The State v Ntokozo Mlotshwa

The accused appeared before a magistrate at Plumtree charged with contravening section 70(1)(a) of the Criminal Law (Codification and Reform) Act Chapter 9:23 (having sexual intercourse with a young person). He pleaded guilty to having sexual intercourse with the complainant between April 2019 and 19 May 2019. During the plea inquiry, the court asked whether the intercourse was consensual, whether protection was used, and whether he had a right to do it, but never asked whether the accused knew that the complainant was under the age of 16 years at the time. He was convicted on his own plea and sentenced to 8 months imprisonment (partially suspended). The record was referred for review by the scrutinizing Regional Magistrate at Plumtree who queried whether the conviction could stand given that the essential element of "young person" was not properly canvassed during the plea inquiry.

• Whether a conviction on a guilty plea can stand where an essential element of the offence was not canvassed during the plea inquiry
• Whether the court properly complied with section 271(2)(b) of the Criminal Procedure and Evidence Act in dealing with an undefended accused person
• What are the essential elements that must be canvassed in a charge of having sexual intercourse with a young person under section 70(1)(a) of the Criminal Law (Codification and Reform) Act

The conviction was quashed and the sentence was set aside.

When dealing with undefended accused persons who plead guilty, the court must comply with section 271(2)(b) of the Criminal Procedure and Evidence Act by canvassing each essential element of the offence in turn and recording the accused's reply to each element. The court must satisfy itself that the admission of guilt is genuine, unqualified and unequivocal. In a charge of having sexual intercourse with a young person under section 70(1)(a) of the Criminal Law (Codification and Reform) Act, the accused's knowledge that the complainant was under the age of 16 years at the time of the offence is an essential element that must be canvassed during the plea inquiry. Failure to properly canvass essential elements constitutes a gross irregularity that vitiates the entire proceedings and requires the conviction and sentence to be set aside.

The court observed that trial courts should be careful not to regard every fact as having been proved just because it has been admitted. In offences of a sexual nature, the complainant's age must be proved by the state. The court also noted that the plea procedure exists to ensure that the process does not result in injustice, emphasizing the protective nature of these procedural requirements for undefended accused persons.

This case is significant in Zimbabwean criminal procedure as it reinforces the strict requirements for plea procedures when dealing with undefended accused persons. It establishes that courts must meticulously canvass each essential element of an offence during a plea inquiry, and that it is insufficient for such elements to merely appear in the charge sheet or state outline. The case emphasizes the protective function of section 271(2)(b) of the Criminal Procedure and Evidence Act in ensuring that guilty pleas are genuine and informed. It specifically clarifies that in sexual offences involving young persons, the accused's knowledge of the complainant's age is an essential element that must be explicitly canvassed, given that lack of such knowledge constitutes a complete defence under the Criminal Law (Codification and Reform) Act.