THE State V Tinashe Mutemeri

### Preamble
1
HH 209-21
CRB. R329/20
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THE STATE

versus

TINASHE MUTEMERI

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE 26 April 2021

Criminal Review

MUSITHU J:	 This matter was brought to my attention for automatic review in terms of section 29 of the High Court Act. The accused, a 39 year old male was charged for contravening section 60A (3) (a) of the Electricity Act. The charge relates to the tampering “with any apparatus for generating, transmitting, distributing or supplying electricity with the result that any supply of electricity is interrupted or cut off”. The circumstances as set out in the charge sheet were that:

“In that on the 30th of August 2020 at number 4010 Ndlela Way Graniteside Harare. Tinashe Mutemeri unlawfully and intentionally tampered with apparatus for generating, transmitting, distributing or supplying electricity by tapering with and removing 01x400A, 03 x 315A, 02 x 200A, 01 x 250A fuses from a Zimbabwe Electricity Supply Authority substation, with the result that supply of electricity was cut off”

The accused person appeared before a Harare Regional Magistrate on 24 September 2020, and pleaded guilty to the offence. The court found that no special circumstances existed to warrant a departure from the minimum mandatory penalty stipulated in the Act and sentenced the accused person to 10 years imprisonment.

When the matter was placed before me, I noted that the learned magistrate may not have complied with the provisions of section 163A of the Criminal Procedure and Evidence Act (the Act).  Section 163A states as follows:

“163A Accused in magistrates court to be informed of section 191 rights

(1) At the commencement of any trial in a magistrates court, before the accused is called upon to plead to the summons or charge, the accused shall be informed by the magistrate of his or her right in terms of section 191 to legal or other representation in terms of that section.

(2) The magistrate shall record the fact that the accused has been given the information referred to in subsection (1), and the accused’s response to it.”

Section 191 provides that:

“191 Legal representation

Every person charged with an offence may make his defence at his trial and have the witnesses examined or cross-examined—

(a) by a legal practitioner representing him; or

(b) in the case of an accused person under the age of sixteen years who is being tried in a magistrates court, by his natural or legal guardian; or

(c) where the court considers he requires the assistance of another person and has permitted him to be so assisted, by that other person.”

On 9 November 2020, I wrote to the trial magistrate enquiring if the court had explained the section 191 rights to the accused. The letter reads as follows:

“RE: REVIEW MINUTE – STATE VS TINASHE MUTEMERI C.R.B. NO. R329/20

The above review record was placed before Hon Musithu J who commented as follows:

“Did the court inform the accused of section 191 rights as required by section 163A of the Criminal Procedure and Evidence Act [Chapter 9:07]?”

Yours faithfully

…………………

C. Hlongwana

For Registrar”

The learned trial magistrate responded on 23 December 2020 as follows:

“RE: REVIEW MINUTE – STATE VS TINASHE MUTEMERI C.R.B. NO. R329/20

May this record be presented to the Honourable Justice C. Hlongwana with my following comments:

Section 191 of the Criminal Procedure and Evidence Act, Chapter 9:07 reads as follows:

“Every person charged with an offence may make his defence at his trial and have the witnesses examined or cross-examined—

(a) by a legal practitioner representing him; or

(b) in the case of an accused person under the age of sixteen years who is being tried in a magistrates court, by his natural or legal guardian; or

(c) where the court considers he requires the assistance of another person and has permitted him to be so assisted, by that other person.

Section 163A- the accused to be told of his rights to legal representation. “At the commencement of any trial in a Magistrates Court before the accused is called upon to plead to the summons or charge, the accused shall be informed by the magistrate of his or her right in terms of section 191 to legal or other representation in terms of that section. The magistrate shall record the fact that the accused has been given the information referred to in subsection (1), and the accused’s response thereof”.

What we discovered when we received this record with this query was that there was a mix-up of the Magistrate’s handwritten notes with those of trial in which a juvenile was convicted of rape in another case. We got the Magistrates’ handwritten notes from that record in connection with this case.

However, I would like to concede that the provision of section 163 A of the Code was not aptly explained to the accused. I was lulled into complacence because the matter came as a plea on the other hand, I understand that the accused understands every stage of the plea recording as my record will show.

The error is sincerely regretted.

T. KUWANDA

REGIONAL MAGISTRATE”

There is just everything wrong with this letter by the learned magistrate, which reflects badly on his earnestness. Firstly, the letter requests that the record be placed before “the Honourable Justice C. Hlongwana”. There is no judge by the name “the Honourable Justice C. Hlongwana” in Zimbabwe. The letter of 9 November 2020 was signed off by C. Hlongwana for the Registrar. That letter makes it clear that the review record was placed before Hon Musithu J, who then made the comments that were communicated to the trial magistrate.  Secondly, the letter of 9 November 2020, merely requested the learned magistrates to explain if the section 191 rights had been explained to the accused person. Instead of providing a simple answer the trial magistrate went off on a tangent. He recited the provisions of sections 163A and 191, as if that was necessary. He then went on to relate to a mix-up of handwritten notes involving another record of a juvenile convicted of rape. Again that was not relevant. The significance was not explained. The review record before this court had nothing to do with a rape conviction of a juvenile. It is only in the last paragraph of the letter that he sobered up and owned up to the error he made, but then he attributed it to the fact that the accused had pleaded guilty. That lulled him into some complacency, so he said.

I have deliberately digressed from the issue before me just to demonstrate the apathetic manner in which the learned magistrate approached this matter.  Such attitude is not expected at this level where attention to detail is a hallowed requisite. Elementary mistakes of this nature are simply intolerable and inexcusable, all the more considering that a regional magistrate also scrutinizes proceedings done by subordinate magistrates where a certain level of sentence is imposed.

A perusal of the record of proceedings shows that when the accused appeared in the court aquo, the learned magistrate proceeded as follows:

“CHARGE READ TO THE ACCUSED PERSON AND UNDERSTOOD

BY THE COURT (To Accused)

How do you plead? ---- I admit to the charge.

I have entered a plea of guilty.

FACTS READ IN COURT TO THE ACCUSED PERSON AND UNDERSTOOD

BY THE COURT (To Accused)

You have understood the facts? ---- Yes.

Are the facts true and correct? ---- Yes.

Do you wish to add or subtract anything from the facts? ---- No variations your Worship .…………..”

After leading the accused on the essential elements of the charge, the court found the accused person guilty and returned a verdict of guilty. The learned magistrate proceeded to explain the purpose of mitigation and led the accused in probing for the usual answers to questions in mitigation. The learned magistrate also explained the purpose of special circumstances and invited the accused to address the court on whether such circumstances existed as would preclude the court from imposing the mandatory sentence of 10 years. Having found that no special circumstances existed, the court sentenced the accused to the mandatory 10 years imprisonment. The learned magistrate did not explain the provisions of section 191 of the Act to the accused person.

This court has already expressed itself in a number of cases of a similar nature on the consequences of a failure to comply with the peremptory provisions of the section 160A. Magistrates at all levels are expected to have familiarized themselves with such case law by now, so that these grave errors are avoided. In the case of S v Potifa Sawaka, CHITAPI J with the concurrence of CHINAMORA J held as follows:

“The provisions of s 163A are peremptory and not directory. A failure to comply with the peremptory provisions amounts to a gross irregularity in the proceedings as envisaged in s 26 (1) (c) of the High Court Act [Chapter 9:06]. This is so because the peremptory provisions statutorily define trial procedure. A purported trial carried out other than in compliance with the peremptory procedural steps cannot qualify to be a trial as envisaged by statute. It becomes some kind of trial not sanctioned by the law. It cannot be sanitized. In my considered judgment, a trial which does not comply with the statute which defines how the trial must be conducted renders the trial a nullity and for that reason a nullity begets a nullity. The infamous judgment of Lord Denning in Macfoy v United African Company Ltd (1961) 3 WLR (PC) 1405 at 1409 comes to mind where the learned judge stated; “you cannot put something on nothing and expect it to stay there. It will collapse.” See also Manning v Manning 1986 (2) ZLR 1 (SC).

In reviewing proceedings of this nature, the Judge is of course guided by section 29(3) of the High Court Act. It reads as follows:

“(3) No conviction or sentence shall be quashed or set aside in terms of subsection (2) by reason of any irregularity or defect in the record or proceedings unless the High Court or a judge thereof, as the case may be, considers that a substantial miscarriage of justice has actually occurred”

Commenting on this provision in S v Muketiwa Tapiwa: S v Mike Yonas & 3 Others and S v Tinashe Mashami, a review judgment which I concurred with, CHITAPI J said:

“I further determined in the Sawaka judgment that a failure to comply with the provisions of s 163A resulted in a mistrial for procedural irregularity. I may now add that such failure amounts to a violation of the right of an accused person to a fair hearing. I further held that the provisions of s 29(3) of the High Court Act which provide that an irregularity unless it has resulted in a substantial miscarriage of justice could not be applied in circumstances of a procedurally irregular trial arising from a want of compliance with statutory peremptory procedure. The review judge cannot properly recognize a sham-trial in the first place, let alone seek to give effect to it….”

I agree with the reasoning of the court in the aforementioned cases. A trial that does not comply with the mandatory provisions of the law is simply a mistrial. It offends the letter and spirit of section 163A, as read with sections 69(4) and 70(f) of the Constitution. There is nothing this court can do to salvage that trial, save to condemn it for what it is, a mistrial. This court cannot countenance a blatant violation of the law simply because the accused person has pleaded guilty like what happened in casu. Courts must conduct proceedings in a manner that fosters public confidence in the justice delivery system and the rule of law. Failure to do so is an affront to the values of the Constitution that seek to balance the interests of justice and the rights of accused persons facing trial.

Lamentably, the failure by the court to follow the letter of the law can only but result in  unintended consequences which may erode public confidence in the justice delivery system. The proceedings must be quashed. The grim reality is that an offender who committed a serious crime and pleaded guilty, will have his conviction and sentence set aside because of procedural infractions that were clearly avoidable. Regrettably, this court cannot order a trial de novo, for doing so would be interfering with the discretion to prosecute reposed in the Prosecutor General under section 260 of the Constitution.  This court can only but urge trial magistrates to familiarize themselves with the law they administer as well as judgments of superior courts on the consequences of failing to follow the law.

In conclusion, and for the foregoing reasons, I find that the proceedings in the court a quo were not in accordance with real and substantial justice. The court aquo committed a serious miscarriage of justice by failing to comply with the provisions of section 163A of the Act. The conviction and the sentence must be set aside.

Accordingly, it is ordered as follows:

The conviction and sentence imposed by the court aquo in case No. CRB R329/20 	is hereby set aside.

The accused shall be released from custody forthwith.

The Prosecutor General may in his discretion prosecute the accused person afresh.

In the event that prosecution is commenced afresh, and the accused is convicted, 	the sentence already served must be taken into account as a portion of any new 	sentence which may thereafter be imposed.

The Registrar shall bring a copy of this judgment to the attention of the Prosecutor 	General and the Chief Magistrate.

CHITAPI J agrees:…………………………..