The State v Simon Mzizi

Simon Mzizi (the accused) appeared before the Bulawayo Magistrates Court charged with contravening section 125 of the Criminal Law (Codification and Reform) Act (being found in possession of property reasonably suspected of being stolen). On 31 August 2025, the accused was driving a push cart containing 30 by 6m of metal rail along Khmai Road opposite UDINE when he was intercepted by security guards on patrol. When questioned about where he obtained the metal, the accused failed to give a satisfactory explanation and was arrested. The accused pleaded guilty to the charge. During plea recording, the trial magistrate called a state witness (Courage Marapuka, a security guard) who gave evidence about how he formulated the suspicion that the property was stolen. The trial magistrate then made a ruling, entered a verdict of guilty, and sentenced the accused to 8 months imprisonment (2 months suspended on condition of future good behavior, 6 months commuted to community service). Upon review, the scrutinizing regional magistrate had reservations about the hybrid procedure adopted by the trial magistrate and referred the matter to the High Court for review.

• Whether it is permissible to record a plea of guilty for a contravention of section 125 of the Criminal Law (Codification and Reform) Act
• Whether it is appropriate for a court to admit oral evidence during the recording of a guilty plea
• Whether the procedure adopted by the trial magistrate (accepting a guilty plea and then leading evidence from a witness) was competent
• What are the essential elements that must be proven for a conviction under section 125 of the Criminal Law Code
• Whether the proceedings complied with the principles of a fair trial

The High Court set aside the proceedings of the magistrates court, quashed the accused's conviction and sentence, and remitted the matter to the trial court for a trial de novo before a different magistrate.

The binding legal principles established are: (1) It is permissible to record a guilty plea for offences under section 125 of the Criminal Law (Codification and Reform) Act; (2) A court may lead evidence during the recording of a guilty plea pursuant to section 271(4) of the Criminal Procedure and Evidence Act; (3) For a conviction under section 125, evidence must be led from the person who formulated the reasonable suspicion that the property was stolen, as this is not a matter within the accused's knowledge; (4) After such evidence is led, the accused must be afforded an opportunity to challenge it in accordance with fair trial principles; (5) The essential elements for conviction under section 125 are: (a) possession of property capable of being stolen, (b) circumstances giving rise to reasonable suspicion of theft at the time of possession or thereafter, (c) formulation of reasonable suspicion by the arresting detail, and (d) failure by the accused to give a satisfactory explanation; (6) Failure to afford an unrepresented accused the opportunity to challenge evidence led during plea proceedings is grossly prejudicial and violates the right to a fair trial.

The court observed that section 271(4) of the Criminal Procedure and Evidence Act is a provision that can be employed to aid in the explanation of a charge, yet it remains underutilized in criminal procedure to the extent that one would be forgiven for thinking it remains undiscovered by many who practice criminal law. The court also noted that there is no difference in substance between a determination via plea procedure and a contested trial - both remain forms of criminal trial, with the former being simply a shortened version of the latter. The court remarked that the presentation of evidence during plea proceedings is not restricted to one method and may be through viva voce testimonies, by way of affidavit, or through formal admissions in terms of section 314 of the CPEA. MUTEVEDZI J noted that he was taking a slightly different approach from the emphatic finding in S v Moyo HH531-15 that 'it is incompetent' to accept a guilty plea in section 125 cases, preferring instead the more nuanced formulation in S v Chiwendo that evidence must be led but without declaring the plea itself incompetent.

This judgment provides important clarification on the procedure to be followed in prosecutions under section 125 of the Criminal Law (Codification and Reform) Act. It settles the apparent conflict in earlier judgments by confirming that: (1) guilty pleas can be recorded for section 125 offences; (2) evidence can and must be led during plea proceedings in such cases from the person who formulated the reasonable suspicion; (3) such evidence can be presented through various methods including viva voce testimony, affidavit, or formal admissions; but (4) the accused must be given an opportunity to challenge such evidence to ensure a fair trial. The judgment reconciles the holdings in S v Chiwendo, S v Moyo, and S v Gaviyaya, and reinforces the importance of procedural fairness even when an accused pleads guilty. It also underscores that plea proceedings remain a form of criminal trial, albeit a shortened version, and fundamental fair trial rights cannot be compromised.