S v GWANDE & ANOR 2008 (2) ZLR 281 (H)

Flynote

Criminal procedure — plea — guilty plea — questioning of accused by magistrate — need to phrase questions carefully to ensure accused understands what he is pleading guilty to — disclosure of facts by prosecutor — need for court to ensure that prosecution discloses sufficient facts — use of State's outline of facts — need to ensure that accused has actually agreed with such outline

Criminal procedure — trial — conduct of — duties of magistrate — magistrate's duties towards accused persons

Headnote

Magistrates owe enormous duties toward unrepresented accused persons. The magistrate is the primary bulwark defending the ignorant or impoverished against the potential injustices wrought through an excess of zeal, pressure of work, administrative inefficiency or plain ineptitude in the investigation and prosecution of offences.

Where the accused person pleads guilty, and the court proceeds in terms of s 271(2)(b)(i) of the Criminal Procedure and Evidence Act [Chapter 9:07], the magistrate is duty bound to ensure that the prosecutor has disclosed sufficient and adequate facts, which are capable of informing, not only the court, but also the accused, precisely what the allegations against him are. Where the prosecution fails to provide or disclose adequate facts in support of the charge, it must be directed to do so: the magistrate must mero motu invoke the provisions of s 177(1) of the Act and direct the prosecution to provide further particulars. Failure by the magistrate to ensure prior disclosure of adequate and sufficient facts amounts to a misdirection and offends against the accused person's constitutional right to be afforded a fair trial, in particular, the right to be informed, in detail, of the nature of the offence charged as guaranteed by s 18(3) (b) of the Constitution. The purpose of the enquiry in terms of s 271(2)(b)(i) of the Act is to ensure that the accused's plea of guilty is an unqualified or unequivocal and genuine plea. The magistrate can only satisfy himself of this if he asks questions which are carefully formulated by marrying the charge, the essential elements and the particular facts of the case. Merely paraphrasing the definition of an offence will not assist the accused to understand the import of the elements, more so if they are of a technical legal nature.

Magistrates and prosecutors should desist from the practice, which appears to be common, of simply using the State's outline of its case when the accused tenders a guilty plea. The State outline is not based on facts which the accused has given prior agreement to. The use of the State outline exposes the accused to the danger of being convicted on facts that he has not been given an opportunity to carefully reflect on and has the real potential of the accused being severely prejudiced, in the sense that he may be convicted on the basis of facts which he may not agree with but which facts aggravate the offence and lead to a more severe punishment than warranted. The correct procedure should be that if, in a contested trial, the accused pleads guilty to the charge, the magistrate should take a short recess to allow the prosecutor to interview the accused and draw up a statement of agreed facts based on the information gathered.