The State v Takudzwa Nhamburo

The accused appeared before the regional magistrate for Eastern Division sitting at Chitungwiza on 2 June 2021 charged with attempted murder as defined in s 189 as read with s 47 of the Criminal Law (Codification and Reform) Act. On 22 December 2020, the accused allegedly unlawfully attempted to cause the death of the complainant at Mvuri Village, Chief Nyandoro Mahusekwa by striking the complainant (whom he accused of stealing his money) on the head several times with a log. The accused pleaded guilty to the charge. The regional magistrate convicted the accused as charged and sentenced him to 8 years imprisonment, with 2 years suspended on the usual conditions of good behaviour.

• Whether the trial magistrate complied with the peremptory provisions of section 271(3) of the Criminal Procedure and Evidence Act in recording the accused's guilty plea
• Whether proceedings that do not comply with section 271(2)(b) as read with section 271(3) can be certified as being in accordance with real and substantial justice
• Whether section 29(3) of the High Court Act can save proceedings that violate the constitutional right to a fair trial under sections 69 and 86(3)(e) of the Constitution

The proceedings in case No CRB CHT MRDR 66/21 were declared not in accordance with real and substantial justice. The conviction and sentence imposed were set aside. The Prosecutor General retained discretion to institute a fresh prosecution against the accused, provided that any sentence imposed in the event of conviction shall take into account the period of imprisonment already served. The accused was ordered to be liberated forthwith.

Proceedings which do not comply with sections 271(2)(b) as read with section 271(3) of the Criminal Procedure and Evidence Act render a trial unprocedural and therefore unfair. An unfair trial is a violation of sections 69 and 86(3)(e) of the Constitution which entrench the right to a fair trial. Section 29(3) of the High Court Act cannot save such proceedings because it is a qualifying law and cannot apply where the irregularity applies to an entrenched provision of the Constitution. The provisions of section 271(3) requiring recording of an explanation on the charge are peremptory and their breach constitutes a fundamental procedural irregularity warranting the setting aside of conviction and sentence.

The trial magistrate explained that the omission to comply with section 271(3) might have been due to the fact that he only received a copy of S v Mangwende HH 695/20 sometime late June 2021. The magistrate expressed regret for the omission and undertook to guard against it in future. The court noted that despite setting aside the conviction and sentence, the Prosecutor General retains discretion to institute fresh prosecution, with the safeguard that any future sentence must take into account the period already served by the accused.

This case reinforces the principle established in S v Mangwende HH 695/20 that compliance with section 271(3) of the Criminal Procedure and Evidence Act is peremptory and not merely directory. It emphasizes that procedural irregularities affecting the constitutional right to a fair trial cannot be saved by section 29(3) of the High Court Act, as that provision is a qualifying law that cannot override entrenched constitutional provisions. The case underscores the supremacy of constitutional rights in Zimbabwe's criminal justice system and the importance of strict adherence to procedural safeguards in guilty plea proceedings.