Anywhere Chidembo v The State

### Preamble
1
HH 401-12
CA 704/08
CRB 4873-4/08
ANYWHERE CHIDEMBO
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ANYWHERE CHIDEMBO
versus
THE STATE

HIGH COURT OF ZIMBABWE
HUNGWE & MAVANGIRA JJ
HARARE, 19 July 2012 & 19 September 2012

Criminal Appeal

Ms M Kanende, for the appellant
J Uladi, for the respondent

HUNGWE J: The appellant was convicted of one count of theft as defined in s 113 of the Criminal Law (Codification and Reform) Act, [Cap 9:23] on his own plea of guilty on 8 July 2008. He was sentenced to 36 months imprisonment of which 6 months was suspended on condition of good behaviour. A further 6 months were suspended on condition that the appellant makes restitution in the sum of ZW$5,5 trillion by 31 December 2008 leaving an effective sentence of 24 months upon his compliance with the stated conditions. He appealed against both conviction and sentence.

The Attorney General has indicated that he does not support the conviction and has duly notified the Registrar of this court in terms of s 35 of the High Court Act, [Cap 7:06]. I deal with the matter in the general exercise of the review powers of this court.

A perusal of the record shows the reasons why the Attorney-General does not support the conviction. The learned trial magistrate failed to comply with peremptory provisions of s 271 (2)(b) of the Criminal Procedure and Evidence Act, [Cap 9:07].

In S v Kayimbanemoyo 1997 (1) ZLR 211 (H) at 216H-217D ADAM J said:

"Section 271(2)(b) of the Criminal procedure and Evidence Act lays down the procedure on a plea of guilty. It clearly provides that the court must explain to an unrepresented accused the charge and the essential elements of the offence and requires the prosecution to outline on what acts or omissions the charge is based by stating the facts of the case. Thereafter, the court must inquire from the accused whether he understood the foregoing and whether his plea of guilty constituted an admission of the essential elements of the charge.”

This admonition still stands today as it did when this court so succinctly repeated in previous cases.

In the instant case the magistrate put the question:

“Admit that on 2 July 2008 and at National Sports Stadium, Harare, you took the complainant’s property listed in the charge sheet?”

He confirmed the admission. This omnibus question was pregnant with several assumptions, for example, that accused knew that the complainant’s property comprised of the twelve public address system speakers listed in the charge sheet.

This question was put in spite of the fact that the agreed facts categorically state that the accused admitted to stealing only one public address system speaker and not the other eleven. Clearly the magistrate failed to make sure that the unrepresented accused was genuinely admitting to theft of all the speakers. The question was vague and all encompassing. The result was that the court proceeded to convict and sentence the accused on the wrong basis. When proceeding in terms of s 271(2)(b) of the Criminal Procedure and Evidence Act [Cap 9:07], the court is required to explain the charge and the essential elements of the offence to the accused and to inquire from him if he understands the charge and the essential elements and whether his plea of guilty is an admission of the elements of the offence and of the acts or omissions on which the charge is based. In accordance with s 271(3) this explanation and the results of the inquiry must be recorded. Magistrates should take care to ensure compliance with these important requirements. See S v Choma 1990 (2) ZLR 33 (HC).

In light of the above, the conviction is liable to be set aside and the sentence quashed. There is however another matter connected to this which is that another accused juvenile appeared jointly with appellant on this charge. He did not appeal. Presumably he served his sentence since the record reflects that only the appellant applied for bail pending appeal. He must benefit from this review of the whole matter since the remarks made here also apply in his case. In the result I make the following order.


“The conviction is set aside and the sentence is quashed in respect of both accused in CRB 4873-4/08. If the accused are once again prosecuted and convicted the sentence shall not exceed that imposed in the previous trial.”

MAVANGIRA J: I agree

Mutombeni Mukwesha Muzavazi & Associates, appellant’s legal practitioners
Attorney-General’s Office, respondent’s legal practitioners
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