After
hearing the parties' legal practitioners, we dismissed the appeal against both
the conviction and sentence and indicated that our reasons for doing so will
follow. These are our reasons.
The
salient facts of the case are the following.
The
appellant and his co-accused were convicted by a Bulawayo Regional Magistrate
of armed robbery on 3rd November 2008….,.
The
two were convicted after their pleas of guilty, canvassed in terms of section
271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. During
their plea recording, both admitted that on 27 September 2008 they had
approached the complainant, a taxi driver, at the Rainbow Hotel, Bulawayo. They
pretended that they were hiring the complainant's taxi for a fare. On entering
the vehicle they led the complainant to a spot in Parklands suburb. They
ordered the complainant to stop. They
suddenly produced knives, and, using violence, managed to overpower the
complainant and made off with the vehicle. The vehicle was taken to Goromonzi
in Mashonaland East Province. The vehicle was being stripped at the time of
recovery.
In
essence, the appellant wants the conviction to be quashed and sentence set
aside so that a fresh trial takes place before a different magistrate. He is
attacking the propriety of his guilty plea. This is what transpired when his
guilty plea was canvassed by the learned Regional Magistrate –
“Plea…,
Guilty Se 271(2)(b)…,.
Facts
read and explained
Marked
as Annexure “A”
Q
- Have you understood the facts…,.?
A
– Yes.
Q
- Do you have anything in the facts?
A
- No.
Q
- Do you have anything to add or subtract?
A
- No.
Q
- Do you agree with entire facts?
A
- Yes.
Essential
Elements
Q
- Correct, that on the 27th September 2008 you approached
complainant at 2100 hours who was on duty and parked at Rainbow Hotel,
Bulawayo?
A
- Yes.
Q
- Correct you hired the complainant?
A
- Yes.
Q
- Correct that the complainant then drove you two to Parklands, Bulawayo as your
instruction?
A
- Yes.
Q
- Correct that when the complainant was along St Faith Road, you ordered him to
stop?
A
- Yes.
Q
- Correct that the complainant then stopped the motor vehicle?
A
- Yes.
Q
- Correct that Accused 1 [not appellant] got out of the motor vehicle and went
to the driver's door?
A
- Yes.
Q
- Correct, that Accused 1 then produced a pistol?
A
- [Accused 1] I produced a US Walkman knife which looked like a gun…,.
Q
- Accused Two,[appellant] what were you doing when Accused One was pointing
this knife at the complainant?
A
- I was standing outside the motor vehicle just next to Accused One…,.
Q
- Correct that you demanded the complainant's cell [sic] phone?
A
- Yes.
Q
- Correct that you fought with the complainant?
A
- Yes.
Q
- Correct that the two of you overpowered the complainant?
A
- Yes.
Q
- Correct that you pulled the complainant out of the car?
A
- Yes.
Q
- Correct that you drove off the motor vehicle leaving the complainant behind?
A
- Yes.
Q
- Correct that motor vehicle was later recovered at Accused Oone's brother's
farm in Goromonzi?
A
- Yes.
Q
- Correct that the complainant's motor vehicle had been stripped?
A
- Yes.
Q
- Why were you using the knife?
A
- To scare the complainant.
Q
- What happened to the knife after using it?
A
- We threw it in front of Shangani Shops [i.e. about 100 kilometres from the
scene].
Q
- Correct that you intended to rob complainant of his vehicle?
A
- Yes.
Q
- Correct that the two of you were acting in common purpose to get the vehicle?
A
– Yes.
Q
- Did you have any lawful right to carry the knife to complainant's motor vehicle?
A
– No.
Q
- Did you have any lawful right to threaten the complainant with a knife?
A
– No.
Q
- Any defence to offer?
A
– No.
Q
- Is your plea of guilty a genuine admission of facts and elements as read to you?
A
– Yes.”
In
the face of such a question and answer dialogue between the Regional Magistrate
and the appellant the conviction cannot be faulted. There is no merit in the
appeal against conviction. It is not surprising that the appellant initially
appealed against sentence only. This plea was not induced by force, fear,
fraud, ignorance or mistake – S v Mudambi 1995 (2) ZLR 274 (S). Has an innocent
man been convicted? Or is there even any reasonable possibility that an
innocent man has been convicted?
The
answer to these two questions is in the negative.
The
conviction is unassailable – see also S v Muchamba 1992 (1) ZLR 102 (S) and S v
Matanhire 1992 (1) ZLR 336 (S).
