The State v Butholezwe Sibanda and Bongani Sibanda

### Preamble
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HB 284/20
HCAR 2115/20
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THE STATE

Versus

BUTHOLEZWE SIBANDA

And

BONGANI SIBANDA

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 1 DECEMBER 2020

Criminal Review

DUBE-BANDA J: This matter was placed before me on automatic review. The two accused persons, Mr Butholezwe Sibanda (accused 1) and Bongani Sibanda (accused 2),  appeared before a Provincial Magistrate at Tredgold Magistrate’s Court, Bulawayo, charged with two counts of contravening section 131 of the Criminal Law [Codification and Reform] Act Chapter 09:23. In count one, it is alleged that on a date unknown to the prosecutor between the 28 August 2020 and 12 September 2020, and at Plot 189, Montgomery, Bulawayo either Butholezwe Sibanda or Bongani Sibanda or both of them unlawfully and with intent to steal, stole property namely, RYOB1RG-6900K petrol generator, green concrete wheelbarrow, an axe and shovel - belonging to Charles Kamusoko. In count two, it is alleged that on a date unknown to the prosecutor between the 28 August 2020 and 12 September 2020, and at Plot 189, Montgomery, Bulawayo either Butholezwe Sibanda or Bongani Sibanda or both of them unlawfully and with intent to steal, stole property namely, a green 25 000 litre Jojo tank, belonging to Tamsanqa Donga.

Accused 1 pleaded guilty to both counts, and was so convicted, while accused 2 pleaded not guilty to count one and guilty to count two, he was accordingly found not guilty and acquitted on count one and convicted on count two.  In respect of  accused 1, both counts were treated as one for purposes of sentence, and he was sentenced to twenty-four  months imprisonment of which six months imprisonment were suspended for five years on the usual conditions of good behaviour. The remaining eighteen months were suspended on condition the accused completed 630 hours of community service. In respect of accused 2, he was sentenced to twelve months imprisonment of which three months imprisonment were suspended for five years on the usual conditions of good behaviour. The remaining nine months were suspended on condition the accused completed 315 hours of community service.

Accused one pleaded guilty to the two counts of theft. I take no issue with the proceedings in count two, however I take issue with the proceedings in count one. In canvassing essential elements in relation to count one, the following occurred:

Q. 	Correct on a date unknown to the prosecutor but between 28 August 2020 and 12 September 2020, you took a RYOB1 RG-6900K petrol generator, green concrete wheelbarrow, an axe and shovel, property belonging to Charles Kamusoko?

A 	....

Q. 	Correct you did so without the knowledge and consent of the owner of the property?

A	 ...

Q. 	What did you intend to do with the property?

A	 ....

Q. 	Admit that you intended to deprive complainant permanently of the said property?

A	…

Q. 	Any defence?

A	…

Q. 	Is your plea of guilty a genuine admission charge, facts and essential elements as explained to you?

A. 	Yes.

Guilty as charged.

Accused 1 did not, apart from answering a “yes” to the last question, answer to the questions put to him in the process of canvassing the essential elements of count one. The Magistrates’ Court is a court of record.  The record must be complete and tell a full and accurate story of what transpired in court. In relation to the essential elements of the crime, the record should contain all the questions and answers. In cases where only questions are recorded, the record is incomplete. In fact the only conclusion is that the questions were not answered. It is an irregularity for a court to convict without the accused’s answers. In casu, the irregularity is ex facie the record. The canvassing of the essential elements was not complete without the accused persons answering to the questions put to them.

Generally speaking, where an accused pleads guilty at his trial there is no issue between him and the State and he may be convicted and sentenced, there and then, on his plea. However, it is a peremptory requirement that the judicial officer must question the accused with reference to the alleged facts of the case in order to ascertain whether he admits the allegations in the charge to which he has pleaded guilty. The questioning has a two-fold purpose: firstly, to establish the factual basis for the plea of guilty and, secondly, to establish the legal basis for such a plea. Section 271(2) (b) of the Criminal Procedure and Evidence Act [Chapter 9:07], not only requires a series of admissions but also the facts upon which those admissions are based. From this factual basis the court must be satisfied as to the guilt of the accused. This procedure must be applied with caution. See S v Van Deventer 1978 (3) SA 97 (T) and S v Phikwa 1978 (1) SA 397 (E). The magistrate’s questions must be directed at satisfying himself that an accused fully understands all the elements of the charge when pleading guilty and that his answers reveal that he in fact committed the actual offence to which he has pleaded guilty. The primary purpose of this questioning is to protect an accused from the consequences of an incorrect plea of guilty. Again, it satisfies the court not only that the offence was committed but that it was the accused who committed it. 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), it was stressed that the court should be satisfied not only that the accused committed the act but that he committed it unlawfully with the necessary mens rea.

Failure to comply with the peremptory requirements of section 271(2) (b) of the Criminal Procedure and Evidence Act, and of the jurisprudence developed in respect of this section may result in the conviction and sentence being set-aside. If, in the course of questioning of the accused, it appears that his answers are not an unequivocal admission of guilt, the court should enter a plea of not guilty, and proceed with the trial. See S v Mabaso 1980 (2) SA 20 (N); S v Sibiya 1980 (2) SA 457 (N). In casu, the accused did not answer the questions put to him. On the facts of this case, it was grossly irregular to return a verdict of guilty against this accused.

Our courts' primary aim in criminal cases is to ensure substantial justice. Substantial justice ensures that an accused person gets a fair trial and that an innocent person is not punished and that a guilty person does not escape punishment. See S v Van den Berg 1995 NR 23 (HC) at p 32 to 33.

In conclusion, I find that the failure by the trial court, to record whatever answer was given by accused 1 during the canvassing of essential elements in relation to count one 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 in relation to count one were not in accordance with real and substantial justice, as a result, a substantial miscarriage of justice has actually occurred. The conviction of accused 1 on count one cannot stand.

As pointed out supra, the court a quo in respect of accused 1, took both counts as one for purposes of sentence. I take the view that the sentence in respect of accused 1 must be set aside, and the matter be remitted to the court a quo, in terms of section 29 of the High Court Act [Chapter 7:06], for the trial magistrate to do the following:- deal with count one in terms of the requirements of the law. If the accused is convicted, then he be sentenced for the two counts, i.e. counts one and two. If accused is found not guilty and acquitted on count one, then he may be sentenced on count two.

In the result, I order as follows:

The conviction and sentence of accused 2 is and hereby confirmed.

The conviction of accused 1 in relation to count one is quashed and the sentence in both counts one and two is set aside.

The case of accused 1 is remitted to the court a quo to do the following:

Deal with count one in terms of the requirements of the law.

In the event accused 1 is convicted of count one, the two counts, be taken as one for the purposes of sentence.

If he is found not guilty and acquitted on count one, he must be sentenced in relation to count two.

Whatever sentence the court a quo imposes, it must factor in the period of community service already served.

Kabasa J ……………………… I agree