Kholwani Luphahla v Mr N. Masuku N.O. and The State

### Preamble
1
HB 56/23
HC 2628/19
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KHOLWANI LUPHAHLA

Versus

MR N. MASUKU N.O.

And

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAAYO 26 JANUARY & 6 APRIL 2023

Review Judgment

MAKONESE J;	This matter was set down in motion court on the 26th January 2023.  It is a review application seeking the following relief:

“1.	The decision of the magistrate sitting at Lupane under case number LPN 166/19, wherein the applicant was convicted and sentenced to 9 years mandatory minimum sentence is hereby set aside and substituted with the following order:

“The trial be heard de novo before a different magistrate.”

2.	No order as to costs.”

The learned Judge who was sitting in motion court raised the competency of granting the relief sought as a single judge without the concurrence of another Judge.

On 16 March 2023 in a judgment delivered by KABASA J, she dealt with a similar application brought before her in motion court on the same day under HB-35-23.

It is observed that several applications of this nature have been placed on the motion roll.  The propriety of bringing such applications on the civil court roll in motion court presents difficulties to the court, regard being had to the fact that the court is essentially being asked to set aside a decision of the magistrate without the concurrence of another judge.

In terms of s29 (2) of the Magistrates’ Court Act (Chapter 7:06), it is provided that:

“If on a review of any criminal proceedings of an inferior court or tribunal, the High Court considers that the proceedings –

…

are not in accordance with real and substantial justice, it may, subject to this section –

alter or quash the conviction; or

reduce or set aside the sentence or any order of the inferior court or tribunal or substitute a different sentence from that imposed by the inferior court or tribunal.

…

…

remit the case to the inferior court or tribunal with such instructions relative to the further proceedings to be had in the case as the High Court thinks fit.

Provided that a judge of the High Court shall not exercise any of the powers conferred by sub-paragraph (i), (ii) or (iii) of paragraph (b) of subsection (2) unless another judge of the High Court has agreed with the exercise of the power in that particular case.”

This matter was removed from the motion roll, notwithstanding that the matter was unopposed in order to canvass the issues raised by the learned Judge, particularly the fact that a single judge in motion court may not properly deal with the relief sought without the concurrence of another judge.

This application was filed against the following background:

The applicant appeared before the 1st respondent, a Provincial Magistrate facing one count of possession of a python skin in contravention of section 45 (1) (b) as read with section 128 (1) (b) of the Parks and Wildlife Act (Chapter 20:14).  Applicant was not legally represented.  Applicant pleaded guilty and was duly convicted.

The following is what transpired in court:

“Q	Correct on the 29th of May 2019 and at your own homestead, Zijimu Village, Lupane you were found in possession of a python skin?

A	Correct

Q	Did you have any permit or licence for possessing or keeping a python skin?

A	None

Q	Any right to act as you did?

A	None

Q	Any defence to offer?

A	None

Q	Is you plea a genuine admission to the charge, the facts and the essential elements as put to you?

A	Yes.”

The court a quo then proceeded to enter a verdict of guilty.  It is trite that in recording an accused’s plea under section 271 (2) (b) (i) of the Criminal Procedure and Evidence Act (Chapter 9:07) the court must seek to satisfy itself that the accused’s plea is a genuine and unequivocal admission of the charge and the essential elements of the offence.  If at any stage, accused’s averments raised a possible defence to the charge, the trial court must alter the plea of guilty to Not Guilty so that the issues are ventilated at trial.  See S v Matimbe & Ors 1984 (1) ZLR 283.

On the facts of the present case, applicant averred in an inquiry under special circumstances that he had killed the python whose skin he was found in possession of, in his defence of property.  In particular applicant stated that he killed the python because he felt that it would attack and kill his goats.  The averment by the applicant revealed that he was raising a defence to the charge.  The state concedes that the learned magistrate in the court a quo ought to have altered the plea to one of Not Guilty.  I find this concession by the state to have been properly made.  On that basis alone the court erred and committed an irregularity when it failed to capture the defence that was being raised by the applicant.  The applicant did not go out of his way to acquire the python skin but was forced to kill the python to protect his animals.  Applicant went on to make a verbal report about the incident to his village head.

Even assuming that the defence being raised by the applicant did not succeed at trial, there would be special circumstances surrounding the commission of the offence warranting the imposition of a sentence other than the minimum mandatory 9 years imprisonment.  See S v Elias Damba HB-93-94.

Accordingly and in the result I make the following order.

The proceedings in the court a quo are hereby quashed and set aside.

The trial shall be heard de novo before a different magistrate.

Makonese J ……………………………

Kabasa J …………………………… I agree