Kennedy Masvaure v The State

### Preamble
1
HH 112-2005
HC 9242/03
CRB 12729/03
KENNEDY MASVAURE
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KENNEDY MASVAURE
versus
THE STATE

HIGH COURT OF ZIMBABWE
HUNGWE J
HARARE, 29 March 2006

Application for Review

HUNGWE J: This is an application by an accused in a criminal trial for a review of the decision of the Magistrate sitting at Harare dismissing his application to alter his plea from guilty to not guilty after verdict.

The accused had pleaded guilty to a charge of contravening section 27 of the Fire Arms, [Chapter 10:09] before the magistrate on 15 October 2003. The plea was dealt with in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act, [Chapter 9:07].

The accused was initially unrepresented.

The charge was put. He pleaded guilty. Agreed facts were read to the accused. He was questioned by the Magistrate thus:

"Q. Are the facts true and correct?
A. Yes.
Q. Any additions or subtractions?
A. None.

ESSENTIAL ELEMENTS

Q. Confirm on 4 October 2003 and at No. 7 Transel Green, Ascot Road, Harare, you unlawfully and negligently or recklessly discharged a fire arm?
A. Yes. We are now back and she wanted the charges dropped.
Q. Any right to do so?
A. No.
Q. Any defence?
A. None.


COURT: I find you guilty on your own plea." The matter was then adjourned to the next day for sentence. The next day accused appeared together with his legal practitioner. An application was made for the alteration of the accused's plea to one of not guilty.

The application was dismissed by the magistrate who held that there was no merit in the submissions by accused's counsel on his behalf.

Dissatisfied, accused sought a review of that decision by the court.

The grounds of review are stated as;

"(1) The ruling is grossly unreasonable in that the applicant erroneously entered the guilty plea in the absence of his legal practitioner who had been misled by the police as to the date of arraignment.

(2) The ruling flies in the face of the principles of natural justice given that applicant was convicted without following the procedure laid down in section 27(2)(b) of the Criminal Procedure and Evidence Act, [Chapter 10:09] (sic) despite the seriousness of the offence comes potential five (5) year prison term on conviction (sic). Had that been done, the court would have been made aware of the applicant's defence to the charge and not entered the guilty plea as it did." The accused filed an affidavit in supporting the application. In it he set out the history of the matter and makes other averments which are not apparent from the statement of agreed facts. In essence he claims that he was cheated by the police into going to court without his legal practitioner. He also claims that he was rushed through a trial in a perfunctory fashion that he did not realise he was pleading guilty to a very serious charge which may attract up to 5 years imprisonment.

The averments in the affidavit are clearly meant to substantiate the aforesaid grounds of review. The requirement to state clearly and briefly the grounds of review is spelt out the High Court Rules Order 33 Rule 257. A court application for review is subject to the ordinary rules of court as set out in Order 32. There was no compliance with the Rules nor was condonation for such failure explained. Even if an attempt was made to explain the failure to comply with the Rules I doubt that there could be a good explanation for it. In view of this serious defect, I decided to deal with the application in Chambers in terms of the High
 Court (Miscellaneous Appeals and Reviews) Rules 1975 as amended by S.I 13 of 1992.

An applicant for the alteration of a plea faces a stricter onus where the application is made after verdict.

See *S v Maseko* 1986(2) ZLR 52(S)

After a discussion of the law in this regard in both England and South Africa the learned Judge of Appeal remarked thus @ p 61G

"I conclude therefore that in spite of the conflict which appears to exist in the South African courts, the approach of our courts and the English courts to the question of onus in cases where an accused person after verdict seek to withdraw his unequivocal plea of guilty is that the accused is required to show, on a balance of probabilities, that the plea was not voluntarily and, perhaps one should add, correctly made. .............

It seems to me that there is a parallel between this situation and the situation where an accused person seeks to challenge a confirmed warned and cautioned statement. In terms of s242 (1a) of the Criminal Procedure and Evidence Act he is required to prove that the statement was not made freely and voluntarily. (*S v Ndhlovu* 1983(4) SA 507 (25) @ 510C). The onus is cast on him because he is in open court and under questioning by a judicial officer stated the opposite of what he now avers."

The procedure under section 271 involves an explanation of the essential elements of the offence by the magistrate. The magistrate is further required to inquire from the accused whether he understands the charge and the essential elements of the offence and whether his plea of guilty is an admission of the elements of the offence and of the acts or omissions stated in the charge, or by the prosecutor.

In the present case the magistrate in my view complied with the requirements of the provisions of section 271. She asked accused all the pertinent questions in order to satisfy herself that the plea was a genuine admission of the charge the facts and the essential elements. I find it dishonest for counsel to state that there was no compliance with section 271 when the record so clearly state the questions and answers as set out above. I cannot fathom what it is more that she accordingly to counsel, should have asked.

In my view the accused has failed to discharge the onus upon him on the balance of probabilities to show that his plea was not voluntarily and understandingly or correctly made. The accused makes this application to delay the day of judgment.


He cannot be allowed to do that. His fear that he faces 5 years imprisonment is not sufficient ground to discharge the onus.

I am satisfied that the trial magistrate correctly recorded a plea of guilty, properly returned it after taking the accused through the facts and the elements. The application is therefore dismissed.

*T K Hove and associated, Legal Practitioners, for the applicant*
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