The appellant appeared before a magistrate at Bulawayo on 24 January 2019 facing a charge of public violence as defined in section 36(1) of the Criminal Law (Codification and Reform) Act. The charge arose from widespread demonstrations across Zimbabwe from 14 January 2019. The state alleged that the appellant was part of a group of demonstrators that gathered at Woza Woza Bottle store in western Bulawayo and took part in violent destruction and theft of property, including stealing an ox-drawn plough, a 20kg bag of seed maize from OK Supermarket, a 20 inch Logic monitor, a speaker and a 32 inch Samsung television from Woza Woza Bottle store, and a diesel generator from Athens Supermarket. The appellant pleaded guilty to the charge of public violence. However, the magistrate convicted and sentenced him for theft, an alternative charge that was never formally preferred against him. The appellant was sentenced to 5 years imprisonment of which 1 year was suspended for 5 years on condition of future good behavior.
1. The appeal is allowed. 2. The conviction is set aside.
A court cannot competently convict and sentence an accused person for an offence that was not formally charged, whether as a main charge or alternative charge. Where it is intended to sentence an accused to an alternative charge, that alternative charge must be preferred together with the main charge so that the accused can prepare his defence in respect of both charges. Failure to do so violates the audi alteram partem rule. In terms of section 145 of the Criminal Procedure and Evidence Act, alternative charges must be formally brought and tried. An accused cannot be sentenced for a charge to which he has not pleaded. Permissible verdicts under the Fourth Schedule to the Criminal Code cannot be invoked as an afterthought to cure a failure to properly charge and allow the accused to plead to an alternative offence.
The court criticized the trial magistrate for attempting to reconstruct the record to justify an obvious error after the appeal was noted, emphasizing that an appeal is noted and determined on the record of proceedings and that a trial magistrate must refrain from attempting to rewrite the record. The court also observed that the magistrate appeared to have mixed up the essential elements of public violence and theft when canvassing the charge, which is not desirable and results in improper conviction and sentence. The court noted that the magistrate's response to the notice of appeal showed he had not properly applied his mind to the facts and the charge sheet.
This case is significant in Zimbabwean criminal procedure law as it reinforces the fundamental principle that an accused person cannot be convicted and sentenced for a charge that was not formally preferred against him. It underscores the importance of procedural fairness and the audi alteram partem rule in criminal proceedings, ensuring that accused persons have proper notice of the charges they face and an opportunity to defend themselves. The case serves as a warning to judicial officers not to attempt to reconstruct the record or justify obvious errors after appeal, and emphasizes that alternative charges must be properly pleaded in accordance with section 145 of the Criminal Procedure and Evidence Act. The judgment also clarifies that permissible verdicts under the Fourth Schedule cannot be invoked as an afterthought to cure a procedural irregularity where the accused was never properly charged with or given opportunity to plead to the alternative offence.