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 24th
July 2012. He faced one count of unlawful entry and a further count of
theft….,.
On
the 8th 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 21st 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 5th 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 16th 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 24th 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 26th 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 26th 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.
I
accordingly dismiss the application.
