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Judgment No. HB 35/15
Case No. HCA 453/13
Xref CRB ZVI 848/13
BENJAMIN BACHI MAFUSIRE versus
THE STATE
IN THE HIGH COUT OF ZIMBABWE
MAKONESE AND TAKUVA JJ
BULAWAYO 9 FEBRUARY AND 26 FEBRUARY 2015
Criminal Appeal
Ms Kwande for the appellant
Mr T Hove for the respondent
MAKONESE J : The appellant was arraigned before a Zvishavane Magistrates court on an alleged contravention of section 114(1)(a) of the Criminal Law (Codification and Reform)
Act [Chapter 9:23], that is to say one count of stocktheft. Following his tendering of a plea of guilty, the appellant was convicted by the trial court in terms of the provisions of section 271(2)
(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].
Appellant was sentenced to a term of 9 years imprisonment which is the minimum mandatory penalty provided for in the penal provision of the section under which he was charged. The court failed to find any special circumstances after going through a detailed explanation of what amounts to special circumstances. The appellant must have come to terms with the gravity of the sentence and subsequently filed a Notice of Appeal against both conviction and sentence.
The appellant framed his grounds of appeal in the following terms:
“Notice of appeal
The court a quo erred in:-
(1) Conducting a trial and convicting appellant using a defective state outline. The state outline lacks essential elements of the offence. ( sic )

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Judgment No. HB 35/15
Case No. HCA 453/13
Xref CRB ZVI 848/13
(2) Conducting a trial and convicting the Appellant without satisfying itself that unrepresented accused understand the nature of the offence and the defences he may tender. ( sic )
(3) Convicting Appellant on his own plea of guilty without ascertaining that the accused had applied his mind to the true import of the charge and was properly aware that anything he may wish to say on his behalf could not constitute a defence. The court a qu o misguided itself treating a plea of guilty as a reason to be cursory in the explanation of essential elements. The court a quo merely paraphrased the definition of the offence but that cannot assist accused to understand the important of the elements, more so if they are of technical legal nature such as
“intent to deprive the owner permanently.(sic)
(4) Failing to satisfy the requirements of Section 271 (2) (b) of the CODE thus rendering the conviction unsafe. The scanty information contained in the Magistrates questions was a complete failure to achieve the object of the enquiry envisaged by Section 271
(2) (b) of the CODE. It must be remembered that the enquiry is a mechanism to ensure that prior to the conviction the Magistrate satisfies himself, beyond doubt, that the accused’s plea of guilty or admission to the charge is an unqualified or unequivocal and genuine plea. The Magistrates merely stated Section 271 (2) (b) which amounted to lip service failing dismally to be bona fide and proper to the prejudice of the accused. (sic)
(5) Failing to conduct any inquiry into the existence or otherwise of special circumstances. The court a quo misdirected itself in only defining special circumstances which can be held to be just lip service. That alone was a glaring irregularity. What is conspicuous is the absence of any evidence that he carried out an investigation on the question not withstanding his restatement and paraphrasing of the definition thereof. It would appear that the Magistrate was either unaware of the need to conduct an enquiry or was just a derelict of duty. Thus without an enquiry into the existence or otherwise of the same, the trial court went on to sentence accused to the mandating minimum sentence. (sic)
Prayer
WHEREFORE appellant prays that the conviction and sentence be set aside and he be found not guilty and acquitted.”
The brief allegations against the appellant as borne out by the charge sheet are that on a date unknown to the Prosecutor but during the month of January 2013 and at village Chizvaure
Headman Shuku, Chief Masunda, Zvishavane, the appellant unlawfully took one bull knowing that the complainant was entitled to own, possess or control the property or realising that there

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Judgment No. HB 35/15
Case No. HCA 453/13
Xref CRB ZVI 848/13 was a real risk or possibility that the complainant may be so entitled to own, possess or control the property intending to deprive the owner permanently of his ownership, possession or control of the said bull.
When the charge was put to the appellant, the following exchange took place between the trial magistrate and the appellant:
“charge put and understood
Plea – guilty section 271 (2) (b)
Facts understood
Q: Are the facts true and correct?
A: Yes
Q: Any variations to make?
A: None
Essential elements
Q: Do you admit that on the date unknown to the Prosecutor but during the month of
January 2013 and at village Chizvaure, Chief Masunda, Zvishavane you stole complainant’s bull in the alleged manner?
A: Yes
Q: What did you want to do with the bovine?
A: To use it to plough
Q: You admit that your intention was therefore to deprive the owner permanently of his bovine?
A: Yes
Q: Any defence to tender?
A: None
Verdict – Guilty as pleaded
PP – He is a first offender.”
The transcript of proceedings indicates that immediately after the pronouncement of the guilty verdict the trial magistrate recorded his explanation of the meaning of special circumstances in the following terms:
“Special circumstances means any extraordinary factor arising out of the commission of the offence or which is peculiar to the offence. A clear distinction must be drawn between special circumstances and mitigating features which are of general application such as good character and peculiar hardship. The latter do not constitute special circumstances, nor co-operation on the part of the accused.

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Judgment No. HB 35/15
Case No. HCA 453/13
Xref CRB ZVI 848/13
However, for example, the accused was forced by circumstances to commit the offence or was bona-fide , ignorant of some statutory provision of the law, such factor could constitute not only mitigating factors but special circumstances.
Q: Have you understood my explanation?
A: Yes
Q: Would you like to address the court on special circumstances?
A: I do not have anything to say except that I wanted to include the bull as part of my herd. I only have six bovines so I wanted to increase my herd.
Q: What I want you to address me on is whether there are any special circumstances in your case since I have explained the meaning of special circumstances to you?
A: No there are no special circumstances in my case.
Q: You understand that a charge of stock theft involving the theft of a bovine carries a mandatory minimum sentence of nine years. You risk being incarcerated for that period if you fail to address the court on special circumstances.
A: I have nothing to say on special circumstances.”
The appellant was then asked to address the court in mitigation. He indicated that he was
66 years old. He had seven children and was unemployed. He survived from peasant farming.
When asked why he had committed the offence his final words were that he had erred. He wanted to use the beast for ploughing. The allegations in the outline of the state case reveal that the appellant had upon stealing the bull proceeded to castrate it and cut the tips of its horns thereby assuming full ownership of the bull.
I do accept that the appellant is an elderly man and that imprisonment would not be an ideal sentence for a man of his age. The trial magistrate did take this into consideration.
I am of the view that the court a quo properly canvassed the essential elements of the
offence. This is supported by the record of proceedings. The trial court properly ascertained that the appellant was pleading genuinely and unequivocally to the charge when it convicted him in the truncated trial procedure as provided for under section 271 (2) (b) of the Criminal
Procedure and Evidence Act [Chapter 9:07].

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Judgment No. HB 35/15
Case No. HCA 453/13
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The appellant’s argument that the state outline was defective has no merit and is not supported by a proper reading of the record of proceedings. Further there is absolutely no basis for the contention by appellant that the trial court did not satisfy itself that the unrepresented appellant understood the nature of the offence he was facing. The trial magistrate clearly explained all the essential elements of the offence and the responses from the appellant did not indicate that he had a defence to offer. The magistrate did not summarily enter a verdict of
guilty, but not only explained the essential elements but extensively canvassed the issue of special circumstances.
Mr T. Hove appearing for the respondent drew the court’s attention to the case of State v
Mudzingwa 1999 (2) ZLR 225. In this case, the court held that in an appeal against conviction where there has been a plea of guilty an appeal against conviction will only be entertained where from the words of the accused in pleading to the charge it is demonstrated that the accused was raising some defence which could legitimately be raised to the charge.
See also the cases of S v Kwainona 1993 (2) ZLR 354 and R v Mamba
As I have already stated, in all the responses he gave in the court
1957 (2) SA 420. a quo , the appellant did not raise any issue that could in the slightest degree amount to a possible defence to the charge.
In fact he said he stole the bull because he wanted to increase his herd. That was his objective.
He castrated the complainant’s bull and cuts its horns showing that he had assumed total and effective control over the bull in question.
In the case of S v Matimbe and others 1984 (1) ZLR 283 the court indicated that it is our law that in recording an accused’s plea of guilty under section 271 (2)(b) of the Criminal
Procedure and Evidence Act, the court must seek to satisfy itself whether or not the accused indeed understands and admits to the charge and the essential elements of the offence.
In S v Dube and Another 1988 (2) ZLR 385 (SC) at page 391 (B), the court pointed out that the purpose of the inquiry under section 271 (2)(b) is not to test the credibility of the accused person or to trap him into further submissions but simply to determine precisely what it is that he is admitting to.
It is patently clear that the appellant tendered a plea of guilty after the essential elements had been put to him. The appeal against conviction is therefore futile and in my view the

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Judgment No. HB 35/15
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Xref CRB ZVI 848/13 appellant genuinely admitted having committed the offence. The conviction on a charge of stock theft is therefore unassailable.
As regards sentence, it was contended on behalf of the appellant that the court a quo failed to conduct an inquiry into the existence or otherwise of special circumstances in this case, as envisaged in section 114 (3) of the Criminal Law Codification and Reform Act. Nothing can be further from the truth. The excepts of the transcript which I have referred to show that the learned magistrate explained to the appellant the meaning and import of special circumstances.
He even went further to record the explanation which he had given. It should be noted that the trial magistrate gave examples of the factors which could possibly amount to special circumstances and went out of his way to distinguish between special circumstances and everyday and ordinary mitigatory factors. The learned magistrate can therefore not be faulted.
The inquiry into the existence or otherwise of special circumstances was conducted and the court made a specific finding that no special circumstances existed. The attack on the learned magistrate and the casting of aspersions of dereliction of duty on his part are clearly unwarranted and unjustified.
Counsel for the appellant, Ms Kwande could not highlight what factors should have been held by the court to amount to special circumstances. If such factors had been pointed out this would have tended to support the appellant’s case that no proper inquiry into special circumstances was undertaken by the court a quo.
In the result, the appeal against conviction and sentence is hereby dismissed.
T. Tafa and Associates
, applicant’s legal practitioners
National Prosecuting Authority’s office , respondent’s legal practitioners
Takuva J, agrees………………………………………………