1
HB 120-15
HCAR 308-14
X REF INY 360-14
JOHN KONDLO
Versus
THE STATE
And
N. MASUKU N.O.
IN THE HIGH COURT OF ZIMBABWE
KAMOCHA J
BULAWAYO 5 MARCH & 11 JUNE 2015
Criminal Review
KAMOCHA J: The applicant pleaded guilty to assault as defined in the provisions of section 89 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations were that on 3 August, 2014 and at stand 14, village 15, Longwe Area, Inyathi, he assaulted Hlangabeza Zondi by striking him several times with a knobkerrie all over the body intending to cause him bodily harm or realizing that there was a real risk or possibility that bodily harm may result.
It is important to note that applicant admitted striking the complainant several times all over the body with a knobkerrie. The attack was vicious and resulted in the complainant sustaining a fracture of right hand radius and the injury was described as serious by the doctor who treated the complainant.
The state outline was read to the accused who understood the facts and agreed with them in toto. What the accused admitted was that he and the complainant were attending a traditional ceremony when he struck the complainant several times all over the body and on the right hand using a knobkerrie, for no apparent reason, causing a fracture of the hand. Emphasis added
When applicant was asked if the above facts were correct he said they were. When further asked if he wished to add anything to the facts he said he did not and neither did he wish to subtract anything from the facts.
That was the time for him to tell the court that the complainant had attacked him first and he acted in self defence since the facts were alleging that he had attacked him several times all over the body and hand for no apparent reason.
Any person whether defended or not defended would have said, “NO! It was not for no apparent reason, he attacked me first and I was defending myself when I attacked him”.
The applicant decided to tell the court that those facts were true and correct as they were.
The trial magistrate canvassed the essential elements with the applicant as follows:-
“Q - Correct on the 3rd August, 2014 and at stand No. 14 Village 15 Longwe area, Inyathi you struck the complainant several times with a knobkerrie all over the body
A - Yes
Q - Did you realise that the complainant could suffer injuries as a result of the assault
A - Yes
Q - Any right to act as you did
A - No
Q - Is your plea a genuine admission of the charge, the facts and the essential elements as read to you
A - Yes”
When the court asked the applicant if he had any right to act as he did if indeed the complainant had attacked him first his natural response would have been to the following effect, “I acted the way I did because the complainant had attacked me first and I was defending myself or I was hitting back”.
He would not have said he had no right to act the way he did when the complainant had attacked him first and he was merely defending himself.
Similarly when asked if he had any defence to offer he said he had none. The court was asking him if he had any defence to the allegations which were being levelled against him. That was an opportunity for him to tell the court that the complainant had attacked him first and he was merely defending himself when he acted the way he did.
The court then would have been obliged to alter his plea to one of not guilty. The court has a discretion to change a plea of guilty to one of not guilty at any time before sentence, in appropriate circumstances but the discretion should only be exercised in clear cases and very sparingly if the accused demonstrates on a balance of probability that the plea was not voluntarily and understandingly made. See S v Maseko 1986 (2) ZLR 52 (SC)
In casu a reading of what took place in court clearly shows that the plea of guilty was genuine and unequivocal. He clearly admitted the charge and facts contained in the state outline. The trial magistrate properly canvassed the essential elements with the accused. The applicant told the trial court that his plea of guilty was a genuine admission of the charge, facts and the essential elements as read to him. He seemed to have understood and followed the court proceedings clearly.
A reviewing court will not lightly interfere with the proceedings of the trial court where an accused has:-
- entered an informed plea of guilty to a charge
- admitted the facts as contained in the state outline in toto;
- the trial court has explained the essential elements fully and clearly;
- accused understands, accepts and agrees them;
- and he admits that his plea is a genuine admission of the charge, the facts and the essential elements.
In the present case the accused only raised his defence when addressing the court in mitigation of sentence as an after-thought.
It seems to me that the trial court cannot be faulted for treating what the accused said as one of the mitigating factors which were outweighed by the aggravating one. The applicant used a knobkerrie, which is a dangerous weapon, to assault the complainant all over the body repeatedly and fractured his right hand radius. The court found community service to be inappropriate in the circumstances due to the prevalence of that type of crime in the area.
The applicant was sentenced as follows for the assault:- 24 months imprisonment of which 6 months imprisonment was suspended for 5 years on the customary conditions of future good behaviour. The trial court did not misdirect itself in anyway.
In the light of the foregoing the application for review fails and is hereby dismissed.
Dube-Tachiona & Tsvangirai applicant’s legal practitioners
Prosecutor-General’s Office respondent’s legal practitioners
