Zenzo Ndlovu and Mpilo Moyo v Samukelisiwe Gumbo N.O and The State

The applicants were charged before the Inyathi Magistrates Court with contravening section 368 of the Mines and Minerals Act [Chapter 21:05] for unlawfully prospecting for gold without a permit or licence on 4 January 2025 along Bulawayo-Nkayi road near Ndwangwana shopping centre. Both applicants pleaded guilty and were convicted. At the commencement of trial, the magistrate attempted to explain the minimum mandatory sentence of two years imprisonment and the concept of special circumstances, but the applicants remained silent when asked if they understood. After conviction, instead of properly re-explaining special circumstances, the magistrate merely gave an example. The first applicant stated he needed money for his grandmother's funeral; the second said he had lost his job and needed money for his pregnant wife. The prosecution was not afforded an opportunity to respond. The court did not rule on whether special circumstances existed before sentencing both applicants to the minimum mandatory two years imprisonment. The applicants sought legal assistance and applied for review of the proceedings.

• Whether the trial magistrate properly explained the concept of special circumstances to unrepresented accused persons facing minimum mandatory sentences
• Whether the prosecution must be afforded an opportunity to address the court on the issue of special circumstances
• Whether a court must make a definitive ruling on the existence or non-existence of special circumstances before proceeding to sentence
• Whether the procedural irregularities constituted a gross irregularity warranting review
• What constitutes a fair trial in the context of minimum mandatory sentencing

The proceedings in the court a quo beginning from the attempted explanation of special circumstances after conviction, the pre-sentencing inquiry, and the sentences were quashed and set aside in their entirety. The matter was remitted to the trial court to: (a) properly explain the question of special circumstances to the applicants; (b) afford each applicant and the prosecution opportunity to address the court and, if they wish, to lead evidence on the existence or otherwise of special circumstances; (c) decide on whether or not special circumstances existed in the case; and (d) thereafter accordingly sentence the applicants. No order as to costs was made.

In criminal cases involving minimum mandatory sentences where the accused is unrepresented: (1) The court has a duty to fully and clearly explain what is meant by special circumstances after conviction and before inviting submissions, in a language the accused understands; (2) The court must ensure and confirm that the accused understands this explanation; (3) Both the accused and the prosecution must be afforded an opportunity to address the court on special circumstances and, if they wish, to lead evidence with appropriate cross-examination rights; (4) The court must make a definitive ruling on whether special circumstances exist or not before proceeding to sentence; (5) Failure to comply with these procedural requirements constitutes a gross irregularity that vitiates the proceedings and warrants setting aside the sentence on review as it goes to the root of the constitutional right to a fair trial. A preliminary explanation of special circumstances at the commencement of trial cannot substitute for the proper explanation required after conviction.

The court noted approvingly the observation by HUNGWE J (as he then was) in Arnold Bvuto v The State that every person facing a charge carrying a minimum mandatory sentence should be afforded legal representation at the state's expense, and that the Law Development Commission should consider enacting appropriate legislation to give effect to this constitutional right to a fair trial. The court also observed that the preliminary explanation of special circumstances at the commencement of trial is more critical in contested trials where issues are ventilated through witnesses' testimonies, and that very little if anything is gained from it where an accused is pleading guilty to the offence charged. The court emphasized that the requirement for the prosecutor to address the court on special circumstances is not for cosmetic purposes but to ensure fairness, as the prosecutor may be aware of other issues that amount to special circumstances and is obligated to disclose these to the court.

This case is significant in Zimbabwean criminal procedure as it comprehensively sets out the mandatory procedural requirements that magistrates must follow when dealing with unrepresented accused persons facing minimum mandatory sentences. It reinforces and applies the detailed guidelines established in S v Happy Simba Manase HH 110-15 and Arnold Bvuto v The State 2018 (1) ZLR 119. The judgment emphasizes that the right to a fair trial under section 69 of the Constitution of Zimbabwe and the right to adduce evidence under section 70(1)(h) require: (1) full and clear explanation of special circumstances in a language the accused understands; (2) confirmation that the accused understands the explanation; (3) opportunity for the accused to lead evidence on special circumstances; (4) opportunity for the prosecution to respond and potentially lead evidence; (5) cross-examination rights for both parties; and (6) a definitive ruling by the court on the existence or otherwise of special circumstances before sentencing. The case demonstrates that failure to follow these procedures constitutes a gross irregularity that goes to the root of a fair trial and warrants setting aside the proceedings on review.