The State v Maxwell Moyo and Leeroy Ndlovu

The accused persons were arraigned before the Regional Court-Central Division. Maxwell Moyo (first accused) was charged with two counts of rape in contravention of section 65 of the Criminal Law [Codification and Reform] Act, allegedly committed during January to March 2019 against a female juvenile. Leeroy Ndlovu (second accused) was charged with several counts of rape of the same complainant during the same period. Both accused persons were unrepresented and pleaded not guilty. At the conclusion of the trial, both were found guilty as charged. Maxwell Moyo was sentenced to an effective 17 years imprisonment (20 years with 3 years suspended). Leeroy Ndlovu was sentenced to an effective 34 years imprisonment (40 years with 6 years suspended). The matter came before the High Court on automatic review. The critical defect was that at the commencement of the trial, neither accused person was informed of their right to legal representation as required by section 163A(1) of the Criminal Procedure and Evidence Act.

• Whether the failure to inform the accused persons of their constitutional right to legal representation at the commencement of trial constitutes a fatal irregularity
• Whether the trial court complied with the peremptory requirements of section 163A(1) of the Criminal Procedure and Evidence Act read with section 191
• Whether the failure to inform accused persons of their right to legal representation violates the constitutional right to a fair trial guaranteed by section 69(1) of the Constitution
• Whether the conviction should be set aside without reference to the merits due to the procedural irregularity

1. The conviction is hereby quashed and set aside. 2. The Prosecutor-General may in his discretion commence proceedings against the accused afresh, provided however that should the accused be convicted, the period of sentence already served must be taken into account as a portion of any new sentence which may be imposed.

The failure by a trial court to inform accused persons of their constitutional right to legal representation as required by section 163A(1) of the Criminal Procedure and Evidence Act read with section 191, and section 69(1) of the Constitution, is an irregularity so fundamental and serious that it is fatal to the proceedings. Such failure amounts to an irregular and illegal departure from the formalities, rules and principles of procedure in accordance with which the law requires a criminal trial to be initiated and conducted, resulting in proceedings that are not in accordance with real and substantial justice and causing a substantial miscarriage of justice. The right to legal representation is a substantive constitutional right, not merely a procedural formality, and is the cornerstone of a fair trial. Where such a fundamental irregularity occurs, the conviction must be set aside without reference to the merits of the case.

The court made several non-binding observations: (1) Magistrates must be trained until it becomes second nature to them to inform accused persons of the requirements of section 163A(1) and to understand the consequences of failure to comply; (2) In the interests of justice, where an accused is facing a serious charge, the court should not just inform the accused of their right to legal representation but should encourage the accused to seek it (citing with approval Potifa Sawaka v The State HH 262-20); (3) The court suggested a simple format for informing accused persons, citing the Namibian case of James Gadu v The State, i.e., the accused must be informed that he has a right to be defended by a lawyer and that he has the right to hire and pay a lawyer of his choice; (4) The court noted that in any democratic criminal justice system there is tension between the public interest in bringing criminals to book and the equally great public interest in ensuring that justice is manifestly done to all, even those suspected of conduct which puts them beyond the pale.

This case is significant in Zimbabwean criminal procedure as it reinforces the peremptory nature of the requirement to inform accused persons of their right to legal representation at the commencement of trial. The judgment emphasizes that the right to legal representation is not merely a procedural formality but a substantive constitutional right that is the cornerstone of a fair trial. The case establishes that failure to comply with section 163A(1) of the Criminal Procedure and Evidence Act is a fatal irregularity that requires setting aside convictions without reference to the merits, regardless of how serious the charges are. The judgment calls for proper training of magistrates to ensure compliance with this fundamental requirement and demonstrates the High Court's robust approach to protecting constitutional rights in criminal proceedings, even in cases involving serious offences like rape. The case also provides guidance on what constitutes proper information-giving regarding legal representation rights.