S v PISIRAYI

HIGH COURT, BULAWAYO

[Transfer for Sentence HB 121-16]

May 16 and 19, 2016

MATHONSI AND MAKONESE JJ

Criminal procedure  –  Review  –  Powers of review court  –  Referral of case by lower court to High Court for purposes of sentence  –  Whether High Court can mero motu convert proceedings to review proceedings  –  High Court Act [Chapter 7:06], section 29.

Evidence  –  Onus of proof  –  Criminal cases  –  Accused giving a reasonably possibly true explanation in defence  –  Whether accused has onus to prove truth of explanation.

A magistrate rejected the explanation given in defence and convicted the accused, a physically challenged person, for contravening s 60A of the Electricity Act [Chapter 13:19] which carries a minimum mandatory sentence of 10 years imprisonment, unless special circumstances are established, the onus of which lies on the accused. Because the lower court lacked jurisdiction to sentence the accused, it referred the case to the High Court for purposes of sentence. In exercising its review powers the High Court quashed the conviction and acquitted the accused.

Held, that although the matter was not submitted for purposes of review but sentence, the High Court was nonetheless empowered to mero motu review any proceedings of inferior courts or tribunals where its attention is drawn to the possibility of the proceedings not having been in conformity with real and substantial justice.

Held, further, that an accused does not bear any onus to prove the explanation given in his defence, nor does the law impose upon him the obligation to prove his innocence. It is the State which bears the onus to prove the accused’s guilt beyond reasonable doubt.

Cases cited:

S v Kuiper 2000 (1) ZLR 113 (S), referred to

R v M 1946 AD 1023, referred to

Legislation considered:

Criminal Procedure and Evidence Act [Chapter 9:07], s 225 (b)(i)

Electricity Act [Chapter 13:19], s 60A (3) and (4)

High Court Act [Chapter 7:06], s 29 (1), (2) and (4)

Applicant in person

S Ndlovu, for the respondent

MATHONSI J:

The accused person, a 45 year old disabled married man with six children who says he earns a living through subsistence farming and has 24 head of cattle, was convicted of contravening s 60A (3) of the Electricity Act [Chapter 13:19] (“the Act”).

He had unlawfully entered Mkoba 2 Beer hall in Gweru on 9 November 2015 and allegedly removed a three phase commercial meter reader, a three phase circuit breaker, two metres of 16 mm electric cable, 10 m of 1.5 mm electric cable and 10 m of 2.5 mm electric cable belonging to Zimbabwe Electricity Distribution Company all valued at US$ 1 105. When he was cornered by a security guard and two police officers at about 9 am on that day, he had in his possession a spanner.

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