Nyore Madzianike
THE High Court has quashed a 40-year jail and ordered a fresh trial of a man who was accused of raping a mentally challenged woman on two separate occasions in December last year, after noting some gross procedural irregularities during trial.
Judge Justice Sijabuliso Siziba quashed Necious Ndlovu’s sentence and ordered that a Hwange Regional Magistrate restart the trial.
Ndlovu was convicted on August 6, 2024 on two counts of rape and was sentenced to 20 years on each count.
The offenses had been committed on December 4 and 8, 2023.
Following the conviction, the matter was taken to the High Court for review where Justice Siziba noted “serious irregularities” which violated Ndlovu’s constitutional right to a fair trial.
Justice Siziba noted that Ndlovu was never at any stage advised of the right to cross examine state witnesses, he was not advised of his right to sum up the evidence, he was not advised to have the proceedings conducted in a language of his choice among other related transgressions.
“Before anything else is said when the accused person enters the dock for his first appearance, the magistrate himself or herself must ascertain from an accused person the language which they understand well enough for court proceedings to commence.
“This responsibility should not be abdicated to a court interpreter to merely ascertain this aspect outside the record.
“The inquiry by the magistrate and the response from the accused person must be recorded so that there can never be any doubt that this Constitutional right of an accused person was correctly executed.
“Failure to do such is an irregularity and it may in some circumstances be so gross in its effect as to vitiate the proceedings especially where the accused person was prejudiced by such a transgression on the part of the presiding magistrate,” he said in his judgment.
Added Justice Siziba:
“On this basis therefore, we cannot allow proceedings to stand unvitiated in a case as this one where an undefended accused person was never at any stage advised of the right to cross examine state witnesses, he was not advised of his right to sum up the evidence, he was not advised to have the proceedings conducted in a language of his choice among other related transgressions.
“These mistakes by trial magistrates can only be condoned by this court at the cost of the rights of accused persons who continue to be prejudiced thereby.
“For the above reasons, I take the view that the present criminal proceedings by the trial magistrate were grossly irregular and that the convict’s procedural rights were violated to such an extent that it will be in the interests of justice to order a trial de novo in this case.”
