S v ZISHUMBA & OTHERS 1983 (1) ZLR 10 (H)

Flynote

Criminal procedure — plea of guilty — Criminal Procedure and Evidence Act [Chapter 59] — section 255(2) (a) and (b) — distinction between procedures provided by two paragraphs — former relates to trivial offences and provides for limited penalties — latter correct one to use when offences serious — necessity to observe provisions of section 255(3) — when matter should be remitted for correct procedure to be followed.

Headnote

Where, in a trial before the magistrates Court, an accused person pleads guilty, the magistrate may proceed in terms of section 255; but a careful distinction should be drawn between the two procedures provided by subsection (2). The procedure provided by paragraph (a) relates to offences which, on the face of the charge, are trivial. The magistrate may then forthwith convict the accused and sentence him to any competent sentence other than imprisonment without the option of a fine, a whipping or a fine exceeding one hundred dollars. If the offence appears to be a serious one, whether ex facie the charge or from the agreed facts, the magistrate should proceed in terms of paragraph (h), which provides that he must explain the charge and its essential elements to the accused and, if necessary, require the prosecutor to state the facts; he must also inquire from the accused whether he understands the charge and the essential elements of the offence and whether he admits those elements and the facts stated by the prosecutor. It is only if that procedure is correctly followed that it is competent to impose, for example, a custodial sentence. Further, the magistrate must record the details set out in section 255(3).

To mix the two procedures is an irregularity resulting in a miscarriage of justice. While it would be possible on review to remit the matter to be dealt with correctly, it would not be desirable to do so where the correct procedure could easily have been followed or where the accused had been in custody for a substantial period before sentence was passed.