The appellant was arraigned before a Zvishavane Magistrates Court on an alleged contravention of section 114(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], that is to say, one count of stock theft.Following his tendering of a plea of guilty, the appellant was convicted by the trial court ...
The appellant was arraigned before a Zvishavane Magistrates Court on an alleged contravention of section 114(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], that is to say, one count of stock theft.
Following his tendering of a plea of guilty, the appellant was convicted by the trial court in terms of the provisions of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].
The appellant was sentenced to a term of 9 years imprisonment which is the minimum mandatory penalty provided for in the penal provision of the section under which he was charged.
The court failed to find any special circumstances after going through a detailed explanation of what amounts to special circumstances.
The appellant must have come to terms with the gravity of the sentence and subsequently filed a Notice of Appeal against both conviction and sentence.
The appellant framed his grounds of appeal in the following terms:
“Notice of Appeal
The court a quo erred in:
1. Conducting a trial and convicting appellant using a defective State Outline. The State Outline lacks essential elements of the offence. (sic)
2. Conducting a trial and convicting the appellant without satisfying itself that unrepresented accused understand the nature of the offence and the defences he may tender. (sic)
3. Convicting appellant on his own plea of guilty without ascertaining that the accused had applied his mind to the true import of the charge and was properly aware that anything he may wish to say on his behalf could not constitute a defence.
The court a quo misguided itself treating a plea of guilty as a reason to be cursory in the explanation of essential elements.
The court a quo merely paraphrased the definition of the offence, but, that cannot assist accused to understand the important of the elements, moreso if they are of technical legal nature such as “intent to deprive the owner permanently.(sic)
4. Failing to satisfy the requirements of section 271(2)(b) of the CODE thus rendering the conviction unsafe.
The scanty information contained in the magistrate's questions was a complete failure to achieve the object of the enquiry envisaged by section 271(2)(b) of the CODE.
It must be remembered, that, the enquiry is a mechanism to ensure, that, prior to the conviction, the magistrate satisfies himself, beyond doubt, that the accused's plea of guilty or admission to the charge is an unqualified or unequivocal and genuine plea.
The magistrate merely stated section 271(2)(b) which amounted to lip service failing dismally to be bona fide and proper to the prejudice of the accused. (sic)
5. Failing to conduct any inquiry into the existence or otherwise of special circumstances.
The court a quo misdirected itself in only defining special circumstances which can be held to be just lip service.
That alone, was a glaring irregularity.
What is conspicuous is the absence of any evidence that he carried out an investigation on the question notwithstanding his restatement and paraphrasing of the definition thereof. It would appear that the magistrate was either unaware of the need to conduct an enquiry or was just a derelict of duty. Thus, without an enquiry into the existence or otherwise of the same, the trial court went on to sentence accused to the mandating minimum sentence. (sic)
Prayer
WHEREFORE, appellant prays that the conviction and sentence be set aside and he be found not guilty and acquitted.”
The brief allegations against the appellant, as borne out by the charge sheet, are that on a date unknown to the Prosecutor, but during the month of January 2013, and at village Chizvaure, Headman Shuku, Chief Masunda, Zvishavane, the appellant unlawfully took one bull knowing that the complainant was entitled to own, possess, or control the property or realising that there was a real risk or possibility that the complainant may be so entitled to own, possess, or control the property intending to deprive the owner permanently of his ownership, possession, or control of the said bull.
When the charge was put to the appellant, the following exchange took place between the trial magistrate and the appellant:
“Charge put and understood.
Plea – guilty section 271(2)(b).
Facts understood.
Q: Are the facts true and correct?
A: Yes.
Q: Any variations to make?
A: None.
Essential Elements
Q: Do you admit, that, on the date unknown to the Prosecutor, but during the month of January 2013, and at village Chizvaure, Chief Masunda, Zvishavane you stole complainant's bull in the alleged manner?
A: Yes.
Q: What did you want to do with the bovine?
A: To use it to plough.
Q: You admit that your intention was therefore to deprive the owner permanently of his bovine?
A: Yes.
Q: Any defence to tender?
A: None.
Verdict – Guilty as pleaded.
PP – He is a first offender.”
The transcript of proceedings indicates, that, immediately after the pronouncement of the guilty verdict, the trial magistrate recorded his explanation of the meaning of special circumstances in the following terms:
“Special circumstances means any extraordinary factor arising out of the commission of the offence or which is peculiar to the offence. A clear distinction must be drawn between special circumstances and mitigating features which are of general application, such as good character and peculiar hardship. The latter do not constitute special circumstances, nor co-operation on the part of the accused.
However, for example, the accused was forced by circumstances to commit the offence or was bona fide, ignorant of some statutory provision of the law, such factor could constitute not only mitigating factors but special circumstances.
Q: Have you understood my explanation?
A: Yes.
Q: Would you like to address the court on special circumstances?
A: I do not have anything to say except that I wanted to include the bull as part of my herd. I only have six bovines so I wanted to increase my herd.
Q: What I want you to address me on is whether there are any special circumstances in your case since I have explained the meaning of special circumstances to you.
A: No, there are no special circumstances in my case.
Q: You understand that a charge of stock theft involving the theft of a bovine carries a mandatory minimum sentence of nine years. You risk being incarcerated for that period if you fail to address the court on special circumstances.
A: I have nothing to say on special circumstances.”
The appellant was then asked to address the court in mitigation.
He indicated that he was 66 years old; he had seven children and was unemployed; he survived from peasant farming.
When asked why he had committed the offence, his final words were that he had erred. He wanted to use the beast for ploughing.
The allegations in the outline of the State case reveal, that, the appellant, had, upon stealing the bull, proceeded to castrate it and cut the tips of its horns thereby assuming full ownership of the bull.
I do accept, that, the appellant is an elderly man and that imprisonment would not be an ideal sentence for a man of his age. The trial magistrate did take this into consideration.
I am of the view, that, the court a quo properly canvassed the essential elements of the offence. This is supported by the record of proceedings.
The trial court properly ascertained that the appellant was pleading genuinely and unequivocally to the charge when it convicted him in the truncated trial procedure as provided for under section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].
The appellant's argument, that the State Outline was defective, has no merit and is not supported by a proper reading of the record of proceedings.
Further, there is absolutely no basis for the contention by the appellant, that, the trial court did not satisfy itself that the unrepresented appellant understood the nature of the offence he was facing.
The trial magistrate clearly explained all the essential elements of the offence and the responses from the appellant did not indicate that he had a defence to offer.
The magistrate did not summarily enter a verdict of guilty, but, not only explained the essential elements, but, extensively canvassed the issue of special circumstances.
Counsel for the respondent drew the court's attention to the case of State v Mudzingwa 1999 (2) ZLR 225.
In this case, the court held, that, in an appeal against conviction, where there has been a plea of guilty, an appeal against conviction will only be entertained where, from the words of the accused in pleading to the charge, it is demonstrated that the accused was raising some defence which could legitimately be raised to the charge.
See also the cases of S v Kwainona 1993 (2) ZLR 354 and R v Mamba 1957 (2) SA 420.
As I have already stated, in all the responses he gave in the court a quo, the appellant did not raise any issue that could, in the slightest degree, amount to a possible defence to the charge. In fact, he said he stole the bull because he wanted to increase his herd. That was his objective.
He castrated the complainant's bull and cuts its horns showing that he had assumed total and effective control over the bull in question.
In the case of S v Matimbe and Others 1984 (1) ZLR 283 the court indicated, that, it is our law, that, in recording an accused's plea of guilty under section 271(2)(b) of the Criminal Procedure and Evidence Act, the court must seek to satisfy itself whether or not the accused indeed understands and admits to the charge and the essential elements of the offence.
In S v Dube and Another 1988 (2) ZLR 385 (SC)…, the court pointed out, that, the purpose of the inquiry under section 271(2)(b) of the Criminal Procedure and Evidence Act is not to test the credibility of the accused person or to trap him into further submissions, but, simply to determine precisely what it is that he is admitting to.
It is patently clear that the appellant tendered a plea of guilty after the essential elements had been put to him.
The appeal against conviction is therefore futile, and, in my view, the appellant genuinely admitted having committed the offence.
The conviction on a charge of stock theft is therefore unassailable.
