The State v Blessing Kunaka and Joshua Chibonda

Both accused were charged with murder as defined in s 47 of the Criminal Law Codification and Reform Act, alleged to have murdered the deceased Delight Musiiwa at Beatty Farm, Chegutu during a robbery. The trial commenced on 23 July 2014 before BHUNU J with two assessors, Mr Gonzo and Mr Tutani. The trial progressed to judgment stage. However, both assessors fortuitously passed away before judgment could be delivered and before findings on aggravating circumstances could be made. There was considerable delay in the matter being reset down, compounded by the presiding judge's ascension to the Supreme Court bench in 2015. The matter was only reset down for hearing on 30 April 2019. An inquiry was held to confirm that both assessors had indeed passed away.

• What is to be done when both assessors die before judgment is delivered and findings on aggravating circumstances are made in a murder trial?
• Whether the High Court remains properly constituted to continue with a criminal trial when both assessors have died before judgment
• Whether the court can proceed to judgment without any assessors or with the aid of new assessors

1. The current proceedings in the matter were quashed and set aside. 2. The matter was referred for a trial de novo (new trial).

A criminal trial in the High Court cannot proceed without at least one assessor. Where both assessors die before judgment is delivered and findings on aggravating circumstances are made, the court is no longer properly constituted for purposes of continuing with the trial. While s 8 of the High Court Act permits continuation with one assessor (with consent and requiring unanimity), the silence of the Act regarding the death of both assessors means the legislature intended at least one assessor must be present. In such circumstances, the court must invoke its inherent jurisdiction to quash the proceedings and order a trial de novo.

The court noted that the role of assessors is crucial in the determination of issues of fact in serious criminal matters, and it is inappropriate for a judge to determine such factual issues without the aid of at least one assessor. The court also observed that a murder trial does not end until findings on extenuating/aggravating circumstances have been made, citing S v Nqobile Sibanda SC 4/08.

This case clarifies an important procedural issue in Zimbabwean criminal law regarding the proper constitution of the High Court in criminal trials. It establishes that where both assessors die before judgment and findings on aggravating circumstances, the court is no longer properly constituted and must quash the proceedings and order a trial de novo. The case demonstrates the critical role assessors play in factual determinations in serious criminal matters and confirms that the legislature intended criminal trials to proceed with at least one assessor. It also illustrates the court's inherent jurisdiction to control its processes when faced with procedural irregularities not specifically addressed by statute.