The State v Zvidzai Manetaneta

The accused was charged in the Magistrate's Court sitting in Goromonzi with contravening section 368(1) as read with section 368(4) of the Mines and Minerals Act [Chapter 21:05]. It was alleged that on 5 January 2020, at Gwensay Farm Acturus, Goromonzi, the accused unlawfully prospected or searched for gold without a licence or permit. The accused pleaded not guilty but was convicted after trial. The trial court found no special circumstances and sentenced him to an effective two years imprisonment as mandated by the statute. The matter came before the High Court on automatic review. The record revealed that at the commencement of trial on 17 January 2020, the accused was not informed of his right to legal representation as required by section 163A(1) of the Criminal Procedure and Evidence Act.

• Whether the failure to inform an accused person of his constitutional right to legal representation at the commencement of trial constitutes a fatal irregularity
• Whether such irregularity renders the proceedings not in accordance with real and substantial justice
• Whether a conviction can stand where the accused was not informed of his right to legal representation as required by section 163A(1) of the Criminal Procedure and Evidence Act and section 69 of the Constitution

The conviction was quashed and set aside. The Prosecutor-General may in his discretion commence proceedings against the accused afresh, provided that should the accused be convicted, the period of sentence already served must be taken into account as a portion of any new sentence which may be imposed.

The failure by a trial court to inform an accused person of their constitutional right to legal representation at the commencement of trial, as required by section 163A(1) of the Criminal Procedure and Evidence Act read with section 69 of the Constitution, constitutes an irregularity so fundamental that it is fatal to the proceedings. Such failure amounts to an irregular or illegal departure from the formalities, rules and principles of procedure required by law for conducting a criminal trial, resulting in proceedings that are not in accordance with real and substantial justice and causing a substantial miscarriage of justice. The conviction must be set aside without reference to the merits of the case. The right to legal representation is a substantive constitutional right, not merely a procedural formality, and is the cornerstone of a fair trial as envisaged in section 69(1) of the Constitution.

The court observed that the starting point in determining the fairness of a trial, as envisaged in section 69(1) of the Constitution, should always be whether or not the accused is informed of his right to legal representation. The accused must be properly informed, and his answers recorded, so that if there is a waiver of such right, it would be an informed one. The court also noted that while the Prosecutor-General may exercise discretion to commence fresh proceedings, any new sentence imposed must take into account the period of sentence already served by the accused.

This case establishes the fundamental importance of informing an accused person of their constitutional right to legal representation at the commencement of criminal proceedings. It reinforces that the right to legal representation under section 69 of the Constitution is a substantive right, not merely procedural, and is the cornerstone of a fair trial. The judgment clarifies that failure to comply with section 163A(1) of the Criminal Procedure and Evidence Act constitutes a fatal irregularity that mandates setting aside a conviction regardless of the merits of the case. It emphasizes the primacy of constitutional rights in criminal procedure and the courts' duty to ensure compliance with these fundamental safeguards. The case serves as an important reminder to magistrates of their mandatory duty to inform accused persons of their rights and properly record this information and the accused's response.