The State v Nomore Hondo and Daniel Moyo

On 6 May 2018 at approximately 0130 hours at the corner of George Silundika and 8th Avenue, Bulawayo, police officers from Bulawayo Central Crime Prevention Unit were on patrol. They spotted the two accused persons walking along George Silundika Avenue laden with an assortment of goods. Upon searching the accused persons, accused one was found in possession of various items including a Remington hair clipper, cellphone, tools, spanners, screwdrivers, and other materials. Accused two was found in possession of containers, jerry cans, reflectors, caps and other scrap materials. The total value of the property was US$408. When asked to account for the property, the accused persons failed to give a satisfactory explanation, stating only that they had "picked" the property at City Hall. They were arrested and charged with being found in possession of property reasonably suspected of being stolen under section 125(a) of the Criminal Law Codification & Reform Act. Both accused pleaded guilty before a Provincial Magistrate at Tredgold and were convicted and sentenced to 8 months and 5 months imprisonment respectively.

• Whether it is proper for a magistrate to accept a guilty plea in cases of receiving or possessing stolen property without receiving evidence on the essential elements of the offence
• Whether the essential elements of the offence under section 125(a) of the Criminal Law Codification & Reform Act were properly proved
• Whether an accused person can properly admit to the element of 'reasonable suspicion' which is formed in the mind of a third party (police officer)
• Whether a trial de novo is required when essential elements are not proved in a guilty plea proceeding

The conviction and sentence were set aside. The matter was referred back to the court a quo for a trial de novo (a new trial).

In prosecutions under section 125(a) of the Criminal Law Codification & Reform Act (possession of property reasonably suspected to be stolen), a court cannot properly accept a guilty plea without receiving evidence on the essential elements of the offence, particularly the element of reasonable suspicion. The formation of reasonable suspicion is within the knowledge of the arresting officer, not the accused, and therefore any admission by the accused of this element is of no value. An accused person cannot admit that there was reasonable suspicion that goods were stolen because it is not the accused who suspects himself - the suspicion is formed by a third person (normally a police officer) who assesses the circumstances. Even in guilty plea proceedings, the prosecution must call the arresting officer to testify as to how and why the suspicion was formed. Not every fact should be regarded as proved simply because it is admitted, and courts must require proper proof of essential elements that are not within the accused's personal knowledge.

The court made general observations about the proper procedure in section 125(a) cases, noting that proof of knowledge that property was stolen may be either direct (e.g., testimony from the thief which is corroborated) or indirect (e.g., reliance upon suspicious factors such as possession at an unusual time and place, possession in suspicious circumstances, or inability to give a satisfactory account of possession). The court referenced the principle from S v Dube that not every fact should be regarded as proved simply because it is admitted, using examples such as "being in a prohibited area" or "possession" as difficult concepts requiring careful judicial scrutiny. The court noted that the accused one had relevant previous convictions for unlawful entry and theft, though this was mentioned in the context of mitigation rather than as determinative of guilt in the present case.

This case is significant in Zimbabwean criminal procedure as it establishes clear guidelines on when guilty pleas can be accepted in cases involving possession of property suspected to be stolen. It reinforces the principle that certain essential elements of an offence cannot be admitted by an accused person because they relate to facts outside the accused's knowledge, particularly the formation of reasonable suspicion in the mind of a third party. The judgment emphasizes the importance of judicial scrutiny in guilty plea proceedings and the necessity of calling witnesses to prove essential elements even when an accused pleads guilty. It serves as an important precedent for the proper application of section 125(a) of the Criminal Law Codification & Reform Act and section 271(2)(b) of the Criminal Procedure and Evidence Act.