The accused was charged with theft of trust property as defined in section 113(2) of the Criminal Law (Codification & Reform) Act. On 23 April 2021 at Gulf Complex Harare, the accused was required in terms of a trust agreement with the complainant to hold USD$1,900.00 in trust for purposes of purchasing six television sets of varying sizes. The accused converted USD$1,710.00 of the trust money to his own use and failed to hand the money over to the complainant on demand. The accused was brought to trial, convicted after a contested trial, and sentenced to 15 months imprisonment with portions suspended on conditions of future good behaviour and restitution. The matter came before the High Court on review.
The proceedings were confirmed and the reviewing judge issued his certificate of confirmation. No irregularity was found in the trial proceedings.
Section 271(2)(b) read with section 271(3) of the Criminal Procedure and Evidence Act, which requires magistrates to explain charges to accused persons, applies only to trials where the accused pleads guilty, not to contested trials. Contested trials are governed by sections 180, 188 and 189 of the Criminal Procedure and Evidence Act, which do not impose a legislated obligation on magistrates to explain the charge. Therefore, the failure to explain a charge in a contested trial does not constitute an irregularity that would vitiate the proceedings.
The court made several important observations beyond the strict legal issue. Chitapi J suggested that as a matter of best practice, magistrates should explain charges to unrepresented, unsophisticated accused persons even in contested trials where there is no legislative requirement to do so. This flows from the general duty of courts to assist unrepresented accused persons so they are not victims of their ignorance of substantive and procedural law. The court emphasized that this duty resonates with the constitutional imperative under section 165(1)(c) that courts safeguard human rights and the rule of law, and with the constitutional rights to fairness and fair trial under sections 69 and 89(3)(e) of the Constitution. The court noted that explaining the charge may help an accused make a more informed statement in defence, and may even lead to a change of plea. The extent of assistance required depends on the needs of each accused, the complexity of the case, and the sophistication of the accused. The court also made observations regarding section 182 of the Act (dealing with accused persons who refuse to plead), suggesting that in such cases the magistrate should ensure the accused understands the charge as the refusal may arise from misunderstanding.
This case clarifies an important distinction in Zimbabwean criminal procedure between the obligations of trial magistrates in guilty plea proceedings versus contested trials. It confirms that section 271(2)(b) and (3) of the Criminal Procedure and Evidence Act (requiring explanation of charges) applies only to guilty pleas, not contested trials. More significantly, it provides important guidance on the constitutional and common law duties of courts toward unrepresented accused persons. The judgment emphasizes that while not a legislative requirement in contested trials, courts should explain charges to unrepresented, unsophisticated accused persons as part of their broader constitutional duty to ensure fair trials and protect the rights of accused persons under sections 69, 89(3)(e) and 165(1)(c) of the Constitution. This represents an important statement on judicial responsibilities in promoting access to justice and fairness for vulnerable accused persons.