Prisca Ncube and Swina Chamatumba and Joice Kako v The State

### Preamble
1
HB 187/20
HCB 239/20
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PRISCA NCUBE

And

SWINA CHAMATUMBA

And

JOICE KAKO

Versus

THE STATE

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO, 28 AUGUST & 10 SEPTEMBER 2020

Criminal review in terms of section 29(4) of the High Court Act [Chapter 7:06]

P. Mukono, for the accused

N. Ndlovu, for the respondent

DUBE-BANDA J: This matter came to this court as a bail application pending appeal. The applicants were convicted of contravening section 368 (2) as read with section 368 (4) of the Mines and Minerals Act [Chapter 21:05], i.e. prospecting for gold without a licence or permit by the Magistrate at Kwekwe Court on 12 June 2020.The allegations were that on the 2nd March 2020, at a bushy area near Gokwe Road, Kwekwe, the applicants were found prospecting for gold. The applicants were not holders of a prospecting licence authorising them to prospect for gold. The applicants pleaded not guilty to the charge. After the trial, all the accused were convicted and sentenced to the mandatory minimum sentence of two years imprisonment following a finding by the court that there were no special circumstances to warrant the imposition of a lesser penalty. The applicants were not legally represented at their trial. First applicant secured legal representation at sentencing stage. The record does not indicate that at the commencement of the trial the applicants were informed of the right to legal representation.

Aggrieved by both conviction and sentence the applicants filed a notice of appeal to this court. They then applied to the court a quo to be admitted to bail pending appeal, the application was dismissed. Aggrieved by the refusal of the court a quo to admit them to bail pending appeal, the accused persons appealed the refusal to this court. The appeal was placed before me, and I caused it to be set down for the 28 August 2020.

On perusing the file, I noted that the accused persons being without legal representation during the trial court did not comply with the provisions of section 163A of the Criminal Procedure and Evidence Act, [Chapter 9:07] in 2016. In terms of the provisions of section 163A aforesaid, the magistrate in any trial in the Magistrates Court must, before calling an unrepresented accused to plead to a charge, inform such accused of the accused’s right to legal representation or other representation as set out in s 191 of the same Act. The fact of the magistrate having informed the accused of such a right and the accused’s response must be recorded.

At the commencement of the hearing, I drew the attention of State counsel Mr Ndlovu and accused Counsel Mr Mukonoto the apparent omission by the trial magistrate to explain to the accused their right to legal representation as required by section 163A of the Criminal Procedure & Evidence Act as aforesaid. I also provided both Counsel with judgments of this court on this issue and requested them to address the court in respect of the failure of the trial court to comply with the provisions of section 163A.

After a brief adjournment Mr Ndlovu addressed the court and made the point that the failure to warn the unrepresented accused persons of their right to legal representation is an irregularity. He asked the court to invoke its review powers in terms of the section 29 of the High Court Act and review the proceedings. Mr Mukono merely repeated the submissions made by Mr Ndlovu.  As evident from the State counsel’s response, the State acceded to the disposal of the matter by way of a review.  Section 29 (4) High Court Act provides that:

Subject to rules of court, the powers conferred by subsections (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review.

The import of the provisions of s 29 (4) of the High Court Act is simply to promote and extend the supervisory role and review powers of the High Court over the Magistrates Court proceedings. This empowering provision caters for situations where it comes to the notice of this court or a judge of this court that criminal proceedings of an inferior court are not in accordance with real and substantial justice. This court or a judge of this court is empowered to review such proceedings notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review. See Potifa Sawaka versus The State HH 262-20.

A procedural irregularity contemplated by this section becomes the subject of adjudication when the court, of its own accord, decides to exercise its jurisdiction to review it. In the absence of a decision to that effect, the proceedings cannot be reviewed by this court under section 29 (4) of the High Court Act. In short, the decision of the court to invoke its review jurisdiction is a threshold requirement to review and to set aside or correct the impugned proceedings. See Schroeder and Another v Solomon and 48 others 2009 (1) NR 1 (SC) 8.

The section makes it clear beyond doubt that this court has jurisdiction to review proceedings of the inferior courts if they are tainted with an irregularity. It is also the view I take: that the court may only invoke its jurisdiction under the section if it appears to the court or any of its judges that there was an "irregularity" in the proceedings. See S v Bushebi 1998 NR 239 at 242E-G. The phrase "are not in accordance with real and substantial justice" as a ground for review relates to the conduct of the proceedings. Where the error is fundamental in the sense that the lower court has declined to exercise the function entrusted to it by the statute the result of which is to deny a party the right to a fair hearing, the matter is reviewable.

In casu, it is this court, sitting to hear an appeal against the refusal of the court a quo to admit the applicants to bail pending appeal that noted the irregularity in the proceedings of the trial court. The court came to a conclusion that the proceedings in the trial court are not in accordance with real and substantial justice. The court then invited Counsel to make submissions in respect thereto.The threshold requirement to invoke the review jurisdiction of this court in terms of section 29(4) of the High Court Act to set aside or correct the impugned proceedings has been met.

I take the view that what is impermissible in terms of section 29 (4) of the High Court Act is for any person to institute review proceedings anchored on this section. The section does not give a litigant a right to institute review proceedings under section 29(4). A litigant cannot approach this court and say “these criminal proceedings are not in accordance with real and substantial justice" invoke your review jurisdiction in terms of section 29(4). This is impermissible. Once the court or a judge has noted an irregularity, it may seek the views of counsel without offending the empowering provision.

In the Magistrate’s court the trial of the applicants opened in this way:-

Charge read and understood

State outline: read and understood

Provisions of s 188 - 189 of the Criminal Procedure and Evidence Act [Chapter 9:07] explained by court and understood.

After the alleged explanation which is said to have been understood, the accused persons presented their defence outlines. Nothing turns on the defence outlines. This matter turns on the failure of the trial court to inform the accused persons of their right to legal representation. Section 163 A (1) of the CPE Act says:

At the commencement of any trial in a magistrate’s court, before the accused is called upon to plead to the summons or charge, the accused shall be informed by the magistrate of his or her right in terms of section 191 to legal or other representation in terms of that section.

(2) The magistrate shall record the fact that the accused has been given the information referred to in subsection (1), and the accused’s response to it.

Section 191 of the CPE Act says “Every person charged with an offence may make his defence at his trial and have the witnesses examined or cross-examined—(a) by a legal practitioner representing him.”

By operation of s 163A (1) as read with s 191 of the CPE Act, at the commencement of the trial an accused must be informed, by the court of his right to legal representation. The magistrate shall record the fact that the accused has been informed of such right and his response must also be recorded. This is a peremptory requirement.

The Constitution of Zimbabwe Amendment (No. 20) Act 2013 (Constitution) guarantees every accused person the right to a fair trial, this includes the right to legal representation. The right enacted in the s 163A of the CPE Act is procedural. The substantive right is located in s 69 of the Constitution, which provides that every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum. Therefore, the right to legal representation is a right of substance, not form, and it is the cornerstone of a fair trial. In my view, the starting point in determining the fairness of a trial, as envisaged in s 69 (1) of the Constitution, should always be whether or not the accused is informed of his right to legal representation. He must be properly informed, and his answers recorded. So that if there is a waiver of such right, it would be an informed one.  See The State versus Zvidzai Manetaneta HH185/20;The State versus Maxwell Moyo and Leeroy Ndlovu HB 139/20.

The enquiry is whether the failure to inform the accused of his constitutional right to legal representation is an irregularity so fundamental and serious to the extent that it can be regarded as fatal to the proceedings in which it occurred. I am of the view that the failure to inform the accused of this right amounts to an irregular or illegal departure from those formalities, rules and principles or procedure in accordance with which the law requires a criminal trial to be initiated and conducted, and that such irregularity is fatal to the proceedings. It is an irregularity so fundamental that the court must set-aside the conviction without reference to the merits, and leave the issue to the Prosecutor-General to decide whether the accused should be retried.

A failure to comply with s 163A (1) of the Criminal Procedure Evidence, renders ensuing proceedings a nullity. The resultant consequence, which is undesirable but unavoidable, is that the proceedings in question stand to be quashed and set aside.

I take the view that magistrates in this jurisdiction must be trained, until it becomes second nature to them to warn the unrepresented accused persons who appear before them of the requirements of section 163A (1) of the Criminal Procedure & Evidence Act. See The State versus Maxwell Moyo and Leeroy Ndlovu HB 139/20.

In conclusion, the failure by a trial court, to inform the accused persons of their constitutional right to legal representation, is an irregularity that is fatal to the proceedings. In terms of s 29 (2) (b) (i) of the High Court Act, [Chapter 7:06], I find that the proceedings in the court a quo were not in accordance with real and substantial justice, as a result, a substantial miscarriage of justice has actually occurred. The conviction cannot stand.

In regard to the disposal of the appeal and the application for bail pending appeal  made by the applicants,  they must of necessity fall away as the main matter has been disposed of by way of review in terms of s 29 (4) of the High Court Act with the Prosecutor-General being agreeable to such a course. See Potifa Sawaka versus The State HH 262-20.

Disposition

In the result I make the following order:

The proceedings in case number  KK 420-28/20 are quashed and set aside as they were conducted irregularly on account of the failure or omission by the trial magistrate to comply with the peremptory provisions of s 163A (1) of the Criminal Procedure Evidence Act, [Chapter 9.07].

The applicants are entitled to their immediate release from custody. The release order and quashing of the conviction and sentence covers the applicant’s co-accused persons John Kwashira; Christine Taonezvi; Predencia Mirirai; Tatenda Nhete; Fadzai Gatsi and Handsen Sango.

The Prosecutor General retains this prerogative to cause the applicant and his co-accused to be tried afresh. If a new prosecution is instituted:

A different magistrate should preside over the trial.

The period of imprisonment served by the applicant and his co-accused up to the date of their release by virtue of this judgment should be factored into any sentence that the three may be sentenced to in the event that convictions ensue and terms of imprisonment are imposed.

This order disposes of case numbers HC 62/20 and HCB 239/20 and copy of the judgment shall be filed in both case numbers HC 62/20 and HCB 239/20.

Kabasa J …………………………………….I agree

Wilmot & Bennet c/o Dube  Mguni & Dube Legal Practitioners, applicants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners