SIMBARASHE MOYO

versus

THE STATE         

HIGH COURT OF ZIMBABWE

GARWE JP and PATEL J

HARARE, 24 March 2005 and 31 May 2006

Criminal Appeal

            GARWE JP:  The appellant in this case was convicted by the Magistrate, Gokwe of assault with intent to do grievous bodily harm on 19 March 2002.  The record of the proceedings shows that the accused pleaded guilty.  Following his conviction the appellant was sentenced to 24 months imprisonment of which 9 months imprisonment was suspended on the usual conditions of good behaviour.  The appellant applied for bail pending appeal which was granted three days later.  He has been out on bail since then.

            In his notice of appeal, the appellant attacked the sentence imposed on him on several bases.  He did not appeal against conviction.  Amongst other grounds, the appellant attacked the sentence on the basis that the Magistrate lacked jurisdiction to impose the sentence he did, that the Magistrate misdirected himself in failing to consider the fact that the appellant had pleaded guilty and was a first offender and that no consideration had been given to a non-custodial alternative such as a fine or community service.  In his heads the appellant further attacked the proceedings on the basis that the essential elements had not been properly canvassed and that the court was therefore at large on the question of sentence.

            The respondent, in its heads, appears to concede that the trial magistrate lacked jurisdiction to impose the sentence he did.  The respondent also accepts that the essential elements were not properly canvassed and that the medical report was not properly produced.  For these reasons, the State conceded that the conviction itself cannot stand, notwithstanding the fact that no appeal against conviction had been filed.

            I will deal firstly with the question of jurisdiction.

            By section 9 of the General Laws Amendment Act No. 2 of 2002, the jurisdiction of an ordinary magistrate was increased from twelve (12) months to twenty four (24) months.  In Biti & Anor v The Minister of Justice, Legal & Parliamentary Affairs & Anor SC 10/02 the Supreme Court declared the General Laws Amendment Act 2/2002 to be invalid and of no force or effect.  What this meant was that the jurisdiction of the trial magistrate in this case reverted to 12 months imprisonment.  However the General Laws Amendment Act (No. 2), 14/02, which came into operation on 24 January 2003 provided in section 47 that:-

            “Anything which has been done before the commencement of this Act in purported exercise of any provision of the General Laws Amendment Act, 2002 (No. 2 of 2002), and which would have been lawfully done if this Act had come into operation on 4 February 2002, shall be deemed to have been lawfully done.”

Act 14/02 therefore re-validated the jurisdiction previously given to magistrates but which had been struck down along with the other provisions of Act 2/02.  In short therefore the magistrate had jurisdiction, as at 19 March 2002, to impose the sentence he did.  The concession by both the magistrate and the trial magistrate was therefore not correctly made.

I now proceed to deal with the concession by the State that the conviction is not in order.  It has already been noted that the present appeal is against sentence only.  However in the heads of argument filed on his behalf, the appellant criticizes the manner in which the essential elements were put but does not challenge the conviction.  The appellant merely says that this irregularity is such that the court is at large on the question of sentence but does not say that the irregularity affects his conviction.

The following is the complete record of what took place between the appellant and the trial court:-

• “Facts explained to the accused and understood
• Definition of offence explained to the accused and understood
• Medical report produced and accepted as exhibit (1) by consent

Elements

1. On 5^thFebruary 2002 did you assault the complainant as stated in the charge?
2. Yes.
3. In doing so, did you intend to cause grievous bodily harm which would normally interfere with one’s health?
4. Yes.
5. Did you have any lawful right to assault the complainant?
6. I had no right.
7. Any defence to tender?
8. No.

Found guilty as charged.”

            There are a number of aspects that give rise to grave concern.  Section 271 requires the court to explain the charge and the essential elements of the offence to the accused and to satisfy itself that the accused understands and admits the charge, the essential elements of the offence and the facts on which the charge is based.  Subsection (3) requires that the explanation of the charge and the essential elements, the facts upon which the charge is based and the reply by the accused to the questions put to him are recorded.

            It is not sufficient to record that the facts and the definition of the offence have been explained without recording such explanation. In this connection see -

            S v Desmond Mdluli HB 117/86

            S v Chinhengo HB 113/86

            S v Mugura & Anor HB 90/86

            S v Chibvongodze & Ors HH 108/97

            This court has on numerous occasions stressed the need for courts to avoid cursory compliance with the provisions of section 271.  Attention is drawn to S v Bishop Choma HH 135/90. 

In this case the trial magistrate says the definition of the offence was explained to the accused but does not say how exactly he explained the offence to the accused. This is not permissible.

I also agree with the State that the questions put to the appellant and his replies thereto are such that one is left in doubt as to whether the unpresented accused correctly admitted the essential elements.

The need for care in explaining the essential elements of the crime of assault with intent to do grievous bodily harm have been stressed in several decisions of this court and in this regard attention is drawn to -

S v MutodzaHH 86/83

S v Tachiona1994(2) ZLR 402

S v ModetswaHH 62/97

S v MalindiHH 102/01

From a perusal of these cases, it is clear that the question by the court in the present case:-

“……did you intend to cause grievous bodily harm i.e. harm which would           normally interfere with one’s health?”

and the positive response by the appellant thereto do not fully and properly establish that the appellant, who was unrepresented, correctly admitted that he intended to cause grievous bodily harm. Did the appellant, who was unrepresented, understand what is meant by “grievous bodily harm which would normally interfere with one’s health?”. This is doubtful. The trial magistrate’s attention is drawn to the long line of cases on the matter, reference to some of which has already been made.  I agree with the State that the question put by the court was not sufficiently explicatory and that the subsequent admission thereto is no admission at all.

On this basis I agree that the conviction cannot stand – see S v Chibvongodze & Ors HH 108/97.

I also agree that no proper record has been kept on the circumstances surrounding the admission of the medical affidavit.  Was the accused’s right to three days notice of the production of the report brought to his attention?  Did he not have questions to the doctor?  There is no record of the exchange between the court and the appellant in this regard.

In the light of the above irregularities, I agree that it would be unsafe for the conviction to stand.  In the exercise of this court’s review powers the proceedings must be quashed and remitted for a trial de novo.

In the light of this development it will no longer be necessary to consider the other submissions made on the question of sentence.

In the result, it is ordered as follows:-

1.         That the conviction and sentence be and are hereby set aside.

2.         The matter be and is hereby remitted for trial de novo before a different magistrate.

Patel J: I agree……………………

Tinarwo & Partners, appellant’s legal practitioners

Attorney-General’s Office, respondent’s legal practitioners