The State v Bernard Mukandawire

### Preamble
1
HB 19/21
HCAR 106/21
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THE STATE

versus

BERNARD MUKANDAWIRE

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO, 15 FEBRUARY 2021

Criminal review

DUBE-BANDA J: This matter was placed before me on automatic review. The accused person was arraigned before the Magistrate’s Court - Binga. He was charged with six counts; count 1, 2, 3 and 5 being unlawful entry into premises in aggravating circumstances as defined in sections 131(1) as read with 131(2) (e) of the Criminal Law [Codification and Reform] Act Chapter 9:23; count 4 being theft as defined in section 113(1) of the Criminal Law [Codification and Reform] Act Chapter 9:23; and count 6 being unlawful possession of articles for criminal use as defined in section 40(1) of the Criminal Law [Codification and Reform] Act Chapter 9:23. There is confusion and contradictions in respect of which counts accused pleaded guilty to and which count he pleaded not guilty and found not guilty and acquitted. What is clear though is that in addition to the sentence that he got, 58 months suspended under CRB BNG 109 / 13 was brought into effect.

On the 26 November 2020, a memorandum was addressed to the Registrar of the High Court, and it reads as follows:

The Deputy Registrar

High Court of Zimbabwe

BULAWAYO

Re: Reconstructed record: Bernard Mukandawire BNG 146/20: R 11/20: Binga Magistrates Court

We submit the above reconstructed record for review out of time. The original record was lost by Binga ZIMPOST through their courier service when in transit to Bulawayo High Court on the 30th of July 2020.

Efforts to retrace the mail yielded no results.

We then initiated a process to reconstruct the record.

May the reconstructed record be placed before a judge for review.

S.B. Chiwundura

Provincial Head

Matabeleland North Province

When the record is perused, it is evident that it is incomplete, in that it lacks essential parts of the respective proceedings. What is missing from this reconstructed record is the following: the plea recording in relation to those counts in which the accused pleaded guilty; the mitigation; aggravation and the reasons for sentence.

The presiding magistrate, the prosecutor and the accused deposed to affidavits, attempting to explain what happened during the trial. For completeness, I reproduce hereunder in full these three affidavits:

Affidavit

I, Urgent Vundla,

Residing at Binga Magistrate Court Box 21 Binga

Do hereby solemnly swear /declare the following:

The accused Bernard Mukandawire appeared before me on 24/07/20 Case No. BNG. 146/20 facing 6 counts, of which counts 1,2,3, and 5 where for unlawful entry into premises in aggravating circumstances as defined in section 131(1) (a) as read with section 131 (2) (e) of the Code Chapter 9:23. Count number 4, theft as defined in section 113 (1) of the Code Chapter 9:23.  Count 6 unlawful possession of articles for criminal use as defined in section 40(1) of the Criminal Law Code Chapter 9:23. Accused denied the first count for which a trial was conducted and accused was found not guilty and acquitted. As for counts 2, 3, 4, 5 and 6 where he pleaded guilty, essential elements where canvassed and I was satisfied by the explanation given by the accused that his plea of guilty was genuine, hence I convicted him in all the five counts. The affidavit deposed by the accused filed in the record does not reflect the true position of what transpired in court proceedings in question. The accused was found guilty in all the 5 counts on his own plea of guilty. He was a repeat offender. An extract of his previous conviction was produced by the state as an exhibit. Thus case No. BNG 109/13 and accused admitted to the previous conviction as it was also attached to the record of proceedings. Accused was given time to mitigate for himself. Accused was therefore sentenced as follows: counts 2, 3, and 5 to 3 years imprisonment. Count 4 - 2 years imprisonment and count 6 -1 imprisonment. Total 12 months imprisonment. In addition, 58 months’ imprisonment suspended on CRB 109/13 is brought into effect.

Affidavit

I, Quiet Mpofu

Do hereby solemnly and sincerely swear / declare the following:

On 24/07/20 at Binga Magistrates court, I prosecuted Bernard Mukandawire under number CRB BNG 146/20. He was facing 4 counts of unlawful entry into premises in aggravating circumstances, one count of theft and one count of possession of articles for criminal use. The accused pleaded guilty to counts 4, 2, 3, and 6. He pleaded not guilty to the fourth count of theft and a trial was conducted. The accused was found not guilty and acquitted. The accused was sentenced as follows: count 2, 3 and 5, 3 years imprisonment. Count 4 – 2 years imprisonment and count 6 one month imprisonment. In addition 58 months imprisonment suspended on CRB 109/13 was brought into effect.

Affidavit

I, Bernard Mukandawire

Do hereby solemnly and sincerely swear / declare the following:

What I know is that, I was sentenced to 16 years 8 months on 3 counts of unlawful entry into premises in aggravating circumstances. I was also sentenced to 1 year imprisonment on a charge of theft, where it is alleged that I stole a bolt cutter. However, I know nothing about all these offences. I never went to school of which I want a legal practitioner to represent me because I no longer know what is taking place.

It is clear from the memorandum quoted above that the original record was lost and could not be found. A lost or destroyed record of proceedings can be reconstructed. See:  Jonathan Mutsinze v State CCZ 13/2015. Where, as in this case, the accused has pleaded guilty, found guilty and sentenced and the record is irretrievably lost prior to review by this court, the clerk of the court must by affidavit indicate that the record is irretrievably lost and should obtain from the presiding magistrate, witnesses and others present at the trial affidavits as to the contents of the record. The clerk of court must use these affidavits to reconstruct the record. Thereafter he must give both parties an opportunity to peruse the reconstructed record so they may give their version as well. This reconstructed record from the best available secondary evidence must be sent for review. See: S v S (A JUVENILE) 1991 (1) ZLR 237 (HC); Tendai Chihera versus The State HH 118/20. It would be particularly valuable if the clerk of the court performed his task under the direction and supervision of a magistrate, not necessarily but preferably the presiding magistrate. See: S v Whitney & Anor 1975 (3) SA 453 (N) at 455; S v S (A JUVENILE) (supra).

In S v Zenzile 2009 (2) SACR 407 paragraph 21, the court specifically ruled that in an instance where the magistrate had been informed by the clerk of the court that a portion of the record could not be found, the court should have directed the clerk of the court to inform all interested parties, being the accused, and the prosecutor, of the inadequate record. Thereafter a date for the parties to assemble in an open court in order to jointly undertake the proposed reconstructions of the record, should be arranged. In S v Whitney & Anor 1975 (3) SA 453 (N) at 455 the court said the reconstruction of a trial record can seldom be entirely satisfactory and whichever procedure is adopted in an attempt to achieve a reconstruction has its own limitations. See: S v S (A JUVENILE) (supra).

The clerk of court has attached the affidavits deposed to by the presiding magistrate, the prosecutor and the accused. This court reviews a record of proceedings. It does not review affidavits of those who were concerned with the trial. The affidavits of those concerned with the trial facilitates in the preparation of the reconstructed record.

Notwithstanding the general limitations associated with a reconstructed record, this one is seriously inadequate. It is inadequate for the purposes of a review by this court. It only contains a review cover; the charges; the state outlines; the three affidavits reproduced above; proof of a previous conviction and the following written notes:

P – count 1

Not guilty

Counts 2,3,4,5 and 6

Guilty 271(2)(b) of CPEA

V – count 1

Not guilty and acquitted.

Count 2,3,4,5 and 6

Guilty as charged

Se – count 2,3 and 5

3 years imprisonment in each count

Count 4

2 years imprisonment

Count 6

1 year imprisonment

Total 12 years imprisonment

In addition 58 months imprisonment suspended under CRB BNG 109/13 brought into effect.

24 -06-2020

Furthermore, the affidavits deposed to by those concerned with the trial are themselves not satisfactory. In his affidavit, the presiding magistrate says the accused was sentenced to a total of 12 months imprisonment. This averment by the magistrate contradicts the data in the review cover and the handwritten notes, where it is said the accused was sentenced to 12 years imprisonment. Again the prosecutor says in count 6 accused was sentenced to one month imprisonment, which contradicts the information in the review cover and the handwritten notes, which say in count 6 he was sentenced to one year imprisonment. The presiding magistrate says in count 6 accused was sentenced to 1 imprisonment, is not known whether is 1 month or 1 year. The prosecutor does say how the accused pleaded in count 5, he mentions this count only when discussing sentence.

Again on the review cover, it is recorded that count 1: not guilty and acquitted.  In the written notes it is recorded that count 1, plead not guilty, verdict not guilty and acquitted. In his affidavit the magistrate reaffirms this position, he says “accused deny the first count for which a trial was conducted and accused was found not guilty and acquitted.” In his affidavit the prosecutor avers that the accused pleaded guilty to counts 4, 2, 3, and 6. He goes on and says “he pleaded not guilty to the fourth count of theft and a trial was conducted. The accused was found not guilty and acquitted.” According to the presiding officer, the accused pleaded guilty to count 1, being unlawful entry into premises in aggravating circumstances. The prosecutor is talking about the 4th count, and he actually says the theft count, is clear that the two are contradicting in respect of the count in which the accused pleaded guilty. The prosecutor does not say how the accused pleaded in count 5. He says the accused was sentenced as follows: count 2, 3 and 5, 3 years imprisonment. Count 4 – 2 years imprisonment and count 6 one month imprisonment. There is serious confusion here.

Furthermore, the prosecutor contradicts himself in his affidavit, and now say “count 4 – 2 years imprisonment and count 6 one month imprisonment.” He contradicts himself because in the same affidavit he says accused “pleaded not guilty to the fourth count of theft and a trial was conducted.” He is literally confused about what happened to the fourth count of theft. Again to add to the contradictions and confusions, the magistrate says, “count 4 – 2 years imprisonment and count 6 – 1 imprisonment. Total 12 months imprisonment.” It is not clear whether in count 6 is one month or I year, this confusion is compounded by the fact in his affidavit, the prosecutor says in count 6 accused was sentenced to one month imprisonment. Though according to the written notes, in count 6, he was sentenced to 1 year imprisonment.  The prosecutor does not talk about count 1 at all. These contradicting averments are made under oath.

In his affidavit, the accused says what he knows is that he was sentenced to 16 years 8 months on three counts of unlawful entry into premises in aggravating circumstances. It is either he was not explained to, or he did not understand that the 4 years 8 months was brought into operation from a suspended sentence in CRB BNG 109/13. He talks of three counts, but he was actually convicted and sentenced for five counts. The accused depositions, viewed in conjunction with the contradictions highlighted above, and in particular that the prosecutor does not talk about what happened in respect of count 1, and does not say whether accused pleaded guilty to count 5, adds confusion as to what exactly transpired in court proceedings.

Again accused avers that he knows nothing about these offences, he did not go to school and he needs legal representation. In his affidavit the presiding magistrate disputes what the accused says, this factual dispute could have been put to rest by reconstructing a complete record.

In Jonathan Mutsinze v State CCZ 13/2015, the Constitutional Court ordered the reconstruction of the missing record. This was possible because all the parties were agreed that the transcript of the proceedings that was prepared using Mrs Ziyambi’s trial notes was correct. It was agreed that the transcript captures what happened during the trial proceedings up until the close of the defence case. Again, in the Mutsinze case, at a conference held in the presence of both parties, the trial judge had indicated that he was in a position to reconstruct the remaining portion of the record of the proceedings. The court also found that moreover the circumstances surrounding the commission of the offences were not seriously in dispute. The court concluded that a re-construction of the remaining portion of the record was possible. In R v Nortje 1950 (4) SA 725 (E), where the accused pleaded guilty, was found guilty and sentenced and before the record could be sent it was lost, the court ordered the clerk of court to submit the best secondary evidence. In  R v Masemang 1950 (2) SA 488 (A), where the record of evidence was lost, the Appellate Division determined the appeal with the agreement of the parties on the notes of the judge at the trial and a reconstructed record and held that this constituted an adequate and satisfactory secondary evidence upon which an appeal could be heard.

In casu, considering what has been stated above, it will serve no useful purpose to send this matter back to the clerk of the court with an instruction that the record should be reconstructed. It is clear that it is impossible to properly reconstruct this record. I hold this view because in the affidavits before me, the presiding magistrate and the prosecutor contradict each other and also self-contradict in respect of what transpired during the court proceedings. Furthermore, the accused disputes that he committed the offences upon which he was convicted on a plea of guilty. On the facts of this case, I cannot conclude that a re-construction of the remaining portion of the record is therefore possible.

Reviewing court proceedings of the magistrates’ court is not a matter of form, but of substance. I take the view that the automatic review procedure fulfils an important function in the criminal justice system. The Constitutional right to a fair trial includes the right to review.  See:  Potifa Sakawa versus The State HH 262/20. Without the surveillance and control of the automatic review procedure the constitutional principle of a fair trial will be jeopardised. The automatic review procedure ensures that an unrepresented accused receives a fair trial, and ensures the validity and fairness of the conviction and sentence.  A determination whether the proceedings were held in accordance with justice can only be made on the basis of a proper record of the proceedings or, in those rare instances where the whole or portion of the record is missing, on the basis of a properly reconstructed record. See: Gora and Another v S (A131/09) [2009] ZAWCHC 145; 2010 (1) SACR (WCC) (15 September 2009).

In this matter there is no properly reconstructed record. As a result, this court does not know whether the accused was informed, at the commencement of the proceedings of his right to legal representation. See: The State v Zvidzai Manetaneta HH 185-20; Potifa Sawaka v The State HH 262-20; and the Namibian case of James Gadu v The State 2004 (1) NCLP 48. Even the presiding magistrate in his affidavit does not say he warned the accused of his right to legal representation. The court does not know whether the essential elements were correctly put to the accused and the answers he gave. This court is in the dark about questions put to the accused and the answers he proffered. See: S v Nyambe 1978 (1) SA 311 (NC) 312; S v Philander 1977 (2) PH H124 (NC). In S v Lebokeng1978 (2) SA 674 (O). The court is in the dark about what mitigatory and aggravating factors were taken into account in considering sentence. The reasons for sentence are not in the record. This court does not know the reason some of the counts were not taken as one for purposes of sentence, or not made to run concurrently.

Even if for a moment this court were to overlook (I am not prepared to overlook such) the confusion and the contradictions manifest in between the affidavits deposed by the presiding magistrate and the prosecutor, there is still serious shortcomings. How does this court, on these papers reject the accused version, that “I know nothing about all these offences. I never went to school of which I want a legal practitioner to represent me because I no longer know what is taking place.” Again, how does this court review affidavits deposed by the presiding magistrate and the prosecutor? To me the magistrate and the prosecutor clearly misunderstood the purpose of affidavits in the reconstruction of a record. To me either way it is looked at, these proceedings are doomed.

In the case of completed proceedings, in the absence of the record (original or reconstructed) the conviction and sentence will be set aside where it is found that the absence of a record would frustrate the accused’s rights to a review. See: S  v  Sebothe and Others 2006 (2) SACR 1 (T) para [8];  S  v  Collier 1976 (2) SA 378 (C);  S  v  Mcophele 2007 (1) SACR 34 (E);  S  v  Miggel 2007 (1) SAVR 675 (C);  S  v  Talenyane 2006 (2) SACR 153 (O);  S  v  Appel 2004 (2) SACR 360 (E). Such a finding and order will, however, only be made once it is clear that the record cannot be reconstructed and that the accused is not to blame for that fact.  S  v  Ntantiso and Others 1997 (2) SACR 302 (E);  S  v  Leslie 2000 (1) SACR 347 (W) at 353D-E;  S  v  Van Staden 2008 (2) SACR 626 (NC), [2008] 3 All SA 476 (NC). In this case, the accused is not to blame for such an eventuality, and that the record cannot be reconstructed. The absence of a complete reconstructed record would frustrate the accused’s rights as regards to have the proceedings reviewed. The unavailability of the record is no fault of the accused.

This unavailability of the record has frustrated the accused’s right to have his case reviewed by this court, there has been a failure of justice and the conviction cannot stand.  See: S v S (A JUVENILE) (supra). In S v Mankaji & Ors 1974 (4) SA 113 (T), where the record  required for automatic review was lost and the best secondary evidence could not be assembled, the court set aside the conviction and sentence since a proper review could only take place if a complete and correct record of proceedings had been submitted to a judge.  In this case, the reconstructed record lacks material portions to the extent that this court cannot adequately review the convictions and the sentences.  The conviction and sentence must be set-aside. In such a matter it is not permissible to refer the matter back to the trial court for a de novo. See in this regard the decision of S v Fredericks 1992(1) SACR561(C).  It was held in the leading case of R v Wolmarans & Anor 1942 TPD 279 that no retrial could be ordered where the record is lost after the completion of the hearing, but before it could be reviewed. I therefore, cannot order a trial de novo.

I therefore quash the convictions as well as the sentence of 12 years imprisonment imposed by the trial court. The accused is entitled to his immediate release and a warrant of liberation is hereby issued.

In the premises the following order is made:

The convictions and sentences are set aside.

Makonese J ………………………….. I agree