S V CHIDAWU 1998 (2) ZLR 76 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 18 — right to fair trial —right to fair trial demands that charge and essential elements thereof be explained where serious offence charged or heavy punishment is going to be imposed

Criminal procedure — plea — guilty — conviction on basis of plea alone, without explanation of charge — whether community service may then be imposed directly

Criminal procedure — plea — guilty — explanation of charge and essential elements — purpose of

Criminal procedure (sentence) — community service — whether may be imposed when accused convicted on basis of plea alone — undesirability of imposing community service without explanation of charge

Headnote

Section 350A of the Criminal Procedure and Evidence Act [Chapter 9:07] allows for the imposition of community service directly as a punishment. Section 271(1)(a) allows the court to convict a person on the basis of his plea alone and impose any punishment other than imprisonment without the option of a fine or fine of more than $500. The court is only permitted to impose imprisonment without the option of a fine, or a fine exceeding $500, where the provisions of s 271(1)(b) have been complied with. These require that the charge and the essential elements thereof be explained to the accused, so that he understands the nature of the offence to which he has pleaded guilty. The nature of the explanation which the court must give is allied to his right to a fair trial. It may thus be necessary for the court to go further and explain to the accused at an early stage that the offence is serious and attracts heavy sentences. Community service is not the same as imprisonment or a fine, and it would thus, strictly speaking, be permissible for a court, where the accused pleads guilty and is convicted on the basis of his plea alone, to sentence him to perform community service. Community service may be imposed even where the accused has been convicted of a serious offence, and it is inconceivable that the legislature could have intended that a court could convict an accused person of a serious offence and sentence him to community service without canvassing the essential elements of the offence with him. Consequently, although s 271(2)(a) does not preclude the imposition of community service without an explanation of the charge and essential elements, the requirement for a fair trial requires such an explanation.