S v ZVINYENGE & ORS 1987 (2) ZLR 42 (S)

Flynote

Appeal — review powers of Supreme Court — need for appeal to be properly before Court before review powers can be exercised.

Criminal procedure — charge — statutory offence — desirability of reference to penalty section.

Criminal procedure — plea of guilty — offences involving possession — dangers of accepting plea tendered by unrepresented accused.

Criminal procedure (sentence) — transfer for sentence to High Court — need for magistrate to investigate full facts relating to conviction.

Headnote

The applicants had been convicted, on their pleas of guilty, of possessingrhinoceros horns in contravention of s 36(1)(b) of the Parks and Wild Life Act 1975. Their cases were transferred to the High Court for sentence, where each accused received the mandatory minimum sentence prescribed by the Act, namely, a fine of $15 000 or imprisonment for five years. While in prison they had completed the necessary forms for seeking leave to appeal in person, but these forms had apparently been mislaid by officials. Eventually they engaged a legal practitioner who applied, long after their right of appeal had lapsed, for the case to be remitted for trial afresh on the ground that they had wrongly pleaded guilty.

Held, that the wrong procedure had been adopted, since the Supreme Court's powers of review, and the powers of review of its individual judges, will normally be exercised only when the matter is properly before the court by way of appeal. However, in the circumstances and because there was merit in the application, the application should be regarded as one for leave to appeal out of time.

Held, further, that where a crime merely involves possession, the dangers of an incorrect plea of guilty are greater than usual because the accused person may not realise that his state of mind is very relevant. In the instant case, the applicants had admitted that they were wrongfully and unlawfully in possession of the rhinoceros horns - an admission of law, not fact - and they were probably not qualified to make it.

Held, further, that where people are charged with possessing rhinoceros horn, it is undesirable to charge them simply with a contravention of s 36(1)(b) of the Parks and Wild Life Act; reference should also be made specifically to the penalty section, namely s 115(4a).

Held, further, that as a matter of practice a magistrate proposing to transfer a case to the High Court for sentence in terms of s 58 or s 59 of the Magistrates Court Act [Chapter 18] should always investigate the full facts upon which the finding of guilt was made, more particularly when a question of "special circumstances" is involved, for the guidance of the judge who will impose sentence.