S v Kenmore Sign and Blessing Kutyauripo

Two separate criminal cases were brought on review from Mount Darwin Magistrates' Court, both handled by the same magistrate. In CRB MTD 877/20, Kenmore Sign was convicted of robbery after allegedly stealing a cell phone and cash from a complainant at a panning site on 20 September 2020. In CRB MTD 1246/20, Blessing Kutyauripo was convicted of assault after allegedly assaulting a complainant with a wooden plank on 12 December 2020 at a house in Mount Darwin, and was sentenced to 24 months imprisonment with 6 months suspended. Both accused persons had pleaded guilty and were convicted following a guilty plea procedure under s 271(2)(b) read with s 271(3) of the Criminal Procedure and Evidence Act.

• Whether the magistrate complied with the peremptory requirement under s 271(3)(a) of the Criminal Procedure and Evidence Act to explain the charge to the accused before calling upon them to plead
• Whether failure to comply with s 271(3) rendered the trial unfair and thus unconstitutional
• What remedy should be granted where procedural irregularities vitiate the fairness of criminal proceedings

1. The proceedings in both cases (CRB MTD 877/20 and CRB MTD 1246/20) were set aside and the convictions and sentences quashed. 2. The accused persons were ordered to be released from custody forthwith. 3. The Prosecutor General retained discretion to prosecute the accused persons afresh. 4. In the event of fresh prosecution, the case must be handled by a different magistrate, and if convicted, the accused shall not receive a more severe sentence than originally imposed, and time already served shall be credited. 5. A copy of the judgment was to be assigned to each record.

The failure to comply with the peremptory requirement in s 271(3)(a) of the Criminal Procedure and Evidence Act to explain the charge to an accused person before calling upon them to plead renders the trial unfair and constitutes a violation of the constitutional right to a fair trial under s 86(3)(e) of the Constitution. Such non-compliance cannot be condoned as it prevents the accused from tendering a guilty plea deliberately and knowingly. Proceedings conducted in breach of this requirement are not in accordance with real and substantial justice and must be set aside.

The court directed the magistrate's attention to the case of S v Tamiriraishe Moyo HH 697/20, presumably for further guidance on similar procedural requirements. The magistrate's apology and undertaking that the error would not be repeated in the near future was noted. The court structured the order to balance the interests of justice by allowing fresh prosecution while protecting the accused from double jeopardy and ensuring credit for time already served, reflecting the court's concern for both procedural regularity and substantive fairness.

This case reinforces the Zimbabwean courts' strict adherence to procedural fairness in criminal proceedings, particularly regarding guilty plea procedures. It emphasizes that the requirements of s 271(3)(a) of the Criminal Procedure and Evidence Act are peremptory and mandatory, not merely directory. The judgment underscores that the constitutional right to a fair trial under s 86(3)(e) of the Constitution cannot be compromised, and that failure to explain charges to an accused before taking a plea vitiates the entire proceedings. The case also demonstrates the review court's protective approach when setting aside convictions due to procedural irregularities, by preserving prosecutorial discretion while safeguarding accused persons from prejudice through conditions on retrial.