The accused was charged with assault under section 89 of the Criminal Law Codification and Reform Act, allegedly striking the complainant with an axe on the head and with a knobkerrie on the mouth and left shoulder on 9 January 2021. On day one (13 October 2021), the accused appeared and pleaded guilty but disputed using an axe, admitting only to using a knobkerrie. The court was not satisfied his guilty plea was unequivocal and entered a plea of not guilty, remanding the matter for trial. On day two (1 November 2021), the prosecutor stated they did not wish to proceed to trial. The trial magistrate repeated the procedural formalities from day one, asked the accused a series of questions about self-defence, and on the basis of his answers alone, found him not guilty and acquitted him without conducting a trial. The trial magistrate subsequently noted the error and referred the matter to the High Court on review.
The proceedings in CRB NK 193/21 were quashed and set aside. The accused was ordered to be tried de novo before a different magistrate. Kabasa J agreed with the order.
Where a court has entered a plea of not guilty and remanded a matter for trial, the State must be afforded an opportunity to prove its case through the proper trial process. A court cannot acquit an accused person by simply asking questions and accepting the accused's answers without conducting a trial. The failure to conduct a trial where one is required constitutes a gross irregularity so fundamental that it occasions a substantial miscarriage of justice and warrants the setting aside of proceedings under section 29(2)(b)(i) of the High Court Act. Proceedings which result in an acquittal without a trial are not in accordance with real and substantial justice.
The judge noted there were other unsatisfactory issues about the conduct of the trial proceedings, including the manner in which essential elements were put to the accused and the strange placement of a not guilty verdict under the sub-heading "sentence." However, the judge stated he did not intend to overburden the review judgment with all these issues and confined the review to the irregularity of acquitting the accused without a trial. The judge also commented that both the magistrate's capitulation to the prosecutor's demand and the prosecutor's conduct were "equally strange and ill-informed."
This case is significant in Zimbabwean criminal procedure as it reinforces fundamental principles of fair trial and due process. It establishes that an accused cannot be acquitted without the State being afforded a proper opportunity to present its case at trial. The judgment emphasizes that once a not guilty plea has been properly entered, the matter must proceed to a full trial where evidence is led. The case serves as a warning against procedural shortcuts and highlights the importance of following proper criminal procedure, even when prosecutors and defence may be in agreement. It demonstrates the review jurisdiction of the High Court to correct fundamental irregularities that result in miscarriages of justice.