The State v Oliper Ndlovu

On 27 February 2015 at house number 682 Old Magwegwe, Bulawayo, the accused Oliper Ndlovu harboured her husband Lungisani Maphala, a prisoner who had escaped from Mbizo Satellite Prison. When a Prison and Correctional Services Officer (Pianos Marega) went to the house to arrest the escaped prisoner, the accused concealed him in a wardrobe. The accused was charged before a provincial magistrate with contravening section 100 of the Prisons Act [Chapter 7:11], pleaded guilty to the charge, and was convicted. After conviction, when the trial magistrate consulted the Prisons Act to determine the appropriate sentence, he discovered that section 100 had been repealed. The magistrate forwarded the record to the High Court for the proceedings to be quashed or for further direction.

• Whether proceedings should be quashed because the accused was charged under a repealed section of legislation
• Whether the charge could be amended on review despite the misdescription of the statutory provision
• Whether substantial prejudice was occasioned to the accused by the defective charge
• Whether section 29(b)(iii) of the High Court Act permits amendment of a charge on review
• What is the proper statutory provision criminalizing the conduct of harbouring an escaped prisoner

The charge was amended to read: 'Harbouring an escaped prisoner as defined in section 185(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that on the 27th day of February, 2015 and at house number 682 Old Magwegwe, Bulawayo Oliper Ndlovu unlawfully and intentionally harboured Lungisani Maphala, a prisoner whom she knew had unlawfully escaped from Mbizo Satellite Prison.' The proceedings were remitted back to the trial magistrate to proceed to assess the appropriate sentence. The conviction was confirmed with the amended charge.

A conviction will not be quashed on review merely because the accused was charged under a repealed statutory provision, provided that: (1) the conduct constitutes an offence under current legislation; (2) the accused admitted the facts and essential elements of the offence; (3) no substantial miscarriage of justice occurred; and (4) the accused suffered no prejudice. The court has power under section 29(b)(iii) of the High Court Act [Chapter 7:06] to amend a misdescription of a charge on review in appropriate cases. Under section 29(3) of the High Court Act, no conviction can be quashed by reason of any irregularity or defect in the proceedings unless a substantial miscarriage of justice has occurred. Where evidence clearly proves that the crime intended to be charged was committed and the misdescription did not prejudice the accused, the court should amend the charge rather than quash the proceedings.

The court noted there is a plethora of case law authorities to the effect that provided there is no prejudice, it is proper on review to amend a misdescription of the heading of a charge. The court endorsed the reasoning in R v Harmer 1906 T.S. 50 that quashing proceedings for mere technical informalities would put the Crown to expense and the prisoner to worry of fresh proceedings with possibly the same ultimate result as to guilt. The court observed that the conduct of harbouring escaped prisoners, formerly criminalized under section 100 of the Prisons Act, is now provided for in section 185(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], which prescribes a maximum penalty of a fine not exceeding level six or imprisonment for a period not exceeding one year or both.

This case illustrates important principles of criminal procedure in Zimbabwe regarding the amendment of charges on review. It confirms that technical defects or misdescriptions in charges, including citation of repealed legislation, do not automatically invalidate proceedings where: (1) no substantial miscarriage of justice has occurred; (2) the accused was not prejudiced; (3) the evidence clearly establishes the commission of the intended crime; and (4) the accused pleaded guilty to the facts constituting the offence. The case also clarifies the transition from the repealed Prisons Act section 100 to the new Criminal Law (Codification and Reform) Act section 185(3) regarding the offence of harbouring escaped prisoners. It demonstrates the court's power under section 29 of the High Court Act to correct procedural irregularities on review rather than quashing proceedings on purely technical grounds, thereby promoting substantive justice over procedural formalism.