The State v Ashton Svundu

The accused was charged in the Magistrate's Court sitting in Shurugwi with contravening section 70 of the Criminal Law (Codification and Reform) Act, for having extra-marital intercourse with a complainant who was a female person below the age of 16 years on 23 November 2019 at Gakata Village, Chief Nhema, Shurugwi. At the material time, the accused was HIV positive. The trial magistrate referred the matter to the High Court for sentence, as she felt she lacked jurisdiction to sentence the accused due to the HIV status escalating the potential sentence. During the trial, the accused was unrepresented and pleaded guilty, though his plea was later amended to not guilty. The trial proceeded and the accused was convicted.

• Whether the trial court complied with section 163A of the Criminal Procedure and Evidence Act by informing the unrepresented accused of his right to legal representation before plea
• Whether the failure to comply with section 163A constituted a fatal irregularity rendering the proceedings not in accordance with real and substantial justice
• Whether the High Court could invoke its review powers mero motu under section 29(4) of the High Court Act despite the matter being referred for sentencing purposes

1. The conviction is hereby quashed and set aside. 2. The matter is referred for a trial de novo before a different magistrate.

The failure by a trial court to inform an accused person of his right to legal representation as required by section 163A of the Criminal Procedure and Evidence Act is an irregularity that is fatal to the proceedings. Such failure violates the constitutional right to legal representation under section 69 of the Constitution, which is substantive and fundamental to a fair trial. Where such non-compliance occurs, the proceedings are not in accordance with real and substantial justice, resulting in a substantial miscarriage of justice requiring the conviction to be set aside and the matter referred for trial de novo.

The court observed that section 29(4) of the High Court Act promotes and extends the supervisory role and review powers of the High Court over Magistrates Court proceedings, empowering the court to review proceedings mero motu when it comes to notice that criminal proceedings are not in accordance with real and substantial justice, notwithstanding that such proceedings have not been submitted for review. The court noted with approval the Constitutional Court's observation in Praymore Makanda v Magistrate Sande N.O. & Others that the High Court is endowed with statutory powers of review that might be invoked and exercised mero motu to address or redress patent irregularities, and that the omission to inform an accused of the right to legal representation constitutes a gross irregularity.

This case reaffirms the critical importance of compliance with section 163A of the Criminal Procedure and Evidence Act as a peremptory requirement protecting the constitutional right to legal representation under section 69 of the Constitution. It demonstrates the High Court's willingness to invoke its mero motu review powers under section 29(4) of the High Court Act to address patent irregularities even when matters come before it for other purposes. The case emphasizes that the right to legal representation is substantive and foundational to a fair trial, and that failure to inform an unrepresented accused of this right constitutes a gross irregularity that is fatal to proceedings, necessitating a trial de novo.