THE State V Luckson Bhuru

### Preamble
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HB 191/20
HCAR1322/20
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THE STATE

Versus

LUCKSON BHURU

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 8 SEPTEMBER 2020

Review Judgment

DUBE-BANDA J:Mr Luckson Bhuru (accused) appeared before a Magistrate at Gwanda Magistrate’s Court charged with two counts; firstly, with contravening section 131 of the Criminal Law [Codification and Reform] Act Chapter 09:23 “Unlawful entry.” It being alleged that on the 27 May 2020, and at Bunnysluky mine, West Nichoson, he intentionally and without permission or authority from Libenspurg Ndlovu the lawful occupier of the premises entered into Libenspurg Ndlovu’s bedroom through an unlocked door. Secondly, with contravening section 113 of the Criminal Law [Codification and Reform] Act Chapter 09:23 “Theft.” It was alleged that on the 27 May 2020, and at Bunnysluky mine, West Nichoson, he unlawfully took two pairs of jean trousers, one pair of snickers, one black leather satchel, two birth certificates, album of photos and sunny glasses (sic)belonging to Libenspurg Ndlovu knowing that the complainant was entitled to own, possess or control the said property or realising that there was a real risk or possibility that he may be so entitled to own, possess or control the property and intending to permanently deprive him of his ownership.

Both counts were treated as one for purposes of sentence, and he was sentenced to nine months imprisonment of which three months imprisonment were suspended for three years on the usual conditions of good behaviour. The remaining six months were suspended on condition the accused completed 210 hours of community service.

The record of proceedings was forwarded to the Regional Magistrate for scrutiny. The Regional Magistrate raised an issue in respect to the propriety of the procedure followed by the trial Magistrate, and ultimately the conviction. The Regional Magistrate then referred the record to this court, under cover of a letter which I quote in extensio, hereunder:

“The Registrar

High Court of Zimbabwe

BULAWAYO

RE: State v Luckson Bhuru GNDP 338/20

May the record of proceedings be placed before the reviewing Judge with the following comments.

The matter came to me by way of scrutiny. In the first count of unlawful entry the accused gave a response to the effect that he indeed entered the premises in question as he uses the room to sleep in. on raising a query with the trial magistrate on correctness of the conviction she indicated that she omitted to endorse properly on the record as it was supposed to reflect “used to” which is in the past tense.

I still hold the belief that the conviction is not proper seeing the record is not a true reflection of what transpired in court.

On the second query raised concerning the second count, the trial court indicated that the conviction was proper seeing the accused stole from a third party. Also I still hold the view that the conviction was not proper. The accused indicated that he was holding the property up until payment of his dues. This to me was an indication that he did not have the intention to permanently deprive the complainant which is an essential element of theft. I believe the charge should have been that of unlawful borrowing.

If the reviewing Judge is agreeable to my observations may corrective measures be taken.

Regional Magistrate”

In canvassing the essential elements, the following exchange took place between the Magistrate and the accused person:-

“Count one

Q	-	 Do you admit that on the 27 May 2020 at Bunnysluky mine, West Nichoson, you entered into Libenspurg Ndlovu’s house?

A.	-	 yes I did. It’s a room we use to sleep in.

Q	-	 Did you have permission from the complainant to enter his premises?

A. 	-	I had none.

Q. 	-	How did you gain entry?

A. 	-	I used the door the house is not yet complete.

Q. 	-	Any lawful right to enter into the house?

A. 	-	I had none.

Court: Found guilty as pleaded.

Count two

Q. 	-	Do you admit that on the 27 May 2020 at Bunnysluky mine, West Nichoson, after gaining entry into Libenspurg Ndlovu’s house you took two pairs of jean trousers, one pair snickers, one black leather satchel, two birth certificates, album of photos and sunny glasses?

A. 	-	Yes I did, I wanted his friend to pay me my money.

Q. 	-	Did you have permission from the complainant to take the property?

A. 	-	No.

Q. 	-	What did you do with the property?

A. 	-	I wanted to keep the items so that the sponsor could give me my money.

Q. 	-	Did you have any right to take the property?

A. 	-	I had none.

Q. 	-	Any defence to the charge?

A. 	-	None I took them.

Court. Found guilty as charged”.

The regional magistrate addressed a letter to the trial magistrate, for completeness I reproduce the relevant part of the letter, which says;

“The record was placed before me by way of scrutiny. The accused was convicted of two counts, that is, unlawful entry and theft. I however have concerns on the correctness of both convictions.

In canvassing the essential elements of unlawful entry it was put to the accused if he went to the complainant’s house. He answered in the affirmative and added to his response.

“Yes I did, it is a room that we use to sleep in.”

With such a response it was incumbent upon the trial court to probe further so as to find out what the accused meant by his response. His response suggested that he had a lawful right to enter the said premises as he used it for sleeping. The trial court however ignored that response and went to ask if the accused had permission to enter the said room of which he said he did not. Seeing he was a lay person did he fully understand what was happening? The question of whether he had permission or not vis a vis the response that had initially been given to the court was in my view meaningless as he had already suggested that he had permission to enter the said premises.

Is the conviction of unlawful entry proper under such circumstances?

On the second count, the court put to the accused what he did with the property, though I believe the question was meant to canvas the element of intention as to what he intended to do with the property. The accused responded to the effect that he intended to keep the property up until he was paid his dues. The response was a clear indication that the accused did not intend to deprive the owner permanently. This is even clear from his mitigation as he stated that he was to return the property after being paid his money. In light of the above can it be said that the theft conviction was proper?

From the onset the accused was charged with a wrong charge in view of the charge and the trial court was supposed to pick that from the responses given by the accused”.

The trial magistrate responded to the queries raised by the Regional Magistrate, I hereunder reproduce the relevant part of the reply:

“In canvassing the essential elements for the first count, where the accused gave a response to the effect that he entered a room they “use” to sleep in, it was on an omission on the part of the trial court, the accused spoke in the past tense that is the record should have reflected “Yes I did, it is a room that we ‘used’ to sleep in.”

On the second count the court convicted after taking into consideration that the accused stole or took the property from a third party. Complainant was not the sponsor but a friend of the sponsor. The court took it that the accused stole from an innocent third party and he admitted it”.

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. The presiding officer cannot start to add and explain what is not in the record. The record must speak for itself. The record must not be aided by evidence that is not in the record. I take the view that the explanation by the trial magistrate that “it was an omission on the part of the trial court, the accused spoke in the past tense, that is the record should have reflected, yes I did, it is a room that we ‘used’ to sleep in” is inconsequential. It serves no useful purpose. What is on record is that the accused said “yes I did. It’s a room we use to sleep in.”

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 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); S v Phikwa1978 (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 sectionmay 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 considering this matter, I factor into the equation that the accused did not have legal representation.  In terms of section 131 of the Criminal law [Codification and reform] Act, any person who, intentionally and without permission or authority from the lawful occupier of the premises concerned, or without other lawful authority, enters the premises shall be guilty of unlawful entry into premises. In a plea of guilty the accused’s answers must show that he intentionally and without permission or authority from the lawful occupier of the premises concerned, or without other lawful authority, entered the premises in question.

In count one, the accused is charged with the crime of unlawful entry, and by averring that “yes I did, it is a room that we use to sleep in,” he put forward a defence to the charge. If he was sleeping in the room in question, he could not have intentionally and without permission or authority from the lawful occupier of the premises concerned, or without other lawful authority, entered the house.  His response showed that he had a lawful right to enter the said premises as he used it for sleeping. Again, the answers he gave to the subsequent questions, do not defeat the fact that he alleged that he had a lawful right to enter that house. When a court is taking a plea of guilty to the charge, it is a peremptory requirement that it must be satisfied that the answers given by the accused show an unequivocal admission of guilt to the charge. If an answer given by the accused gives a signal that the accused might be alluding to a defence to the charge, that must be explored, and when the court remains in doubt that the plea is an unequivocal admission of guilt, then it must enter a plea of not guilty and the matter proceed to trial. A person cannot be convicted for entering into a house he ‘use’ to sleep in. In view of the fact that the plea procedure was not adhered to, the conviction and sentence on this count cannot be permitted to stand.

In terms of section 113 of the Criminal Law [Codification and reform] Act,  any person who takes property capable of being stolen; knowing that another person is entitled to own, possess or control the property or realising that there is a real risk or possibility that another person may be so entitled; and;  intending to deprive the other person permanently of his or her ownership, possession or control, or realising that there is a real risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control; shall be guilty of theft. It is an essential element of this crime of theft that they must be an intention to deprive the other person permanently of his or her ownership, possession or control, or realising that there is a real risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control of the property.

In count two, the accused was asked “what did you do with the property?” his answer is clear and unambiguous, he said “I wanted to keep the items so that the sponsor could give me my money.”The accused responded to the effect that he intended to keep the property up until he was paid his dues. The response was a clear indication that the accused did not intend to deprive the owner permanently. In his mitigation he said he intended to return the property once he was paid his money. The accused’s contention that he intended to return the property once he was paid his money is confirmed by some of the things he allegedly took, ordinarily why would one steal two birth certificates and an album of photos?  On the facts of this case, it cannot be said from the answers given by the accused that his intention was to deprive the complainant permanently of his ownership, possession or control, or realising that there is a real risk or possibility that he may so deprive the complainant of his ownership, possession or control of the property. Again, I take the view that it was incumbent upon the court to explore the relationship between this sponsor and the complainant. This was not done. It cannot be said that the accused’s answers demonstrated an unequivocal admission of guilt. This conviction and sentence cannot be allowed to stand.

I am therefore satisfied that a substantial miscarriage of justice occurred by reason of the failure by the trial court to properly canvass the essential elements in both count one and two, which amountsto a gross irregularity that vitiates the entire proceedings. The conviction and sentence cannot be permitted to stand.

Accordingly, it is ordered as follows: the conviction in both count one and two is quashed and the sentence in both count one and two is set aside.

Dube-Banda J ………………………….

Kabasa J ……………………………... I agree