Jonathan Zuze and Efficient Mukobo v The State

### Preamble
1
HMT 41-21
CA 02/21
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JONATHAN ZUZE

and

EFFICIENT MUKOBO

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA & MUZENDA JJ

MUTARE, 2 June 2021 and 15 July 2021

Criminal Appeal

C Chibaya, for the appellant

Mrs J Matsikidze, for the respondent

MWAYERA J: The appellants were arraigned before the Magistrates Court facing allegations of contravening s 368(1) as read with 368(4) of the Mines and Minerals Act [Chapter 21:05] prospecting for Minerals without a permit or a licence. Both appellants were convicted on their own pleas of guilty and sentenced to the mandatory sentence of 2 years imprisonment each as there were no special circumstances. Irked by the conviction the appellants lodged the present appeal which the respondent is not opposed .

The appellants raised one ground of appeal that:

“1. The court a quo grossly misdirected itself in terms of law when it failed to sufficiently explain the charge and essential elements of the offence and facts on which the charge was based to the appellants who were self-actors and convicted appellants based on pleas of guilt and the conviction is not in terms of real and substantial justice.”

The appellants sought the following relief:

That the appeal against conviction succeeds.

The appellants’ conviction be set aside and substituted with the following:

Found not guilty and acquitted”

Background

Both appellants pleaded guilty to prospecting without a licence or permit in contravention of s 368 of the Mines and Minerals Act [Chapter 21:05]. The brief allegations as discerned from the outline of the state case are as follows:

On 16 January 2021 some security guards manning Franklin Farm came across the appellants who were in a pit prospecting for gold using a wrench, bedims, 2 buckets and a shovel.

Submissions by both appellant and respondent counsel were to the effect that the court a quo failed to protect the appellants’ rights to fair trial as envisaged in the Constitution. Moreso by failing to explain fully the charge and essential elements of the offence which the unrepresented accused were convicted of.

What falls for consideration in this case is basically whether or not the essential elements of the offence were properly canvassed in a manner enabling the accused to fully and genuinely appreciate what they were pleading guilty to.

The Law

It is settled where the state accepts a plea of guilty to an offence and the court considers the offence punishable, the court shall in terms of s 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] explain the charge and essential elements of the offence to the accused and satisfy itself that the accused understands and admits unequivocally the essential elements of the said offence. See S v Mugore 1996 (2) ZLR 88 and also S v Dube and Anor 1988 (2) ZLR 385 and S v Chidawu 1998 (2) ZLR 76. All the cases were cited by both counsel for the appellant and respondent. The common thread running through the cases is the affirmation of the fact that when a trial court decides to proceed in terms of s 271(2)(b) of the Criminal Procedure and Evidence Act [[Chapter 9:07] where the accused is unrepresented the court is duty bound in the interest of safeguarding the accused’s right ensuring that the accused fully comprehends the charge so as to make an informed decision on whether to plead guilty or not guilty to the charge.

Applying the Law to the Facts

In the present case a close look at the record of proceedings a quo reflects that both appellants were informed of their right to legal representation. They chose to proceed as self-actors. The charge was put, explained and understood. Page 5 of the record a quo there are no notes reflecting what explanation was given to the charge. The trial magistrate just endorsed “charges put, explained and understood”. There after questions and answers followed:

“How do you plead?

1A	 Guilty 271(2)(b)

2A	 Guilty 271(2)(b)

Facts read explained and understood marked as Annexure A

Q	Do you agree with the facts?

A	Yes

Q	Any variations

A	No

Essential elements

Q	Correct on the 16th of January you were found prospecting for gold?

A	Yes

Q	Correct you did not possess the permit to prospect for gold?

A	Yes

Q	Correct you knew it was unlawful

A	Yes

Q	Why did you do it

A	That is what I do for a living

Q	Any right to do so

A	No

Q	Any defence

A	No

Q	Are you pleading guilty to the essential elements?

A	Yes”

The same line of questioning and answers occurred in respect of co-appellant. The two were then convicted of unlawful prospecting for gold and sentenced to each 24 months imprisonment. It is apparent the exchanges between the court and the then accused do not reflect any simplification or break down of the essential components of the offence to ensure the accused fully appreciated the nature of charges they were pleading guilty to. The court regurgitated the statutory wording of the offence and asked if accused were prospecting and proceeded to convict in the absence of clear appreciation of the charge. The court a quo ought to have broken down the essential ingredients or components of the offence for the benefit of the unsophisticated self-actors before it.  The court should have used ordinary language such as instead of asking if the appellants were caught prospecting the court could have used terms such as search for gold without a permit or licence. Such every day term would have been easily comprehended by the appellants and the plea would have been a well-informed one. The same point was emphasised in the case of S v S Muchokoto 1996 (1) ZLR 190 where the court pointed out that where an accused is unrepresented the essential elements of the offence must be explained in such a way as is calculated to inform the accused of the nature of the charge with sufficient clarity and detail.

Hungwe J (as he then was) made pertinent remarks in the case of S v Bvuto HH 94/18. He stressed that the law imposes a positive duty on the presiding magistrate when recording a plea of guilty to ensure that the rights of such a person are carefully protected, respected and upheld. The Honourable Judge stated:

“The Court being the ultimate bulwark in defending the ignorant and or impoverished, must always recall the exhortation of s 70(1) of the Constitution of Zimbabwe….”

In Bvuto case the court was faced with a similar situation as in this case. The two accused then pleaded guilty to prospecting and were duly convicted. The exchanges on canvassing essential elements were “correct that on 26 February 2015 and at Lennox Mine you were searching or prospecting for gold?” At the time of prospecting, were you holders of licence or permit authorising you to prospect for the said mineral.” The questions were answered in the affirmative following which a conviction and mandatory sentence of 24 months ensued. It is this perfunctory manner of canvassing essential elements which caught attention of the judge leading to the conclusion that the proceedings were not in accordance with real and substantial justice as clearly the rights of unsophisticated and unrepresented accused were not properly considered. The essential elements were not properly canvassed. This is the same case. In the present case where the use of technical terms in the statute and not resorting to ordinary language amounted to convicting without ascertaining the genuineness of plea. The technical term shrouded the whole nature of the offence which the appellants pleaded guilty to.

The failure to simplify and explain the essential ingredients of an offence amount to a misdirection. As correctly observed by the appellants and properly conceded by the respondent the court a quo misdirected itself by convicting unrepresented accused persons in circumstances where the charges were not properly canvassed. The appeal is meritorious and must succeed.

Accordingly it is ordered that:

The appeal against conviction succeeds.

The appellants’ conviction be and is hereby quashed and substituted as:

“Accused persons are found not guilty and acquitted.

MUZENDA J agrees _________________

Chibaya & partners, appellants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners