Judgment No. HB 14/15
Case No. HCAR 940/14
CRB INY 166/14
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 29 JANUARY 2015
TAKUVA J: This matter was placed before me in terms of section 57 (1) (b) of the Magistrates’ Court Act [Chapter 7:10].
The facts are that the accused was charged with and convicted of contravening section 114 (2) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (stock theft). It was alleged in the summary jurisdiction that on a date unknown to the prosecutor but during the month of February 2013 and at plot 10 Egypt, Inyathi, Zondiwe Ncube unlawfully and intentionally took four heifers the property of Mnkandla Mbokodo either intending to permanently deprive him of his ownership, possession or control or realizing that there is real risk or possibility that she may so deprive Mnkandla Mbokodo of his ownership, possession or control.
The circumstances as outlined by the state are that the complainant is accused’s brother. On 3 November, 2012 the complainant bought six heifers from one Morros Mguni. Subsequently on a date unknown to the prosecutor but during the month of February 2013, the complainant tasked the accused person to transport the cattle from plot 10 Egypt Inyathi to plot 13 Esimnyangeni, Shangani. Instead, the accused person transported four heifers to Kennilworth Resettlements, Inyathi without the knowledge of the complainant. The four heifers are valued at $1 600,00 and they were not recovered.
The accused appeared before a magistrate and pleaded guilty. She was found guilty as charged and sentenced to 15 years imprisonment after the court made a finding that there were no special circumstances. All the essential elements of the charge were put and admitted by the accused. However, in mitigation the accused said, “I took the cattle with an intention to recover a debt owed by the complainant.” Further during the inquiry into whether or not special circumstances exist, the accused stated; “The complainant owed me $1 454,00 and I thought of recovering my money from the cattle. My brother (complainant) kept on changing goal posts”
It has been said time and again that there is an inherent danger of convicting persons upon guilty pleas. This is so because this procedure may result in injustice if not properly followed. It is true that before acting on a plea of guilty the court must be satisfied that the admission of guilt is genuine, unqualified and unequivocal. Put differently the court must be satisfied that the accused is guilty in fact and in law. See S v Chirodzero HH-14-88 and S v Kawocha S-22-92.
In respect of property crimes, such as theft, robbery or malicious damage to property, the court should always investigate whether the accused committed the crime under any sort of claim of right. A claim of right is a “decently clothed” ignorance or mistake of law. Such an ignorance or mistake of law is said to be decently clothed where the accused either knows or suspects that his actions would normally be illegal but due to some extraneous factual basis, he believes that his actions will not be unlawful in present circumstances.
Where there is doubt as a result of this defence, the court should alter the plea to one of not guilty in order to determine the contentious issues. The rationale for this principle is to ensure that there is a fair trial especially where an accused is unrepresented and/or where the case involves a mandatory minimum sentence. On a charge of stock theft a defence of claim of right must be sufficiently investigated – see Kawocha’s case supra.
In casu, the accused’s explanation amounts to an extraneous factor that made her believe that her actions will not be unlawful. This defence should have been investigated and a plea of not guilty entered. It was not, and that is a misdirection. Consequently, the proceedings are not in accordance with real and substantial justice. The conviction is quashed and the sentence set aside. The matter is remitted to the magistrates’ court for a trial upon a plea of not guilty.
Mutema J ……………………………….I agree