The accused appeared before a regional magistrate at Chinhoyi on a charge of theft of a motor vehicle valued at $1,500,000. On 19 October 2001, at approximately 2:00 a.m., the accused and his colleague James Munodawafa Makumbiza stole a Nissan Hardbody (Reg. No. 603 773 E) from the complainant's house at No. 12 Msasa Drive, Chinhoyi. While the accused was driving the stolen vehicle towards Murombedzi Growth Point, he lost control at or near the 84 kilometre peg on the Chegutu-Murombedzi road, causing an accident. James Munodawafa Makumbiza died in the accident and the vehicle was extensively damaged. The accused pleaded guilty following s 271(2)(b) proceedings and was convicted. He was referred to the High Court for sentence in terms of s 54(2) of the Magistrates Court Act. Before the sentencing hearing, the accused's legal practitioner sought to change the plea to not guilty, alleging that the accused had been threatened with physical assault by investigating police officers, that a gun was pointed at him, and that a police officer was present in court during the plea proceedings to ensure he pleaded guilty.
The matter was remitted to the magistrates court to permit the accused to apply to change his plea from guilty to not guilty.
The binding legal principles established are: (1) The substantive application to change a plea of guilty must be made to the trial court which convicted the accused, not to the High Court on a reference for sentence; (2) When an accused applies to the High Court (to which a matter has been referred for sentence) to have the matter remitted for a change of plea application, the accused need only show a prima facie reasonable explanation for changing the plea; (3) The High Court need not conduct a full inquiry into the merits but must only satisfy itself that the explanation is prima facie reasonable before exercising its power under s 29(2)(b)(v) of the High Court Act to remit the matter; (4) The common law right to apply for a change of plea on grounds such as duress, undue influence and similar grounds exists independently of s 272 of the Criminal Procedure and Evidence Act; (5) A lesser standard applies when requesting remittal from the High Court than applies to the substantive change of plea application before the convicting court.
The court expressed the view that the prima facie reasonable explanation standard for remittal would not open the floodgates for accused persons seeking to avoid imprisonment, addressing a concern raised by McNALLY JA in S v Matare at 106H-107B. The court noted that the plea proceedings in the magistrates court were well conducted and that no criticism could be directed at the manner in which the s 271(2)(b) proceedings were conducted. CHINHENGO J observed that cases differ from one to the next and that legal principles develop from those differences, with the law being transformed and reformed over time to deal with different situations. The court noted that none of the previous authorities on change of plea dealt with the specific situation of an application made during a High Court sentencing hearing following a reference under s 54(2) of the Magistrates Court Act.
This case clarifies the procedure and jurisdictional issues when an accused person seeks to change a plea of guilty after conviction in a lower court when the matter has been referred to the High Court for sentence. It establishes important procedural principles regarding which court has jurisdiction to hear change of plea applications and the threshold test for remittal. The judgment contributes to Zimbabwean criminal procedure jurisprudence by establishing a two-tiered standard: a lower threshold (prima facie reasonable explanation) for obtaining remittal from the High Court, and the established Matare standard (reasonable explanation without onus of proof on balance of probabilities) for the substantive change of plea application before the convicting court. The case recognizes common law protections for accused persons who plead guilty under duress or undue influence, ensuring access to justice even when procedurally complex situations arise.