The State v Austine Mandaza and Justine Kaupfu

The two accused persons, aged 23 and 22 years respectively, were charged with stock theft as defined in s 114(2)(a) of the Criminal Law (Codification and Reform) Act. On 28 October 2020 at Mukodzongi village, Chief Negomo, Nzvimbo, they unlawfully opened the complainant's cattle pen, drove away one ox and attempted to sell it. A prospective buyer alerted police when the accused failed to furnish a stock card showing ownership. They were arrested and brought to court on 2 November 2020. They appeared before the trial magistrate on guilty plea in terms of s 271(2)(b) of the Criminal Procedure and Evidence Act. They were each convicted and sentenced to nine years imprisonment, being the mandatory minimum sentence in the absence of special circumstances.

• Whether the trial magistrate complied with s 271(3) of the Criminal Procedure and Evidence Act which requires that the charge be explained to the accused and the explanation recorded
• Whether the failure to comply with s 271(3) rendered the trial proceedings irregular and unfair
• Whether proceedings that do not comply with mandatory procedural requirements can be certified as being in accordance with real and substantial justice
• Whether the right to a fair trial under s 86(3)(e) of the Constitution was violated

1. The proceedings in State v Austine Mandaza and Justine Kaupfu CRB NZV 160-161/20 were quashed. 2. The convictions and sentences imposed were set aside and the two accused persons were ordered to be released forthwith from serving the sentences imposed. 3. The Prosecutor General was granted discretion to institute a fresh prosecution of the accused persons. 4. In the event of conviction in a fresh trial, any imprisonment already served prior to release shall be counted as part of any new sentence imposed.

Non-compliance with the mandatory provisions of s 271(3) of the Criminal Procedure and Evidence Act, which requires that the charge be explained to the accused and the explanation recorded, renders a guilty plea trial irregular and unfair. Proceedings that do not comply with s 271(3) cannot be certified as being in accordance with real and substantial justice. A procedurally deficient trial where there has been an omission to comply with peremptory procedural steps is an unfair trial. Since the right to a fair trial is absolute under s 86(3)(e) of the Constitution, a trial conducted in violation of mandatory procedural requirements is a nullity that must be set aside, regardless of the seriousness of the offence or the strength of the evidence. The court has no discretion to condone such procedural irregularities.

The court noted that it had to review the proceedings without the benefit of comments from the trial magistrate because she had resigned from service in March 2021. The court acknowledged that the trial magistrate had correctly complied with other procedural requirements, including s 163A (informing the accused of their right to legal representation under s 191) and advising them that the charge carried a mandatory minimum sentence in the absence of special circumstances. The provision allowing any time already served to count toward a new sentence demonstrates judicial fairness and prevents double punishment for the same conduct in the event of re-prosecution.

This case reinforces the strict enforcement of mandatory procedural requirements in criminal trials in Zimbabwe, particularly in guilty plea proceedings under s 271 of the Criminal Procedure and Evidence Act. It emphasizes that compliance with s 271(3) - requiring explanation of the charge and recording of that explanation - is not a mere formality but an essential component of a fair trial. The judgment underscores that the constitutional right to a fair trial under s 86(3)(e) is absolute and cannot be compromised by procedural shortcuts. It demonstrates the High Court's supervisory role in ensuring lower courts adhere to proper criminal procedure, and that even where accused persons plead guilty to serious offences carrying mandatory minimum sentences, procedural fairness must be maintained. The case contributes to the jurisprudence on when reviewing courts will set aside convictions as nullities rather than merely irregular.