follows:

“(1) Subject to this Act and except as otherwise provided in any other enactment, each count of the indictment, summons or charge shall set forth the offence with which the accused is charged in such manner, and with such particulars as to the alleged time and place of committing the offence and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.

(2) Subject to this Act, and except as otherwise provided in any other enactment, the following provisions shall apply to criminal proceedings in any court, that is to say –

(a) The description of any offence in the words of any enactment creating the offence, or in similar words, shall be sufficient; and

(b) Any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the enactment creating the offence, may be proved by the accused, but need not be specified or negatived in the indictment, summons or charge, and, if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the prosecution.” ….,.

Before turning to the specific charge in casu, I should add that the structure and wording of section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], taken as a whole, leaves much to be desired, particularly in the infelicitous marriage of subsections (1) and (2). It is therefore not surprising that the provision has generated substantial confusion and contradiction in the framing of charges and the conduct of criminal proceedings thereunder. I would therefore strongly recommend that the Minister of Justice and the Attorney-General take steps to reconsider and redraft section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in its entirety.

In light of the views expressed herein, it is necessary to amend the charge under which the accused in this matter was convicted and sentenced. It is accordingly amended to read as follows:

“Charged with unlawful entry into premises as defined in section 131(1)(a) of the Criminal Law (Codification and Reform) Act [Cap 9:23] as read with section 131(2)(e) of the said Act in that on 16 October 2009 and at No.1657 Glen Norah A, Harare, Trymore Netsai Zhakata unlawfully, intentionally and without permission or authority from Watson Goredema, the lawful occupier of the premises concerned, or without other lawful authority, entered the said premises by means of forcibly opening the main entrance door to gain entry; and that, whilst inside the said premises, Trymore Netsai Zhakata took the property listed in the State outline, knowing or realising that Watson Goredema was or may be entitled to own, possess or control the property, and intending to deprive Watson Goredema permanently of his ownership, possession or control of the property or realising that he may be so deprived thereof.”

The applicants appeared before the Regional Court in Bulawayo facing a charge framed in the following manner:-

“Contravening section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Unlawful Entry into Premises and Theft).

In that on the night of 30^th of June and 1st of July 2011 and at Matabeleland Taxidermist Company, Bulawayo, Joram Ngwenya, Ngoma Mangoma and Cleopas Moyo or one or more of them unlawfully and intentionally entered into the premises of Matabeleland Taxidermist Company without authority or permission from the lawful occupier and stole seven elephant tusks the property of Matabeleland Taxidermist Company and in their lawful custody.”

The facts, as outlined by the State, were that the applicants were all employed by Matabeleland Taxidermist Company in Belmont, Bulawayo. On Wednesday 29 June 2011, Joram Ngwenya, who was the first accused in the criminal trial had been instructed by his superiors to stop working on the elephant tusks but ignored the instructions. Instead, he allegedly connived with Accused 3, Cleopas Moyo, to leave five (5) elephant tusks in the skinning room that day and another two (2) the following day, which was Thursday. They agreed to leave the seven (7) tusks in the skinning room which they knew was insecure as it was not secured by any alarm system. That was contrary to the company policy which stipulated that elephant tusks were to be left in the safe which was secured with an alarm system.

Under cover of darkness during the night of 30 June into the morning of 1 July 2011, the two accused teamed up with Accused 2, Ngoma Mangoma, who had access to keys to the premises and proceeded to the premises and used duplicate keys to open the main gate and then broke into the company skinning room and stole the seven (7) elephant tusks which Joram Ngwenya and Cleopas Moyo had left there. The seven elephant tusks were valued at US$45,000= and only one of them, valued at US$7,000=, was recovered.

All the three pleaded not guilty but Accused 1 and 3 were found guilty as charged despite their protestations. Accused 2 was, however, found not guilty and acquitted….,.

Thereafter, the two accused engaged the services of legal practitioners who, in their wisdom, decided to launch this application for review seeking the following relief:-

“It is ordered that:-

(1) The conviction and sentence of the applicants by the Regional Magistrates' Court on the 20^th of October 2011 sitting at Tredgold Building in Bulawayo, presided by the 1^st respondent, be and is hereby set aside;

(2) The matter be referred back for trial de novo.”

The applicants' amended grounds for review were based on two issues.

Firstly, they contended that there was no charge called unlawful entry and theft according to the provisions of section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]…..,.

In as far as the first ground for review is concerned, there is some substance in the contention that there is no longer a combined crime of unlawful entry and theft. These are now two separate offences in terms of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Theft, simpliciter, is found in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] while unlawful entry into premises is to be found in section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The allegations, in casu, were that the applicants unlawfully entered the premises and while inside they stole seven elephant tusks therefrom. When they unlawfully entered into the premises their main purpose was to remove the seven elephant tusks which they had placed in the skinning room. They went there to commit a crime thereby aggravating the crime of unlawful entry into premises. See section 131(2)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was not proper to frame the indictment the way it was done in this case.

What then was the effect of framing the charge in that manner? Does such irregularity warrant the setting aside of the proceedings and referral of the case back to the court a quo for a trial de novo?...,.

For this court, or judge of this court, to quash or set aside a conviction or sentence by reason of any irregularity or defect in the record or proceedings the court or judge must be convinced that a substantial miscarriage of justice has actually occurred. See section 29(3) of the High Court Act [Chapter 7:09]. 

I am far from being convinced that any miscarriage of justice let alone a substantial one actually occurred in this case.

Were the applicants prejudiced in anyway by the sentence imposed on them? The answer is No. 

A person convicted of unlawful entry into premises in aggravated circumstances is liable to imprisonment for not more than 15 years. The trial court was within its powers when it sentenced each accused to 10 years imprisonment of which 3 years imprisonment was suspended on the usual conditions of future good behaviour.

The applicant was a member of the Zimbabwe Republic Police who had attained the rank of Assistant Inspector at the time he was discharged from the police force. The circumstances which led to his dismissal were as follows:

He was alleged to have contravened the provisions of paragraph 34 of the Schedule to the Police Act [Chapter 11:10] in that he had allegedly performed “any duty in any improper manner” on two occasions during the period extending from 1 April 2008 to 31 August 2008.

On the first occasion, he was alleged to have withdrawn an unknown number of bags of maize and exchanged them for four (4) cattle and four (4) goats without permission from the Officer-in-Charge.  He had not entered the beasts in the official records known as bin card.  He had allegedly slaughtered one goat for his personal use. The four (4) cattle and three (3) goats were recovered. Secondly, on 20 December 2008, he had been assigned to purchase maize from GMB, Gweru for the ZRP, Gweru town mess. He purchased seven (7) tonnes of maize but only delivered six (6) tonnes to the mess. He, without authority, took 18 x 50kg bags of maize to a grinding mill for reasons only known to him.

He was served with a notice to appear before a court presided over by an Officer, to be held at 0900 hours at CID Provincial Headquarters, Gweru on 3 February 2009 to answer the above allegations.

On 29 January 2009, he addressed a letter to the prosecutor wherein he elected, in terms of section 32 of the Police Act [Chapter 11:10], that he wished his matter to be tried in the Magistrates' Court.  Section 32 of the Police Act [Chapter 11:10] is couched in the following terms:

“If notice is given, in the manner and time prescribed, by a member whom it is proposed to try before a board of officers in terms of paragraph (c) of subsection (1) of section twenty-nine that he wishes that the charge against him be tried by a magistrates' court and not by a board of officers, the charge shall be tried by a magistrates' court.”

The above provisions relate only to a member who is to be tried by a Board of Officers.

A member whose trial is before a court consisting of one officer is excluded from having recourse to the above provisions. The provisions expressly mention trials before a Board of Officers which has the effect of excluding trials before one officer according to the maxim expressio unius est exclusio alterius. See Craies on Statute Law 7^th edition by S G G EDGAR…,.  It therefore follows that the applicant was not entitled to be tried by the Magistrates' Court. The correct forum for the trial of his case was before one officer.

After the hearing, the applicant was convicted of the first count but was found not guilty and was acquitted on the second count. He was sentenced to undergo 14 days imprisonment at Fairbridge Support Unit detention barracks. He appealed to the Commissioner General of the Zimbabwe Republic Police.

On appeal, the Commissioner General, after examining the evidence which was on record, concluded that the applicant had been wrongly charged with performing any duty in any improper manner breaching the provisions of paragraph 34 of the Schedule to the Police Act [Chapter 11:10]. The Commissioner General held that the applicant should have been charged with contravening paragraph 39 of the Schedule to the Police Act [Chapter 11:10] id est “Improperly using position as a member for private advantage.”

The Commissioner General, sitting as an appeal court, then proceeded to substitute the conviction of the trial court with one for “improperly using position as a member for private advantage.”

The applicant complained that the Commissioner General, sitting as a court of appeal, fell into error by substituting a conviction for a charge that was not put to him so that he could respond to it.

The attitude of the respondents to the applicant's complaint is summarised in their heads of argument was follows:

“It is common cause that when a person is being charged for having committed an offence, there is an alternative charge that may be preferred against the accused person. This is an elementary rule of procedure which applicant should be aware of as he left the Zimbabwe Republic Police after having attained the rank of Assistant Inspector. The case of alternative charges is taught to recruits in depot and should not be an issue to a person facing a main charge but being convicted on the alternative charge; the audi alteram partem rule he cites recognizes this simple issue.

The respondents are at a loss as to what applicant is trying to put forward with this statement that “accused must also be charged with an offence that is an offence at the time of its commission and which is recognized as such by law.” When one is being charged for any offence at any particular time, there is the possibility that he may face alternative charges; there is nothing peculiar about this.”

The above submissions by the respondents are without foundation.

Where it is felt that the accused must be charged with a main charge and an alternative charge both charges ought to be put to him. He ought to be charged with both the main and alternative charge so that he prepares his defence in respect of both charges. He must be heard in respect of each charge.  He may elect to plead not guilty to the main charge but guilty to the alternative charge. He is entitled to make that election. He may plead not guilty to both the main and alternative charge in which case the court may convict him of the charge that is supported by the evidence adduced before it. The court must find him not guilty of the charge which is not supported by the evidence before it. It is not competent for the court to convict the accused of both the main and alternative charge.

Alternative charges are provided for by section 145 of the Criminal Procedure and Evidence Act [Chapter 9:07] where it is doubtful what offence has been committed. Section 145 of the Criminal Procedure and Evidence Act [Chapter 9:07] reads thus:

“If by reason of the nature of an act or series of acts, or of any uncertainty as to the facts which can be proved, or if for any other reason whatever it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with having committed all or any of those offences, and any of such charges may be tried at one time, or the accused may be charged in the alternative with having committed some or one of those offences.” …,.

These provisions become clearer when read with section 279(b)(ii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which recites as follows:-

“279. Concurrent and alternative charges

In this Code, the use of the word -

(a) …,.

(b) “alternatively” whether in the phrase “concurrently or alternatively” or on its own in relation to the charging of a person with two or more crimes, means that the person may be charged -

(i) …,.

(ii) With both or all those crimes in the alternative, if for any reason whatsoever it is doubtful which of them he or she can be proved to have committed.”

What these provisions mean is that the accused ought to be charged with both the main charge and the alternative before the court commences to hear evidence in order to determine which of the crimes he or she committed.

In casu, the accused was not charged with the alternative charge which was substituted for the one the trial court had convicted him. That was a serious irregularity entitling the accused to bring the proceedings on review as he was not heard in respect of the charge. That was contrary to the rules of natural justice in particular the audi alteram partem rule.

An accused person may be convicted for a crime other than the one he was charged with where the essential elements of such crime include the essential elements of the other crime as provided for in section 274 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Section 274 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] recites that:-

“Where a person is charged with a crime the essential elements of which include the essential elements of some other crime, he or she may be found guilty of such other crime, if such are the facts proved and if it is not proved that he/she committed the crime charged.”

In casu, the elements of the crime that the accused was charged with and those of the substituted conviction are completely different.  Paragraph 34 of the Schedule to Police Act [Chapter 11:10] reads thus:-

“Omitting or neglecting to perform any duty or performing any duty in any improper manner,”

Paragraph 39 of the Schedule to Police Act [Chapter 11:10], on the other hand, recites as follows:-

“Improperly using his/her position as a member for his/her private advantage.”

The essential elements of the offences constituted by these two paragraphs are completely different.  It was therefore not proper for the appeal court to substitute the conviction of the offence charged with one that was not charged.

Summary

(1) A member to be tried by a court consisting of one officer is not entitled to elect that his case be tried by the Magistrates Court as the provisions of section 32 of the Police Act [Chapter 11:10] expressly relate to trials before a Board of Officers.

(2) Where it is intended to charge an accused person with an alternative charge that alternative charge ought to be charged together with the main charge so that he can respond to it too as failure to do so falls foul of the audi alteram partem rule.

In conclusion the application for review succeeds….,. The order of this court is as follows:

It is ordered that the conviction of the applicant, which had been substituted for that of the court a quo, be and is hereby set aside.

The applicant, an adult male aged 22, was convicted and sentenced on his own plea of guilty at Beitbridge Magistrates' Court by the first respondent on the 24^th July 2012. He faced one count of unlawful entry and a further count of theft….,.

On the 8^th October 2012, the applicant, who was not legally represented at the trial, engaged a legal practitioner who filed an Application for Review against the judgment of the first respondent. The Application for Review was filed on the grounds that there were gross irregularities in the conduct of the proceedings, particularly that:-

“1. The magistrate proceeded to record a plea from the applicant when the charge sheet was fatally defective by reason of its failure to cite or recite the statutory provisions which Applicant allegedly contravened.

2. Having elected to proceed in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07) the magistrate failed to comply with subparagraph (i) and (ii) of 271(2)(b).

3. If the magistrate complied with subpagraph (i) and (ii) of section 271(2)(b) she failed to record her explanations and Applicant's reply or statements in terms of section 271(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].”

The applicant has sought an order in the following terms:-

“IT IS ORDERED THAT:

1. Applicant's conviction and sentence by the Beitbridge Magistrates Court, Takundwa Esq, be and are hereby set aside.

2. Applicant be tried de novo before another magistrate.”

On the 21^st December 2012, I addressed a letter to the first respondent in the following terms:

“The above record has been placed before me for review.

I have directed that a copy of the application for review, a copy of the charge sheet, State outline and the rest of the record, as well as the comments of the Attorney General's office be photocopied and sent to you. I request you to comment on the allegations being raised in the review application and kindly shed light on the matters raised in the review.

Your prompt response in this matter will be appreciated.

I have further directed the Registrar (Criminal) to retain the rest of the papers pending your response.”

I note that on the 5^th November 2012 the Attorney General's Office filed a response to the Application for Review as follows:

“Be pleased to take notice that the second respondent is not opposed to the application being granted in terms of the Draft order.

Reasons(s)

1. A perusal of the record reflects that the plea recording was not done in accordance with the requirements of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The court a quo did not explain the charge and essential elements to the applicant. The court a quo did not inquire from the applicant whether he understood the charge.”

(signed)

T Hove

Respondent Counsel”

On the 16^th January 2013, the learned magistrate in the court a quo filed her written response to matters raised in the Review Application. Her response is as follows:

“Kindly place the record before the Honourable Mr Justice Makonese with the following comments:

1. The charges were read to the accused and he understood. He pleaded guilty to both counts.

2. The facts were read to the accused and he understood. He further agreed to the facts and had nothing to add or subtract.

3. The essential elements for the 2 counts were put to the accused as reflected on the record of proceedings attached. After enquiring through the essential elements the court was satisfied that the accused's plea of guilty was genuine. The court convicted the accused and took down the mitigation and proceeded to pass sentence.

4. On the 24^th July 2012, the court dealt with several plea cases. The proceedings for this record were however misplaced in another record. It is only at the time of arranging records for review that I noted the proceedings had been placed in another record. At the time, the Defence Counsel had not copied the misplaced record of proceedings. It is not correct that the notes were made after conviction and sentence.

5. The application for review should be dismissed accordingly.”…,.

The second issue that I must decide is whether the recording of the plea was not done in accordance with the requirements of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The applicant contends that the court a quo did not explain the charge and the essential elements to the applicant, and, further, that the court did not inquire whether he understood the charge.

It would seem apparent that at the time the legal practitioner for the applicant photocopied the record some of the pages of the record were missing. I tend to be persuaded by the explanation given by the trial magistrate as being reasonably possibly true. I am fortified in that view because the applicant has not tendered any possible defence to the charge. The application is premised on the alleged irregularity and nothing further. If the applicant had raised a defence at his trial he would most certainly have canvassed such defence in his application for review.

I am satisfied that on the record before me the court a quo complied with the provisions of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07]….,

The applicant states, in his founding affidavit, that the learned magistrate misdirected herself in that the charge sheet is fatally defective by reason of its failure to recite the section of the Act which he allegedly contravened.

The charge sheet is couched as follows:

“Count one: unlawfully entry

In that on the 26^th day of June 2012 and at house number 89 Dulibadzimu, Beitbridge, Tafadzwa Rawura, without permission or authority from Qinisela Kamusikiri, the lawful occupier of house 89 Dulibadzimu, Beitbridge unlawfully entered into the said premise ….,.

Count two: theft

In that on the 26^th June 2012 and at house number 89 Dulibadzimu, Beitbridge Tafadzwa Rawura, took property capable of being stolen, namely, ZAR 1500 and US$80, and knowing that Qinisela Kamusikiri was entitled to own, possess or control or realising that there was a real risk or possibility that Qinisela Kamusikiri was so entitled and intending to deprive her permanently or temporarily of his ownership, possession or control of the said property.”

The first issue I must determine is whether the failure to recite the sections on counts one and two above renders the charge sheet fatally defective.

It is common cause that the respective sections are 131 and 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The offence in count one ought to have been recited as follows in the charge sheet:-

“Contravening section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] Unlawfully Entry.”

It is clear that the charge sheet presented to the court a quo did not have a proper recital of the section but the particulars of the allegations are clearly and properly framed and set out in respect of both counts. The particulars in the charge sheet read to the applicant contained sufficient detail to inform the applicant the nature of the allegations against him. From the record that has now been produced by the magistrate the essentials of the charge were explained to the applicant in terms of section 271(2(b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. If indeed the charge was put to the applicant and he pleaded thereto the question to be decided is whether the failure to recite the particular provision contravened renders the proceedings defective. 

It is my view that the mere failure to recite the section violated by the applicant is not fatal for these reasons:

(a) The charge sheet refers to the offence, that it unlawful entry, and theft respectively.

(b) The charge sheet gives particulars of the offence in sufficient detail.

The critical test, therefore, is whether when the charge was put to the applicant he understood the charge, and, if so, whether, when he tendered the plea he did so understanding what he was admitting to.

The explanation given by the magistrate is that her notes were misplaced in another record. This explanation cannot be discounted considering that magistrates often, but not always, work under pressure and the probability of mixing up records is usually, but not always, likely. See the case of Godfrey Dvairo and Others v The State HH02-06.

In Godfrey Dvairo and Others v The State HH02-06 PATEL J had this to say….,:

“As regards the recited of the information concerned as it appears in the charge and in the statement of agreed facts, the details set out in the latter are an elaboration of what is contained in the former. I am unable to discern any material difference in the two documents and regard them as being generally ad idem.With respect to the essential elements of the offence charged, first applicant clearly admitted to having supplied unauthorised persons with information obtained by him in his official capacity. I take the view that the requisite elements of the offence were adequately canvassed by the trial magistrate and that there was no irregularity in this respect.”

In casu, the applicant, whilst alleging the irregularity in the failure in the charge to recite the contravened section, does not argue that he did not appreciate nor/or understand the nature of the allegations he was facing. I am not convinced that the failure to recite the section of the Act which was allegedly violated, on its own, renders the charge defective. The charge sheet contained sufficient detail to inform the applicant the nature of the allegations he was facing. It must be noted that in his review application the applicant has not proffered any defence to the charges against him. He only chose to dwell on the irregularity in the framing of the charges against him without stating whether he has a defence to the allegations. If, indeed, he has no defence on the two counts one wonders what purpose the order to have a trial de novo would achieve.

In the case before me, I am unable to grant the application prayed for by the applicant for the reasons stated above.

Ex facie the summary jurisdiction form, the accused was charged with theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to that charge and was duly convicted as pleaded.

The accused is a 23 year old single first offender who is a commuter omnibus conductor. He stole $10= and four (4) airtime juice cards valued at $4= from the juvenile vendor. The outline of the State case avers that the accused was being charged with robbery in that on the day in question he approached the complainant who was selling fruits and juice cards and produced a knife and told the complainant to give him some change quickly as he was in a hurry. The complainant took out some coins from her purse, placed the purse on top of the stand/stall and gave the accused the R5 change whereupon accused left the place running. The complainant immediately realized that accused had also taken her purse with $10= and $4= worth of airtime juice cards. She ran after the accused to no avail. When he was later arrested, the accused paid back the $14=…,.

When I queried with the trial magistrate how it escaped his notice that the charges in the two documents did not tally and which charge, on the facts, should the accused have been charged with, and whether the sentence did not induce a sense of shock. I got the following response: 

As regards the first issue…, I have noted that it is not settled as to what charge(s) should be preferred in a case where one unlawfully enters into premises and steals property therefrom. In the majority of cases depicting the scenario postulated above the prosecution is preferring two separate charges, viz contravening section 131(1) (unlawful entry into premises) and contravening section 113(1) (theft) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Most Judges have found this acceptable and have confirmed the proceedings.

It has been, indeed, a grey area as stated by the trial magistrate in his response…,. However, I have not been privy to the other scenario he alluded to, viz that some Judges have been confirming proceedings such as in casu where the charge is framed “charged with contravening section 131 as read with section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (unlawful entry into premises and theft).

As observed…, in my query to the trial magistrate, the two sections 113 and 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] create two separate or two stand alone offences of theft and unlawful entry into premises respectively. Neither of these two crimes can be read with the other as was done in the case at hand. Probably the old adage that old habits die hard can be ascribed to the failure by the prosecution to separate these two now distinct offences emanating from the old offence called housebreaking with intent to steal and theft. That old offence has now been codified into two stand alone offences. It is accordingly procedurally both wrong and incompetent to charge one as read with the other.

I will stop short of holding that it is also wrong and incompetent to charge one with both unlawful entry into premises in contravention of section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in the scenario I postulated above without according the matter the benefit of informed sufficient argument by the relevant stakeholders. However, it is my considered humble and respectful opinion that by creating the two stand alone offences of unlawful entry into premises (section 131(1) and theft in section 113) and then providing in section 131(1)(a) as read with subsection (2)(e) of that section, the Legislature was clear that it intended those two offences to be stand alone. Where one unlawfully enters premises and steals property therefrom, the aspect of theft remains encompassed in section 131 and should not be ascribed separately to section 113. A close reading of section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] should make this not difficult to comprehend. The section reads:

“131 Unlawful entry into premises

(1) Any person who intentionally, and without permission or authority from the lawful occupier of the premises concerned, or without other lawful authority, enters the premises shall be guilty of unlawful entry into premises and liable -

(a) To a fine not exceeding level thirteen or not exceeding twice the value of any property stolen, destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding fifteen years, or both, if the crime was committed in any one or more of the aggravating circumstances set out in subsection (2); …,.; or

(b) In any other case, to a fine not exceeding level ten or not exceeding twice the value of any property destroyed or damaged by the person as a result of the crime, whichever is the greater, or imprisonment for a period not exceeding ten years, or both.

(2) For the purposes of paragraph (a) of Subsection (1) the crime of unlawful entry into premises is committed in aggravating circumstances, if, on the occasion on which the crime was committed, the convicted person -

(a) Entered a dwelling house; or

(b) Knew there were people present in the premises; or

(c) Carried a weapon; or

(d) Used violence against any person, or damaged or destroyed any property, in effecting the entry; or

(e) Committed or intended to commit some other crime.”

The wording of the statutory provision cited above is so clear and unambiguous that it admits of no other canons of interpretation save its ordinary grammatical meaning. This meaning is that where one unlawfully enters into premises and steals property therefrom and the premises were a dwelling house, or one knew that there were people in the premises or one carried a weapon or used violence against anyone in effecting the entry, there is absolutely no procedural legal justification to charge one with two offences of unlawful entry into premises and theft. The proper charge is simply one of unlawful entry into premises in aggravating circumstances in contravention of section 131(1) (a) as read with subsection (2)(a) or (b) or (c) or (d) of this Code in respect of each count.

The above matter was placed before me for review. On perusing the record, I addressed a minute to the trial magistrate and asked him to explain why he had decided to take the 2 counts of rape and robbery as one for the purposes of sentence.

The learned Magistrate's response is as follows:

''It is true that the charges and the essential elements of Rape and Robbery are different. In taking the 2 counts as one for the purposes of sentence here, I predominantly considered the closeness of time and space, in committing both rape and the robbery, by the accused person. In essence, the 2 different offences were committed simultaneously, so to speak. I stand guided, though.''

On the face of it, the learned Magistrate's explanation seems reasonable and straight forward. A careful reading of the record of proceedings, however, reveals that there are fundamental difficulties in the learned Magistrates' approach to sentence in this matter.

The accused was arraigned before the Regional Magistrate at Gweru on two counts of rape and robbery. On the first count, the allegation was that the accused contravened section 65(1) (a)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The accused was sentenced as follows:

“Both counts taken as one for purposes of sentence – 20 years imprisonment of which 3 years imprisonment is suspended for 5 years on condition accused is not, within that period convicted of the offences of Rape or Robbery, upon which conviction, he shall be sentenced to imprisonment without the option of a fine.

Effective prison term - 17 years.”

The accused initially tendered a plea of guilty on the first count but when the essential elements were being put to him he changed his tune and told the court that he was forced by the people who arrested him to admit to the charge of rape. The accused went on the state that he had consentual sexual intercourse with the complaint. The matter went into a full trial and the accused was convicted on both counts.

The brief facts of the matter are that on the day in question the complainant, a 23 year old young married woman, who was pregnant at the time, was at Musengi Bobby Show Farm outside Gweru visiting her husband. Around 6-7pm her husband left home going to fetch some water from an aunt who was a neighbour. After the complainant had had her supper she went outside the house to relieve herself in an outside toilet. As she got out of the house she saw a man standing outside. The person who turned out to be the accused person enquired into the whereabouts of the complainant's husband. The accused said he had brought some tobacco for the complainant's husband. As the complainant was trying to explain that she had no knowledge about the issue, the accused suddenly grabbed her by the arm and threw her down and started throttling her by the neck. The accused lifted the complainant up and carried her away from the house and placed her on the ground. The accused then proceeded to rape the complainant once. The accused briefly took the complainant's pant but handed it back to her.  The accused threatened to kill the complainant if she told anyone about the rape.

The complainant then testified as follows regarding the NOKIA 1202 cellphone: …,.

''He ordered me not to tell anyone and I promised so. He had taken my phone which I pleaded for only to get a line. He ordered me not to run home, instead I ran straight to my aunt's where my husband should have been.''…,.

The accused was arrested later that night and the complainant positively identified him. The accused's premises were searched and the NOKIA cellphone was recovered. Evidence was led to show that the cellphone belonged to the complainant's husband. The accused's defence was properly rejected by the trial court as it was patently false. There was nothing to substantiate his claims of consentual sexual intercourse with the complainant.

In this matter, therefore, nothing turns on the conviction on the first count of rape. It is the conviction on the second count and the approach to sentence adopted by the learned Magistrate which creates difficulties.

On the facts of the case, as narrated above, I found it difficult to justify the robbery charge.

The complainant's evidence is to the effect that the accused took the NOKIA Cellphone and later removed the sim card and handed it back to the complainant. At best, in my view, the evidence led on the aspect of the cellphone is sufficient to establish theft of the cellphone by the accused. It is instructive to note that the charge on the second count of ''robbery'' is crafted as follows:-

''In that on the 31^st day of January 2013 and at Mr Musengi Bobby Show Farm, Guimea Fowl, Gweru LOVEMORE IMBAYARWO a male adult stole one NOKIA 1202 CELLPHONE THE PROPERTY OF CLEMENTINE MARECHA using violence or threats of violence immediately before or at the time he took the property in order to induce CLEMENTINE MARECHA who had lawful control over the cellphone to relinquish her control over it'' …,.

My view is that not enough evidence was placed before the trial Magistrate as to the manner of the taking of the cellphone. The issue is dealt with casually by the complainant when she testified when she said: ''I pleaded with him to give me back the phone…,.'' There is no doubt that the complainant did not give the cell phone to the accused voluntarily but the manner in which the cellphone was taken by the accused is not ventilated by the evidence. It is logical to reason that the accused took the cellphone without the owner's consent and therefore he stole the cellphone. I am not convinced that the essential elements of robbery were established on the evidence led. I also point out here that section 129(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows:

“(1) The taking, dealing with, using or keeping of property by means of a threat of evidence shall not constitute robbery unless the threat is of immediate violence, that is to say, is a threat that violence will be used immediately if control over the property is not surrendered.

(2) Nothing in this section shall prevent a person who uses a threat of future violence to obtain control over property from being charged with extortion.''

This is an application for leave to appeal against the acquittal of the respondent in terms of section 61(1) of the Magistrates' Court Act [Chapter 7:10].

The salient facts of this case are the following:

It is common cause that the respondent is a young man doing his final year of a Masters Degree in South Africa. He is heavily involved in motor racing as clearly evinced from the documents produced during the trial.

This was not challenged by the State.

On the fateful day, he was taken by lift to Victoria Falls Airport where he intended to board a flight to South Africa. He had left it rather late to check in. He had packed a non-working starter device, the subject matter of this case, in his hold luggage. He intended to take the device to South Africa to see if it could be mended in order to use it in his leisure activities.

In the process of checking in, prior to departure, he did not mention to the aviation authorities that he had this device in the luggage that was to be put in the hold of the aircraft. There is no evidence to show that, had he mentioned that the device was in the luggage intended for the hold rather than cabin luggage, that he would not have been allowed to proceed.

The scanning security device at the airport revealed the presence of this device in the hold luggage when the respondent was about to board the aircraft. He was arrested and detained and the device seized.

It was accepted, during the trial, that, there was no sinister motive in the respondent's possession of the device. It was also accepted, that, during the flight, neither he, nor anyone else, could have had any access to the device.

The respondent was charged under section 150(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the allegation being that he handed a race starter gun to the airport handling staff for the purpose of being placed aboard an aircraft.

This section falls under Part VI with the heading “Hijack and Other Crimes Involving Aircraft”

In this part, “dangerous goods” are defined in section 145(1)(a) and (b).

Subsection (1)(a) is inappropriate as, on the applicant's own evidence, at page 44, at paragraph 6(g) of the expert witness, Inspector Makumbe (a Zimbabwe Republic Police Provincial Armourer), describes the device as follows –

“The weapon is therefore not a firearm as it is only used for purposes as a starter gun for athletics.”

He also states, that, the device used “.22 ammo blanks only as the barrel is blocked and has a spout on the top.”

Further, that, “the weapon's main components are made of putah, an aluminum alloy and has got plastic grips…, the material that was used, if not reinforced with steel or gun metal, cannot be made into a firearm and neither can it be converted into a firearm.”

In the circumstances, the applicant must therefore rely on subsection (1)(b) which states “substances and things which, by reason of their nature or condition, may endanger the safety of an aircraft or of any person on board an aircraft.”

The applicant did not adduce evidence during the trial that a starter gun of this kind, placed in the hold of the aircraft, was, by reason of its nature or condition, dangerous to the safety of the aircraft or any person aboard the aircraft.

In my humble view, the clear intention of the legislature is to punish persons who place on board an aircraft items like bombs and explosives that may detonate when the aircraft is in flight.

The offence, on conviction, carries a sentence of up to fifteen (15) years imprisonment without the option of a fine.

The applicant's main argument appears to be that the act by the respondent was one of strict liability.

It seems to me that the entire basis of this application is premised on this strict liability argument. As alluded to above, the penalty for contravention of section 150 of the Criminal Law (Codification and Reform) Act is imprisonment for up to fifteen (15) years without the option of a fine.

This submission, is with respect, untenable.

This is so because of the proviso to section 17 of the Criminal Law (Codification and Reform) Act which states:-

“Provided that notwithstanding subparagraph (i) and (ii), the court shall not hold that the legislature impliedly intended a crime to be a strict liability if the penalty for it is mandatory imprisonment or imprisonment without the option of a fine.”

The offence defined in section 150 of the of the Criminal Law (Codification and Reform) Act carried a penalty of imprisonment without the option of a fine, and, accordingly, falls squarely within the terms of the proviso to section 17 of the of the Criminal Law (Codification and Reform) Act.

In other words, it cannot be argued, that, the offence defined under section 150 of the of the Criminal Law (Codification and Reform) Act is one of strict liability. Mens rea, is therefore, an element that the applicant had to prove: S v Zemura 1973 (2) ZLR 357 and Attorney General v Mbewe 2004 ZLR 86 (H).

This main submission by the applicant is clearly wrong.

This is, however, not the end of the matter.

The full citation of the charge sheet, in casu, is the following -

“C/S 150(a) of the Criminal Law Code Act Chapter 9:23 [sic]”

“Placing or carrying dangerous goods on an aircraft” ARW section 49(c)(i) and 50 of the Aviation (Security) [sic] Regulations 2006”

It was wrong for the applicant to endeavour to import into section 150 of the Criminal Law (Codification and Reform) Act the definitions in provisions of sections 49 and 50 of the Civil Aviation Regulations, supra.

The enabling Act under which these Regulations are promulgated makes it quite clear that the offence which the applicant endeavoured to import to this prosecution is in effect a “stand alone” offence. In other words, Part VII of the Regulations sets out a substantive offence and provides a penalty.

If the applicant framed a charge under the Civil Aviation Regulations it would have been entitled to use the definition contained in section 49 supra. The court would have been able to impose the penalty prescribed in section 79(5) of the Civil Aviation Regulations.

However, the applicant chose not to charge the respondent under the more appropriate legislation.

If the applicant had done so, it seems to me that it would have been difficult for the respondent to avoid a conviction. This is so because Part VII of the Civil Aviation Regulations covers a vast array of prohibited articles. It covers not only firearms and grenades but also such items as pellet guns, toy guns, scissors, pocket knives, spears, wooden articles, lighter fluid, certain wrist bands, etc.

But, does this error mark the end of the applicant's case?

The applicant erred by simply not charging the offence defined in section 150 of the Criminal Law (Codification and Reform) Act as the main charge with alternative charge(s) defined in Part VII of the Civil Aviation Regulations. This limits me to consider whether there are any competent verdicts flowing from a charge defined in section 150 of the Criminal Law (Codification and Reform) Act.

Put in another way, would the provisions of section 274 of the Criminal Law (Codification and Reform) Act come to the aid of the applicant's case?

The court a quo should have at least considered whether the essential elements of the offences under Part VII of the Civil Aviation Regulations are present as provided for by section 274 of the Criminal Law (Codification and Reform) Act. The magistrate overlooked the provisions of section 274 of the Criminal Law (Codification and Reform) Act.

For that reason alone I would grant leave to appeal.

Accordingly, the application for leave to appeal is hereby granted.

The first misdirection by the learned trial magistrate is the failure to keep a proper record of proceedings in the matter.

In Count 1 and 2, the learned magistrate proceeded to accept the accused's pleas of guilty in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. This entails the putting of essential elements of the offence to the accused and recording the answers given. The learned trial magistrate failed to abide by this basic, simple, albeit important, procedure. The record of proceedings is illustrative;

“Count 1

Charge read and understood

Q. How do you plead?

A. G S 271(2)(b).

Factor read and understood

Annexure 'A'

Q. Do you agree with the facts?

A. Yes

Q. Any variation?

Explanation

Q. Are you a holder of a valid driver's licence?

A. No.

Q. Admit that on that day you drove a vehicle without a licence?

Guilty as pleaded.

Count 2

Charge read and understood

Annexure 3

Plea Co S 271(2)(b)

Q. Facts read and understood?

Annexure 13

Q. Do you agree with the facts?

A. Yes.

Q. Any variation?

A. No.

Explanation

Q. Correct, on 5^th May 2012, at around 2010 hours, you drove a Mazda 626, registration AAV 5017, along Harare–Mutare road?

A. Yes.

Q. Correct, that on approaching a 74km peg there you met a pedestrian, Anobi James, trying to cross the road?

A.

Q. Correct, that you hit a pedestrian with your vehicle?

A.

Q. Correct that the pedestrian died immediately after the accident?

A. Yes.

Q. Admit that you were not a holder of a driver's licence?

A. Yes.

Q. Admit that you were using a defective vehicle that no candle power on in Headlights?

A. Yes.

Q. Admit you failed to keep a proper look out?

A. Yes.

Q. Any right to act in the manner you did?

A. No.

Q. Any defence?

A. No.

Guilty as pleaded.”

It is clear that the learned trial magistrate failed to record answers given by the accused to questions asked in adducing the essential elements of the offences in Count 1 and 2 from the accused. In Count 1, the accused did not give an answer to the crucial question of whether he drove the motor vehicle without a licence. This is the gravaman of the offence in Count 1. Some vague reference is then made to this crucial issue in Count 2.

In Count 2, no answers are recorded from the accused in relation to whether he met the pedestrian trying to cross the road, and, most crucially, whether he hit the pedestrian with the motor vehicle. Further, the accused was not asked in clear and specific terms if as a result of hitting the pedestrian with the motor vehicle he inflicted the injuries outlined in the post mortem report from which the deceased died which is essential in a charge of culpable homicide arising from a road traffic accident. While the particulars of negligence were put to the accused, this should be linked to the charge of culpable homicide, that is, the death of the pedestrian. It is therefore not sufficient to simply regurgitate particulars of negligence to the accused in a charge of culpable homicide as this may also be done where death does not result, that is, in a case of driving without due care and attention, negligent driving or reckless driving (see sections 51, 52 and 53 of the Road Traffic Act [Chapter 13:11].

In response to the non-recording of the accused's answers in Count 1 and 2, the learned trial magistrate said;

“I humbly submit that when I was writing I omitted to write the answers of the accused person. I really appreciate that I erred and I am asking or pleading that the next time I will not repeat the same mistake and will guard against such irregularity.”

While the learned magistrate makes passionate assurances for not repeating the same errors, this would not cure the irregularities in this matter. The record of proceedings simply shows that the accused did not give crucial answers to the questions asked. If he did, then it's unfortunate that the answers remained stored in the mind of the learned trial magistrate. The consequences of such an omission were aptly stated by MUCHECHETERE J (….,– may his soul rest in eternal peace) in S v Ndebele 1988 (2) ZLR 249…, wherein the learned Judge said;

“All courts are courts of records and are required to keep full comprehensive records of proceedings…,. The need to do so is quite obvious. In the absence of such record how is the review or appellate Tribunal to assess the correctness and validity of any proceedings placed before it for adjudication?”

It is therefore important for judicial officers to apply their minds to all judicial proceedings.

In casu, it is not clear if the accused gave any answers to those questions, and if he did, what answers he gave. The Reviewing Court cannot speculate on such crucial matters. Failure by the trial magistrate to record the accused's answers to such essential and crucial questions constitute a serious misdirection….,.

It is clear that the proceedings in this matter are not in accordance with real and substantial justice. I have agonised over the proper course of action to take in view of the time lapse from the time the accused was convicted and sentenced in September 2012. However, in view of the nature of the misdirection I have highlighted I am left with no option except to quash the proceedings and refer the matter back for a trial de novo….,.

I should, however, point out that the accused should not, if convicted, be sentenced to an overall sentence exceeding the one which was imposed before - even if the counts are treated separately for purposes of sentence.

In terms of section 13 of the Criminal Code, the test for intention is, whether the accused intended to engage in conduct or to produce the consequence. Section 14 of the Criminal Code provides that where knowledge is an element of a crime the test is whether the accused had knowledge of the relevant fact or circumstance. Thus, the accused will have legal intentions if he or she engaged in conduct realising that his conduct might cause the consequence and, having realised this, the accused continued to engage in the conduct regardless as to whether or not the consequences followed.

Applying this approach to the facts of the case, it seems to me that, at most, the appellant may probably have engaged a drunk or disorderly conduct. It is common cause that the appellant was drunk. He fell down on two occasions inside the complainant's office. He was shouting and “hitting the tables in a disorderly manner” according to the evidence led by the State and accepted by the court. Clearly, he was unhappy with how the complainant had treated him. He had a grievance which he wished to put across. He did so in a manner which upset the complainant. In the circumstances, it can hardly be said that the appellant intended to engender feelings of hostility towards either the complainant or the police force or that he intended to expose the complainant or the police force, in general, to conteryot or ridicule or disesteem.

The record shows that, initially, the accused was charged with “drunk and disorderly conduct in a public place.”

The matter ought to have been prosecuted as such. There was no evidence to show, and the State was unable to prove, an intention to undermine the powers of the police force. The evidence shows that the appellant was drunk and disorderly and no more. How this complaint, against the action of the particular police officer, could have been considered as intended to expose the said officer to corrupt, contempt, ridicule or disesteem is not clear. It certainly was not proved by the evidence on the record.

In finding that this was proved beyond a reasonable doubt, the learned trial magistrate fell into error.

In the result, the conviction is quashed and the sentence is set aside. The judgment of the court a quo is substituted with the following:-

The accused is charged with contravening section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

NEGLIGENCE AS COMPETENT VERDICT ON CHARGE OF THEFT

As a general rule, the standard of proof required in disciplinary matters is that on a balance of probabilities. This is obviously not as stringent as the standard required in criminal cases. By the same token, a disciplinary tribunal is endowed with a greater measure of flexibility than that expected before a court of criminal law. Nevertheless, there are certain basic principles that neither a court nor tribunal can depart from. One of those principles is that the offence that the accused is found guilty of must be commensurable with the offence that he has been charged with. 

In other words, both offences must bear some legally cognisable affinity with one another.

In our criminal law, as is probably the case in any other legal system, the essential elements of theft and offences based on negligence do not share any meaningful convergence. They are sui generis and fundamentally distinct offences.

In my view, the same must apply to the treatment of these offences qua acts of misconduct in disciplinary matters. This is clearly recognised in the Employment Code of Conduct applicable in the present matter – as prescribed in the Collective Bargaining Agreement: Engineering and Iron and Steel Industry (S.I.301 of 1996), amending the principal agreement contained in Statutory Instrument 282 of 1990, S.I.282 of 1990. The Schedule to the Code sets out four broad categories of misconduct and defines the diverse offences constituting misconduct. Negligence is identified as an act of misconduct under item B(4)(b), while the specific offence of theft is captured under item D(c). 

They are clearly separate and distinct acts of misconduct.

The appellant in casu was charged with theft as defined in item D(c). The Labour Court found him guilty of negligence. That finding of negligence was clearly not a competent verdict on the particular charge of theft preferred against the appellant. In this regard, the court patently ignored the specific provisions of the Employment Code of Conduct that should have guided its decision in the matter. In short, as was conceded by counsel for the respondent, in his curious but not inappropriate reference to a malapropism having been committed, the court's finding was grossly erroneous….,.

Regarding the first query, it goes without quarrel that the manner in which the charge is framed and also the manner in which the trial magistrate canvassed the essential elements of the charge evince a dearth of failure to correctly capture the essential elements of the charge. The essential elements of contravening section 55(2) of the Road Traffic Act [Chapter 13:11] are that;

(a) One drove/attempted to drive a motor vehicle;

(b) While one is under the influence of alcohol or drug or both;

(c) To such an extent as to be incapable of having proper control of the vehicle.

It is important, therefore, that the charge must incorporate all the above elements and that the trial magistrate must also canvass them all with the accused person. This must be so especially where before the trial magistrate is an unrepresented accused person. 

Unfortunately this was not done in casu.

I am aware of the provisions of section 55(3)(a) of the Road Traffic Act [Chapter 13:11] which are to the effect that once it is proven that a concentration of alcohol in the accused's blood was not less than 150mg/100ml at the time of the offence, a rebuttable presumption arises that the accused was, at such time, under the influence of alcohol or a drug, or both, to such an extent as to be incapable of having proper control of the vehicle concerned. 

In casu, the accused's alcohol-blood level was 187mg per 100mls of blood. The presumption alluded to supra applies and was not rebutted. However, sight must not be lost of the fact that issues to do with presumptions are legal issues not subscribed to by the common lay person. Both the charge and the canvassing of the essential elements did not encompass the words “…, to such an extent as to be incapable of having proper control of the vehicle…,.” The charge and the canvassing of the elements merely alluded to that the accused's alcohol-blood level was 187mg per 100mls. The presumption was never brought to the accused's attention.

However, the omission of the words alluded to above, from both the charge and the canvassing of the essential elements, should not, in the instant case, warrant the quashing of the proceedings. The accused admitted driving under the influence of alcohol and that his alcohol-blood level was 187mg per 100mls. He agreed with the facts that he lost control of his vehicle and collided with a stationary vehicle that was correctly parked facing a shopping centre. The accused's conduct admits of no doubt that as a result of the influence of the alcohol he was incapable of exercising proper control of his vehicle. 

This matter was enrolled on the unopposed roll. The applicant was seeking for an order in the following terms in his amended draft order:-

“It is ordered that:-

(1) The proceedings before 1^st respondent and in respect of Count 1 thereof, sitting at Hwange Magistrates' Court on 25 September 2013 and under case number CRB W 511/13, wherein applicant was convicted and sentenced to 16 years imprisonment of which 1 year was suspended, be and are hereby set aside in their entirety.

(2) The applicant will be tried afresh in respect of Count 1 thereof before the same magistrate.”

The applicant's complaints relate to the two alleged irregularities. 

The first one related to the provisions of the particular statute he was alleged to have contravened.

The charge read as follows:-

“Charged with contravening section 82(1) of the Statutory Instrument 362/1999 as read with section 128(b) of the Parks and Wildlife Act [Chapter 20:4] “Unlawful Possession of elephant tusks without a Permit or Licence.”

In that on the date unknown to the prosecutor but during the period between September 2012 to February 2013 and at Phelandaba Line, Tsholotsho, Thabani Zondo unlawfully possessed eight elephant tusks without a permit or licence, circumstances contrary (sic) to the provisions of the Act.”

The applicant correctly pointed out that there was no section 128(b) in the Parks and Wildlife Act [Chapter 20:14]. Further, the applicant was wrongly charged with contravening section 82(1) of Statutory Instrument 362 of 1999, which, in fact, pertains to Manpower Planning and Development (Printing Packaging and Newspaper Industry). The correct charge should have read as follows:-

Charged with contravening section 82(1) of the Parks and Wildlife (General) Regulations S.I.362 of 1990 as read with section 128(1)(b) of the Parks and Wildlife Act [Chapter 20:14] “Unlawful Possession of elephant tusks without a Permit or Licence.”

Apart from the wrong citation of the provisions of the Act contravened, the body of the indictment adequately informed the applicant that between the months of September 2012, and at Phelandaba Line in Tsholotsho, he possessed eight (8) elephant tusks when he was not a holder of a licence or permit.

The applicant clearly understood the charge that he was facing and pleaded guilty to it. He confirmed to the court when it was canvassing the essential elements with him that he was found in possession of eight (8) elephant tusks. When asked where he got the eight (8) elephant tusks from his answer was:

“We removed them from dead elephants.”

The accused and one Mphilisi Vundla went into Hwange National Park and put cyanide into a watering hole where elephants and other wild animals drink water. As a result, eight (8) elephants drank the water and died. The eight (8) tusks the accused and is friend possessed were from some of those elephants. These facts were common cause.

When canvassing the essential elements, it was wrongly stated that the accused had no authority or permission from the Environmental and Management Authority. The appropriate authority should have been Parks and Wildlife. But no prejudice would be occasioned by naming a wrong authority. There will be no prejudice to be suffered by the accused in any way.

The accused understood and appreciated that he did wrongfully and unlawfully poison eight (8) elephants and removed some tusks from some of the elephants. The naming of a wrong authority does not warrant the setting aside of the proceedings in the circumstances.

The applicant's legal practitioner…, who deposed to the founding affidavit, attempted to raise a distinction without a difference on the issue of “unlawfully possessed” and “found in possession without a permit or authority.” 

The submission is clearly untenable and does not need any serious consideration….,.

In terms of the provisions of section 29(2)(b)(iii) of the High Court Act [Chapter 7:06] this court shall correct the indictment to read:-

The outline of the case for the prosecution, from which the particulars of the charge were taken, read as follows:

“(1) The accused in this case is Douglas Togarasei Mwonzora, a male adult aged 41 years of Nyamubarwa Village, Chief Saunyama, Nyanga and is the Honourable Member of the House of Assembly from the Movement for Democratic Change (Tsvangirai faction) for Nyanga North Constituency.

(2) The complainant is the State.

(3) On 21^st day of March 2009, between 1300 hours and 1700 hours, and at Ruwangwe Growth Point, Nyanga, accused, being a third guest speaker at a political gathering of the Movement for Democratic Change (Tsvangirai) Party, made statements concerning the President of the Republic of Zimbabwe, His Excellency Robert Gabriel Mugabe, well knowing that there is a real risk or possibility that those statements may engender feelings of hostility towards or cause hatred, contempt or ridicule of the President in person or his office.

4. The accused, during his speech, uttered words to the effect that President Mugabe is a goblin and will vacate office running as quoted in Shona, 'President Robert Mugabe chikwambo uye achamhanya'; literally meaning that 'President Robert Mugabe is a goblin and he will run'; a statement that will engender the President in person. (sic)

5. To ensure that the President Mugabe's goblin statement is understood by the gathering, the accused sang a song commonly known as 'GEHENA' (ARMAGEDEON) in which he led the song with the following Shona lyrics: 'Ndawona Mugabe achigeza, tauro muchiuno, sipo huhapwa nendebvu hwapepe'; literally meaning 'I saw Mugabe bathing, towel on waist, soap under armpits and big beard'; and he started fanning his nose as if the goblin he was talking about was smelling.

6. The accused also uttered some statements which may cause hostility or hatred towards the President's Office when he said that only the Movement for Democratic Change must live long casting other Governments as bad, corrupt, full of thieves, arresting innocent people and illegally taking away people's property well knowing that President Mugabe belongs to ZANU-PF which was once the ruling Government when the accused said the following in Shona;

'Pamberi ne MDC. Pasi nechihurumende chembavha, chinosunga vanhu vasinamhosva, chichi vatorera zvinhu zvavo'; literally meaning 'Forward with MDC, down with the bad Government of thieves which arrests innocent people and takes away their property.'

7. Police officers who were on duty at the gathering and independent individuals who attended the gathering saw and heard the accused making the statements which are being taken as undermining or insulting the President of the Republic of Zimbabwe in person and his office.”

At the commencement of the hearing of submissions on the question referred for determination, counsel for the applicant raised a preliminary point to the effect that the charge was verbose, repetitive and lacked the precision and clarity of particulars of the alleged offending conduct to enable the applicant to know the case he was to answer.

The contention was that the vagueness of the charge violated the applicant's right to the protection of the law ensnhrined in section 18(1) of the Constitution. The further contention was that the facts which were alleged to constitute the offending conduct would not, if proved at the trial, constitute the criminal offence with which the applicant was charged.

If the Court finds that the facts on which the charge was based would not, if proved at the trial by available evidence, have constituted an offence, it would not be necessary to go into the question of the constitutional validity of section 33(2)(a) of the Criminal Law Code. Basing a criminal charge on facts which, if proved at the trial, would not constitute an offence would be a violation of an accused's right to the protection of the law.

No one can be subjected to criminal proceedings before a Magistrates' Court without a charge or summons. The public prosecutor is given the power, as a representative of the Prosecutor General, to prefer a charge against a person accused of an offence in the Magistrates' Court on behalf of the State.  As the content of the right to the protection of the law guaranteed to every person under section 18(1) of the Constitution, section 18(3)(b) requires that any person who is charged with a criminal offence must be informed, as soon as reasonably practicable, in a language that he or she understands, and in detail, of the nature of the offence charged.

Section 139 of the Criminal Procedure and Evidence Act [Chapter 9:07] (“CP & E Act”) provides that where a public prosecutor has, by virtue of his or her office, determined to prosecute any person in a Magistrates' Court for any offence within the jurisdiction of that court, he or she shall forthwith lodge with the Clerk of Court a statement, in writing, of the charge against that person setting forth shortly and distinctly the nature of the offence and the time and place at which it was committed….,.

The object of a charge is to inform the accused person, in sufficient detail and clear language, of the offence with which he or she is charged to enable him or her to consider the accusation. The charge must state the essential elements of the offence with sufficient precision and provide sufficient particulars of the acts or omissions alleged to have been committed which constitute the criminal offence. The accused person must not be left to guess or speculate as to the true nature of the offence he or she is charged with and the case he or she has to answer.

In S v Hugo 1976 (4) SA 536 (A)…, E MILLER JA said:

“The clear intention is and indeed it is only fair that sufficient particulars should be furnished in order to enable an accused to prepare his defence.”

As the public prosecutor is dominus litis and has the right to determine the charge which he or she wants to prefer against an accused person, it is his or her duty to ensure that the accused is charged with the correct offence. It is also the public prosecutor's duty to ensure that only necessary particulars relating to acts or omissions alleged to have been committed by the accused person which constitute the offence are included in the charge.

Where the offence relates to specific types of statements made with an intention to bring about a prohibited consequence only particulars of such statements need to be included in the charge.

The charge preferred against the applicant included statements he is alleged to have uttered to the audience at the political gathering the contents of which were not about or concerning the President. The contents of the statements could not be said to be false nor could they be said to have the consequences prohibited by the statute. For example, the political slogan exalting the MDC-T party and the statement on corruption in Government had nothing to do with the essential elements of the offence.

The charge was made up of three parts. The first part was a recitation of the essential elements of the offence. The second part was irrelevant. Whilst it opened with words that suggested that it referred to false statements the applicant was charged with making, it revealed a misconception of the essential elements of the offence charged.

It was alleged, in part two of the charge, that the statements made in the Shona language were false. 

There was no allegation that the applicant knew that the statements were false. There was, instead, an allegation that the applicant had an intention 'that the statements may engender feelings of hostility towards or cause hatred, contempt or ridicule of the President.' It would have been difficult for the applicant to understand the nature of the offence he was alleged to have committed when the charge was based on different statements made in his speech which were open to contradictory meanings. There was the statement that the President was a goblin. That was put together with a political slogan exalting the MDC-T and a statement that there was corruption in Government. All these statements were said to be about or concerning the President. They were all said to be false and made with the intention of engendering feelings of hostility towards the President. All the statements could not constitute particulars of the essential elements of the offence the accused was charged with.

The manner the charges were levelled against the applicant violated his right to the protection of the law. 

The State did not comply with the requirements of section 18(3)(b) of the Constitution. It also failed to comply with the requirements of section 139 of the Criminal Procedure and Evidence Act [Chapter 9:07] designed to protect a person charged with a criminal offence.

There are remedies provided for by the law for the protection of a person charged with an offence from the consequences of defects in the charge related to lack of clarity in the particulars of the offence he or she is alleged to have committed. 

Section 178(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] gives an accused person the right to apply to the court, before pleading, to quash the charge on the ground that it is calculated to prejudice or embarrass him in his or her defence.

Section 180(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] gives the accused person who considers that a charge is framed in vague language or that the particulars of the offence are not disclosed in a manner that enables him or her to answer the charge to except to it on the ground that it does not disclose any offence cognizable by the court. The magistrate is obliged to hear the exception and determine whether it is well founded. If the exception is well-founded the magistrate has the power to dismiss the charge.

The procedure provided for under section 178(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] is based on the presumption of the fact that there are facts of the conduct of the accused on the basis of which a reasonable suspicion exists of him or her having committed the offence charged. The defect in the charge would lie in the failure by the public prosecutor to state the particulars of that conduct in clear and sufficient detail so as to inform the accused of the nature of the offence to enable him or her to answer it. If it is a defect that can be rectified without prejudice to the accused's ability to defend himself or herself his or her right to the protection of the law is enforced by an order that the defect be removed or rectified. The procedure provides appropriate remedy for the redress of the type of wrong arising from the drafting of the charge.

The type of wrong suffered by the applicant could not be addressed by the application of that remedy.

Initially, the complaint was that section 33(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] violated the applicant's fundamental right to freedom of expression enshrined in section 20(1) of the Constitution.

At the commencement of the hearing, the court directed counsel to file supplementary heads of argument to address the question whether the facts on which the charge was based would, if proved at the trial, constitute an offence. There is public interest in the strict enforcement of the rule in the field of criminal law to the effect that no person should be charged with an offence on the basis of facts which, if proved at the trial, would not constitute an offence. Section 180(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] gives an accused person the right to invoke the protection of this fundamental principle of the right to the protection of the law. Effective judicial protection of a person charged with a criminal offence requires strict enforcement of the rule in question.

In Williams & Anor v Msipha N.O. & Ors 2010 (2) ZLR 552 (S), the applicants had been charged with contravening section 37(1)(a)(i) of the Criminal Law Code. They raised before a magistrate who was about to commence the trial of the charge preferred against them the question of the unconstitutionality of section 37(1)(a)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They also raised the question of the violation of their fundamental right to the protection of the law enshrined in section 18(1) of the Constitution. They requested the magistrate to refer the question of the constitutional validity of section 37(1)(a)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] to the Supreme Court for determination on the ground that their prosecution and remand based on the alleged contravention of that law were a violation of their right to the protection of the law.

The magistrate, in Williams & Anor v Msipha N.O. & Ors 2010 (2) ZLR 552 (S), refused the request for a referral of the constitutional question to the Supreme Court for determination on the ground that the raising of the question, and, ipso facto, the request for referral, was frivolous and vexatious. On an application in terms of section 24(1) of the Constitution, the Supreme Court did not go into the question of the Constitutional validity of section 37(1)(a)(i) of the Criminal Law Code. It took the view that the facts on which the charge was based would not, if proved at the trial, constitute the offence charged or any other offence.

The Supreme Court proceeded, in Williams & Anor v Msipha N.O. & Ors 2010 (2) ZLR 552 (S), on the basis of the assumption that section 37(1)(a)(i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] was valid. At p 571C, the Court set out the applicable principle saying:

“To determine the question whether the conduct committed by the applicants and for which they were charged with the crime of contravening section 37(1)(a)(i) of the Act would, if proved at the trial, constitute the offence they were charged with, the magistrate was required, under s 13(2)(e) of the Constitution to take into account the essential elements of the offence and the conduct which, if proved at the trial, would constitute the offence charged. He was required to apply the knowledge of the statute to the conduct actually committed by the applicants and decide whether it constituted the proscribed conduct.

The thrust of Mr Mpofu's argument was that the effect of the protection the Constitution provides for the fundamental right to personal liberty would be evaded if a court did not examine the facts on which a charge laid on an accused person is based and evaluate them according to the objective standards prescribed by section 13(2)(e) of the Constitution.”

The court held, at 570G-H….,:

“A reasonable suspicion that an accused person has committed the offence with which he or she is charged presupposes that the facts on which the charge is based would, if proved at the trial, constitute the offence. Where the accused person challenges the legality of the charge on the ground that the offence itself was not committed, the onus is on the State to first show that, if proved at the trial, the facts on which the charge is based would constitute the offence with which the accused person is charged.”

Applying the test enunciated in Williams & Anor v Msipha N.O. & Ors 2010 (2) ZLR 552 (S) to the facts of this case, it is apparent that the applicant did not commit an offence. 

One of the essential elements of the offence of contravening section 33(2)(a) of the Criminal Law Code is that the statement about or concerning the President must be false. The outline of the State case made no reference to the falsity of the statements the applicant was accused of having uttered. All the statements contained in the outline of the State case allegedly made by the applicant could not be false.

The prohibited statement must be about or concern the President or his office. The slogan exalting the MDC-T political party and the statement on corruption in Government could not have been about or concerning the President. They could not be described as false statements either. The sarcasm in the conveyance of the message may have offended some of the listeners. It did not, however, make the message itself false. It was necessary for the State to indicate the false statements uttered by the applicant because it was required to state facts that would prove that the applicant had knowledge of the falsity of the statements.

The statement that the President was a goblin was obviously a false statement.

The offence is however not committed because a person has uttered, at a public place, a false statement about or concerning the President. The statement must be accompanied, at the time of its utterance, by the knowledge of its falsity and an intention to use it to engender feelings of hostility in the audience against the President. That is not even enough for the offence to be committed. The State must prove, beyond reasonable doubt, that the false statement about or concerning the President was capable of deceiving the hearer into believing it is true and that it was likely to arouse in the audience feelings of hostility towards the President or his office.

A patently false statement to the effect that the President is a goblin was unlikely to deceive any right thinking person into believing that it is true. It was unlikely to engender in the hearer feelings of hostility towards the President. In other words, a statement that is patently false that no right thinking person can believe it to be true cannot carry the intent to inflame in the audience feelings of hostility towards the President.

The statement the applicant is alleged to have uttered did not even allege that the President had done anything that could have adversely affected the interests of people generally or those in the audience for it to arouse feelings of hostility towards the President. Such a statement cannot hold up the President to ridicule.

The public prosecutor did not understand the essential elements of the offence.

The outline of the State case suggests that he or she thought that the statute criminalised the causing of some danger to the President. The outline of the facts alleged that the statement that the President was a goblin would “engender the President in person.” That is, of course, meaningless. The outline of the case for the prosecution goes on to allege that the false statement was “taken as undermining or insulting the President.” What is undermined under section 33(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is the authority of the President. The applicant was not charged with the offence of insulting the President. Proof of that offence, which is under section 33(2)(c) of the Criminal Law Code would, not require proof that an accused person made a false statement about or concerning the President as an essential element of the offence.

The finding by the Court is that if the facts alleged in the outline of the case for the prosecution were proved at the trial of the applicant they would not have constituted an offence.

It is declared that the prosecution of the applicant, on allegations of having contravened section 33(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] amounted to a deprivation of his personal liberty, save as would have been authorised by law, in contravention of section 13(1) of the Constitution and was a denial of the fundamental right of the applicant to the protection of the law guaranteed under section 18(1) of the Constitution. 

There shall be no order as to costs.

The application, for an order declaring section 33(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] unconstitutional is, for the purpose of this case, dismissed with no order as to costs.

In my view, after hearing submissions by the parties, the learned magistrate should have determined whether the facts alleged by the State constituted an offence or not. Failure to make that determination could possibly lead to a violation of the constitutional right of the applicant to protection of the law

In the case of Williams and Anor v Msipha N.O. and Ors SC22-10, this Court held that putting an accused on trial on facts, which even if proved, do not constitute an offence is a violation of the right to protection of the law guaranteed by the Constitution.

The background facts are these.

The applicant is a young female who was 20 years old at the time of her arrest. On 25 December 2012, the applicant was arrested and taken to Bulawayo Central Police Station. She was charged with contravening section 33(2)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provides:

“33. Undermining authority of or insulting President

(2) Any person who publicly, unlawfully, and intentionally -

(a) Makes any statement about or concerning the President or an acting President with the knowledge or realising that there is a real risk or possibility that the statement is false and that it may -

(i) Engender feelings of hostility towards; or

(ii) Cause hatred, contempt or ridicule of;

the President or an acting President, whether in person or in respect of the President's office; or…,.

(b)…,.

shall be guilty of undermining the authority of or insulting the President and liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.”

The facts on which the charge was based were contained in the charge sheet and the Outline of the State Case. The charge sheet reads:

“In that on the 24^th of December 2012, and at Number 7 Paddonview Flats, Paddonhurst, Bulawayo. Shantel Rusike unlawfully and intentionally dispatched a picture depicting the President of the Republic of Zimbabwe, Cde Robert Gabriel Mugabe, in a nude state to Precious Tshuma realising that there was a real risk or possibility that it causes hatred, contempt or ridicule of the President.”

The Outline of the State Case is as follows:

“1. The complainant in this case is The State.

2. The Accused resides at House Number 226 Higgs Road, Sunning Hill, Bulawayo, and is employed at Stone Urban as a shop assistant at Shop No. 43 Bulawayo Centre.

3. On 24^th of December 2012, at around 2349 hours, the accused person sent a picture depicting the President of the Republic of Zimbabwe, Robert Mugabe, naked on the social chat platform Whatsapp. The picture was written underneath Robert Mugabe turning 87 years on 21 February 2011. Happy birthday Matibili operation.

4. A report was made to the police leading to the arrest of the accused person.

5. The accused person had no right to behave in the manner she did.”

What is clear is that the State got the facts wrong.

The applicant did not have a picture of the President in the state alleged. The parties agree that what she did was to take a picture of a child in the nude and replace the head of the child in the picture with a picture of the President's head. What she then created could not, by any stretch of imagination, be described as a depiction of the President in the state suggested. Whatever offence could have been committed by the applicant in what she actually did, she was not charged with that offence.

The State would have to prove, at the trial, not only that the applicant committed the conduct alleged in the State Outline but also that the conduct constituted the offence with which she was charged.

In Williams and Anor v Msipha and Ors 2010 (2) ZLR 552 (S) it is stated…,:

“To determine the question whether the conduct committed by the applicants and for which they were charged with the crime of contravening s 37(1)(a)(i) of the Act would, if proved at the trial, constitute the offence they were charged with, the magistrate was required under s 13(2)(e) of the Constitution to take into account the essential elements of the offence and the conduct which, if proved at the trial, would constitute the offence charged. He was required to apply the knowledge of the statute to the conduct actually committed by the applicants and decide whether it constituted the proscribed conduct.” …,.

The State cannot prove the conduct alleged in the outline of its case against the applicant because that is not the conduct she committed. Even if she had been charged with the conduct she committed, it would constitute the offence if it was proved at the trial that the statement was false. It would have had to be a statement which, although false, could be believed as true by some members of the public engendering in them feelings of hostility towards the President or causing them to hate the President. No right-thinking person could be deceived into believing the caricature sent by the applicant to be a true statement about the President.

The statement was made on 24 December 2012, to the effect that the President was due to be 87 years old on 21 February 2011. The statement makes no sense. The President had already turned 87 on 21 February 2011.

DISPOSITION

The accused appeared before the trial magistrate facing a charge of contravening section 52(2) of the Road Traffic Act; that is driving a motor vehicle, namely, a Toyota Hiace, negligently. 

The State allegations are that the accused reversed and collided with the complainant's vehicle.

The accused was convicted of the offence and was sentenced to twelve (12) months imprisonment of which four (4) months imprisonment was suspended for five (5) years on conditions. He was prohibited from driving commuter omnibuses and heavy vehicles for two (2) years and his licence cancelled.

When the essential elements were being put, the accused admitted to driving a Toyota Hiace negligently.  The charge sheet and State Outline do not suggest that the vehicle in issue was a public service vehicle.  Nowhere during the proceedings did the accused acknowledge that he had been driving a public service vehicle. The suggestion that this vehicle was a public service vehicle came from the magistrate in her explanation of special circumstances.

The accused person was unrepresented and the assertion went unchallenged.

In any case, where a person drives a public service vehicle and an accident ensues as a result of such driving, a specific allegation should be made to that effect in the State papers. It is not good enough for the magistrate to suggest the accused drove a public service vehicle in the absence of such an allegation from the State. The trial magistrate surmised that the vehicle was a public service vehicle. Such a suggestion should have been put to the accused person when the essential elements were being canvassed. Such a suggestion should emerge from State papers. It does not follow that because the vehicle he drove was a Toyota Hiace or for that matter a commuter omnibus, that the said vehicle is a public service vehicle. It could well have been a private vehicle. 

Both matters were dealt with by the same trial magistrate who referred the matters for scrutiny. The learned scrutinizing Regional Magistrate was unable to confirm the proceedings in both matters as in accordance with real and substantial justice as she believes there was a patent failure of justice. Both matters were referred to this court for review.

The facts of each of the cases are as follows;

1. STATE v WESTON JOWO MUPFUPI

The accused was arraigned before the trial magistrate facing three counts which are as follows;

In Count 1, the accused was charged with fraud in contravention of section 136 of the Criminal Code [Chapter 9:23].

In Count 2, the accused was charged with driving a motor vehicle without a driver's licence in contravention of section 6(1) as read with section 6(5) of Road Traffic Act [Chapter 13:11].

In Count 3, the accused was charged with bribery in contravention of section 170(1) of the Criminal Code [Chapter 9:23].

The facts giving rise to all the three Counts are as follows;

The accused, who is 24 years old and resides at Mount Bokota Farm Macheke, left Murehwa Business Centre on 2 September 2014 at about 17:00 hours driving a Nissan Caravan, Registration Number ACQ 7982. The accused had 15 passengers on board plying the Macheke route. While at Zinwa Offices in Chinake Village, the accused stopped his motor vehicle in the middle of the road and switched off the engine. The accused disembarked as he checked another truck parked by the roadside which had a breakdown. Two police officers driving a Land Rover Defender, Registration Number 4750, arrived at the scene but could not proceed as the accused's motor vehicle blocked the road. The accused was asked why he was parked in the middle of the road and to produce his driver's licence.

In relation to Count 1, the accused produced a certificate of competency issued in the name of Tatenda Jowo Mupfupi, National I.D No 63-2046435 T47, serial no 957143B, purporting to be his when in fact it belongs to the accused's brother. The police officer asked the accused to produce his national identification card and he failed to do so claiming it was at his house. The police then drove to the accused's house with the accused to collect his identity card but on the way the accused confessed that the certificate of competency he had produced was not his. This is the basis for the charge of fraud.

This confession leads to Count 2, which relates to driving a commuter omnibus without a driver's licence.

In relation to Count 3, it is alleged that as the police officers took the accused to his house for him to produce his identity card the accused produced a US$10= note, serial number MF5159812A, and handed it over to Detective Inspector Mapepeta as a consideration to induce him not to arrest the accused hence the offence of bribery.

The accused pleaded guilty to Count 2, of driving without a licence, and pleaded not guilty to Count 1, fraud, and Count 3, bribery….,.

Nothing turns in respect of Count 1, fraud, and Count 3, bribery, as the accused was discharged at the close of the State case in both Count 1 and Count 3 and acquitted.

The query raised by the Regional Magistrate in respect of Count 2 is that the trial magistrate did not properly canvass the essential elements of the offence hence the conviction is improper.

The learned Regional Magistrate seems to have taken issue with the answer the accused gave to this question;

“Q: Do you admit that you drove the vehicle at the material time when you were not a holder of a valid driver's licence and statutory requirements concerned?

A: Yes.”

While the bit relating to 'statutory requirements concerned' is unclear and irrelevant, the answer the accused was expected to give as he had no driver's licence was “No” instead of “Yes”.

The trial magistrate, in response to this query or anomaly, explained that he or she made a genuine error by recording “Yes” instead of “No”.

I am inclined to accept the trial magistrate's explanation. This is so in light of the other questions put to this accused in relation to driving without a licence and the answers the accused gave. The following is recorded;

“Q: Do you admit that on 2 September 2014, and along Murehwa-Chamapango Road, Murehwa you drove a Nissan Caravan, Public Service vehicle with registration number ACQ 7982?

A: Yes.

Q: Are you a holder of the requisite driver's licence for the class concerned?

A: No….,.

Q: Did you have a right to drive the public service vehicle with a driver's licence?

A: No.

(The trial magistrate explained that it was meant to be 'without' rather than 'with'” in light of the question underlined above)

Q: Do you have any defence to offer?

A: The licence which was on the dash board in the vehicle belongs to my brother, it is not mine. I don't have any defence or driver's licence.”…,.

V: Guilty as pleaded.”

While it is clear that the trial magistrate was not alert in recording the accused's answers, the fact remains that the accused was properly convicted of driving a commuter omnibus without a licence. The charge was put to the accused and he admitted that indeed he did not have the driver's licence. The facts in relation to Count 2 were read to him and he agreed with the facts. It is clear from the totality of his answers to the questions put to him by the trial magistrate that the accused admitted that he had no driver's licence and that the one he had belonged to his brother. The errors by the trial magistrate in recording 'YES' instead of 'NO' and 'with' instead of 'without' would not distract from this fact.

There is therefore no miscarriage of justice in convicting the accused in Count 2. In fact, it would be a serious miscarriage of justice to set aside the conviction in Count 2…,.

In the result;

IT IS ORDERED THAT:

In S v Chitepo HMA03-17, in the course of a review judgment, in a matter in which the charges preferred against the accused person and the sentence meted out to him had been mishandled, I wrote:

“I caution, in passing, that great care and precision should always be taken and exhibited in the drafting of criminal charges and the handling of criminal matters. Criminal proceedings affect some of the fundamental human rights and freedoms enshrined in the Constitution, namely, the right to liberty, and even the right to life.”

I am amazed by the reasoning of the trial magistrate in this matter.

The mind boggles why a lot of time and resources were wasted in this case by embarking on a trial when the accused was clearly pleading guilty to the charge. To make matters worse, the trial magistrate decided to convict the accused on a charge or offence which is not even a permissible verdict. The faulty and warped reasoning by the trial magistrate is that since theft entails an element of dishonesty it would stand to reason that fraud which also entails an element of dishonesty is a permissible verdict on a charge of theft.

This is in total disregard of the provisions of the Fourth Schedule of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The accused was arraigned before the magistrate sitting at Beit Bridge facing the charge of theft [of trust property] as defined in section 113(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The brief facts of the case are as follows;

The accused was given US$3,000= by the complainant in order to convert the whole amount into South African currency (undoubtedly on the black market). The accused proceeded to convert a total of US$2,650= to his own use and only gave back to the complainant US$350=. The accused's explanation is that the accused had had a shortfall at his workplace and decided to use the complainant's money to cover up for this shortfall with the misplaced hope that the accused would later on raise the money and pay back the complainant.

After the accused had given such a clear explanation, the trial court, in its wisdom or lack thereof, believed that the accused was proffering a defence to the charge and proceeded to conduct a trial! I am surprised that the trial court discerned any facts in dispute worthy to be ventilated through a trial process or procedure.

Section 113(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides as follows;

“113. Theft

(1) …,. Irrelevant.

(2) Subject to subsection (3), a person shall also be guilty of theft if he or she holds trust property and, in breach of the terms under which it is so held, he or she intentionally –

(a) Omits to account or accounts incorrectly for the property; or

(b) Hands the property or part of it over to a person other than the person to whom he or she is obliged to hand it over; or

(c) Converts the property or part of it to his or her own use.”…,.

From the facts of the case, the accused clearly converted the complainant's US$2,650= to his own use.

In terms of section 2 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], trust property is defined as follows;

“'trust property' means property held, whether under a deed of trust or by agreement or under any enactment, on terms requiring the holder to do any or all of the following –

(a) Hold the property on behalf of another person or account for it to another person; or

(b) Hand the property over to a specific person; or

(c) Deal with the property in a particular way;”…,.

The trial magistrate simply failed to grasp these simple and clear provisions and misdirected himself or herself that the essential elements of the offence had not been proved, worse still that the accused was not admitting to the charge. Reduced to its bare bones, the facts of the matter are that the accused was given US$3,000= by the complainant and the agreement was for the accused to, in turn, hand over to the complainant the equivalent in South African rand. The accused failed to do so but converted US$2,650= to his own use to cover up for a shortfall at his workplace.

The trial court clearly misdirected itself by failing to appreciate this fact.

The other misdirection by the court a quo is its assertion that the offence of fraud, as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is a permissible verdict to the charge of theft as defined in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Again, the Fourth Schedule of the Criminal Law (Codification and Reform) Act [Chapter 9:23] is clear in that regard. Fraud is not one of the permissible verdicts.

In the circumstances, it was improper to convict the accused of the offence of fraud, as defined in section 136 of the Criminal Code [Chapter 9:23] which had not even been charged in the alternative.

The facts of the matter, which are common cause, are that the accused breached section 113(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Accordingly, the verdict by the court a quo of “Not Guilty of Theft of Trust Property and found guilty of fraud” is set aside and substituted with the following;

“Guilty as charged or of contravening s113(2) of the Criminal Law (Codification and Reform) Act [Cap 9:23].”…,.

In order to constitute a criminal act, there must be a guilty mind accompanying an actus reus i.e. the circumstances constituting criminal conduct.

It is important for me to provide an elaborate background to this case and there is no better way of doing so than to reproduce both the charge sheet and the State Outline as well as the correspondence that I have exchanged with the magistrate concerned.

The two accused appeared at Gweru Regional Magistrates Court and were charged with the crime of;

“Attempted robbery as defined in section 189 as read with section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In that on the 7^th of July 2015, and at Safago Farm, Shurugwi, Metron Chongani Makamba and Knowledge Jonasi, one or both of them, unlawfully and intentionally attempted to steal property belonging to Edwin David Shaw by using violence or threats of future violence towards Innocent Mabuto, Simbarashe Jonathan Sithole and Shamiso Nyamala employees of Edwin David Shaw. That is to say Metron Chongani Makamba and Knowledge Jonasi all armed with pistols threatened to shoot Innocent Mabuto, Simbarashe Jonathan Sithole, and Shamiso Nyamala who had lawful control of the property to relinquish control over it…,.”

The Charge Sheet was backed up by the State Outline which reads as follows:

“1. The complainant, in this case is Edwin David Shaw, residing at Safago Dairy Farm, Shurugwi and is the farm owner.

2. Accused person number one, Metron Chongani Makamba, resides at Village 6, Bangala Ranch, Chiredzi and accused number two, Knowledge Jonasi, resides at Taruvinga Village, Chief Bota, Zaka. Both are not employed.

3. On the 6^th day of July 2015 the two accused persons, together with Anold Makamba, who is still at large, hatched plan to rob the complainant at Safago Dairy Farm, Shurugwi.

4. At around midnight, the two accused persons, with Anold Makamba, proceeded to Safago Dairy Farm using a grey Toyota Gaia without number plates. Accused number one, Metron Chongani Makamba, was putting on a police riot uniform, accused number two was putting on civilian clothes while Anold Makamba was putting on police FD suit. The three introduced themselves as police details from Gweru Rural Police Station and requested to see the complainant.

5. While at Safago Farm, the accused persons awakened farm workers and locked them into Jonathan Simbarashe Sithole's house after confiscating their cellphones.

6. The accused persons then force-marched Jonathan Simbarashe Sithole, Innocent Mabuto and Shamiso Nyamala to the complainant's house where they ordered Jonathan Simbarashe Sithole to break open the main door whilst accused one and two were holding pistols.

7. Accused persons entered the house, and, whilst inside, they searched the whole house demanding cash and pistols.

8. The accused persons ordered Jonathan Simbarashe Sithole to grind open a chub safe which they found in the complainant's bedroom but failed to open it. The accused persons then coerced the farm workers to lift the chub safe into their car but they all failed.

9. The accused person then took a black hunters torch from the bedroom and a bunch of keys before tying Innocent Mabuto's hands and shoved him into the vehicle. The accused persons drove away and later dumped Innocent Mabuto at Guinea Fowl Primary School along Gweru-Shurugwi road.

10. On the 18^th of August 2015, the two accused persons were arrested in Masvingo. Detectives searched accused persons' residence and recovered police and army uniforms.

11. An identification parade was conducted at Mashing Police Station and accused number one, Metron Chongani Makamba, was positively identified by Jonathan Simbarashe Sithole and Shamiso Nyamala.

12. The value of the stolen and damaged property is USD1,750= and nothing was recovered.

13. The accused persons acted unlawfully.”

When this matter was placed before me, on review, I raised a query with the Magistrate, and, on 11 May 2016, my minute was framed as follows:

“The summary of the State case, as confirmed by the first witness, David Shaw (record page 3), suggests that a black hunter's torch and a bunch of keys were taken away by the accused in circumstances where clearly violence was used against the witnesses. How does the conviction of the accused person get restricted to attempted robbery under such circumstances?

If the evidence did not support the allegations, as contained in the Outline, with specific reference to the violent taking away of the torch and workshop keys, why is that this issue was not addressed in the judgment itself?

Let me hear from the learned magistrate.”

The Magistrate's response was as follows:-

“Place this record before the Honourable Bere J, with the following comments.

1. The Charge preferred against the Accused was that of Attempted Robbery.

See the Charge Sheet.

The trial court's mind got largely exercised by the alleged 'attempt'. And, to be honest, the Court got impressed upon, as if, the Accused 'attempted to rob the chubb safe' from the complainant's premises.

See the State Outline; especially -

In the process of attempting to rob, the items grabbed away were a torch and some keys. Quite honestly, it did not occur to the trial court that Accused should be convicted of robbing a torch and keys as opposed to being convicted of attempting to rob the complainant of the chubb safe.

2. As stated earlier, the trial court was looking out for the 'attempt to rob the complainant of the chubb safe'. That is why the issue of the violent taking away of the torch and keys from the complainant's workers was not specifically address in the judgment; which judgment was focusing on 'an attempt to rob the cub safe'.

3. Well, it maybe that the Accused may have been convicted of Robbery of the torch and keys which would have been justified, really. But, it seems to the trial Court, that the conviction for Attempted Robbery here still meets the justice of the Accused's case.

The trial court does not readily see any substantial miscarriage of justice in the totality of the circumstances of the case…,.”

It is this clearly belligerent and intransigent attitude exhibited by the trial magistrate which has prompted me to write this review judgment in the desperate hope that at the end of it all the issues that are of concern to me in this matter will make sense to the trial magistrate, and, possibly, help others of a like mind….,.

Having said this, I now propose to focus on the substantive issues in this case.

Firstly, a simple perusal of the outline of the State clearly shows that some property belonging to the complainant was stolen and was never recovered. Paragraph 5 of the Outline speaks to the armed robbers having confiscated the victims' cellphones. Paragraph 9 of the same Outline makes specific reference to the armed accused persons having violently taken a black hunters torch and a bunch of keys from the victims. The State Outline concludes, in its paragraph 12, by asserting that:

“12. The value of the stolen and damaged property is USD1,750= and nothing was recovered.”

On reading of the evidence, as recorded by the trial magistrate, the witnesses confirmed that indeed property in the form of a torch and workshop keys were stolen (record page 3, per Edwin David Shaw's evidence). The evidence of Shamiso Nyamala (record page 6) further confirms that the phones were violently taken by the accused persons.

Given the nature of the defence proffered by the convicted accused person, the convicted first accused could not possibly have offered any sustainable defence and the magistrate correctly found against him.

The query that I raised with the magistrate pertained to the propriety of the charge sheet and the conviction given the overwhelming evidence that was at his disposal which clearly supported a conviction of the accused of the offence of robbery.

Just by merely paying sufficient attention to the presentation of the outline of the State case, an alert magistrate would have been able to appreciate that the preferred charge was not complementing the facts as outlined. But sometimes because magistrates and all other judicial officers are fallible, the magistrate probably overlooked this and needs not be condemned. However, one gets concerned when it becomes clear that the presentation of the Charge Sheet and the outline of the State case was not the only opportunity the magistrate had in this case. The magistrate followed, and recorded, the testimony of the witnesses in this case. If he was not lackadaisically following the proceedings he could not have failed to appreciate that this case was much more than attempted robbery - but robbery per se.

It completely took the review Judge by surprise for the magistrate to attempt to give a virilis defencio to the undefendable. Such attitude retards the development of our jurisprudence and an otherwise healthy exchange of views between the High Court bench and the lower court. It should never be the case.

Having said this, I must now consider the appropriate remedy in this case.

I have already noted that from the inception, the attempted robbery charge was incompetent given the facts and the accepted evidence which fully supported the substantive charge of a violation of section 126(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code).

It must therefore follow that the verdict of the court must be amended to reflect the fact that Accused 1 be found guilty of having committed robbery as informed by section 126(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The conviction is so amended.

The sentence of the court remains the same.

It is for the aforegoing reasons that I am unable to confirm these proceedings as having been in accordance with real and substantial justice. I withhold my certificate.

A charge sheet in a theft of property case should always state, and clearly, the amount of prejudice that an offender causes to a complainant. That is, the value of the property stolen. It does not suffice to merely state or allege that an offender stole cash. A charge sheet couched in this manner does not sufficiently advise the accused of the offence he is required to answer to….,.

I have considered that the accused person acknowledged that he stole the amount in issue when essential elements were being put to him and hence he became aware of the amount allegedly stolen.

This matter was placed before me in chambers for review, in terms of section 57(1), as read with section 57(4) of the Magistrates Court Act [Chapter 7:10], as read with section 29(1), and section 29(5) of the High Court Act [Chapter 7:06]. The High Court is cloaked with powers to automatically review any and all matters in which a magistrate passes a sentence of twelve months imprisonment or more, and where the accused person was not legally represented, or a private (limited) company.

In this case, the sentence imposed was fourteen months, of which four months were suspended for 5 years on condition of good behavior, another four months was suspended on condition of restitution and a six month custodial sentence imposed. The grounds of review are set out in section 29 of the High Court Act [Chapter 7:06]. Although the process of conviction is in order, the framing of the charge warrants further scrutiny.

Magistrates should be alive to their duty to ensure that the charges brought against an accused person are proper and competent. Before charges are put to the accused, there is a duty on the presiding officer to cross-check the efficacy of the charges, i.e.

(a) To check that the charges are spelt correctly and cited in full.

(b) To ensure that the charges are properly formulated as provided in terms of the CODE.

(c) To check that the facts, as set out in the summary of the State case, are sufficient to support the charge, not only in terms of particularity, but in terms of appropriateness.

The accused was charged with the crime of “unlawful entry” as defined in section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the CODE). It was alleged that on 19 December 2014, at House Number 300 Devonshire, Sakubva in Mutare, the accused person intentionally and without permission or authority from Kabhaso Yvonne, the lawful occupier of the premises concerned, or any other lawful authority, entered the premises and took some DVD's and cash amounting to USD$80=.

According to the outline of the State case, the accused unlawfully entered the complainant's premises and took the complainant's tops, some DVD's and USD$80=. When the accused was arrested, a Vodafone cellular phone and DVD's were recovered. The total value of the stolen items was USD$200=. The value of the recovered items was USD$100=.

According to section 139 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPEA):

“Where a public prosecutor has, by virtue of his office, determined to prosecute any person in a Magistrates Court for any offence within the jurisdiction of that court, he shall forthwith lodge with the clerk of the court a statement, in writing, of the charge against that person, describing him by his forename, surname, place of abode and occupation and setting forth shortly and distinctly the nature of the offence and the time and place at which it was committed.”

The question that arose before me was whether the statement lodged by the prosecutor, in writing, of the charge against the accused person in this case, set forth the “nature of the offence” distinctly as stipulated by section 139 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPEA).

We are guided, further, by section 146 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPEA) which stipulates that, it is essential that the charge sets forth the offence with which the accused is charged with, in such a manner, and with such particulars as to the alleged time and place of committing the offence, that the person who is charged with committing the offence may be reasonably sufficiently informed of the nature of the charge. If the wording of the description of the offence matches the wording found in the enactment creating the offence, this shall be sufficient to reasonably inform the accused of the charge against him. See section 146(2)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPEA).

The accused was charged with contravening section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the CODE), which provides that any person who intentionally and without permission from the lawful occupier of the premises, or other lawful authority, enters the premises shall be guilty of unlawful entry into premises and liable to:

(a) A fine up to level thirteen or up to twice the value of the property stolen, destroyed or damaged as a result of the crime, or to imprisonment for a period up to fifteen years imprisonment, or both such fine and imprisonment if the crime was committed in one or more of the aggravating circumstances set out in subsection (2).

(b) In any other case, a fine up to level ten or not exceeding twice the value of the property stolen, destroyed or damaged or imprisonment for a period up to ten years.

It is my view that, for every case in which an accused person is charged with the crime of unlawful entry into premises, it is necessary to determine, from the facts set out in the outline of the State case, whether the crime was committed in aggravating circumstances. Failure to consider whether there were any aggravating circumstances, has the same effect as failing to consider any mitigatory factors in passing sentence or whether special circumstances exist. The Legislature very graciously assisted us by proceeding to define aggravatory circumstances in section 131(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as follows:

“(2) For the purposes of paragraph (a) of subsection (1), the crime of unlawful entry into premises is committed in aggravating circumstances if, on the occasion on which the crime was committed, the convicted person -

(a) Entered a dwelling-house; or

(b) Knew there were people present in the premises; or

(c) Carried a weapon; or

(d) Used violence against any person, or damaged or destroyed any property, in effecting the entry; or

(e) Committed or intended to commit some other crime.”

The outline of the State case clearly tells us that the accused person entered a dwelling house with intent to steal and that he did steal various items valued at USD$200=. It is my view that the accused ought to have been properly charged with the offence of contravening section 131(1) as read with section 131(2)(a) and section 131(2)(e), “unlawful entry into premises with intent to enter a dwelling house and commit the crime of theft.”

An alternative couching of the charge would be “unlawful” entry into premises in aggravatory circumstances; where the prosecutor is unsure whether technically the accused gained entry or if, after gaining entry, any crime was committed inside the dwelling.

It is important to note that not all premises are “dwellings”. For example, company offices, or a clinic, or a school may well qualify to be regarded as premises but they are not “dwellings”. The intention of the legislature was to punish, more severely, an accused person who enters a place where people reside. It is a violation of the sanctity and privacy of one's home that is cherished in a civilized society. So, it is considered aggravatory simply to enter into a place where people live without invitation or authority. It is even more aggravatory to enter into a place where people live, with intent to commit some other crime.

The High Court has had occasion, in the past, to guide magistrates on the question of framing of the charges in circumstances similar to this case under consideration.

In S v Trymore Zhakata HH13-13 it was said that the crime of unlawful entry into premises is a statutory offence which repeals and replaces the common law crime of burglary or housebreaking with intent to steal but with certain additional features. By virtue of paragraph (a) of subsection (1), as read with paragraph(s) (a) to (e) of subsection (2), the offence is aggravated by any of the circumstances set out in subsection (2).

In S v Chirinda & Ors HH87-09, the court said that this offence does not create a combined offence of unlawful entry and theft. What it does is to aggravate the offence of unlawful entry by prescribing a more severe penalty therefore in the event of any one or more of the circumstances enumerated in subsection (2) being established.

I wish to add my voice to that of other judges before me who respectfully disagree with the position that the elements of theft or other aggravating circumstance need not be stated in the charge and can merely be mentioned in the State Outline or agreed facts or in the prosecutor's address in aggravation. It is my view that it is necessary for the State to prove or otherwise establish the relevant aggravating factor if it is to sustain a charge under section 131(1) as read with section 131(2)(a)(e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The example has already been alluded to above that there is a difference between “mere unlawful entry into premises” and “unlawful entry into a dwelling”. It would be necessary for the State to prove whether the accused entered into any other premises or a dwelling. Where an accused enters into a dwelling that is a further aggravatory circumstance, as distinguished from entering any other premises such as a clinic. In some circumstances, unlawful entry into a church, for example, might provide greater aggravation, depending on what the accused is alleged to have done on gaining entry into the church. Perhaps he might be alleged to have desecrated some holy relics held dear by the followers of that church, to such an extent that a severe sentence might be called for as a deterrent to other would be offenders. For these reasons, in my view, it is necessary that the particulars of the alleged aggravatory features be specifically pleaded and proved, by the State, as part and parcel of the essential elements of the offence.

Addressing the court on alleged agravatory factors, from the Bar, is not the same as being required to prove, beyond a reasonable doubt, the essential elements of an offence, that the accused did indeed enter unlawfully onto premises in one or more aggravatory circumstances. If the aggravatory circumstances are not proved beyond a reasonable doubt, as part of the essential elements of the offence, how can a court rely on bald allegations by the prosecution from the Bar? The allegations will constitute facts which must be proved not matters of law.

It follows that where the State fails to prove the essential elements of the unlawful entry or any of the aggravatory circumstances, the fact of aggravation cannot be taken into account for the purposes of assessing and imposing the more severe sentence stipulated by that provision (or for ordering restitution). Once this is accepted, it seems to me unavoidable that the aggravating factor or circumstance be specifically pleaded and spelt out in any charge under section 131(1) as read with section 131(2)(a)(e) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Where the State fails to prove any of the aggravatory circumstances, the accused can be convicted of simple unlawful entry….,.

A criminal indictment must clearly set out all the particulars of the charge so that the accused fully grasps the basis of the charge so as to enable him to prepare his defence. If the charge does not particularize the alleged aggravating circumstances, the accused would obviously be prejudiced in the preparation and presentation of his defence.

The record does not show that the magistrate was aware of the need to canvass aggravatory circumstances as part of the essential elements of the offence or even as part of the sentencing procedure.

For an appropriate example of how to correctly couch the charge, see page 4-5 of S v Trymore Zhakata HH13-13…,.

Similarly in this case, the charge is amended to read as follows:

Contravening section 131(1) as read with section 131(2)(a) and 131(2)(e), i.e. Unlawful Entry into premises in aggravatory circumstances, in entering into a dwelling house with intent to enter into a dwelling house and with intent to steal and to commit the offence of theft.

The conviction was proper so we will not interfere with it. With the amendment of the charge, we accordingly certify that the proceedings are now in accordance with real and substantial justice.

I would otherwise substitute the verdict of guilty to assault as it is a permissible verdict to a charge of attempted murder in terms of section 275 as read with the 4^th Schedule to the Criminal Law Code, but, in my view, that can only be done where the evidence led by the State in an effort to prove the charge is insufficient to sustain the charge but the lessor charge permissible by law.

The unique situation we have in this matter is that the State did not lead evidence to prove the charge….,.

After putting the charge to the accused person the prosecutor stood up to say he had no evidence to prove the charge. Strange though it was, that is what happened and he did not bother to lead any evidence, leaving the magistrate to take over. The intervention of the magistrate, in a duel where he was supposed to be the arbiter and not to descend onto the arena, was a misdirection and whatever flowed from it was a nullity.

Counsel for the appellant explained that…, he had reviewed the entire record of the appellant's case, including the charge sheet, and grounds of appeal, and had discovered that the charge laid against the appellant had been fatally defective for want of averments of the essential elements of the crime. He said this was a legal point which he was entitled to raise at any time of the proceedings….,.

[a] Charge allegedly defective

The charge against the appellant in the court a quo was framed as follows:

“THEFT AS DEFINED IN SECTION 113(2)(d) OF THE CRIMINAL LAW (CODIFICATION AND REFORM) ACT [CHAPTER 9:23]

In that on the 3^rd day of August 2014 and at Traikosh Complex, 103 Cape Street, Shurugwi, Mavese Mapfumo, being a legal practitioner, converted money which amounted to U$2,500= into his own use which was deposited by Mirirai Tsikira in Mavese Mapfumo and Associates law firm Trust Account.”

The State Outline was a detailed account of the dealings between the appellant and the clients over the period in question and the appropriation of the trust funds as charged.

Counsel for the appellant charged that the absence of the words or phrases 'intention' and 'unlawfulness', which should be intrinsic to the indictment, made it incurably defective. Citing a plethora of cases; and invoking section 146 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), and section 70 of the Constitution, the basic import of which is that an accused person is entitled to be informed in sufficient detail of the charge he is facing, counsel vigorously argued that this had not been done, and that, as a result, the appellant had been severely prejudiced in the conduct of his defence in that, even though himself a legal practitioner, he had not quite appreciated the true purport of the charge. That was why, in his defence, the argument concluded, the appellant had omitted to challenge the absence of intention, and unlawfulness in his conduct, but had merely rushed to invoke the provisions of section 20 of the Legal Practitioners Act [Chapter 27:07].

Counsel for the appellant further argued that the inherent defect in the charge could not possibly have been saved by section 203 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code). This section provides that an indictment, summons or charge that is defective for want of any matter which is an essential ingredient of the offence shall be cured by evidence at the trial proving the presence of such matter, unless such defect is brought to the court before judgment. He said the evidence at the trial did not prove intention or unlawfulness of the appellant's conduct, and that, therefore, the hole or gap or defect in the charge had remained un-repaired.

Counsel for the State argued that the charge was not defective; that even though lacking precision or exactitude, it was drafted with such adequate detail as to have sufficiently informed the appellant of the offence with which he was being charged and that, indeed, the appellant had not been prejudiced in any way as he had quite appreciated the charge and had competently pleaded to it. Furthermore, counsel for the State added, the evidence led at the trial had been so elaborate as to have sufficiently covered any perceived loopholes in the indictment.

The appellant's point in limine was, with all due deference, a fanciful and whimsical academic treatise, probably designed just to ground a moot room contest.

Counsel for the appellant said the appellant did not have to concern himself with the citation but only with the narration of the charge.

That is strange.

The appellant had to concern himself with the charge as a whole: the citation, the narration, and the State Outline. Moreso that he was a practising lawyer.

Whatever the position at common law might have been, with the codification of criminal offences in Zimbabwe, any person charged with an offence, as codified, has to refer to the section of the Code that the charge refers to. In this case, the charge sheet, as read out to the appellant in court, told him that he was being charged with the crime of theft as defined in section 113(2)(d) of the Code…,.

Section 113[2][d] of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) defines theft of trust property as follows:

“[2] Subject to subsection [3], a person shall also be guilty of theft if he or she holds trust property, and, in breach of the terms under which it is so held, he or she intentionally -…,.

[a]…,.; or

[b]…,.; or

[c]….,.; or

[d] Converts the property, or part of it, to his or her own use.”

Thus, “intention”, an essential ingredient of the charge, is covered.

Sub-section [2] above says it is subject to sub-section [3]. Necessarily, therefore, the appellant also had to concern himself with this sub-section as well. It was the complete package from the State. The sub-section says:

“[3] Subsection [2] shall not apply if -

[a] The person holding or receiving the property has properly and transparently accounted for the property in accordance with the terms of the trust; or

[b]..,.”

Thus, sub-section [3] negatives any unlawfulness in any intention that might have been perceived as criminal. So, the charge preferred against the appellant, just in the charge sheet alone, let alone the detailed State Outline, contained all the necessary and essential ingredients. And, evidently, the appellant did appreciate both the full import and purport of the charge. His defence targeted the intrinsic aspects of the charge as laid out in section 113[2][d], as read together with sub-section [3] of the Code.

At the hearing, counsel for the appellant himself, wittingly or unwittingly, might have betrayed the position that the point in limine was just an academic moot contest. After laying out what he considered to be the model charge that the State ought to have preferred against the appellant, he conceded, during some exchanges with the court, that he would not have contested the point had the charge excluded the citation, as long as the narration contained the essential ingredients.

What he was contesting was the flip side, namely, the absence of the essential ingredients in the narration, despite that the citation invoked them – a variance without a difference!

Thus, it is our finding that while the charge preferred against the appellant might have lacked precision and finesse, nonetheless, it contained essential details as to have sufficiently informed the appellant of the offence which he was facing. Furthermore, there was no question that the appellant understood and appreciated the nature of the offence which he faced. Among other things, he competently answered to it. He was not prejudiced.

In the circumstances, the appellant's point in limine is hereby dismissed for lack of merit.

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.

Both the conviction and sentence in this case offend against norms of justice. It is imperative that this court should intervene.

The accused was convicted in the Regional Magistrate's Court with attempted murder. The charge itself was demonstrably an overkill. The circumstances disclosed nothing more than an assault….,.

The facts, from the State Outline, were these.

The complainant and his wife, Regina Jim [“Regina”] were coming from consulting a prophet. The complainant was drunk. Regina did not want to go home with him. She ran away to seek help from the village head, one Emmanuel Mugwira [“Mugwira”]. The complainant followed her. At Mugwira's place, the complainant raised a storm. Mugwira's efforts to calm him down were fruitless. The accused, his younger brother, and their father, Some Jim [“Jim”], arrived at the scene, shouting. They carried a knobkerrie. The State Outline does not say who in particular carried the knobkerrie.

There was a slight variation in the facts. The State Outline said when Some Jim and his sons arrived, Emmanuel Mugwira asked them to leave. But when canvasing the essential elements, and in mitigation, this was not quite the version that came out. The accused said following an exchange of words, the complainant assaulted Some Jim.

There was another slight variation on what happened next. The State Outline said after Emmanuel Mugwira had asked him and his sons to leave, Some Jim approached the complainant and tried to strike him with a knobkerrie. It said Some Jim fell down together with the complainant. Some Jim asked his sons to help him. It was then that the accused allegedly took the knobkerrie and struck the complainant twice on the head. The complainant fell unconscious. Some Jim and his sons are said to have left together. But, in court, this is not what was said to have happened. The exchange between the court and the accused, in canvassing the essential elements, was this:

“Q Correct, whilst thereat [i.e. at Mugwira's place] your father and complainant had an exchange of words?

A Yes.

Q Correct, complainant assaulted your father with clenched fists and booted feet?

A Yes.”

There was yet another variation in the facts. The State Outline said after the accused had struck the complainant unconscious, Regina Jim poured water on him. They took him to his father. But in court the version was as follows:

“Q Correct, the father demanded his daughter Regina?

A Yes.

Q Correct, Regina joined your father and she cried for her child back?

A Yes.

Q Correct, complainant ran towards your father and further assaulted him?

A Yes.

Q Correct, you then assaulted the complainant with a knobkerrie on the head?

A Yes.”

In mitigation, the court asked the accused why he had assaulted the complainant in the manner alleged. His answer –

“He was assaulting my father who was not armed.”…,.

The accused pleaded guilty. But, by such answers, the court should have seen the red lights flashing. This was a case crying out for a plea of not guilty to be entered in terms of section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07]. It 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 trial court did not explore the variations in the facts. This shortcoming is further illustrated by yet another exchange with the accused. In this further exchange, the court was evidently trying to establish 'intention' [mens rea], an essential ingredient for a charge of attempted murder. The exchange went like this:

“Q Correct, by assaulting the complainant twice in the head with a knobkerrie you intended to kill him?

A No…,.

“Q Correct, by assaulting complainant twice in the head with a knobkerrie you realised that there was a real risk or possibility that he might die?

A Yes.”

Evidently, by its first question above, the court intended to establish 'actual intention' [dolus directus]. Having hit a brick wall, the court swiftly changed course and sought to get the accused to admit 'legal' or 'constructive intention' [dolus eventualis]. It did.

The accused was not represented. The court did nothing to assist him. At best, it was most perfunctory in its exploration of the essential elements. At worst, it sought to trap him. How could the unrepresented accused, an unsophisticated young peasant farmer, have been expected to decrypt that the court's second question above sought to establish dolus eventualis? Did he really know what he was saying “Yes” to?

The law behoved the learned magistrate to have taken the version of facts most favourable to the accused. His answers depicted some possible defences. It was incumbent upon the court to have made an effort to decipher those defences.

In a nutshell, the accused's defence was that he assaulted the complainant because he was assaulting his father. He was not saying his assault of the complainant was out of revenge. Rather, it was to stop the complainant. The court should have deduced the defence of person, as defined in section 253 of the Criminal Law [Codification and Reform] Act [Chapter 9:23] [“the Code”], or the defence of necessity, as contemplated by section 263 of the Code.

In the defence of person, in terms of section 253 of the Criminal Law [Codification and Reform] Act [Chapter 9:23], a person is excused if he commits a crime whilst, among other things, defending another person from an unlawful attack. An 'unlawful attack' is defined to mean unlawful conduct which endangers a person's life, bodily integrity or freedom…,. The complainant's assault on Some Jim had been on-going. It was an unlawful attack. At the very least, it endangered Some Jim's bodily integrity.

According to section 253 of the Criminal Law [Codification and Reform] Act [Chapter 9:23], the requirements for the defence of person, as it relates to the defence of another, are as follows:

(i) That the unlawful attack had commenced, or was imminent. In this case the attack had commenced and was ongoing.

(ii) That the accused's conduct was necessary to avert the unlawful attack and that he could not otherwise escape from, or avert the attack. The accused's striking the complainant in the manner he did was to stop the complainant from continuing to assault his father, Some Jim. Obviously the second rung of this requirement does not apply to his situation.

(iii) That the means used to avert the unlawful attack were reasonable in the circumstances. A knobkerrie is not an inherently dangerous weapon. Admittedly, the accused's blows landed on the complainant's forehead, a rather delicate part of the body. Although the medical report suggested that severe force was used, and that a permanent disability was likely to occur, it also ruled out the likelihood of any danger to life. Furthermore, the accused delivered only two blows. These inflicted no more than a cut and severe contusion [or bump] on the forehead.

(iv) That any harm or injury caused by the accused's conduct was to the attacker and not any third party; and that the harm was not grossly disproportionate to that liable to be caused by the unlawful attack.

Weighing proportions in matters of this nature calls for value judgment. Nobody can say how far the complainant might have gone in assaulting Some Jim if the accused not intervened. Therefore, without a proper investigation, it cannot be said the cut and the contusion on the complainant's forehead were disproportionate to the harm the complainant was likely to inflict on Some Jim.

According to section 263 of the Criminal Law [Codification and Reform] Act [Chapter 9:23], for necessity to be a complete defence, the requirements are broadly similar to those for the defence of person. They are these:

(i) That the harm which the accused sought to avoid would have resulted in, among others, the death or serious bodily injury to himself or another person;

(ii) That the accused believed, on reasonable grounds, that the harm had started or was imminent;

(iii) That the harm did not arise through his own fault;

(iv) That he believed, on reasonable grounds, that his conduct was necessary to avoid the harm and that there was no other feasible way of avoiding it;

(v) That by his conduct he did no more harm than was reasonably necessary to avoid the harm and that the harm he himself inflicted was not disproportionate.

Undoubtedly, the accused's conduct seemed to eminently fit all those requirements. The bottom line is that the court did not investigate at all.

Even if in spite of all the foregoing, the court still felt the accused was guilty of attempted murder, and beyond any reasonable doubt for that matter - which would be incredible. It should have noted that there were weighty mitigating circumstances. Among other things, the accused was provoked. Here was a brother-in-law who not only had been abusive to his wife, Regina, the accused's own sister, but was also now pounding his father-in-law, Some Jim, the accused's father.

According to section 238 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], whilst provocation is not a defence to a crime other than murder [to which it is a partial defence if certain conditions are met], nevertheless the court may regard it as mitigatory when assessing the sentence.

Furthermore, in terms of section 218 of the Code, diminished responsibility operates in mitigation of sentence. It is diminished responsibility if, among other things, at the time when the accused commits a crime, his capacity to appreciate that the nature of his conduct is unlawful, is diminished on account of, among other things, acute mental or emotional stress. The court takes into account diminished responsibility when imposing sentence. In the present case, it must have been emotionally stressful for the accused to witness the complainant assaulting those close to him.

The accused should have simply been charged with assault as defined in section 89[1] of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. If the State had insisted on proceeding with the charge of attempted murder, then, after canvassing the essential elements, and if in spite of what is said above, it was still bent on convicting, the court could have passed a verdict of guilty of assault. In terms of the Fourth Schedule to the Criminal Law (Codification and Reform) Act [Chapter 9:23], as read with section 275, assault is a permissible verdict to attempted murder….,.

In light of what is said above, the court a quo should not have convicted the accused on either attempted murder or common assault….,.

In the circumstances, the conviction of the accused in the court a quo is hereby quashed.

An accused person ought to appreciate what offence he is being accused of, and what penalty, if prescribed, he is liable for….,.

The charge of culpable homicide in Count Two arose because of the death of the deceased. The particulars of negligence were framed thus:

“[i] Drive [sic] motor vehicle without a driver's licence;

[ii] Fail [sic] to observe some statutory provisions, that is to say, allowing passers [sic] to ride on wings.”

In S v Chitepo HMA03-17, such carelessness in the framing of criminal charges in criminal matters drove me to remark as follows:

“I caution, in passing, that great care and precision should always be taken and exhibited in the drafting of criminal charges and the handling of criminal matters. Criminal proceedings affect some of the fundamental human rights and freedoms enshrined in the Constitution, namely, the right to liberty and even the right to life.”

Driving a motor vehicle without a valid driver's licence, whilst criminal, is not negligence per se. Some unlicensed persons are quite competent as drivers. Prosecutors should be careful not to conflate the crime of driving a vehicle without a valid driver's licence with the crime of culpable homicide, the bedrock of which is negligence.

The one defect in the charge in Count Two was that the particulars of negligence did not specify the statutory provisions the accused allegedly failed to observe when he allegedly allowed passengers…, “…, to ride on wings.” Undoubtedly, it was negligence for the accused to permit, as the driver, and, therefore, the person in charge of the vehicle, persons to sit on the wings of the loaded trailer as he drove the tractor. The danger was obvious. This was a factor of negligence that should have been framed with precision.

The accused was initially facing the charge of murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. However, he was convicted of the permissible verdict of culpable homicide as defined in section 49 of the Criminal Code [Chapter 9:23] after the State and the defence agreed that it is the appropriate charge.

The appellant was convicted on one count of armed robbery by the Regional Court sitting at Harare. He had been charged with two Counts of armed robbery of two motor vehicles. He was, due to lack of evidence, acquitted on the other Count….,.

At the hearing of the appeal, counsel for the respondent conceded that the Regional Magistrate erred when he convicted the appellant of armed robbery when there was no evidence linking him to the robbery. Counsel for the appellant agreed with counsel for the respondent that the appellant should have been convicted of receiving the motor vehicle knowing it to have been stolen.

The complainant in the Count for which the appellant was convicted only had 30 seconds in which he observed the robbers. Thereafter, he was ordered not to look at his assailants and a gun was pointed at his head. In the 30 seconds he said he observed that the robber who approached his motor vehicle from the right was short, dark and stout. It is common cause that the appellant does not fit that description. The complainant said the robber who approached his motor vehicle from the left was tall and slim. Again, the appellant does not fit that description.

It must be noted that the complainant did not have sufficient time to observe the robbers. His brief observation, which was split between the robbers on either sides of his motor vehicle, could not have founded the appellant's conviction even if the description he gave fitted the appellant. On the contrary, the complainant said he was not able to identify the appellant as one of the robbers.

In view of the above we were satisfied that the Regional Magistrate erred when he convicted the appellant of armed robbery in the absence of evidence identifying him as having been at the scene of the robbery. We therefore found that the concession made by counsel for the respondent was properly made.

Counsel for the respondent, in making the concession, submitted that the applicant should be convicted on the competent verdict of receiving stolen property knowing it to have been stolen. He said this was to be premised on the appellant being in possession of the stolen motor vehicle the next morning after it had been robbed from the complainant after 10:00pm the previous night. He further pointed out that the appellant's conduct, after taking possession of the motor vehicle, proves he knew it was stolen. He pointed to the following as proof of such knowledge;

(1) That the appellant used an illegal exit from Zimbabwe to Mozambique resulting in the motor vehicle being stuck in Mukumbura River.

(2) He gave Cst. Muchira incorrect information about his identity and that of the motor vehicle;

(a) He told Cst. Muchira that he was Victor Mujuru Chatibva.

(b) He showed him a driver's licence in the name of Victor Mujuru Chatibva.

(c) He gave an incorrect registration number and colour of the motor vehicle.

This proves the appellant did not want to be linked to the motor vehicle he had driven from Harare to Mukumbura River. This can only be because he knew the motor vehicle had been stolen.

Counsel for the appellant agreed with counsel for the respondent that the evidence proved that the appellant received the motor vehicle knowing it to have been stolen.

We were satisfied that the concessions made by counsel for both parties were properly made.