The accused, Joseph Jambo, was convicted by a magistrate sitting at Mutoko on 18 August 2021 on two counts of deliberately supplying false information to a public authority as defined in s 180 of the Criminal Law (Codification & Reform) Act. On 3 and 16 August 2021 respectively, at Mutoko Police Station, the accused had been arrested as a suspect in cases of theft and unlawful entry respectively, and gave police the false name "Nyasha Katsande" when his real name was Joseph Jambo. The accused pleaded guilty to both counts. He was sentenced on each count to 13 months imprisonment with 6 months suspended, leaving 7 months imprisonment per count, totaling 14 months. The matter came before the High Court on automatic review.
The proceedings in S v Joseph Jambo CRB MTK 618/21 were set aside for procedural irregularity. The accused was ordered to be forthwith released from custody if he was still serving sentence.
A magistrate must comply with the mandatory procedure prescribed in s 271(2)(b) read with s 271(3)(a) of the Criminal Procedure and Evidence Act by explaining the charge to an accused person before calling upon them to plead, and must record that explanation. Failure to do so constitutes a gross procedural irregularity that vitiates the proceedings. The right to a fair trial guaranteed by s 86(3)(e) of the Constitution is an absolute right that applies to guilty pleas and requires strict adherence to legislated plea procedures. Courts have no discretion to adopt procedures different from those prescribed by legislation. A sentence that exceeds the maximum prescribed by the statute creating the offence is incompetent and must be set aside.
The court noted with approval that the bulk of the magistracy has "passed the test" on proper guilty plea procedure, as the court rarely encounters records where the procedure is not followed. The court observed that judicial officers must acquaint themselves with the provisions of the law creating offences they deal with to avoid what may be perceived as abuse of power, and that such errors (referring to imposing sentences exceeding statutory maximums) must be avoided. The court also commented that it had to proceed without the trial magistrate's comments because the magistrate had resigned from service.
This case reinforces the importance of strict compliance with plea procedures in criminal trials in Zimbabwe, particularly the requirement under s 271(2)(b) read with s 271(3)(a) of the Criminal Procedure and Evidence Act that charges be explained to accused persons before they are called upon to plead. It emphasizes that the constitutional right to a fair trial under s 86(3)(e) of the Constitution is an absolute right that applies equally to guilty pleas and contested trials. The case also serves as a warning to judicial officers to familiarize themselves with the maximum sentences prescribed for offences to avoid imposing incompetent sentences that may be perceived as abuse of power. It demonstrates the reviewing court's willingness to set aside proceedings for gross procedural irregularities even where the accused has pleaded guilty.