Justin Mukoto v L Z. Chipadze and The State

### Preamble
1
HMT 39-20
HC 276/19
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JUSTIN MUKOTO

versus

L Z. CHIPADZE

(In his official capacity as the then Regional Magistrate of Rusape)

and

THE STATE

(Represented by Prosecutor General of Zimbabwe)

HIGH COURT OF ZIMBABWE

MWAYERA & MUZENDA JJ

MUTARE, 20 March 2020 and 2 July 2020

Criminal Review

I. H Mandikate, for the applicant

Ms T. L Katsiru, for the respondent

MUZENDA J: The applicant, Justin Mukoto, is applying for Review in terms of s 27 and 29 of the High Court Act [Chapter 7:06] as read with Order 33 of the High Court Rules 1977. The applicant was granted condonation for late application for review on 29 August 2019 and he has outlined the grounds for review as follows:

“GROUNDS FOR REVIEW

The Learned (Regional) Magistrate committed a gross and serious irregularity when he did not properly, adequately and fully explain the purposes of cross-examination to the applicant, an unrepresented person.

The Learned (Regional) Magistrate committed a gross irregularity holding it against applicant an unrepresented litigant that he had failed to cross-examine witness in determining applicant’s guilty.

The Learned (Regional) Magistrate committed a gross and serious irregularity when he did not assist applicant in the conduct of his case.”

The state did not oppose the application. The applicant wrote a letter requesting that the record of proceedings be heard by two judges.

BACK GROUND

The applicant who was 37 years old appeared at Rusape Regional Court on 24 April 2019 facing two counts of Rape as defined s 65 (1) (a) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. On the first count the state alleged that on a date unknown to the prosecutor but during the period extending from December 2018 to January 2019 and at Chidawanyika Village, Chief Mutasa, Honde Valley, the applicant had sexual intercourse once with Juliet Mwanaka a female aged 7 years who at law is deemed incapable of consenting to sexual activities. The second count also referred to the same applicant and complainant.

The complainant at the time of the alleged offences was doing grade 2 at Gatsi Primary School and applicant was her neighbour. During the December 2018 to January 2019 School holiday, complainant visited her friend Ruvimbo Mukoto at the latter’s residence. Ruvimbo Mukoto then left applicant with complainant. Applicant held complainant’s hand and dragged her into the kitchen hut whilst holding a stick. Complainant struggled to free herself, she was over-powered by the applicant, and applicant also threatened to assault complainant. Applicant then forcibly removed complainant’s attire, pant and laid her on the floor facing up and had sexual intercourse with her once. After the sexual encounter applicant threatened the complainant with assault if she tells anyone about the incident. After a couple of days calculated from count one, complainant revisited her friend Ruvimbo Mukoto and upon arrival she found applicant alone and Ruvimbo was not present. The applicant is alleged to have captured the complainant, carried her in his arms and went to his bedroom, he laid her on the bed and removed her pants and had sexual intercourse with her once without her consent. He again threatened her with assault if she dared telling anyone. On 31 January 2019 on anonymous call from the community was received by a senior lady teacher Hellen Madyangure at the school informing her about the alleged sexual assault. The matter was subsequently reported to the police leading to the prosecution of the applicant.

The applicant in his defence outline (on p 23 of the record) denied committing the two counts because he was employed at Kavhu herding cattle. He would leave in the morning and return in the evening. He would herd cattle from Mondays to Saturdays and on Sundays he would go to the Anglican Church. He denied raping complainant.

The applicant contends that the court did not assist him to conduct his defence during the trial, the court did not assist him to formulate through examples the type of questions he ought to have put to the witness and as such the proceedings were not in tandem with justice. The three grounds of review contained on p 5 of the record are repetitive in principle and in summary allege that the Learned Regional Magistrate failed to assist an unrepresented accused person.

Applicant submitted that according to s 69 of the Constitution, every accused has a right to a fair trial and he went on to cite s 70 (1) (h) of the Constitution contending that a fair trial includes the right to adduce and challenge evidence. The right to challenge evidence entails the right to a proper cross-examination of state witnesses. Where no lawyer is in attendance the proper cross-examination of witnesses should be attained through the intervention and guidance of the presiding judicial officer, argues the applicant. Where the judicial officer fails to do that the High Court should quash the proceedings and order a re-trial. If the judicial officer fails to assist the accused in conducting cross-examination, then when such a judicial officer prepares a judgment he cannot be heard holding against such an accused that he or she had failed to cross-examine witnesses.  Moreso where the accused has no knowledge of court procedure, the immediate helper is the judicial officer. The applicant further contended that the Learned Regional Magistrate failed to assist applicant to prove his defence of an alibi. The applicant felt that the learned Regional Magistrate should have taken the sole prerogative to exhaustively put every element of the applicant’s defence to the state witnesses, only after having done that would an accused felt that he had obtained assistance but nothing of that sort happens, justice would have failed.

On p 23 of the record of proceedings before the applicant gave his defence outline it is recorded:

“Provisions of s. 188 and s 189 of the Code explained to accused and understood.”

Since the grounds of review dwell much on the aspect of procedure, it will thus become Imperative per this court to cite the provision of s 188 extensively.

“188 outline of state and defence cases.

In a trial before a magistrate, if the accused pleads not guilty or a plea of not guilty is entered in terms of s 182

The prosecutor shall make a statement, outlining the nature of his case and the material facts on which he relies; and

The accused shall be requested by the magistrate to make a statement as he or she wishes, outlining the nature of his defence and the material facts on which he relies and if he is not represented by a legal practitioner, his or her rights to remain silent, and the consequences of exercising that right, shall be explained to him.”

“Section 189: Statement made or with-holding of relevant fact by accused may be used as evidence against him.

Any statement referred to in paragraph (b) of s 188 may:-

be taken into account in deciding whether the accused is guilty of the offence charged or any other offence of which he may be found guilty on that charge; and

Except in so far as it amounts to an admission of any allegation made by the state not to be taken into account for the purpose of deciding whether the accused should be found not guilty in terms of subsection (3) of s 198.

If an accused person, when so requested in terms of paragraph (b) of s. 188 has failed to mention any facts relevant to his defence being a fact which in the circumstances existing at the time he could reasonably have been expected to have mentioned, the court determining  whether there is any evidence that accused is guilty of the offence charged or any other offence of which he may draw such inference from the failure as appear proper and the failure may, on the basis of such inferences, be treated as evidence corroborating any other evidence given against the accused”

Section 198 of the Code is also necessary to be included and considered more particularly in considering whether the accused received a fair trial or not. The appropriate subsection is s 198 (6) which provides:

“6. Subject to subsection (3), at the close of the case for the prosecution the court shall-

ask the accused; if he is legally represented his legal representative; whether it is intended to adduce evidence for the defence and whether the accused intends himself to give evidence; and

if the accused is not legally represented, inform him of the proviso to subsection (8) and of subsection (9) and of  subsection (1) of s 199”

On p 30 of the record the trial court recorded that “provisions of s 198 of the code explained to the accused and understood.

Sections 198, 189 and 198 are imperative and the court a quo followed them.  The sections provide an ironclad procedure and practice has shown that the judicial officer in the conduct of such a criminal trial ensures that those sections are followed to attain a fair trial for an unrepresented accused. The current proceedings were conducted in Shona. The court explains such to the accused and ensures that such an accused has understood the explanation. Such an approach would be done where an accused is required to cross examine a witness who has given evidence in court. The fact that the regional court indicated on the record that s 188, 189 and 198 were explained to the applicant and understood implies that each stage of the trial proceedings were explained to the applicant by the court. The allegations against the bench are baseless in my view and must be rejected in their entirety. The accused gave a defence of an alibi and he put the exact questions to the complainant during the trial. The applicant does not state in his grounds for review and heads, what questions he should have been assisted with by the court which questions he failed to specify. He just advances a bold allegation that had he been helped he would have put across those questions to the state witnesses. Which questions? The defence of an alibi was introduced during trial and not raised during investigations, did the applicant want the court a quo to probe the defence of an alibi raised by the applicant? Indeed the applicant had few questions to the complainant Juliet Mwanaka about his alleged alibi and on p 27 of the record, he put it to the complainant that he did not rape her for he had spent the whole day at the grazing area. However the complainant gave evidence that she was raped on a Sunday a day normally used by the applicant to go to Anglican Church. So on Sundays applicant would be off duty and at home and not on the grazing fields. On the second witness Mildred Mkwindidza, applicant had no questions; there was no misdirection by the regional Magistrate in drawing adverse inferences from the applicants’ failure to put questions to the state witnesses and in terms of s198 the trial court is at liberty to draw such inferences in analysing an accused’s evidence.

An examination of the record shows that the applicant barely challenged the version of the complainant, moreso of the independent school teacher, who corroborated complainant side of the story. I failed to see where the regional court misdirected itself. The concession made by the state’s representative is misplaced and I dismiss it. The veracity or otherwise of the applicant’s defence was properly examined by the court a quo and the Learned Regional Magistrate rejected the applicant’s version. Applicant could not explain why a young girl of 7 years could lie against a 37 year old man. The applicant was not a stranger to the complainant. So there is no question of mistaken identity and indictment of both charges stretches from December 2018 to January 2019, does it mean that during that period the applicant was away from home and at the grazing area? All the grounds of review raised by the applicant do not find favour with this court and the application for review is dismissed in its entirety.

MWAYERA J AGREES_____________________________

Mugadza Chinzamba & Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners