Criminal Procedure in Zimbabwe

Mr Crozier who is the lecturer in Criminal Procedure at the University of Zimbabwe has
compiled a set of notes for undergraduate LL.B students at the university. He has kindly
agreed to the publication of these notes on ZIMLII so that these notes can be available for
students and other persons who require information on the subject of Criminal Procedure.
These notes should be read together with the textbook on Criminal Procedure in Zimbabwe
by John Reid-Rowland published by the Legal Resources Foundation of Zimbabwe.

UNIVERSITY OF ZIMBABWE
LL.B. (HONS) PART II
CRIMINAL PROCEDURE (LB 201)
LECTURE NOTES
________________

TABLE OF CONTENTS
________
1. Introductory Topics ......................................................................................................... 11
Definitions of Technical Terms ........................................................................................ 11
What is a Crime? .............................................................................................................. 12
Note: Levels of Fines ...................................................................................................... 13
The Nature of Criminal Procedure ................................................................................... 14
Criminal Procedure in its Socio-Political Context ........................................................... 14
Crime control versus due process ................................................................................. 15
Classification according to treatment of victims’ rights .............................................. 17
The Declaration of Rights in the Constitution.............................................................. 18
Fair trial ........................................................................................................................ 24
Equal protection of law ................................................................................................ 25
Public trial .................................................................................................................... 25
Presence of accused ...................................................................................................... 27
Representation of accused ............................................................................................ 27
Presumption of innocence ............................................................................................ 28
Burden of proof: proof beyond reasonable doubt ....................................................... 29
The right of [or to] silence: privilege against self-incrimination ................................ 32
Reasonableness ............................................................................................................. 34
Rights and duties: crime control and due process ....................................................... 35
Adversarial and inquisitorial systems of criminal procedure ....................................... 36

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 Criminal procedure as a system .................................................................................... 38
Remedies ...................................................................................................................... 38
2. Jurisdiction of the Courts ................................................................................................ 40
Magistrates courts ............................................................................................................. 40
Territorial jurisdiction .................................................................................................. 40
Crimes that may be tried in a magistrates court ........................................................... 41
Magistrates’ jurisdiction as to punishment ................................................................... 41
The High Court ................................................................................................................. 44
Original jurisdiction ..................................................................................................... 44
Review jurisdiction....................................................................................................... 44
Appellate jurisdiction ................................................................................................... 45
The Supreme Court .......................................................................................................... 45
The Constitutional Court .................................................................................................. 45
3. The Police and Their Powers ........................................................................................... 46
Who are the Police? .......................................................................................................... 46
Police officers/peace officers ....................................................................................... 46
Interrogation by the Police ............................................................................................... 46
Judges’ Rules ................................................................................................................ 48
Taking of bodily samples from persons ........................................................................... 48
4. Securing the attendance of the accused at his trial .......................................................... 50
1. Arrest and Remand ...................................................................................................... 50
Arrest without a warrant ............................................................................................... 51
Arrest with warrant ....................................................................................................... 55
Use of force in effecting an arrest ................................................................................ 56
Effect of unlawful arrest ............................................................................................... 59
Taking of fingerprints, etc. ........................................................................................... 59
Records to be kept of arrested persons ......................................................................... 59
Rights of suspect and his practitioner after arrest ........................................................ 60
Remand ......................................................................................................................... 61
2. Summons ..................................................................................................................... 65
Issue of summons ......................................................................................................... 65
Contents of summons ................................................................................................... 65
Service of summons ..................................................................................................... 65
Proof of service of summons if accused fails to appear in court .................................. 66
3. Written Notice to Appear ............................................................................................ 66
4. Warning to Appear ...................................................................................................... 67
5. Extradition ................................................................................................................... 67
6. Merits of the different methods of securing attendance of accused ............................ 67
Arrest and Remand ....................................................................................................... 67

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 Summons ...................................................................................................................... 68
Written notice to appear ............................................................................................... 69
Warning to appear ........................................................................................................ 69
5. Bail Pending Trial ........................................................................................................... 70
What is Bail? .................................................................................................................... 70
Who May Grant Bail ........................................................................................................ 71
Application for Bail .......................................................................................................... 71
Principles Governing the Grant of Bail ............................................................................ 73
Right to bail .................................................................................................................. 73
Compelling reasons justifying detention ...................................................................... 73
Section 117 of the Criminal Procedure and Evidence Act ........................................... 74
Onus of proof................................................................................................................ 75
Methods of Granting Bail ................................................................................................. 76
Deposit of money or property....................................................................................... 76
Recognizances .............................................................................................................. 76
Bail Conditions ................................................................................................................. 77
Amount of Bail ................................................................................................................. 77
Amendment or Withdrawal of Bail .................................................................................. 77
Breach of Conditions of Bail ............................................................................................ 77
Appeal against Grant or Refusal of Bail........................................................................... 78
Appeal by accused against decision of magistrate ....................................................... 78
Appeal by accused against decision of judge ............................................................... 79
Appeal by Prosecutor-General against bail decisions .................................................. 79
Bail Granted by Police ..................................................................................................... 80
6. Search and Seizure .......................................................................................................... 82
Search of a Person on Arrest ............................................................................................ 82
Search With and Without Warrant ................................................................................... 82
Search and seizure of articles with warrant .................................................................. 82
Search without warrant ................................................................................................. 85
Effect of Unlawful Search ................................................................................................ 86
Subsequent Disposal of Seized Articles ........................................................................... 87
7. Judicial Officers .............................................................................................................. 89
Judicial officer’s conduct ................................................................................................. 89
Questioning of witnesses .............................................................................................. 89
Calling of evidence ....................................................................................................... 90
Assistance to undefended accused persons .................................................................. 90
Protecting witnesses ..................................................................................................... 91
Recusal of judicial officer ................................................................................................ 91
Incapacity of judge or magistrate ..................................................................................... 93

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8. Prosecutors ...................................................................................................................... 94
Public prosecutions (“prosecutions at the public instance”) ............................................ 94
The National Prosecuting Authority and the Prosecutor-General ................................ 94
Other law officers ......................................................................................................... 95
Independence of prosecutors ........................................................................................ 95
Duties of prosecutors .................................................................................................... 96
The decision to prosecute ............................................................................................. 97
Private prosecutions ......................................................................................................... 99
Who may prosecute ...................................................................................................... 99
Procedure for instituting private prosecution ............................................................... 99
9. Prosecution of Companies and Associations ................................................................. 102
Criminal liability of corporate bodies and associations ................................................. 102
Charging corporate bodies and associations .................................................................. 103
Evidence and presumptions ............................................................................................ 103
Proof of a body’s corporate nature ............................................................................. 103
Presumptions .............................................................................................................. 103
10. Mentally Disordered Accused Persons ........................................................................ 105
Introduction .................................................................................................................... 105
Police powers on arrest of mentally disordered or intellectually handicapped
person ........................................................................................................................ 105
Mental illness disclosed before trial ............................................................................... 106
Mental illness disclosed during trial ............................................................................... 107
1. Mental disorder rendering accused unfit to stand trial .......................................... 107
2. Mental disorder not rendering accused unfit to stand trial .................................... 108
Recovery of person found unfit to plead or stand trial ................................................... 108
Mental illness becoming apparent after conviction ........................................................ 108
Accused person who was mentally disordered when the crime was
committed ................................................................................................................. 109
Requirements for special verdict .................................................................................... 110
Evidence required for special verdict ............................................................................. 110
What constitutes mental disorder or intellectual handicap ............................................. 111
Deaf mutes ...................................................................................................................... 111
11. Charges and Indictments ............................................................................................. 113
Nature of charges ............................................................................................................ 113
Choice of crime to charge............................................................................................... 113
Essentials of charge ........................................................................................................ 114
Contents of charge .......................................................................................................... 114
1. Particulars of the accused ...................................................................................... 114
2. Time and place of crime ........................................................................................ 115

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 3. Essentials of the crime ........................................................................................... 115
Particular crimes ............................................................................................................. 116
Crimes requiring particular intent .............................................................................. 116
Theft ........................................................................................................................... 116
Section 146(2) ................................................................................................................ 116
Joinder of counts ............................................................................................................ 117
Alternative charges ......................................................................................................... 118
Further particulars .......................................................................................................... 118
Defects in charges .......................................................................................................... 118
Failure to allege anything which it is unnecessary to prove. ...................................... 118
Incorrect designation of a person mentioned in the charge ........................................ 119
Omission to state the time of the crime ...................................................................... 119
Wrong date specified in the charge, or no time mentioned ........................................ 119
Want of or imperfection in the addition of an accused or other person ..................... 119
Failure to mention the value or price of anything, or the amount of damage
etc. .......................................................................................................................... 119
Defect in charge cured by evidence................................................................................ 120
Amendment of charge .................................................................................................... 120
When amendment is not allowed ............................................................................... 120
Amendment on appeal ................................................................................................ 120
Splitting of charges ......................................................................................................... 121
What is splitting of charges? ...................................................................................... 121
Test for splitting of charges ........................................................................................ 122
Withdrawal of charges .................................................................................................... 123
Withdrawal before plea .............................................................................................. 123
Withdrawal after plea ................................................................................................. 123
12. Joinder and Separation of Trials .................................................................................. 124
Joinder of accused .......................................................................................................... 124
Separation of trials .......................................................................................................... 124
13. Extra-Curial Statements .............................................................................................. 127
What is an extra-curial statement? ................................................................................. 127
Types of extra-curial statements ................................................................................. 127
Admissibility of extra-curial statements ......................................................................... 127
General rule ................................................................................................................ 127
Warning and caution .................................................................................................. 128
Indications .................................................................................................................. 129
Failure to mention relevant facts .................................................................................... 130
Production of extra-curial statements ............................................................................. 130
Tendering of unconfirmed extra-curial statements..................................................... 130

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 Production in evidence of confirmed extra-curial statements .................................... 131
Deletion of prejudicial matter from extra-curial statements........................................... 133
Objections to our law vis-à-vis extra-curial statements ................................................. 134
Conviction of accused person on proof of confession ................................................... 135
14. Witnesses ..................................................................................................................... 136
Securing the presence of witnesses ................................................................................ 136
Warning ...................................................................................................................... 136
Subpoena .................................................................................................................... 136
Exclusion of witnesses from courtroom ......................................................................... 137
Hostile witnesses ............................................................................................................ 137
Discrediting or impeaching witnesses ............................................................................ 137
Protection of vulnerable witnesses ................................................................................. 138
Measures that can be taken to protect vulnerable witnesses ...................................... 138
15. Preliminaries to the Trial ............................................................................................. 140
Date of trial ..................................................................................................................... 140
High Court .................................................................................................................. 140
Magistrates court ........................................................................................................ 140
Postponement or adjournment of trial ........................................................................ 140
Bringing the accused to trial in the High Court .............................................................. 140
16. Outline of Trial Procedure from Plea to Sentence ...................................................... 142
Introduction .................................................................................................................... 142
Explanation of Accused Person’s Rights ....................................................................... 142
Arraignment .................................................................................................................... 142
Plea of guilty .............................................................................................................. 142
Plea of not guilty ........................................................................................................ 142
Outline of State and Defence Cases ............................................................................... 143
High Court .................................................................................................................. 143
Magistrates court ........................................................................................................ 143
The State Case ................................................................................................................ 143
Discharge at End of State Case ...................................................................................... 143
Defence Case .................................................................................................................. 144
Verdict ............................................................................................................................ 144
Sentence.......................................................................................................................... 144
17. Pleas............................................................................................................................. 145
Arraignment .................................................................................................................... 145
Objections to charge ................................................................................................... 145
Exceptions and motions to quash ............................................................................... 145
Notice to be given before objecting to charge, and for certain pleas ......................... 146
Particular pleas ............................................................................................................... 146

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 Not guilty .................................................................................................................... 146
Guilty .......................................................................................................................... 146
Autrefois Acquit or Autrefois Convict ....................................................................... 151
Absence of jurisdiction ............................................................................................... 153
Presidential pardon ..................................................................................................... 153
Plea that accused was given immunity after giving evidence as accomplice............. 153
Permanent stay of prosecution ................................................................................... 154
Absence of title by the prosecutor .............................................................................. 154
Lis pendens ................................................................................................................. 154
[Truth of defamatory matter] ...................................................................................... 154
Combination of pleas.................................................................................................. 154
Notice of pleas ................................................................................................................ 154
Alteration of plea ............................................................................................................ 155
Accused entitled to verdict after plea ............................................................................. 155
18. Outline of State and defence cases .............................................................................. 157
High Court ...................................................................................................................... 157
Magistrates court ............................................................................................................ 157
19. Prosecution case .......................................................................................................... 159
Evidence for the prosecution .......................................................................................... 159
Cross-examination and re-examination of State witnesses ........................................ 160
Close of State case .......................................................................................................... 160
Discharge of accused at close of State case.................................................................... 160
When application for discharge may be made ........................................................... 161
When discharge should be ordered ............................................................................ 161
20. Defence case ................................................................................................................ 164
Informing the accused of his rights ................................................................................ 164
Defence evidence............................................................................................................ 164
Questioning of accused .................................................................................................. 165
21. Procedure After Close of Evidence ............................................................................. 166
Addresses by the parties ................................................................................................. 166
Record of trial ................................................................................................................. 166
Stopping of trial before verdict ...................................................................................... 166
22. Verdict ......................................................................................................................... 168
Verdicts and judgments .................................................................................................. 168
When judgment should be given ................................................................................ 168
Reasons for judgment ................................................................................................. 168
Possible verdicts ............................................................................................................. 169
Acquittal ..................................................................................................................... 169
Conviction .................................................................................................................. 169

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 Alternative counts ....................................................................................................... 169
Permissible [competent] verdicts ............................................................................... 169
23. Sentence....................................................................................................................... 170
Pre-sentence investigation .............................................................................................. 170
Proof of previous convictions..................................................................................... 170
Evidence on sentence ................................................................................................. 171
Order in which evidence is presented or addresses are made .................................... 172
Onus of proof.............................................................................................................. 173
Passing of sentence ......................................................................................................... 173
Sentence to be passed in open court ........................................................................... 173
By whom sentence may be passed ............................................................................. 174
Correction of sentence ................................................................................................ 174
Sentencing for untried crimes..................................................................................... 175
Adjournment of case where sentence exceeding magistrate’s jurisdiction is
justified ................................................................................................................... 175
Penal provisions ............................................................................................................. 176
Forms of sentence ........................................................................................................... 176
General ....................................................................................................................... 176
Death sentence ............................................................................................................ 177
Imprisonment .............................................................................................................. 177
Fine ............................................................................................................................. 180
Community service ..................................................................................................... 181
Corporal punishment .................................................................................................. 184
Putting the offender under recognizances (binding a person over to keep
the peace) ................................................................................................................ 184
Caution and discharge ................................................................................................ 185
Mandatory minimum sentences ...................................................................................... 185
Special circumstances or reasons ............................................................................... 185
Multiple counts ............................................................................................................... 186
Cumulative or consecutive sentences ......................................................................... 186
Sentencing guidelines ..................................................................................................... 187
Suspension or postponement of sentence ....................................................................... 188
General considerations as to suspension or postponement ........................................ 188
Conditions of suspension or postponement ................................................................ 189
Length of suspended sentence and period of suspension ........................................... 190
Bringing suspended sentence into effect .................................................................... 190
Reasons for Sentence ...................................................................................................... 192
Factors affecting sentence .............................................................................................. 192
General approach to sentence ..................................................................................... 192

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 Specific factors ............................................................. Error! Bookmark not defined.
Costs ............................................................................................................................... 198
Compensation for victims .............................................................................................. 198
Forfeiture of items .......................................................................................................... 199
24. Scrutiny and Review ................................................................................................... 201
Scrutiny by regional magistrate ...................................................................................... 201
Automatic review by High Court ................................................................................... 201
Purpose of review ....................................................................................................... 202
Powers of judge on review ......................................................................................... 202
Real and substantial justice ........................................................................................ 203
Non-automatic Review ................................................................................................... 204
Incomplete proceedings .............................................................................................. 205
Bail pending review .................................................................................................... 205
25. Appeals ........................................................................................................................ 206
Distinction Between Appeal and Review ....................................................................... 206
Appeal Courts ................................................................................................................. 207
Appeals by Accused ....................................................................................................... 207
From High Court ........................................................................................................ 207
From magistrates courts ............................................................................................. 208
From other courts ....................................................................................................... 208
Interlocutory rulings ................................................................................................... 208
Bail pending appeal ........................................................................................................ 209
Application for bail pending appeal ........................................................................... 209
Principles governing bail pending appeal................................................................... 209
Appeals by Prosecutor-General ...................................................................................... 210
Appeal on point of law or against acquittal or against discharge at end of
State case ................................................................................................................ 210
Appeal against sentence ............................................................................................. 211
Appeal against interlocutory rulings .......................................................................... 211
Application for Leave to Appeal .................................................................................... 211
Notice of Appeal ............................................................................................................ 212
Time-limits for noting appeals ....................................................................................... 212
Appeals from magistrates courts ................................................................................ 212
Appeals from High Court ........................................................................................... 212
Extension of time........................................................................................................ 213
Grounds of appeal .......................................................................................................... 213
Magistrate’s reasons ....................................................................................................... 213
Procedure where judgment not available ....................................................................... 214
Payment for record ......................................................................................................... 214

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Appeals in person ........................................................................................................... 214
Representation of appellant and renunciation of agency................................................ 214
Set-down ......................................................................................................................... 215
Appeals by Prosecutor-General .................................................................................. 215
Appeals by convicted persons .................................................................................... 215
Heads of argument .......................................................................................................... 215
Court’s powers on appeal ............................................................................................... 215
Concession by Prosecutor-General ............................................................................ 215
Hearing of evidence .................................................................................................... 216
Quashing of conviction .............................................................................................. 216
Alteration of conviction .............................................................................................. 216
Alteration of sentence ................................................................................................. 217
Statement of appropriate sentence .............................................................................. 217
Statement of appropriate verdict or quashing of acquittal ......................................... 217
Restitution, compensation, etc. ................................................................................... 217
Remittal for trial de novo ........................................................................................... 218
Dismissal of appeal .................................................................................................... 218
Execution of Sentence Pending Appeal ......................................................................... 218

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 1. INTRODUCTORY TOPICS
Definitions of Technical Terms
Criminal procedure, like all other branches of the law, has technical terms which students
need to understand. The following are some of the terms used in these notes, with explana-
tions of what they mean:
Admit in evidence: This occurs when a court allows something to be produced in evi-
dence: the court is said to “admit the thing in evidence”.
Arraignment: The stage of a criminal at which the accused person is called upon to plead
to the charge.
Bail: The release of a prisoner from custody upon his entering into a written undertaking (a
recognizance) to appear in court at a later date and to comply with other conditions that
a court may impose upon him.
Charge: A statement of the crime (or one of the crimes, where the accused person is
charged with committing several crimes) which the accused person is alleged to have
committed. It is set out in an indictment (in the case of the High Court) or a charge
sheet or summons (in a magistrates court).
Charge sheet: A document which, in a trial in a magistrates court, sets out the crime or
crimes which the accused person is alleged to have committed.
Court: In the context of criminal procedure, this means the Supreme Court, the High
Court or a magistrates court. More loosely, the word “court” is also used to mean the
judge or magistrate who presides over the court.
Court of first instance: The court that held the trial or first dealt with a particular matter.
Also called “the court a quo”.
Crime (or criminal offence): An act or omission punishable by the State. See the next
section for more detail.
Defence case: The case for the accused, i.e. the evidence given for the accused person.
Extra-curial statement: A statement made by an accused person outside the court.
Indictment: A document which, in a trial in the High Court, sets out the crime or crimes
which the accused person is alleged to have committed.
Judgment: A statement by a judge or magistrate of the reasons for his or her decision.
Judicial officer: A judge or magistrate. A prosecutor is not a judicial officer.
Jurisdiction: The power of a court to deal with a criminal case. The court’s jurisdiction
may be limited in regard to area ‒ e.g. a magistrate’s jurisdiction may be limited to a
particular province ‒ or it may be limited in other ways such as the crimes which a
court can deal with (magistrates courts have no jurisdiction to try crimes of murder) or
in regard to punishment (e.g. ordinary magistrates cannot impose more than four years’
imprisonment in most cases).
Leading question: A question that suggests the answer which the questioner wants the
witness to give. For example the question: “Did you see the accused stab the de-
ceased?” suggests that the witness is supposed to say that the accused stabbed the de-
ceased. To get the witness to say what he saw without asking a leading question, the
questioner should ask: “What did you see?”

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Legally represented: An accused person is legally represented if he is represented in court
by a legal practitioner.
Offence: Another word for a crime.
Original jurisdiction: The power of a court to hold a trial or decide a case otherwise than
on appeal or review.
Plea: This is the accused person’s response to the charge, i.e. his answer to the question:
“How do you plead, guilty or not guilty?”.
Produce: A witness “produces” a document or other thing as evidence in a criminal trial
by identifying the thing and, in the case of a document, reading it out, and handing it in
to the court.
Quash: To set aside or nullify.
Recognizance: In the context of bail, it means a written undertaking whereby a person
binds himself to appear in court on a particular date, and to comply with such other
conditions as a court may impose.
Recuse: When a judge or magistrate withdraws from a case, he or she is said to recuse
himself or herself.
Re-examination: Asking questions of one’s witness after the witness has been cross-
examined.
Remand: An accused person or suspect is remanded when a court orders him to appear in
court at a later date. A person may be remanded in custody (i.e. he is kept in prison un-
til his next appearance in court) or out of custody (i.e. he is not kept in prison, though
the court may impose restrictions on his movements).
Sentence: The punishment imposed by a court on a person convicted of a crime.
State: Strictly this means Zimbabwe. Public prosecutions are brought in the name of “the
State”, i.e. on behalf of society as a whole. Very often, though, the word “State” is
used more loosely to mean the prosecutor or the prosecution, as in “the State leads its
evidence” or “the State case”.
Subpoena: A document ordering a person to appear in court as a witness on a date and at a
time specified in the document.
Summary trial: In the context of magistrates courts, a trial before a magistrate where
there has not been a previous hearing of the evidence before another magistrate. The
vast majority of trials in magistrates courts are summary trials.
Summons: A document ordering a person to appear in a magistrates court to stand trial on
a charge specified in the document. Note that the plural of summons is “summonses”.
Trial de novo: A new trial.
Trial in camera: A trial is held in camera when the public is excluded from the court-
room. The phrase “in camera” is Latin for “in the room”.
Verdict: The decision, given by the judge or magistrate at the end of a trial, as to whether
the accused person is guilty or not guilty.

What is a Crime?
In our law the terms “crime”, “criminal offence” and “offence” are used interchangeably
without distinction. They all mean the same thing. The Constitution uses the word “of-

12
fence”, which it defines rather unhelpfully as meaning “a criminal offence”.1 The Criminal
Procedure and Evidence Act [Chapter 9:07] uses “offence” for the most part, though some
sections refer to crimes.2 The Criminal Law Code, on the other hand, talks of “crime” and
defines it as:
“any conduct punishable by this Code or as a criminal offence in any other enactment”.3
Throughout these notes, for the sake of consistency, the word “crime” is used.
Because of the great variety of crimes in our law and the different purposes which the crim-
inal law is intended to achieve, one cannot define the concept of crime by reference to its
content.4 Very often the same conduct constitutes both a crime and a delict. For example,
hitting a person without lawful cause is a crime ‒ an assault ‒ and also gives rise to a de-
lictual claim for damages. As one learned author pointed out:
“A delict is not a distinct factual concept; it is merely a wrong regarded from the individual’s
point of view and in the light of procedure. When the State assumes the right to pursue a
wrong, to exact punishment and so effect atonement, we call the proceedings criminal and the
wrong, regarded from this point of view, a crime.”5
Rather than trying to define the nature of a crime by reference to its content, it is better to
define it by reference to its legal consequences, to the fact that the State assumes the right
to punish people who commit crimes. Hence the definition in an old textbook, Gardiner &
Lansdown South African Criminal Law and Procedure 6th ed vol 1 page 1:
“A crime is a violation of the law for which the State may exact punishment.”
The same idea finds expression in section 2 of the Criminal Procedure and Evidence Act
[Chapter 9:07], which defines “offence” ‒ i.e. crime ‒ as “an act or omission punishable by
law.”
Probably that is the best one can do by way of definition.

Note: Levels of Fines

Statutes that lay down fines as penalties for crimes no longer specify the fines as amounts
in dollars; instead they express them as “levels” on a Standard Scale of Fines. To take a
random example, section 183 of the Criminal Law Code states that anyone guilty of perjury
is liable to “a fine not exceeding level ten or to imprisonment for a period not exceeding
five years or both”.
Before 2001 fines were expressed as monetary amounts, but inflation (later increasing to
hyperinflation) reduced the real value of these amounts so that statutes had to be amended
constantly in order to keep fines realistic. Section 280 of the Criminal Law Code now pro-
vides that fines are to be expressed as levels on the Standard Scale of Fines set out in the
First Schedule to the Code. According to this Standard Scale, a level 1 fine is a fine of
US $20, a level 2 fine is $30, a level 3 fine is $60, and so on up to level 14, which is
$10 000. The monetary amounts specified in the Standard Scale can be amended by the
Minister of Justice through a statutory instrument, which is a much quicker process than
amending the individual fines in each Act of Parliament. So if, for example, the Minister

1
In section 332.
2
For example, sections 62A and 258A.
3
Section 2(1) of the Code.
4
See the discussion in Burchell & Hunt S. African Criminal Law and Procedure vol 1 (2nd ed) pages 82 ff.
5
Van den Heever Aquilian Damages in South African Law vol 1 (1944) page 2, cited in Burchell & Hunt,
South African Criminal Law and Procedure vol 1 (2nd ed) page 86.

13
publishes a statutory instrument stating that level 1 fines will be increased to $30, the
amendment will automatically increase the amounts in every statute that provides for a fine
of level 1 to be imposed.
The most recent amendments to the Standard Scale of Fines have not in fact been made by
the Minister, but instead have been made through the Finance Acts of 2009, 2017 and
2019.6

The Nature of Criminal Procedure

The rules of criminal procedure supply the mechanism by which the criminal law is put into
practice. It is part of our adjectival, as opposed to substantive, law.
Substantive law determines the rights and duties of individuals and the State. Criminal
law, for example, lays down the elements of crimes such as theft, fraud and murder.
Adjectival or procedural law, on the other hand, lays down the measures necessary to
enforce the substantive law. Criminal law would be ineffective if there were no rules
for bringing criminals to trial and stating how trials are to be conducted. The law of
criminal procedure supplies those rules.
The rules of criminal procedure cover the structure and powers of the courts and of the
prosecution, the rights and disabilities of suspects and accused persons, the powers of the
police, pre-trial procedure, detention, bail, charges, the conduct of trials, verdicts, sentenc-
ing, appeals and reviews and the exercise of the prerogatives of pardon and mercy.
There is a clear interaction between the rules of criminal procedure and the rules of evi-
dence: failure to comply with procedural rules may render evidence inadmissible. There is
also an interaction between rules of criminal procedure and the rules of substantive criminal
law. For example, if someone enters another person’s home and searches it, that amounts
to an invasion of privacy and an injuria under the common law. But if the search was car-
ried out under a valid search warrant issued under the Criminal Procedure and Evidence
Act [Chapter 9:07], then the search is legally justified and the person whose privacy was
breached has no right of action.
The rules of criminal procedure are vitally important to society as a whole:
“[Penal law] is the law on which men place their ultimate reliance for protection against all the
deepest injuries that human conduct can inflict on individuals and institutions. By the same
token, penal law governs the strongest force that we permit official agencies to bear on indi-
viduals. Its promise as an instrument of safety is matched only by its power to destroy. If pe-
nal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary
in its impact, it works a gross injustice on those caught within its toils. The law that carries
such responsibilities should surely be as rational and just as law can be. Nowhere in the en-
tire legal field is more at stake for the community or for the individual.”7

Criminal Procedure in its Socio-Political Context8

The rules of criminal procedure should not be viewed in isolation. If we are to understand
the scope and purpose of the rules we must look at them in their constitutional and socio-
political context.

6
Act 3 of 2009, section 35 of Act 2 of 2017 and section 27 of Act No. 1 of 2019.
7
Herbert Wechsler, The Challenge of a Model Penal Code, 1952 Harvard Law Review page 1097 at 1098,
quoted in Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 3.
8
What follows is largely based on the discussion in Chapter 1 of Geldenhuys & Joubert Criminal Procedure
Handbook 10th ed.

14
Crime control versus due process
The rules of criminal procedure have been developed through a balancing of values, which
are embodied in what are called the Crime Control Model and the Due Process Model.
These two models were put forward by an American professor, Herbert L. Packer, in a
book The Limits of the Criminal Sanction (1968) Stanford University Press. He put them
forward as abstract theoretical models which did not conform to reality (no modern State
adopts either of them completely) but which illustrate the opposing values which have to be
balanced by a practical criminal justice system.
It is important to remember that he used these two models — crime control and due process
— in order to analyse the different values inherent in the legal system of the United States.
Hence both his models postulate respect for the U.S. Constitution: the crime control model
would acknowledge the right against self-incrimination9, for example, but would try to limit
that right as far as was legally possible; the due process model, on the other hand, would
give the right its broadest effect. He did not envisage the crime control model descending
to the levels of crime control in a brutal dictatorship where, for example, accused persons
might be tortured into confessing their crimes.
Hence too there is a considerable amount of common ground between his two models.
Both models accept that:
• Crimes must be clearly defined.
• When there is reasonable and probable cause for prosecuting a case, then it should gen-
erally be prosecuted. Police and prosecutors, in other words, do not have a general
“dispensing power” allowing them to absolve criminals of their crimes.
• There must be at least some degree of scrutiny and control over the activities of law en-
forcement agencies. They cannot be given an entirely free hand.
• Accused persons must have an opportunity to require the State to prove their guilt be-
fore an independent court.
The crime control model
The following assertions are the key concerns of the crime control model:
1. The repression of criminal conduct is by far the most important function of criminal jus-
tice. If law enforcement fails to bring criminal conduct under tight control it will lead
to the breakdown of law and order and hence to the disappearance of an important con-
dition of human freedom. Criminal process is a guarantor of social freedom.
2. Criminal justice should concentrate on vindicating victims’ rights rather than on pro-
tecting the rights of suspects or accused persons.
3. Police powers should be expanded to make it easier to investigate, arrest, search, seize,
and convict.
4. Legal technicalities that hamper the police should be eliminated.
5. The criminal justice process should facilitate the rapid progress of criminal cases to-
wards their determination.
6. If the police make an arrest and the State brings criminal charges against him, the ac-
cused should be presumed guilty because the fact-finding of police and prosecutors is
highly reliable.

9
Conferred by the Fifth Amendment of the US Constitution.

15
7. The main objective of the criminal justice process should be to discover the truth or to
establish the factual guilt of the accused.
The due process model
In contrast, the key values of the due process model may be expressed as follows:
1. The most important function of criminal justice should be to provide due process, or
fundamental fairness under the law.
2. Criminal justice should concentrate on the rights of suspects and accused persons, not
victims’ rights, because the Declaration of Rights expressly provides for the protection
of the rights of suspects and accused persons.
3. Police powers should be limited to prevent official oppression of the individual.
4. Constitutional rights are not mere technicalities; the police and other State officers
should be held accountable to rules, procedures, and guidelines to ensure fairness and
consistency in the justice process.
5. The criminal justice process should look like an obstacle course, consisting of a series
of impediments that take the form of procedural safeguards serving as much to protect
the factually innocent as to convict the factually guilty.
6. The conviction of a person of a crime should not be based solely on the evidence; a
person should be found guilty only if the State follows legal procedures in the gathering
and presentation of that evidence.

Comparison of the two models

As Prof Packer pointed out, neither model has been or should be adopted in its entirety. If
the law enforcement authorities were given absolute powers to suppress crime, we should
be living in a tyranny; on the other hand, if all the rights of the individual were to be re-
garded as absolute and inviolable, society would degenerate into anarchy and chaos.
Comparing the two models requires us to make a value judgment. The crime control model
reflects conservative values, while the due process model reflects liberal values. The cur-
rent political climate determines which model shapes criminal justice policy at a specific
time. During the politically liberal 1960s, the principles and policies of due process pre-
dominated in criminal justice, at least in the West. From the mid 1970s to the present, and
particularly after the rise of international terrorism, conservatism has held sway and con-
servatives have formulated criminal justice policies favouring the crime control model. In
Zimbabwe, on the other hand, the enactment of the new constitution, with its emphasis on
the rights of suspects and accused persons, may have nudged the balance away from the
crime control model and towards the due process model. The balance is never static; it os-
cillates between the two models as the attitudes of society change.
A fair and effective system of criminal justice must balance the following interests:
1. It must allow criminals to be dealt with effectively, but at the same time must recognise
that innocent people are often drawn into the system, particularly at the pre-trial stages
when the police are conducting investigations.
2. The liberty of innocent people must not be sacrificed in the interests of crime control,
but it must also be recognised that the more safeguards there are against the infringe-
ment of innocent people’s rights the greater the risk of guilty people escaping convic-
tion and punishment.
3. Law enforcement authorities must be given powers to combat crime (e.g. they must be
given powers to arrest people and to search for and seize property which is involved in

16
 crime) but safeguards must be put in place to prevent the abuse of those powers (e.g.
there must be rules requiring arrested people to be brought before a court without de-
lay).
4. The rights of victims of crime must be taken into account, as well as those of accused
persons.
5. Whether illegally-obtained evidence should be produced in court involves striking a
balance. On the one hand, the evidence may be true, and not to produce it in court may
mean that a guilty person goes free. On the other hand, its production in court may vio-
late fundamental values of society and encourage law enforcement authorities to break
the law. For example, a confession obtained by torturing a suspect may be true, but to
allow it to be produced in court would outrage most people and would encourage the
use of torture by the police.
The need for a proper balance between crime control and due process was expressed very
eloquently by McNally JA in S v Matare 1993 (2) ZLR 88 (S) at 102:
“The law of criminal procedure in any country is a compromise between two conflicting objec-
tives. The one is to ensure that criminals are brought to justice quickly and effectively. The
other is to ensure that innocent people caught up in the criminal process are not wrongly con-
victed.
Sadly it is not possible to reach perfection. There will always be cases where criminals go
unpunished and there will sometimes be cases where innocent people are punished. Proce-
dural law is deliberately slanted to protect accused persons. The horror of punishing one per-
son unjustly for a crime he did not commit outweighs the frustration of seeing ten men go free
when they are in fact guilty.
There is another consideration. A police force unrestricted by laws and rules and regulations
can easily become a terror squad, whose sole object is to stop crime and produce a suspect
who confesses. Good men in the force will be brushed aside. Those who can achieve confes-
sions by torture, ill-treatment and blackmail will rise to the top.
There is an opposite evil. A police force tied hand and foot by regulations becomes frustrat-
ed. Corrupt lawyers and clever criminals treat the police with scorn. The result … is not ac-
ceptable. The law enforcement agencies become vigilantes, dealing out their own justice.
Criminals who cannot be convicted are ‘shot while trying to evade arrest’.
So, if we go too far either way, the result is unacceptable. We have to strike a balance.”

Classification according to treatment of victims’ rights

Apart from the crime-control and due-process models, a criminal justice system can be
classified by the way in which it regards the rights of victims of crime. A punitive model
of victims’ rights emphasises the importance of punishment, and the need for the rights of
victims to be considered as well as the rights of the convicted person when assessing pun-
ishment. A non-punitive model of victims’ rights stresses crime prevention and restorative
justice; it seeks to avoid formal criminal sanctions and resolve disputes arising from crimi-
nal conduct by involving offenders, victims and members of the community in trying to re-
store the position which existed before the crimes were committed. Requiring convicted
persons to make restitution to their victims, or to perform community service instead of un-
dergoing a sentence of imprisonment, may be regarded as examples of this. Restorative
justice has a particular role to play in rehabilitating youthful criminals and dealing with less
serious types of crime.
If a criminal justice system is to keep its legitimacy in the eyes of members of society, it
must pay due regard to the rights of victims of crime. It must try to protect victims from
being traumatised, not only by the crimes committed against them, but also by the process-

17
es of investigating the crimes and prosecuting the offenders. Victim-friendly courts, for
example, are a way of protecting vulnerable victims from the strains of giving evidence in
criminal trials.

The Declaration of Rights in the Constitution

The Declaration of Rights protects most of the fundamental human rights and freedoms that
are internationally recognised, but allows limits to be placed on some of them. There must
be some limits or qualifications on fundamental rights and freedoms if society is to function
at all, because a society whose members had unlimited rights and no obligations could not
exist in practice. In the context of criminal procedure, some individual rights must be lim-
ited to give law enforcement agencies of the State the powers they need to control crime
and prevent disorder. But, as pointed out earlier, the limits cannot go too far.
Section 86 of the constitution therefore allows the rights to be limited:
• All the rights must be exercised reasonably and with due regard to other people’s
rights.
• Rights can be limited by a law of general application, to the extent that the limita-
tion is fair, reasonable, necessary10 and justifiable in a democratic society based on
openness, justice, human dignity, equality and freedom. A law cannot, however,
limit the following rights:
o The right to life, except to the extent that a law may authorise the death pen-
alty to be imposed for murder committed in aggravating circumstances.
o The right to human dignity.11
o The right not to be tortured or subjected to cruel, inhuman or degrading
treatment or punishment.
o The right not to be placed in slavery or servitude.
o The right to a fair trial.
o The right to obtain an order of habeas corpus to secure the release of an ille-
gally-detained person.
In so far as they relate to criminal procedure, the principal rights and freedoms set out in the
Declaration of Rights, and the specific limitations on them, are as follows:
The right to life (section 48)
Everyone has the right to life.
Limits:
• The death sentence may be imposed, but only in the following circumstances:
➢ It may be imposed only on men who are between the ages of 21 and 70 and
who have been convicted of “murder committed in aggravating circumstanc-
es. The term “aggravating circumstances” is not defined and the constitution-
makers presumably intended its meaning to be worked out by the High Court
and the Supreme Court on a case-by-case basis, in much the same way that
the term “extenuating circumstances” under the previous law was developed.

10
Note that the word “necessary” is not included in the equivalent section (section 36) of the South African
constitution, though it did appear in that country’s interim constitution of 1994
11
The meaning of “human dignity” and its importance were discussed by Malaba CJ in S v Chokuramba
CCZ-10-2019.

18
 ➢ The court must have a discretion to impose the death penalty, so a law cannot
make it a mandatory penalty.
➢ It may be carried only in accordance with a final judgment of a competent
court. What this means is that it cannot be carried out until the sentenced
person has exercised his right to appeal against the conviction and sentence
under section 70(5) of the Constitution.
➢ A person who is sentenced to death must have a right to ask the President for
a pardon or commutation (i.e. alteration) of the penalty.
• Further restrictions on the death penalty can be inferred from other provisions of the
Declaration of Rights:
➢ The way in which it is carried out must not violate the sentenced person’s in-
herent human dignity, protected by section 51 of the Constitution.
➢ The way it is carried out must not amount to torture or to cruel, inhuman or
degrading treatment or punishment in contravention of section 53. The old
Constitution contained a provision (section 15(4)) to the effect that execution
by hanging did not amount to inhuman or degrading punishment, but there is
no such provision in the present Constitution. Hence a court could decide
that hanging is unconstitutional on the ground that it amounts to torture or to
cruel, inhuman or degrading punishment.12
➢ There must not be an excessive delay between the imposition of the sentence
and its execution, because that amounts to inhuman or degrading treatment.
There is no provision in the present Constitution equivalent to section 15(5)
of the previous Constitution, which stated that delay in the execution of a
sentence could not be regarded as inhuman or degrading treatment. Section
15(5) was inserted to nullify two judgments13 of the Supreme Court which
held that undue delay could amount to such treatment, and if it did would
preclude the execution of the death sentence. In the absence of an equivalent
to section 15(5) in the present Constitution, the two judgments are persua-
sive.
• There is no specific provision equivalent to section 12(2)(b) of the old Constitution,
which allowed suspects to be killed in order to stop them escaping arrest. Hence the
power of the police to use deadly force in order to effect an arrest must be regarded
as severely limited, if it exists at all. And in this regard it must be remembered that
under section 86 of the constitution a law cannot limit the right to life.

The right to personal liberty and the rights of arrested and detained persons (secs
49 & 50)
Under section 49 everyone has a right to personal liberty, including the rights not to be
detained without trial and not to be deprived of liberty arbitrarily14 or without just
cause.

12
In S v Makwanyane & Anor 1995 (3) SA 391 (CC), the South African Constitutional Court concluded that
the death penalty per se amounted to such punishment.
13
Catholic Commission for Justice & Peace in Zimbabwe v Attorney-General, Zimbabwe, & Ors 1993 (1)
ZLR 242 (S) and Woods & Ors v Minister of Justice, Legal and Parliamentary Affairs & Ors 1993 (2) ZLR
443 (S).
14
Arbitrary is defined in the Concise Oxford Dictionary as “1 based on or derived from uninformed opinion
or random choice; capricious. 2 despotic.” In Pharmaceutical Manufacturers Association of S.A.& Anor: in

19
 This right is amplified, in relation to persons who have been arrested and detained, by
section 50:
• Anyone who is arrested:
o must be informed at the time of arrest15 why they are being arrested;
o must be allowed, without delay and at State expense, to contact anyone of
their choice, including a lawyer or relative;
o must be allowed, without delay but at their own expense, to consult in pri-
vate with their lawyer or medical practitioner;
o must be informed promptly of these rights;
o must be treated humanely and with respect for their dignity;
o must be released pending a charge or trial — i.e. they must be granted bail
— unless there are compelling reasons justifying their continued detention16;
o must be allowed to challenge in court the lawfulness of their arrest.
• Anyone who is detained:
o must be allowed, at their own expense, to consult their lawyer;
o must be allowed to contact and be visited by their lawyer, doctor, priest, rel-
atives and (subject to reasonable security conditions) by anyone else of their
choice.
• Anyone who is arrested or detained on a criminal charge must be brought before a
court as soon as possible and in any event within 48 hours, and must be released af-
ter 48 hours unless their detention has been extended by a competent court.
• At their first court appearance, a person who has been arrested or detained on a
criminal charge must be charged or released or, if the court decides they must con-
tinue in detention, must be told why they are to be detained.
• Anyone arrested or detained for an alleged crime has the right to remain silent and
to be told that they have this right and of the consequences of remaining silent or of
speaking.
• A person who has been detained for an alleged crime must be tried within a reason-
able time or else released from detention, whether on bail or otherwise (Note that,
according to article 9.3 of the International Convention of Civil and Political Rights,
“It shall not be the general rule that persons awaiting trial shall be detained in cus-
tody”).
An arrest or detention is rendered illegal if the conditions set out in section 50 are not
complied with, and the arrested or detained person is entitled to compensation.

re Ex parte President of R.S.A. & Ors 2000 (2) SA 674 (CC) at para 85, the South African Constitutional
Court held: “It is a requirement of the rule of law that the exercise of public power … should not be arbitrary.
Decisions must be rationally related to the purpose for which the power was given, otherwise they are in ef-
fect arbitrary and inconsistent with this requirement.”
15
This is more stringent than section 13(4) of the Lancaster House constitution, which required them to be
informed “as soon as reasonably practicable”, i.e. after the arrest.
16
Note that this is more stringent than the South African constitution, which allows bail to be refused “if the
interests of justice permit”.

20
 It may be noted that some of the rights contained in article 10 of the International Con-
vention on Civil and Political Rights are not enshrined in section 50 of the Constitution.
Article 10 reads as follows:
“2. (a) Accused persons shall, save in exceptional circumstances, be segregated from
convicted persons and shall be subject to separate treatment appropriate to their
status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as speedily
as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of
which shall be their reformation and social rehabilitation. Juvenile offenders shall be segre-
gated from adults and be accorded treatment appropriate to their age and legal status.”
However, the Prisons Act [Chapter 7.11] requires convicted and unconvicted prisoners,
and adults and juveniles, to be segregated from each other.

Right to human dignity (section 51)

Everyone has inherent dignity and the right to have it respected and protected. Recog-
nition of the inherent dignity and worth of each human being is one of the foundational
values of the Constitution (section 3(1)(e)) and the right to have it respected infuses the
whole Declaration of Rights in the Constitution.17 In S v Chokuramba CCZ 10-2019,
the Chief Justice said:
“human dignity is the source for human rights in general. It is human dignity that makes a
person worthy of rights. Human dignity is therefore both the supreme value and a source for
the whole complex of human rights enshrined in Chapter 4 of the Constitution.”
The Chief Justice described the nature of human dignity as follows:
“Human dignity is … a special status which attaches to a person for the reason that he or she
is a human being. It is the fact of being human that founds human dignity. Human dignity
is therefore inherent in every person all the time and regardless of circumstances or status of
the person. All human beings are equal, in the sense that each has inherent dignity in equal
measure. What this means is that human dignity is innate in a human being. It remains a
constant factor and does not change as a person goes through the stages of development in
life. … In other words, every human being merits equal respect for his or her inherent digni-
ty regardless of social, economic and political status.”

Freedom from torture or cruel, inhuman or degrading treatment or punishment

(section 53)
No one may be subjected to physical or psychological torture or to cruel, inhuman or
degrading treatment or punishment. The meaning of “torture”, “inhuman treatment”
and “degrading treatment” was discussed in the case of Mukoko v Attorney-General
2012 (1) ZLR 321 (S) where it was held that:
“The distinction between the notion of torture and the other two concepts lies principally in the
intensity of physical or mental pain and suffering inflicted, in respect of torture, on the victim
intentionally and for a specific purpose. Torture is an aggravated and deliberate form of in-
human or degrading treatment. What constitutes torture, or inhuman or degrading treatment,
depends on the circumstances of each case. The definition of torture often adopted by courts
as a minimum standard is that provided under article 1(1) of the United Nations Convention

17
Section 46(1)(b) of the Constitution states that in interpreting the Declaration of Rights courts must promote
values and principles underlying a democratic society based on, inter alia, human dignity.

21
 Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment 1987. In
terms of this definition, the torture must be inflicted for the purpose of obtaining information
or a confession.”18
No limits may be placed on this freedom.19 The Lancaster House constitution, in sec-
tion 15, authorised the corporal punishment (i.e. whipping) of male juveniles and the
imposition of the death sentence by hanging even if there was a delay between the im-
position of the sentence and its execution. The first of these exceptions (whipping of
juveniles) has been declared unconstitutional in the case of S v Chokuramba CCZ
10/2019, a decision of the Constitutional Court. It is doubtful if the second exception
(delay in imposition of sentence) can be justified under the present Constitution.

Freedom from forced or compulsory labour (section 55)

No one may be made to perform forced or compulsory labour.
The Lancaster House constitution specifically stated that prisoners could be required to
perform labour as part of their sentences, and that detainees could be made to clean out
their cells and perform similar labour; these exceptions are covered by the general limi-
tation in section 86 of the present constitution.

Equality and non-discrimination (section 56)

Everyone has the right to equal protection and benefit of the law.
We shall deal later with the meaning of “protection of the law”.

Right to privacy (section 57)

The right to privacy includes the right not to have one’s home, premises or property en-
tered without one’s permission and not to have one’s person, home, premises or proper-
ty searched.
This right is subject to the general limitations contained in section 86 of the constitu-
tion.

Freedom of movement (section 66)

Everyone who is legally in Zimbabwe is entitled to move freely within Zimbabwe and
to leave Zimbabwe.
Section 86 of the constitution allows reasonable limits to be imposed on this right.
Such limits would include restrictions on the movement of prisoners (obviously), as
well as the power of courts to restrict the right of suspects and witnesses to leave Zim-
babwe.

Right to a fair hearing and rights of accused persons (sections 69 & 70)
Anyone accused of a crime has the right to a fair and public trial within a reasonable
time before an independent and impartial court (section 69(1)).
Everyone has a right, at their own expense, to choose and be represented by a lawyer
before any court, tribunal or forum (section 69(4)), and accused persons must be in-
formed of this right (section 70(1)(f)).
Section 70 further elaborates the rights of accused persons:

18
Headnote, at page 323.
19
Section 86(3) of the constitution.

22
 • They must be presumed innocent until proved guilty. Although the degree of proof
required to prove guilt is not specified, it has always been assumed that it is proof
beyond reasonable doubt.20 The South African Constitutional Court has held that a
similarly-worded provision (sec 35(3)(h)) of that country’s constitution requires
proof beyond reasonable doubt.21
• They must be told promptly what the charge is against them, in sufficient detail to
enable them to prepare their defence, and they must be given adequate time and fa-
cilities to prepare their defence. Accused persons cannot simply be dumped in re-
mand prison to await their trial, therefore, without being given reasonable facilities
to prepare their defence.
• They have a right to a lawyer paid for by the State if substantial injustice would re-
sult from their being unrepresented, and must be told of this right.
• They have a right to be present during their trial.
• They must be allowed to challenge the State’s evidence and to lead evidence to sup-
port their case.
• They have a right to remain silent and cannot be compelled to give self-
incriminating evidence.
• If they are convicted of a crime, they have the right to have the case reviewed by a
higher court or to appeal to a higher court.
These rights can be limited under section 86 of the constitution but the limitations must
not go so far as to render the trial unfair, because the right to a fair trial cannot be lim-
ited (section 86(3)(e)).
Evidence that has been obtained illegally, i.e. in a way that violates any provision of the
Declaration of Rights, must be excluded (i.e. is inadmissible) in any criminal trial if its
admission as evidence would render the trial unfair or would otherwise be detrimental
to the administration of justice or the public interest (section 70(3)).22
The right not to be compulsorily deprived of property (section 71)
Property (other than agricultural land) cannot be taken compulsorily except in accord-
ance with a law that ensures due process.
Once again, reasonable limits may be imposed on this right in terms of section 86.
Rights of children (section 81)
Children must be given equal treatment before the law, including the right to be heard,
and they are entitled to adequate protection by the courts.
Obviously the extent of a child’s right to be heard will depend on the child’s age and
capacity to understand.
Some of the concepts in the Declaration of Rights merit more detailed discussion:

20
S v Chogugudza 1996 (1) ZLR 28 (S) at 32E-F.
21
See S v Boesak 2001 (1) SA 912 (CC) at 920D-E and the cases there cited.
22
See generally the Irish case of People (AG) v O’Brien [1965] IR 142. Section 258A of the Criminal Proce-
dure and Evidence Act now sets out the considerations that courts must take into account in deciding whether
or not to allow illegally-obtained evidence to be produced.

23
Fair trial
As we have seen, section 69(1) of the Constitution states that accused persons are entitled
to “a fair and public trial”, and section 70 goes on to elaborate specific rights that must be
accorded to them, such as the right to be presumed innocent, to be given adequate time to
prepare their defence, and so on. Clearly, as in the South African constitution, the right to a
fair trial embraces more than the specific rights set out in section 70. What does it include?
In, the Constitutional Court (per Ackermann J) said: S v Dzukuda & Ors; S v Tshilo 2000
(4) SA 1078 (CC)
“The right to a fair trial is a comprehensive and integrated right, the content of which will be
established, on a case by case basis, as our constitutional jurisprudence develops. [para 9]
“It would be imprudent, even if it were possible, in a particular case concerning the right to a
fair trial, to attempt a comprehensive exposition thereof. … At the heart of the right to a fair
trial and what infuses its purpose is for justice to be done and also to be seen to be done. But
the concept of justice itself is a broad and protean23 concept. In deciding what, for purposes
of this case, lies at the heart of a fair trial in the field of criminal justice, one should bear in
mind that dignity, freedom and equality are the foundational values of our constitution.24 An
important aim of the right to a fair trial is to ensure adequately that innocent people are not
wrongly convicted, because of the adverse effects which a wrong conviction has on the liber-
ty, and dignity (and possibly other) interests of the accused. There are, however, other ele-
ments of the right to a fair trial such as, for example, the presumption of innocence, the right
to free legal representation in given circumstances, a trial in public which is not unreasonably
delayed, which cannot be explained exclusively on the basis of averting a wrong conviction
but which arise primarily from considerations of dignity and equality. [para 11]
“More particularly, in relation to sentencing …, it seems to me that what the right to a fair trial
requires, amongst other things, is a procedure which does not prevent any factor which is rel-
evant to the sentencing process and which could have a mitigating effect on the punishment to
be imposed from being considered by the sentencing court.” [para 12]
In S v Sonday & Anor 1995 (1) SA 497 (C) at 507C, Thring J said:
“[T]he concept of a ‘fair trial’, including a fair appeal, embraces fairness, not only to the ac-
cused or the appellant, as the case may be, but also, in a criminal case, to society as a whole,
which usually has a real interest in the outcome of the case.”
The right to a fair trial entails informed participation by the accused, where he is unrepre-
sented. A court must therefore explain all procedural rights and options to an unrepresented
accused, and must do so at every critical stage.25
The concept of a fair trial includes the right to have a prosecutor who acts, and is perceived
to act, without fear, favour or prejudice.26
Generally, it is an essential element of a fair trial that accused persons should be treated
fairly and in accordance with lawful procedures, not only during the trial itself but from the
moment they first come to the attention of the Police or other law enforcement agencies. If
lawful procedures are violated at any stage in the process, not only does the accused person
have a civil remedy against the Police or the State, but the violation very often affects the
validity of subsequent stages. So for example, if the Police extract a confession from an

23
Variable, many-sided.
24
They are also founding values of the Zimbabwean constitution: see section 3.
25
Geldenhuys & Joubert Criminal Procedure Handbook 10th ed page 283.
26
Bonugli & Anor v Deputy National DPP & Ors 2010 (2) SACR 134 (T) at 143; [2008] ZAGPHC 28. See
also Smyth v Ushekowunze Anor 1997 (2) ZLR 544 (S).

24
accused person by the use of force or undue influence, the confession will be inadmissible
in the subsequent trial; and if there is an irregularity in the course of a trial, it may result in
the accused person’s acquittal on appeal.

Equal protection of law

Section 56(1) states that everyone is entitled to equal protection of the law.
Protection of the law is explained by Linington, Constitutional Law of Zimbabwe para 994:
“In essence, the right to the protection of law means that persons are entitled to have their law-
ful rights protected. In addition, no one may be proceeded against, either in criminal or civil
matters, except to the extent that such proceedings are authorised by law.”
This is a cornerstone of a constitutional State, a State founded on the rule of law. A corol-
lary to the public’s right to the protection of law is that the Police, like everyone else, must
obey the law27, for it is in society’s interests that the Police should act lawfully and that
meaningful control should be exercised over their actions. They must follow proper, lawful
procedures when exercising their functions in the control of crime. For example, they are
not entitled to arrest or detain persons except when authorised by law to do so; they may
not search for and seize property unless the law permits the search and seizure. If police
officers breach the law, anyone whose rights have been violated has lawful remedies
against them and usually against their employer, the State.
Equal protection of the law goes further, by emphasising that everyone must have the same
access to the law and courts, and be treated equally by the law and courts, both in proce-
dures and in the substance of the law. The right to equal protection is akin to the right to
due process of law, but in particular applies to equal treatment as an element of fundamen-
tal fairness. In American jurisprudence, equal protection of the law
“means that legislation that discriminates must have a rational basis for doing so. And if the
legislation affects a fundamental right (such as the right to vote) or involves a suspect classifi-
cation (such as race), it is unconstitutional unless it can withstand strict scrutiny.”28
In other words, laws may discriminate or differentiate between different classes of people
but the discrimination or differentiation must be rational. And of course it cannot be unfair
because that is prohibited by section 56(3) of the Constitution.

Public trial
Section 69(1) of the Constitution states that:
“Every person accused of an offence has the right to a fair and public trial …”
This provision, which is also reflected in section 49 of the High Court Act [Chapter 7:06],
gives effect to a basic principle, that “the searching light of public opinion provides the
most effective safeguard against the danger of an arbitrary and despotic judiciary.”29
The exceptions (i.e. the cases when the public may be excluded from a trial) are:
General power to restrict publicity
The Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04] allows
the court to make the following orders, either mero motu or on the application of a party:30

27
See Chavunduka & Anor v Commissioner of Police & Anor 2000 (1) ZLR 418 (S) at 421H-422B.
28
Black’s Law Dictionary, 4th pocket edition (2011).
29
Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 p. 463.
30
See section 3 of the Act.

25
• the court may order all persons or a class of persons to be excluded from the proceed-
ings (i.e. that the trial should be held in camera;
• the court may order that the name, address or other information likely to identify any-
one concerned or mentioned in the proceedings should not be disclosed publicly, or that
information that might reveal a place or locality concerned or mentioned in the proceed-
ings should not be disclosed publicly;
• the court may order that the whole or part of the proceedings should not be publicly dis-
closed.
These orders may be made only for the following reasons:31
• where publicity would prejudice the interests of justice;
• in the interests of public morality;
• in the interests of the welfare of persons under the age of 18;
• to protect the private lives of persons concerned in the proceedings.
These powers should be exercised sparingly. It is inappropriate for them to be used merely
in order to spare the accused and his family embarrassment.32
A court must make an order listed above whenever it is satisfied that it is necessary or ex-
pedient to do so in the interests of defence, public safety, public order or the economic in-
terests of the State.33
Where a trial is held in camera, the court should give a full judgment and provide the par-
ties with a copy of it; an edited version of the charge and judgment should be made availa-
ble to the public as soon as possible.34

Ministerial certificates prohibiting publicity

Under section 4 of the Courts and Adjudicating Authorities (Publicity Restriction) Act
[Chapter 7:04], a Minister can issue a certificate stating that it would not be in the public
interest to disclose publicly the fact that any proceedings may or will be instituted in any
court, or any fact connected with any such future proceedings. The Minister can also issue
a notice restricting the transmission of documents from one party to any such proceedings
to another such party. The notice may impose conditions restricting the copying of any
such document, or the taking of any such document out of Zimbabwe.
The constitutionality of section 4 of the Act is doubtful, since it may jeopardise an accused
person’s right to a fair trial by restricting his ability to prepare and present his defence. 35 In
so far as the section allows a Minister to issue a certificate prohibiting the public disclosure
of evidence given in criminal cases, the section is based on section 18(12) of the old (Lan-
caster House) Constitution, which expressly provided for such certificates. There is no
equivalent provision in the current Constitution.

31
Section 3 of the Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04].
32
R v Miller 1969 (2) RLR 472 (G).
33
Section 3(3) of the Courts and Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04].
34
S v Niesewand (1) 1973 (1) RLR 210 (A).
35
See further Reid Rowland Criminal Procedure in Zimbabwe p. 15–10.

26
Presence of accused
Normally every trial must take place in the presence of the accused, and he must be present
when the witnesses give their evidence.36 This is a basic principle of the law of criminal
procedure.37 A trial may, however, take place in the accused’s absence in the following
circumstances:
• If the accused so conducts himself as to render it impractical to continue the proceed-
ings in his presence. In that event, the court may order him to be removed and may di-
rect the trial to proceed in his absence.38 The court should do so only as a last resort,
however, and before doing so the court should warn the accused of the consequences of
his behaviour. If the accused is removed he should be brought back at the end of the
State case and asked whether he wishes to lead evidence.39
• If the accused has been summoned to appear charged with a crime for which the penalty
is a fine, and only in default of payment of the fine may imprisonment be imposed, the
accused need not appear personally but may appear through a legal practitioner whom
he has authorised to represent him. If there is no legal practitioner available, the ac-
cused may appear through anyone else acting as his representative. 40 If in such a case
the accused does not appear either personally or through a representative, the court may
proceed to hear the case in his absence and may direct the collection of any fine im-
posed upon him.41 This procedure, though no doubt very convenient, may be unconsti-
tutional.42

Representation of accused
Legal representation
Everyone charged with a crime is entitled to defend himself in person or, at his own ex-
pense, by a legal practitioner of his own choice.43 This right is not, however, absolute. As
was said in the headnote to S v Paweni & Anor 1984 (2) ZLR 16 (H):
“[T]he accused’s predilection for a particular legal practitioner who happens to be unavailable
on the date on which the accused’s case is set down for trial does not mean that the case must
be postponed until such time as that particular practitioner is available. The provisions of s 18
simply mean that the accused is entitled to a choice of not having a particular practitioner,
whom he does not want, foisted on him. The accused’s desire for particular counsel is only
one consideration: there are others, such as the principle that cases should be brought to a
conclusion with the minimum of avoidable delay. In this regard, the interests of all parties
must be considered, not merely the interests of the accused. Such other factors must be con-
sidered as: how much notice of trial has been given; the complexity of the case; and the
availability of other competent lawyers.”
But while it may sometimes be appropriate for the court to order a trial to go ahead in the
absence of the accused’s legal practitioner, the discretion to do so must be exercised judi-

36
Section 70(1)(g) of the Constitution and section 194(1) of the Criminal Procedure and Evidence Act
37
Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 97.
38
Section 194(1) of the Criminal Procedure and Evidence Act.
39
R v Pauline 1928 TPD 643 at 646, cited in R v Mpofu 1970 (1) RLR 28 (G).
40
Section 357 of the Criminal Procedure and Evidence Act.
41
Section 357(2) & (3) of the Criminal Procedure and Evidence Act.
42
See Reid Rowland Criminal Procedure in Zimbabwe p. 16–26.
43
Section 70(1)(d) of the Constitution and section 191(a) of the Criminal Procedure and Evidence Act.

27
cially. Where the practitioner’s absence is not due to the fault of the accused, it would be
wrong to penalise him.44 On the other hand, where the accused has had ample opportunity
to obtain legal representation and has failed to do so, he cannot subsequently attack the pro-
ceedings unless he can furnish an acceptable explanation for his failure.45
Under section 70(1)(e) of the Constitution an accused person is entitled to be represented
by a lawyer assigned by the State and at State expense “if substantial injustice would oth-
erwise result”, and he must be informed promptly of that right.46 In the South African case
of S v Khanyile & Anor 1988 (3) SA 795 (N) it was pointed out (to quote the headnote):
“It is well established in our law that every person accused of a crime and able to obtain the
services of a lawyer has the right to be defended by one. The exercise of that right is vital to
the fairness of the proceedings, and the denial of the right therefore makes the ensuing trial
per se unfair. There is no real difference between an accused who, because he cannot afford
the expense, is unable to obtain the services of a lawyer. The latter’s trial is no less unfair.”

Representation of juveniles by guardian

An accused person under the age of 16 who is being tried in a magistrates court may be de-
fended by his natural or legal guardian, who may examine and cross-examine witnesses.47

Representation by other persons

An accused person may be represented at his trial, and have the witnesses examined and
cross-examined, by any other person where the court considers that he requires the assis-
tance of that other person and has permitted him to be so assisted.48
Magistrate to inform accused of right to be represented
At the beginning of every trial in a magistrates court, before the accused has pleaded to the
charge, the magistrate must inform him of his right to legal representation or to be repre-
sented by his guardian (if the accused is a juvenile) or by other persons as above. The ac-
cused’s response on being told this must be recorded.49 There seems to be no similar provi-
sion requiring accused to be informed of their right to representation before a trial in the
High Court.

Presumption of innocence
Criminal procedure deals with the detection, investigation and prosecution of suspects and
accused persons, not of criminals. It is vitally important to remember this distinction.
Rules of criminal procedure are for everybody, not just for “criminals”, so the rules must be
fair and just to allow everyone to live under them.
Everyone is regarded as innocent until properly convicted by a court of law. This is a fun-
damental presumption which is entrenched in the Constitution (see above) and in many in-

44
Cf S v Nqula 1974 (1) SA 801 (E).
45
R v Second 1969 (2) RLR 285 (A).
46
Section 70(1)(f) of the Constitution.
47
Section 191(b) of the Criminal Procedure and Evidence Act. Note that this provision applies only to trials
in magistrates courts.
48
Section 191(c) of the Criminal Procedure and Evidence Act.
49
Section 163A of the Criminal Procedure and Evidence Act. The section does not require the accused to be
told of his right to legal aid, i.e. to have a legal practitioner assigned to him at State expense, as mandated by
section 70(1)(f) of the Constitution.

28
ternational conventions50. The presumption applies not only to criminal trials, but to all
pre-trial stages such as arrest. The word “properly” is important: it connotes compliance
with the rules of evidence and criminal procedure. A conviction is an objective and impar-
tial official pronouncement that a person has been proved legally guilty by the prosecution
in a properly conducted trial. In a state under the rule of law, only legal guilt counts. If a
person is acquitted because a rule of procedure or evidence has not been complied with
(e.g. because a confession was not proved to have been made freely and voluntarily), it is
wrong to say that the rule has allowed a criminal to go free; it has simply caused a person
who was presumed to be innocent from the outset to continue to be presumed (labelled) in-
nocent because the State could not legally prove his guilt.
So it is not entirely true to say that the purpose of criminal investigations, trials and post-
trial procedures is to find the truth in order to convict the guilty and acquit the innocent.
The discovery of truth is not the highest value. Sometimes evidence that is true will be ex-
cluded in order to achieve a higher value. For example, certain evidence may be excluded
because it is protected by legal practitioner-and-client privilege, even though it may be rel-
evant and true. The exclusion serves to protect a value that is higher than the discovery of
the truth, namely the encouraging of free and open communication between legal practi-
tioners and their clients. Again, confessions that have been extracted by torture or force are
excluded even though they may be true: the exclusion protects accused persons, innocent
and guilty, against violation of their fundamental right to bodily security.
The prevalence or seriousness of the crime cannot be allowed to displace the presumption
of innocence.51

Burden of proof: proof beyond reasonable doubt

To secure a conviction, the prosecution must prove the accused person’s guilt beyond a rea-
sonable doubt.52 The presumption of innocence ensures that the burden of proof is on the
prosecution; an accused person does not have to prove that he is innocent. The prosecution
must cover every essential element of the crime with which the accused is charged by pre-
senting admissible evidence in order to prove that the accused is guilty. If even a single
element is not proved by the prosecution beyond a reasonable doubt, the accused cannot be
convicted.53 If the prosecution succeeds in proving a prima facie case against the accused
and the accused does nothing to disturb it, the prima facie proof may “harden” into proof
beyond reasonable doubt, and in that event the accused will be convicted, because there is
nothing which produces a reasonable doubt in the court’s mind about the guilt of the ac-
cused on each of the elements of the crime.54 It may be noted here that less evidence will
be enough to establish a prima facie case where the facts are peculiarly within the

50
Article 11(1) of the Universal Declaration of Human Rights: “Everyone charged with a penal offence has
the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all
the guarantees necessary for his defence.” Article 14.2 of the International Covenant on Civil and Political
Rights: “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved
guilty according to law.”
51
S v Coetzee & Ors 1997 (3) SA 527 (CC) at 612E – 613B
52
Section 18(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Although the Constitu-
tion does not state expressly that this is the standard of proof required, it is implied from section 70: See S v
Chogogudza 1996 (1) ZLR 28 (S) at 32 E and S v Boesak 2001 (1) SA 912 (CC) at 920D-E and the cases
there cited.
53
Section 18(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
54
Joubert ed Criminal Procedure Handbook 10th ed p. 19.

29
knowledge of the accused person.55 If, however, the accused can make the court doubt rea-
sonably that his guilt on any one or more of the essential elements of the crime has been
proved, he must be acquitted.56 If there is some evidence before the court which raises a
defence to the charge, whether that evidence has been adduced by the accused or the de-
fence, the prosecution must prove beyond a reasonable doubt that the defence does not ap-
ply.57 In other words, the accused does not have to go so far as to establish the defence on a
balance of probabilities (unless a statute specifically places the burden of proving the de-
fence on him); all he need do is to lay a basis for the court having to consider the defence.58
Proof beyond reasonable doubt is the standard of proof in criminal cases; proof on a bal-
ance or preponderance of probabilities is the standard in civil matters. If at the end of a civ-
il case, e.g. an action for damages, the court is in doubt as to whether the plaintiff has
proved his case, the court will assess the probabilities, and if the plaintiff’s case seems
more probable than the defendant’s the plaintiff will win. That is not so in criminal trials:
even if the State’s case is more probable than the version of the facts put forward by the
accused, the accused must be acquitted if there is a reasonable possibility (not a probability)
that his version may be true. It is not necessary for the court to believe the accused, so long
as there is a reasonable possibility that his version is true.
For an accused person to be convicted, the court must be satisfied of his guilt beyond a rea-
sonable doubt. This is so even in cases where, as stated earlier, the prosecution has estab-
lished a prima facie case and the accused, by refusing to give evidence, does not rebut it.
The prima facie case will harden into proof beyond reasonable doubt only if the court,
looking at the totality of the evidence, is satisfied beyond a reasonable doubt that the ac-
cused person is guilty.
It is impossible to define what is meant by “proof beyond reasonable doubt” because there
is no standard for measuring the intensity of human belief. Essentially a common-sense
approach has to be adopted. For judges and magistrates the standard of proof is a matter of
experience and intuition rather than analysis.59 A good explanation of the concept was giv-
en by Denning J (as he then was) in Miller v Minister of Pensions [1947] 2 All ER 372
(KBD) at 37360:
“It need not reach certainty, but it must carry a high degree of probability. Proof beyond a rea-
sonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect
the community if it admitted fanciful possibilities to deflect the course of justice. If the evi-
dence is so strong against a man as to leave only a remote possibility in his favour, which can
be dismissed with the sentence ‘of course it’s possible but not in the least probable’, the case
is proved beyond reasonable doubt, but nothing short of that will suffice.”
A rather less eloquent explanation was given by a South African judge, Rumpff JA, in S v
Glegg 1973 (1) SA 34 (A) at 39A (official translation):
“The concept ‘reasonable doubt’ cannot be precisely defined, but this can be said: that it is a
doubt which exists because of probabilities or possibilities which are considered reasonable

55
Union Government (Minister of Railways) v Sykes 1913 AD 156 at 173 and R v Van der Linde & Anor 1933
OPD 5 at 8, cited in S v Mpofu 2012 ZLR 384 (H) at 390-1.
56
R v Difford 1937 AD 370 at 373.
57
Section 18(4) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
58
Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p.498.
59
Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p. 525.
60
Quoted in Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p. 525. See that textbook, and also Lans-
down & Campbell SA Criminal Law & Procedure vol 5 pp 908 – 911.

30
 on the ground of general human experience and knowledge. Proof beyond a reasonable doubt
is not equated with proof beyond the slightest doubt, because the onus to render proof at so
high a standard would frustrate the administration of the criminal law.”
It has already been noted, however, that one cannot define “proof beyond a reasonable
doubt” clearly and comprehensively because what constitutes proof in any particular case
depends on the facts and circumstances of that case. As pointed out by Hoffmann & Zef-
fertt The South African Law of Evidence 4th ed pp 525-6:
“[I]t is easier to sense a doubt than to define one. Trying to define a doubt is rather like trying
to translate music into words – an exercise in the fuzzy rhetoric of metaphor. … [A]n elabo-
rate citation of dicta can only churn up a relatively simple concept into a mud of words.”
The prosecution will not have proved the accused person’s guilt beyond a reasonable doubt
if, at the conclusion of the evidence, the court thinks there is a reasonable possibility that
the accused’s explanation may be substantially true, even if the court considers his explana-
tion is improbable.61 On the other hand, if the court is “sure” that the accused is guilty,
then the prosecution will have proved his guilt beyond a reasonable doubt.

Placing burden of proof on accused persons

Section 70(1)(a) of the Constitution gives every accused person the right to be presumed
innocent until proved guilty, but sometimes a statute places the burden of proving a particu-
lar fact on the accused person. This is usually done where the fact is particularly within his
own knowledge and is easy for him to establish, whereas it would be difficult or impossible
for the prosecution to prove. Guidelines were laid down in S v Chogugudza 1996 (1) ZLR
28 (S), as follows:
1. A statute cannot validly impose on the accused the burden of proving his innocence or
disproving his guilt.
2. Any presumption must not place the entire onus on the accused; there is always an
onus on the prosecution to bring him within the general framework of an enactment be-
fore any onus may be placed on him to prove his defence.
3. The presumption may relate to a state of mind, that is an intention, where the element of
the crime is a fact exclusively or particularly within the knowledge of the accused.
4. A presumption will be regarded as reasonable if it places an onus upon the accused
where proof by the prosecution of such a specific fact is impossible or difficult but
where the fact is well known by the accused.
5. The presumption must not be irrebuttable (i.e. incapable of being disproved).
One example of where the law requires the accused person to prove facts is section
146(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07], which imposes on
an accused person the onus of proving an exception, exemption, proviso, excuse or qualifi-
cation in the description of a crime.62 What this means is that sometimes statutory provi-
sions contain exceptions under which some people are exempted from the operation of a
statutory provision. For example, no one is allowed to possess certain drugs unless he or
she has been issued with a licence to possess them. Holders of licences are exempted from
the general prohibition against possession of the drugs. In such cases the rule is that in-
criminating factors must be proved by the prosecution and exculpatory factors by the ac-
cused.63 So in the example given, if a person is charged with possessing drugs the prosecu-

61
R v Difford 1937 AD 370 at 373. See also Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p. 525-6.
62
See page 11 of these notes.
63
See Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 209.

31
tion must proved that the accused possessed the drugs, and it is up to the accused to prove
that he held a licence.
In all cases where an onus is imposed on the accused to prove a fact, the most he has to do
is to prove the fact on a balance of probabilities; he never has to establish anything beyond
a reasonable doubt.64 If the court can say that the accused’s story is more probable than
not, then he has discharged the onus.65

The right of [or to] silence: privilege against self-incrimination

The right to remain silent can be described as the absence of a legal obligation to speak.66
This so-called “right of silence” is not a single right but rather:
“a disparate group of immunities, which differ in nature, origin, incidence and importance, and
also as to the extent to which they have already been encroached upon by statute.”
(Per Lord Mustill in the English case of R v Director of Serious Fraud Office, e.p. Smith
[1993] AC 1 (HL), [1992] 3 All ER 456 (HL)). In that case the learned Judge listed six
separate rights or immunities that are covered by the term:
1. A general immunity, possessed by all persons and bodies, from being compelled on
pain of punishment to answer questions posed by other persons or bodies.
2. A general immunity, possessed by all persons and bodies, from being compelled on
pain of punishment to answer questions the answers to which may incriminate them.
3. A specific immunity, possessed by all persons under suspicion of criminal responsi-
bility whilst being interviewed by police officers or others in similar positions of au-
thority, from being compelled on pain of punishment to answer questions of any
kind.
4. A specific immunity, possessed by accused persons undergoing trial, from being
compelled to give evidence, and from being compelled to answer questions put to
them in the dock.
5. A specific immunity, possessed by persons who have been charged with a crime,
from having questions material to the crime addressed to them by police officers or
persons in a similar position of authority.
6. A specific immunity (at least in certain circumstances …) possessed by accused
persons undergoing trial, from having adverse comment made on any failure (a) to
answer questions before the trial, or (b) to give evidence at the trial.
The first of these immunities is based on the right to privacy; the others are based on a re-
vulsion against abuses that may arise from inquisitorial criminal proceedings, together with
a desire to minimise the risk of a person being convicted through a false extra-judicial con-
fession and concern for the reliability of forced confessions. There is also a perception that
it is unfair to put someone in a position where he is exposed to punishment whatever he
does (if he speaks he may condemn himself out of his own mouth, and if he remains silent
he may be punished for not speaking).
In Zimbabwe an accused cannot be forced to testify at his trial; he has a right to silence, a
privilege against self-incrimination. This right is conferred by sections 50(4)(a) of the Con-

64
Section 18(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
65
Reid Rowland, Criminal Procedure in Zimbabwe p. 15-11. See also Ex parte Minister of Justice: In re R v
Bolon 1941 AD 345, cited in Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p. 529.
66
Currie & de Waal The Bill of Rights Handbook 6th ed p. 758.

32
stitution [pre-trial silence] and 70(1)(i) of the Constitution [silence during trial]; the right is
also enshrined in various international human-rights conventions.67
Generally speaking, a suspect cannot be compelled to make a statement to the Police, and
any statement he may make must be proved to have been made freely and voluntarily.
Suspects are told on arrest that they have the right to remain silent (section 50(4)(b) of the
Constitution and section 41A of the Criminal Procedure and Evidence Act [Chapter 9:07]).
Hence the fact that a suspect has remained silent when questioned by the Police cannot be
held against him, because he is exercising a constitutional right of which he has been in-
formed. No adverse inference, therefore, can be drawn against him because of such si-
lence.68
The right to silence arises logically from two basic aspects of our procedure:
• That the accused person is presumed innocent until proved guilty. If he is presumed
innocent, then he should not have to do anything to negative any presumption of guilt,
since there is no such presumption.
• That our system is based on an adversarial system, in which the State and the accused
oppose each other as adversaries, with the judge acting largely as an impartial referee or
umpire. The accused should not have to assist the State, his adversary.
If adverse inferences can be drawn from an accused person’s silence, then the right to si-
lence is largely negated.
In the United Kingdom, the 1981 Royal Commission on Criminal Procedure (the Philips
Commission) said:
“Any attempt … to use a suspect’s silence as evidence against him seems to run counter to a
central element in the accusatorial system of trial. There is an inconsistence of principle in
requiring the onus of proof at trial to be upon the prosecution and to be discharged without
any assistance from the accused and yet in enabling the prosecution to use the accused’s si-
lence in the face of police questioning under caution as any part of their case against him at
trial.”
Under the Criminal Procedure and Evidence Act, however, the right of silence has been
substantially eroded:
• Adverse inferences are allowed be drawn from an accused person’s silence: see sec-
tions 67, 115, 189, 199 and 257 of the Criminal Procedure and Evidence Act. In partic-
ular, section 257 states that if a person who is being questioned by the police fails to
mention a fact which is relevant to his defence and which he could reasonably be ex-
pected to mention in the circumstances, a court may draw adverse inferences from his
failure and treat the failure as evidence corroborating any other evidence given against
him.
• If an accused person applies for bail, he must disclose whether or not other charges are
pending against him, whether or not he has been granted or refused bail on those charg-
es, and whether or not he has previous convictions (section 117A(5) of the Criminal
Procedure and Evidence Act).
• Before evidence is led in a criminal trial, the accused must outline his defence:
o An accused who is indicted for trial in a the High Court is obliged by section
66(6) of the Criminal Procedure and Evidence Act to provide a written outline

67
For example, article 14.3 (g) of the International Covenant on Civil and Political Rights.
68
S v Thebus & Anor 2003 (6) SA 505 (CC) at 543C-E.

33
 of his defence, and if he fails to disclose a relevant and material fact adverse in-
ferences may be drawn (section 67(2) of the Act).
o An accused who pleads not guilty in a trial in a magistrates court is obliged by
section 188 of the Criminal Procedure and Evidence Act to give an outline of his
defence, and if he fails to disclose a relevant and material fact adverse infer-
ences may be drawn (section 189(2) of the Act).
• If an accused declines to give evidence in a trial, he may nevertheless be questioned by
the prosecutor and the court in terms of section 198(9) of the Criminal Procedure and
Evidence Act, and again, if he fails to disclose a relevant and material fact the court
may draw adverse inferences from his failure (section 199(1) of the Act).
• Facts discovered through an inadmissible confession made by the accused are admissi-
ble in evidence at his trial, and the prosecution can disclose in evidence that the facts
were discovered as a result of information given by the accused (section 258 of the
Act).
These provisions erode the right of silence significantly69 and, to the extent they do, so they
are unconstitutional.
Note, however, that even giving full allowance to the accused’s right of silence, if the State
has established a prima facie case against him at his trial and he nevertheless elects to re-
main silent, the prima facie case may harden into sufficient evidence for a conviction.70
This is not because of his silence but because he has failed to disturb or rebut the case the
State has made against him. That case, being uncontroverted, is regarded as proved beyond
reasonable doubt.

Reasonableness
Many of the decisions that have to be made in the criminal procedure process are required
to be reasonable. For example, a police officer is entitled to arrest a person without a war-
rant if he has “reasonable grounds” to suspect that the person has committed an crime71; a
search warrant is issued if there are “reasonable grounds” for believing that articles liable to
seizure are in the premises to be searched; and force may be used to effect and arrest or a
search if it is “reasonably necessary” in the circumstances.
What is meant by “reasonable” in the circumstances? The word is difficult to define; in-
deed, one judicial dictionary says:
“It would be unreasonable to expect an exact definition of the word ‘reasonable’.”72
The Oxford English Dictionary defines the word variously:
“4. Agreeable to reason; not irrational, absurd or ridiculous.
5. Not going beyond the limit assigned by reason …”
What is reasonable in any particular case depends on the circumstances.
The following are the guidelines, in relation to reasonable grounds for suspicion:
• A person can be said to have “reasonable grounds” to believe or suspect something or
to believe or suspect that certain action is necessary if:

69
MacFarlane v Sengweni NO & Anor 1995 (1) ZLR 385 (S) at 389E-G.
70
R v Stidolph 1965 RLR 552 (A) at 555B, cited in S v Mukungatu 1998 (2) ZLR 244 (S) at 247E-F.
71
Section 25 of the Criminal Procedure and Evidence Act.
72
Stroud’s Judicial Dictionary, 4th ed, quoted in Allan v Minister of Home Affairs 1985 (1) ZLR 339 (H) at
343.

34
 ➢ he really believes or suspects it; and
➢ his belief or suspicion is based on certain facts which are known to or
perceived by him or about which he has been informed by an apparently
reliable person; and
➢ in the circumstances, and in view of the existence of those facts, any rea-
sonable person would have held the same belief or suspicion.
• There will be grounds for a certain suspicion or belief if the suspicion or belief is recon-
cilable with the available facts. The existence or otherwise of those facts is objectively
determined, so one has to look at the facts as they really are and not as someone may
think they are.
• Once a person has established what the facts really are, he will evaluate them and make
an inference from them with regard to the existence or otherwise of other facts, which
for the time being he is unable to determine. Once he has made that inference, it can be
said that he believes or suspects that those other facts exist.
• His belief or suspicion will be reasonable only if it can be said that any reasonable per-
son would have held the same belief or suspicion in the circumstances. The words “any
reasonable person” refer to any other person who has more or less the same background
knowledge (such as training and experience) as the person who actually holds the belief
or suspicion.
• So a person can be said to have “reasonable grounds” to believe or suspect something if
he actually believes or suspects it; his belief or suspicion is based on actual facts from
which he has drawn an inference regarding the existence of other facts, and if any rea-
sonable person would, in view of those facts, also have drawn the same inference.
These are factual questions that will have to be determined with reference to the cir-
cumstances of each case.

Rights and duties: crime control and due process

The law of criminal procedure must strike a balance between the rights of the individual
(due process) and the control of crime (crime cannot be eradicated altogether; at most the
State can keep it at a tolerable level). Every right or power conferred on the Police (e.g. the
power of arrest) is matched by a correlative duty on the part of members of the public to
submit to that right or power. There has to be a balance: if the State were given absolute
powers to control crime, we would live under a tyranny; if, on the other hand, the rights of
individuals were given absolute precedence, the State would be powerless to cope with
crime. So there must be a balance. Strictly speaking, the balance is not between the rights
of the State and those of the individual, but rather between two competing community in-
terests: the community’s interest in crime control and the community’s interest in fair
treatment of its members and in their freedom.
The following are some of the points that should be considered in striking a proper balance:
• Rules of criminal procedure cannot be based on the assumption that they will apply on-
ly to criminals; they must allow for the fact that innocent people may be drawn into the
criminal procedure process.
• While rules of criminal procedure should not increase the probability that innocent peo-
ple will be convicted, it must be accepted that the more the system guards against con-
victing the innocent the greater will be the risk of allowing criminals to go free. It is a
miscarriage of justice if an innocent person is convicted, but it is equally a failure of
justice if a person who has committed a crime is acquitted.

35
• If the State were to have absolute powers it would probably be able to control crime to a
significant extent, but the result would be a tyranny in which suspects could be tortured
to extract confessions and people could be searched, and have their homes entered and
searched, at the whim of a government officer. On the other hand, if the rights of the
individual were absolute (i.e., if the State could not interfere with them at all) then the
State would be unable to prevent crimes being committed.
• Rules of criminal procedure should regulate State power both positively and negatively.
Positively, in the sense of giving State officials, e.g. the Police, power to arrest suspects.
Negatively, in the sense of limiting the circumstances in which those powers can be ex-
ercised.
• While rules of criminal procedure must respect the fundamental rights of suspects, they
must also have regard to the victims of crime and the security of law-abiding citizens.
• Should the courts in criminal trials be allowed to consider evidence that has been ob-
tained illegally? Such evidence may be reliable despite the way in which it was ob-
tained, but by admitting it a court may be sending a signal to State officers that unlaw-
ful conduct in the course of obtaining evidence is acceptable and that they can violate
suspects’ rights in order to obtain it. There is no simple answer to this question, but
section 70(3) of the Constitution indicates how it should be answered by stating that il-
legally obtained evidence must be excluded “if the admission of the evidence would
render the trial unfair or would otherwise be detrimental to the administration of justice
or the public interest.” This question is dealt with in more detail below under the head-
ing “Effect of unlawful search”.
The balance between crime control and due process is always shifting. In Zimbabwe the
emphasis is on control of crime, as it has been for most of the country’s history; individual
rights are generally subordinated to the need to control crime. The new constitution, with
its emphasis on individual rights, may swing the balance towards due process.

Adversarial and inquisitorial systems of criminal procedure

In Zimbabwe we have adopted what is called an adversarial (or accusatorial) system of
criminal procedure. In many other countries, particularly France, Germany and other coun-
tries on the European continent, there is an inquisitorial system.

Adversarial (or accusatorial) system

In an adversarial or accusatorial system of criminal procedure, the judicial officer’s role is
largely that of a detached referee or umpire who presides over a contest between the prose-
cution and the defence and who does not actively participate in the contest for fear of be-
coming partial or losing perspective. The police are the primary investigative force and
collect evidence to be used in the trial against the accused. They pass the evidence to the
prosecution in the form of a file called a police docket, which contains written statements
made by prospective witnesses. The prosecutor decides what charges to bring against the
accused person and what evidence to lead in order to establish the State case against him, in
particular which witnesses to call; because of this, the prosecutor is called “dominus litis”
(master of the proceedings). A criminal trial takes the form of a contest between the prose-
cution and the defence, who in turn call their own witnesses, lead them through their evi-
dence and cross-examine the witnesses called by the other side.

36
Inquisitorial system
In an inquisitorial system, the presiding judicial officer is much more actively involved in
producing and presenting the evidence.
In cases involving serious or complex crimes, an investigating judge or magistrate decides
what evidence should be collected, orders searches, and questions the witnesses and the
suspect. The investigating judge or magistrate is independent of the Executive, and there-
fore separate from the prosecutors office; his or her role is that of an investigator not a
prosecutor, and he or she supposed to collect all evidence both incriminating and exculpato-
ry. If the investigating judge or magistrate considers there is a valid case against the sus-
pect, the suspect will be sent for trial. The investigating judge or magistrate will prepare a
dossier outlining all aspects of the case; this dossier forms the basis of the trial.
At the trial, the presiding judge or magistrate (not normally the same judge or magistrate
who collected the evidence) directs the proceedings and dominates the questioning of wit-
nesses and the accused. The judge or magistrate is required to continue the trial until he or
she has ascertained the truth.
Main differences between the two systems73
The main distinctions between the two systems are:
• Gathering of evidence: In adversarial systems, the responsibility for gathering evidence
rests mainly with the parties, i.e. the State and the defence. In inquisitorial systems, on
the other hand, the gathering of evidence is overseen by an independent investigating
officer (usually a judge or magistrate).
• An adversarial system proceeds on the basis that the best way of avoiding erroneous
verdicts of guilt is to allow the defence to test and counter the State’s evidence at the
trial, and to give the defence the freedom to decide how to do this. In that sense, it may
be said that an adversarial model is based on distrust of the reliability of the State’s evi-
dence. The trial is the exclusive forum for deciding whether there is a reasonable doubt
as to the accused’s guilt. In an inquisitorial system, on the other hand, has more faith in
the integrity of the pre-trial processes, i.e. in the ability of the investigating judge or
magistrate to distinguish between reliable and unreliable evidence, to detect flaws in the
prosecution case and to identify evidence that is favourable to the defence case. By the
time a case reaches trial there is a greater presumption of guilt.
• The parties — the prosecution and the defence — generally have more discretion in ad-
versarial systems. The prosecution formulates the charge, both parties decide what evi-
dence they are going to produce, the prosecutor can withdraw charges at any time and
the accused can decide whether to plead guilty or not guilty. In inquisitorial systems,
on the other hand, the discretion is more limited. In some systems, at least in theory, a
prosecution must take place in all cases where there is sufficient evidence of guilt, and
traditionally there was no such thing as a plea of guilty: regardless of the accused’s
wishes the trial proceeded, though sometimes in a more abbreviated form.
• In an adversarial system the parties determine the evidence to be led at the trial while
the role of the presiding judicial officer is to ensure that the trial proceeds according to
the rules of evidence and criminal procedure, and then to weigh up the evidence to de-
cide whether the prosecution has proved the accused’s guilt beyond a reasonable doubt.
In an inquisitorial system, on the other hand, the conduct of the trial is largely in the

73
This is taken from a discussion paper, “Adversarial and Inquisitorial Systems: A Brief Overview of Key
Features”, by the Law Commission of New Zealand.

37
 hands of the presiding judge or magistrate. He or she determines which witnesses are to
be called and assumes the dominant role in questioning them. Cross-examination is
largely unknown, though the parties are usually entitled to ask questions.
• In an adversarial system there are strict rules determining what evidence may be led at
the trial, to prevent the judicial officer being misled or prejudiced. In an inquisitorial
system the court is given more information about the case, and the rules of evidence are
more flexible. The accused’s criminal history, for example, may be read to the court
before the trial begins.

Criminal procedure as a system

The law of criminal procedure operates as a system or process, step by step from the inves-
tigation of a crime, the arrest of a suspect, the trial of the suspect, his conviction and sen-
tence and subsequent appeal. Each stage of the process affects the subsequent stages. For
example, if a suspect is coerced into making a confession this will affect the outcome of his
trial if the confession is ruled inadmissible in evidence.
Standards of proof vary at different stages of the system, getting more onerous for the State
as the case progresses:
• In the pre-trial stages, the general criterion for interfering with individual liberties is
reasonable grounds (as to which, see above). So for an arrest to be effected, reasonable
grounds for suspicion are normally required.
• At the bail stage, considerations such as the dangers of flight (“abscondment”), tamper-
ing with witnesses or committing further crimes are relevant.
• At the end of the State case, the court must decide whether the prosecution has present-
ed a prima facie case to prove each element of the crime; if not, the accused person
should be discharged.
• At the end of the trial, the burden of proving the accused person’s guilt beyond a rea-
sonable doubt rests on the prosecution.
The process is one in which many cases fail to reach the end, namely conviction and sen-
tence of a criminal. Thus of the thousands of cases that are reported to the Police, some
will be abandoned by the Police without investigation (since they are regarded as spurious
complaints); more will be abandoned after investigation has failed to produce adequate ev-
idence; in others the public prosecutor will decline to prosecute; in others, which come to
trial, the accused person will be acquitted or will be found to be mentally disordered.
This has policy implications. If there is concern at the unacceptably high crime rate, in-
creased State intervention in the earlier stages of the process will be more effective than
changes to the later stages (since more cases will be affected). Hence better detection, more
road-blocks and so on will have a greater effect in reducing vehicle theft than merely in-
creasing the punishment of some convicted thieves at the end of the process. Crime pre-
vention or deterrence, in other words, is more effective than increasing the severity of pun-
ishment.

Remedies
If State officials exceed their powers, for example by wrongfully detaining a suspect, there
are several remedies open to an aggrieved person:

38
Interdict de libero homine exhibendo (habeas corpus)
This is a remedy against unlawful detention, and is specifically provided for in section
50(7) of the Constitution. The High Court is asked for an order that the respondent (the de-
taining authority) produce a detained person before the court at a certain date and time; the
order is coupled with a provisional order (a rule nisi) that the respondent must show cause
why the detainee should not be released. The order is applied for by way of a civil applica-
tion which may be in the form of a chamber application. Traditionally, the court would not
examine carefully the locus standi of the person who applied for the interdict; it merely
had to be satisfied that the applicant had a good reason for making the application and that
the detained person would have made such an application had it been in his power to do
so.74 Now section 50(7) of the Constitution goes further and states that “any person” may
approach the High Court for an order of habeas corpus. The applicant must show the court
there are prima facie reasons for believing that the detention is wrongful, but once the order
is granted the detaining authority bears the onus of showing that the detention is lawful.

Ordinary interdict
This is an order of court prohibiting a person from acting in a certain way. It can be fruit-
fully employed to protect the rights of detainees in criminal proceedings, when habeas cor-
pus is not appropriate.
Mandamus
This is the opposite of an interdict; it is a court order that a person should perform his or
her duty (e.g. that a prosecutor should furnish an accused person with particulars relating to
the charge).

Civil action for damages

If a police officer or other authority acts illegally and causes loss or injury to an accused
person, an action for damages may be instituted against that officer or authority. For ex-
ample, if a person has been wrongly arrested and detained, he has an action for damages not
only against the State but also against the authority that arrested or detained him.75
The right of a person to compensation for unlawful arrest or detention is protected by sec-
tion 50(9) of the Constitution.

The exclusion of evidence

Evidence that has been obtained illegally may be treated as inadmissible in a criminal tri-
al.76 For example, a confession that has been obtained through force or threats will not be
admitted in evidence.

74
See Wood & Ors v Ondangwa Tribal Authority & Anor 1975 (2) SA 294 (A). The interest that a person
might have in the liberty of another could arise not only through family relationship or personal friendship but
also through the relationship that may bind the two persons through an agreement relating to a matter of
common interest, such as membership of a society, or a church, or a political party. Any member of such a
society or body would have an interest in the personal liberty of a co-member (headnote to Wood’s case).
75
Note, however, that judicial officers generally cannot be sued for damages if they give wrong judgments or
orders, unless they are shown to have acted for some wrongful or improper motive: McKerron Law of Delict
7th ed pp 81-2.
76
Cf Kelly v Pickering & Anor (1) 1980 ZLR 44 (G) at 45. And see section 70(3) of the Constitution, men-
tioned earlier.

39
 2. JURISDICTION OF THE COURTS
“Jurisdiction” in these notes means the power of a court try criminal cases, that is to say the
court’s power to inquire into and determine whether or not a person is guilty of a crime and
to impose punishment on him if he is found to be guilty.1
The courts which have jurisdiction in criminal cases are magistrates courts, the High Court,
the Supreme Court and the Constitutional Court. No other court or tribunal may be given
criminal jurisdiction beyond what may be necessary to enforce discipline in disciplined
forces such as the Defence Forces and the Police Service.2

Magistrates courts
Magistrates courts are divided into regional courts and provincial courts. Regional courts
are the more senior. All magistrates are appointed by the Judicial Service Commission.3

Territorial jurisdiction
Regional magistrates courts are established for specific regional divisions. There are three
regional divisions, the Eastern Division (centred in Harare), the Central Division, and the
Western Division (centred in Bulawayo). Provincial magistrates courts are established for
specific provinces, and magisterial provinces follow the boundaries of the administrative
provinces.
All magistrates courts have criminal jurisdiction within the regional division or province for
which they are established, and in certain circumstances they may try cases that occur out-
side it, e.g.:
• If a person does something outside Zimbabwe which is a crime under a statute which
has extra-territorial effect, any magistrates court can try that crime even if no element of
the crime took place within the court’s division or province.4
• If any element of a crime is committed within a division or province, the court of that
division or province can try the crime even if the rest of the crime was committed else-
where.5
• If a crime is committed within five kilometres from the boundary of a division or prov-
ince, or on a vehicle or train which is passing through a division or province or within
five kilometres of a division or province, the court of that division or province may try
the crime.6
• A person charged with theft or receiving property knowing it to be stolen, or obtaining
property by means of a crime, can be tried by any court within whose division or prov-
ince he has had possession of any of the property.7

1
See Reid Rowland Criminal Procedure in Zimbabwe p. 1-7.
2
Section 193 of the Constitution.
3
Section 7(1) of the Magistrates Court Act [Chapter 7:10] as amended by the Judicial Service Act [Chapter
7:18].
4
Section 56(6) of the Magistrates Court Act [Chapter 7:10].
5
Section 56(3) of the Magistrates Court Act [Chapter 7:10].
6
Section 56(2)(a) & (b) of the Magistrates Court Act [Chapter 7:10].
7
Section 56(4) of the Magistrates Court Act [Chapter 7:10].

40
• A person charged with incitement (i.e. with being an accomplice) or with being an ac-
cessory after the fact to a crime (the old term for what is now an accessory) may be
tried by any court which can try the person who committed the crime concerned.8
• If it is uncertain in which of several jurisdictions a crime has been committed, the of-
fender may be tried in any of them.9
• With the accused person’s consent, the Prosecutor-General may direct that a trial should
be held in any division or province.10

Crimes that may be tried in a magistrates court

Magistrates courts do not have power to try all crimes:
2. No magistrate can try the crimes of murder, treason or any other crime for which the
death penalty may be imposed.11 Note that magistrates can try attempted murder.12
3. Only regional magistrates may try the crime of rape, unless:
➢ the Prosecutor-General has remitted the case for trial or sentence to a magistrate
who is not a regional magistrate; or
➢ the accused is a juvenile under the age of 18 and the Prosecutor-General has author-
ised the trial to be held before a magistrate who is not a regional magistrate.13
Magistrates other than regional magistrates can however try cases of attempted rape. 14

Magistrates’ jurisdiction as to punishment

The extent of a magistrate’s jurisdiction as to punishment varies according to the grade of
the magistrate concerned.
Regional magistrates:
In most cases the maximum sentence that a regional magistrate can impose on a convicted
person is a fine of level 12 or imprisonment for ten years, or both.15
That is the ordinary jurisdiction of regional magistrates. In certain cases they can impose
higher sentences:

8
Section 56(5) of the Magistrates Court Act [Chapter 7:10]. An accessory after the fact is now known mere-
ly as an accessory (i.e. a person who assists an actual perpetrator after the crime has been committed): see
section 206 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The reference to a person
charged with incitement seems to be erroneous, since if the crime which has been incited is committed, the
inciter is guilty of that crime, not incitement.
9
Section 56(8) of the Magistrates Court Act [Chapter 7:10].
10
Section 56(9) of the Magistrates Court Act [Chapter 7:10].
11
Section 49(1) of the Magistrates Court Act [Chapter 7:10]. Under section 48 of the Constitution the death
penalty can be imposed only for murder committed in aggravating circumstances. Hence statutory provisions
which allow that penalty to be imposed for other crimes are unconstitutional. The provisions concerned are:
section 20 of the Criminal Law Code (which purportedly allows the death penalty to be imposed for treason);
section 23 of the Code (which allows it to be imposed for insurgency, banditry, sabotage or terrorism); sec-
tion 4 of the Genocide Act [Chapter 9:20] (which allows it to be imposed for genocide); and section 3 of the
Geneva Conventions Act [Chapter 11:06] (which allows it to be imposed for committing a grave breach of
one of the Geneva Conventions).
12
See S v M 1980 (1) SA 881 (O). Attempts to commit treason constitute the substantive crime of treason.
13
Section 49(2) of the Magistrates Court Act [Chapter 7:10].
14
S v M 1980 (1) SA 881 (O).
15
Section 50(4) of the Magistrates Court Act [Chapter 7:10]. Level 12 is currently $3 000.

41
• In cases of public violence, malicious damage to property or aggravated robbery, their
jurisdiction is increased to a maximum of a fine of level 13 or 12 years’ imprisonment,
or both.16
• In cases of theft, stock theft and unlawful entry into premises, they can impose the max-
imum sentence prescribed for those crimes in the Criminal Law (Codification and Re-
form) Act [Chapter 9:23] (the “Criminal Law Code”).17
• For a sexual crime (rape, indecent assault, an unnatural crime, etc), they can impose a
fine of up to level 14 or up to 20 years’ imprisonment, or both.18
• For the crime of deliberately infecting someone with a sexually transmitted disease
(other than HIV) they can impose a fine of “up to or exceeding”19 level 14 or up to five
years’ imprisonment, or both.20
• For the crime of deliberately infecting someone with HIV, they can impose up to 20
years’ imprisonment.21
• For crimes relating to dangerous drugs specified in Chapter VII of the Criminal Law
Code, they can impose a fine up to level 13 or up to 15 years’ imprisonment.22
Provincial magistrates
In most cases the maximum sentence that a provincial magistrate can impose on a convict-
ed person is a fine of level 10 or imprisonment for five years, or both.23 That is the ordi-
nary jurisdiction of provincial magistrates. In certain cases they can impose higher sen-
tences:
• In cases of public violence or malicious damage to property, the jurisdiction is in-
creased to a maximum of a fine of level 11 or seven years’ imprisonment, or both.24
• In cases of theft, stock theft and unlawful entry into premises, they can impose the max-
imum sentence prescribed for those crimes in the Criminal Law Code.25

16
Section 51(2) of the Magistrates Court Act [Chapter 7:10]. Level 13 is currently $5 000.
17
Section 51(3) of the Magistrates Court Act [Chapter 7:10]. The maximum sentence for theft is a fine of
level 14 or twice the value of the stolen property, or 25 years’ imprisonment, or both (section 113 of the
Code); for stock theft it is a mandatory minimum nine to 25 years’ imprisonment, where cattle or horses were
stolen, or the same sentence as for theft where other animals were stolen (section 114 of the Code); and for
unlawful entry into premises, it is a fine of level 13 (or twice the value of any property stolen) or 15 years’
imprisonment, or both, where the crime was committed in aggravating circumstances, and a fine of level 10
(or twice the value of any stolen property) or 10 years’ imprisonment, or both, in other cases (section 131 of
the Code).
18
Section 51(4) of the Magistrates Court Act [Chapter 7:10]. Level 14 is currently $10 000.
19
Whatever that means!
20
Section 51(4)(b) of the Magistrates Court Act [Chapter 7:10], as read with section 78 of the Criminal Law
Code.
21
Section 51(4)(b) of the Magistrates Court Act [Chapter 7:10] as read with section 79 of the Criminal Law
Code.
22
Section 51(4)(d) of the Magistrates Court Act [Chapter 7:10].
23
Section 50(3) of the Magistrates Court Act [Chapter 7:10].
24
Section 51(1) of the Magistrates Court Act [Chapter 7:10].
25
Section 51(3) of the Magistrates Court Act [Chapter 7:10]. For the sentences that may be imposed for
these offences, see footnote 17 above.

42
• For crimes relating to dangerous drugs specified in Chapter VII of the Criminal Law
Code, they can impose a fine up to level 12 or up to 10 years’ imprisonment.26
Senior magistrates
In most cases the maximum sentence that a senior magistrate can impose on a convicted
person is a fine of level 9 or imprisonment for four years, or both. 27 In certain cases, how-
ever senior magistrates can impose higher sentences:
• In cases of public violence or malicious damage to property, the jurisdiction is in-
creased to a maximum of a fine of level 11 or seven years’ imprisonment, or both.28
• In cases of theft, stock theft and unlawful entry into premises, they can impose the max-
imum sentence prescribed for those crimes in the Criminal Law Code.29
• For crimes relating to dangerous drugs specified in Chapter VII of the Criminal Law
Code, they can impose a fine up to level 12 or up to 10 years’ imprisonment.30

Ordinary magistrates
In most cases, the maximum sentence that a magistrate, other than a regional, provincial or
senior magistrate, can impose on a convicted person varies according to whether the Prose-
cutor-General has remitted the case to him or whether the convicted person was tried sum-
marily. In remitted cases the maximum sentence is a fine of level 9 or imprisonment for
four years, or both; on summary trial, the maximum sentence is a fine of level 7 or impris-
onment for two years, or both.31 In certain cases, ordinary magistrates can impose higher
sentences:
• In cases of public violence or malicious damage to property, the jurisdiction is in-
creased to a maximum of a fine of level 11 or seven years’ imprisonment, or both.32
• In cases of theft, stock theft and unlawful entry into premises, they can impose the max-
imum sentence prescribed for those crimes in the Criminal Law Code.33
• For crimes relating to dangerous drugs specified in Chapter VII of the Criminal Law
Code, they can impose a fine up to level 12 or up to 10 years’ imprisonment.34
All magistrates are permitted by section 50(6) of the Magistrates Court Act [Chapter 7:10]
to impose up to six cuts on convicted juveniles. This, however, is unconstitutional in that
the judicial corporal punishment of juveniles is a cruel and inhuman punishment and there-
fore unconstitutional, according to the Constitutional Court in the case of S v Chokuramba
CCZ 10/2019.

26
Section 51(4)(c) of the Magistrates Court Act [Chapter 7:10].
27
Section 50(2) of the Magistrates Court Act [Chapter 7:10].
28
Section 51(1) of the Magistrates Court Act [Chapter 7:10].
29
Section 51(3) of the Magistrates Court Act [Chapter 7:10]. For the sentences that may be imposed for
these offences, see footnote 17 above.
30
Section 51(4)(c) of the Magistrates Court Act [Chapter 7:10].
31
Section 50(4) of the Magistrates Court Act [Chapter 7:10].
32
Section 51(1) of the Magistrates Court Act [Chapter 7:10].
33
Section 51(3) of the Magistrates Court Act [Chapter 7:10]. For the sentences that may be imposed for
these offences, see footnote 17 above.
34
Section 51(4)(c) of the Magistrates Court Act [Chapter 7:10].

43
If a magistrate, having convicted an accused person of a crime, considers that an appropri-
ate sentence would be beyond his jurisdiction, he should transfer the case to the High Court
for sentence.

The High Court

Original jurisdiction
The High Court sits permanently in Harare, Bulawayo and Masvingo, and Judges of the
High Court go on circuit three times a year to Mutare, Gweru and Hwange. 35 Permanent
High Courts are planned for Mutare and Gweru.
The High Court has full criminal jurisdiction over all persons and criminal matters in Zim-
babwe.36 That means that, wherever it is sitting, it can try all crimes throughout Zimbabwe,
and may impose any lawful punishment on convicted persons. So the High Court sitting in
Harare, for example, can try persons for crimes committed in Bulawayo — though in prac-
tice crimes committed in the western half of the country are tried by the High Court in Bu-
lawayo.
The High Court also has jurisdiction over extra-territorial crimes, where the statute that cre-
ates the crime concerned has extra-territorial operation. It can also exercise jurisdiction
over crimes committed wholly or partly outside Zimbabwe, in terms of section 5 of the
Criminal Law Code:
• if the conduct which completed the crime took place in Zimbabwe;
• if the crime is against public security in Zimbabwe or the safety of the State in Zimba-
bwe; or
• if the crime has produced, or was intended to produce, a harmful effect in Zimbabwe, or
was committed with the realisation that there was a real risk or possibility that it might
produce such an effect.37
Although, as we have seen, magistrates courts have jurisdiction to try crimes under a statute
which has extra-territorial operation, they cannot try crimes in terms of section 5 of the
Criminal Law Code, i.e. crimes that are not expressly extra-territorial but which are com-
mitted outside Zimbabwe or were intended to have a harmful effect in Zimbabwe.

Review jurisdiction
The High Court has power to review all proceedings and decisions of all inferior courts in
Zimbabwe. The exercise of its review powers in criminal cases will be dealt with later.
Note, however, that the High Court cannot review sentences which Parliament imposes on
its members (or even, presumably, on other people) for contempt, even though Parliament
is sitting as a court.38

35
That is to say, judges travel to those centres to try cases.
36
Section 23 of the High Court Act [Chapter 7:06].
37
Section 5(1)(c)(ii) of the Criminal Law Code; see also S v Mharapara 1985 (2) ZLR 211 (S).
38
See Bennett v Parliament of Zimbabwe 2005 (1) ZLR 155 (H) and Bennett v Mnangagwa NO & Ors 2006
(1) ZLR 218 (S). Parliament can now impose only a fine for contempt (sec 148(2) of the Constitution).

44
Appellate jurisdiction
The High Court has power to hear appeals from decisions of magistrates in criminal cases,
both in regard to conviction and sentence.39

The Supreme Court

The Supreme Court is the final court of appeal in Zimbabwe, with power to hear and de-
termine appeals in criminal cases from any court or tribunal from which, in terms of any
enactment, an appeal lies to the Supreme Court.40 In criminal cases, this means that appeals
against decisions of the High Court lie to the Supreme Court.

The Constitutional Court

The Constitutional Court is the highest court in all constitutional matters, and only decides
constitutional matters and issues connected with decisions on constitutional matters.41 It
only deals with criminal cases, therefore, to the extent that they involve constitutional is-
sues.
Until 2020 the judges of the Supreme Court constitute the Constitutional Court.42

39
Section 60 of the Magistrates Court Act [Chapter 7:10].
40
Section 9(1) of the Supreme Court Act [Chapter 7:13].
41
Section 167(1) of the Constitution. The phrase “constitutional matter” is defined in sectin 332 of the Con-
stitution as a matter [i.e. a case] in which there is an issue involving the interpretation, protection or enforce-
ment of the Constitution.
42
Para 18(2) of the Sixth Schedule to the Constitution.

45
 3. THE POLICE AND THEIR POWERS
Who are the Police?
The Police Service (the Zimbabwe Republic Police) is established by section 219 of the
Constitution, with the function of “detecting, investigating and preventing crime”. It con-
sists of a Regular Force (the main, permanent force), a Police Constabulary (formerly the
Police Reserve), and ancillary members. Members of the Police Constabulary and ancillary
members, when on duty, have the same powers as members of the Regular Force. 1 The Po-
lice Service is under the command of the Commissioner-General of Police, appointed by
the President after consultation with the Minister responsible for the Police Service. 2 The
Commissioner-General can be removed from office by the President for any reason, after
consultation with the Minister.3

Police officers/peace officers

The term “police officer” (a member of the ZRP) must be distinguished from “peace of-
ficer”, which is a term used in the Criminal Procedure and Evidence Act to denote police
officers and other persons who are given most of the powers of a police officer.
The following persons are peace officers (the list is not exhaustive):
• police officers;
• members of the close security unit attached to the Cabinet Office;
• members of the Central Intelligence Organisation (CIO);
• magistrates and justices of the peace;
• the Sheriff and deputy sheriffs (but not, curiously, messengers of the magistrates court);
• officers of the Zimbabwe Anti-Corruption Commission;
• prison officers;
• immigration officers
• inspectors of mines
• parks officers, within national parks and other areas under the control of the Parks and
Wild Life Management Authority; and
• vehicle inspectors under the Road Traffic Act.
• chiefs, headmen, village heads and chiefs’ and headmen’s messengers, within their are-
as of jurisdiction;

Interrogation by the Police4

Obviously, if the Police are to carry out their function of controlling crime, they must be
able to question suspects and witnesses in order to obtain information; equally obviously,
their power to question or interrogate people must be carefully controlled to prevent abuse.

1
Sections 27(4) and 26(3) of the Police Act [Chapter 11:10].
2
Section 221 of the Constitution.
3
Section 7 of the Police Act [Chapter 11:10] as read with section 340 of the Constitution.
4
What follows owes a good deal to Joubert & Geldenhuys Criminal Procedure Handbook 2nd ed p. 101 ff.

46
The Police do not need any specific statutory power to ask people questions; anyone can
do that. But unless the Police are given power to demand answers, anyone is free to remain
silent when the Police put questions to them, because there is no general duty on the public
to give the police information concerning the commission of a crime. 5 It must be remem-
bered, too, that suspects who have been arrested have a right to remain silent, and must be
informed promptly of this right and of the consequences of exercising it. 6 Furthermore, if
they have been arrested or are being detained, they must be informed of their right to con-
sult in private with a legal practitioner of their choice — and of course they must be al-
lowed to exercise that right.7
To what extent can the Police question or interrogate suspects, particularly suspects who
have been arrested and are in detention? This was considered in the South African case of
Gosschalk v Rossouw 1966 (2) SA 476 (C), where a detainee sought an interdict preventing
the Police from interrogating him. At pages 492-3, Corbett J (as he then was) said:
“I consider that police interrogation should be limited to that which is necessary for the inves-
tigation of the offence or alleged offence in question and that, in extent, it should not exceed
what is reasonable in all the circumstances of the case. In determining what is reasonable in a
particular case the Court must seek to reconcile two competing interests, viz. (i) that of the
individual to be protected from illegal or irregular invasions of his liberties by the authorities,
and (ii) the interest of the State to secure information and evidence relating to crimes which
have been committed so that justice may be properly administered. … Neither of these two
interests should be allowed to wholly displace the other. It is the duty of the Court to ensure
that a fair balance between them is maintained and the basic criterion must be the test of rea-
sonableness as applied to the particular facts of the case.
“… Obviously they [the Police] are not entitled, in order to induce a detainee to speak, to sub-
ject him to any form of assault or to cause his health or resistance to be impaired by inade-
quate food, lack of sleep, living conditions or the like. Nor may they resort to methods of in-
terrogation commonly referred to as the ‘third degree’. … In this context I understand the
term ‘third degree’ to refer to a severe and prolonged cross-questioning designed to overcome
the powers or resistance of the person being interrogated. Furthermore, in cases where the
person being interrogated is himself suspected of having committed a crime, he cannot be re-
quired to incriminate himself under interrogation …
“On the other hand, I do not think that the consent of the person to be interrogated is a neces-
sary pre-requisite to interrogation. Circumstances may well render it perfectly reasonable for
the interrogation to be persisted in even though the person concerned refuses to answer ques-
tions. Thus the police might wish to exercise a moderate degree of moral persuasion in the
hope that the person concerned might change his mind and become co-operative. The differ-
ence between this approach and the third-degree method is, of course, largely one of degree
and the dividing line can only be the criterion of reasonableness: the difference is neverthe-
less a very real one.”
A further requirement was added in S v Slatter & Ors 1983 (2) ZLR 144 (H) at 166, where
Dumbutshena JP (as he then was) said, “If an accused person wants a legal practitioner be-
fore, or during, interrogation, the police investigators must stop their investigations [sic: he

5
There are specific instances where the law imposes a duty on members of the public to give such infor-
mation. For example, a citizen of Zimbabwe who knows that someone is trying to overthrow the Government
will be guilty of concealing treason if he or she does not inform an official (section 21 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]. And in terms of section 26 of the Criminal Procedure and
Evidence Act [Chapter 9:07] a person whom a peace officer reasonably suspects of having committed a crime
must supply the peace officer with his or her name and address when called upon to do so.
6
Section 50(4)(a) & (b) of the Constitution.
7
Section 50(1)(b)(ii) and 50(5)(b) of the Constitution.

47
meant “interrogation”] and only resume after the accused has had consultations with his
legal practitioner.”
Under section 39A of the Criminal Procedure and Evidence Act [Chapter 9:07] people who
voluntarily go to a police station without having been arrested are entitled to leave the sta-
tion whenever they wish unless they are then arrested. If they are arrested at the police sta-
tion they must be told of that fact and then they are of course entitled to all the rights of
persons under arrest, such as the right to contact their relatives and lawyers, and so on.
Under section 54(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], a police
officer may enter premises without a warrant, in order to interrogate a person whom the of-
ficer reasonably suspects may furnish information regarding a crime or an alleged crime.
An officer may not, however, enter a dwelling without the consent of the occupier.

Judges’ Rules
In England and South Africa there are codes of conduct to guide the police in their dealings
with suspects. In South Africa they are known as the Judges’ Rules; in England the former
judges’ rules (dating from 1913) have been replaced by Code C Code of Practice issued by
the Home Secretary under the Police and Criminal Evidence Act 1984.
The South African Judges’ Rules were drawn up at a judges’ conference in 1931.8 They
include the following admonitions:
• The police may put questions to people who are not suspects without cautioning them.
• The police must caution a person who has become a suspect before they put questions
to the person.
• Questions should not be put to a person in custody, unless he or she is making a volun-
tary statement in which case questions can be put to clarify what he or she is saying, i.e.
to remove elementary or obvious ambiguities.
The rules do not have the force of law in South Africa but are merely administrative direc-
tions designed for the guidance of the police and the better administration of justice. On
the other hand, if the police disregard the guidelines when questioning suspects, they run
the risk that any statements the suspects make in answer to the questions may be ruled in-
admissible. The rules have been largely ignored for many year but in any event, they have
to a some extent been superseded by the stringent constitutional provisions protecting the
right to silence.
No such rules exist in Zimbabwe, although they may be useful as laying down a standard of
conduct to be expected of the police.9

Taking of bodily samples from persons

Section 41B of the Criminal Procedure and Evidence Act [Chapter 9:07] provides for the
taking of bodily samples10 from one or more persons at the request of a peace officer who is
satisfied that there are reasonable grounds for believing that any of the persons has commit-
ted a crime and that the bodily sample, when analysed, will be of value in the investigation
of the crime by eliminating or including any of them as suspects. If a person does not con-

8
The rules are set out in Gardiner & Lansdown SA Criminal Law and Procedure 6th ed vol 1 pages 613-4.
9
R v Hackwell & Ors 1965 RLR 1 (A) at 17; R v Tapeson 1965 RLR 146 (A).
10
A bodily sample is defined in section 2 of the Criminal Procedure and Evidence Act as an intimate or buc-
cal sample. A buccal sample is a sample of saliva, but there is no definition of “intimate sample”.

48
sent to the taking of a bodily sample, a police officer of or above the rank of inspector may
apply to a judge or magistrate for a warrant. Although the section does not say this specifi-
cally, it is implied that the warrant will authorise the compulsory taking of a bodily sample
from the person concerned.
Bodily samples taken from a person who is later charged with a crime must be destroyed if
the person is acquitted or the charge is withdrawn. Samples taken from persons who are
not charged with a crime must be destroyed on the conclusion of the criminal proceedings
for which they were taken.11

11
Section 41B(5) of the Criminal Procedure and Evidence Act.

49
 4. SECURING THE ATTENDANCE OF THE ACCUSED AT
HIS TRIAL
The first stage in the procedural process is to get the accused person to trial. There are five
lawful ways to do this: arrest and remand; summons; warning by the court; written notice
to appear (e.g. a traffic ticket); and extradition.

A. Arrest and Remand

Arrest is dealt with in Part V of the Criminal Procedure and Evidence Act.
There are six essentials or bases upon which an arrest, and detention following arrest, will
be lawful:1
1. The arrest must have been properly authorised; i.e. it must be authorised by statute.
2. The arrest must be reasonable (we shall come to this requirement later).
3. The arresting officer must exercise physical control over the person arrested (“the sus-
pect”); he must limit the suspect’s freedom of movement. An arrest is made by touch-
ing or confining the body of the person who is being arrested, i.e. by the arresting of-
ficer placing his hand on the suspect, usually on his shoulder, and telling him he is un-
der arrest2 (An arresting officer must of course be gender sensitive in this, particularly
where he is male and is arresting a female person). Touching or confining a suspect’s
body is not necessary if the suspect voluntarily submits to the arresting officer’s control.
Sometimes, if the suspect does not submit to arrest, it is necessary to subdue him, e.g.
by handcuffing him, but any force used must be reasonable and proportionate (we shall
deal with this later).
4. The suspect must be informed of the reasons for the arrest. According to section
50(1)(a) of the Constitution this must be done “at the time of arrest”; in terms of sec-
tion 32(5) of the Criminal Procedure and Evidence Act [Chapter 9:07], it must be done
“forthwith”, i.e. within a reasonable time after arrest, and under section 41A(1) of the
Act it must be done “promptly”. The constitutional provision prevails, so suspects must
be given this information when they are being arrested. A suspect’s custody will be un-
lawful if this requirement is not complied with. The extent to which reasons must be
given will depend on the circumstances of each case, though the Tenth Schedule to the
Criminal Procedure and Evidence Act sets out a form of words which should “guide”
peace officers as to what they should tell suspects (see section 41A(4) of the Act).
5. The suspect must also be informed of his or her right to remain silent and of the conse-
quences of remaining silent, and of their right to contact a lawyer, a medical practition-
er, a relative or anyone else of their choice.3 If an arrested person does not succeed in
contacting a lawyer or other person at the first attempt, he or she must be allowed to go
on trying until contact is made.4
6. The suspect must be taken to the appropriate authorities as soon as possible. In the case
of an arrest without warrant, that means he must be brought to a police station. 5 Thus,

1
See Joubert & Geldenhuys Criminal Procedure Handbook 10th ed p. 118.
2
Section 41 of the Criminal Procedure and Evidence Act.
3
Section 50(5)(c) of the Constitution and section 41A(1) of the Criminal Procedure and Evidence Act.
4
Section 41A(3) of the Criminal Procedure and Evidence Act.
5
Section 32 of the Criminal Procedure and Evidence Act.

50
 where a suspect was held for 20 hours at a place five kilometres from a police station,
pending investigation into a theft, the detention was held to be unlawful.6
Arrest involves a deprivation of liberty, so it is essential that correct procedures are adopted
when an arrest is made. If they are not, the arrest is unlawful and the arrester and his em-
ployer are liable for damages. All arrests without warrant are prima facie unlawful, and the
onus is on the arrester to justify the arrest.7
There are two kinds of arrest: arrest that takes place without a warrant, and arrest with a
warrant. Usually police officers or peace officers effect arrests. In limited circumstances
civilians may arrest without a warrant.

Arrest without a warrant

A peace officer is authorised by the Criminal Procedure and Evidence Act [Chapter 9:07]
to arrest without warrant:8
• every person who commits a crime (however trivial) in his presence or whom he finds
attempting to commit a crime or clearly showing an intention to commit a crime; 9
• every person whom he has reasonable grounds for suspecting of committing or being
about to commit a crime contained in the First or Ninth Schedules to the Criminal Pro-
cedure and Evidence Act.10 These crimes are:
First Schedule:
o any crime at common law (there are no such crimes now, except those that were
committed before the commencement of the Criminal Law Code11);
o any statutory crime for which a punishment of more than six months’ imprison-
ment without the option of a fine is prescribed in the statute concerned;
o a conspiracy, incitement or attempt to commit any of the above crimes, or being
an accessory (after the fact) to any such crime.
Ninth Schedule:
o bribery and corruption under the Criminal Law Code;
o money-laundering under section 63 of the Serious Offences (Confiscation of
Profits) Act [Chapter 9:17];
o illegally exporting maize or other controlled product in contravention of the
Grain Marketing Act [Chapter 18:14];
o unlawfully possessing or dealing in, precious metals or precious stones;
o crimes involving dangerous drugs, except the possession of cannabis;
o fraud or forgery⎯
▪ involving prejudice or potential prejudice to the State, unless the amount
of prejudice is less than a prescribed amount; or

6
Ezekiel v Kynoch NPD 13.4.1923, cited in Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p.
119.
7
Allan v Minister of Home Affairs 1985 (1) ZLR 339 (H).
8
Section 25 of the Criminal Procedure and Evidence Act.
9
Section 25(1)(a) & (c) of the Criminal Procedure and Evidence Act. See R v Vengayi 1955 R & N 355 (SR)
10
Section 25(1)(b) of the Criminal Procedure and Evidence Act.
11
The Code came into operation on the 1st July, 2006 (SI 152 of 2006).

51
 ▪committed by a group of conspirators; or
▪involving prejudice or potential prejudice greater than a prescribed
amount;
o forging banknotes or coins;
o committing certain exchange control crimes;
o theft of a motor vehicle;
o theft or forgery of national identity documents, passports, drivers licences, im-
migration permits, vehicle registration certificates or licence plates;
o stock theft involving a bovine or equine animal (i.e. cattle or horses);
o a conspiracy, incitement or attempt to commit any of the above crimes.
But in regard to the Ninth Schedule crimes, section 25(2)(b) of the Act introduces
complications. If the peace officer who is going to effect the arrest has reason to be-
lieve that the crime concerned is sufficiently serious for the Prosecutor-General to issue
a certificate refusing bail, then:
➢ the arrest may only be effected by a police officer who is an assistant inspector
or above (or who is authorised by an assistant inspector), and
➢ if the arrest is being made as a result of an anonymous tip-off, the arresting po-
lice officer must immediately record details of the tip-off.
There is also an overlap between the First and Ninth Schedules: the crimes listed in the
Ninth Schedule are statutory crimes for which a prison sentence of more than six
months can be imposed, so they are all covered by the First Schedule. Hence a peace
officer who cannot arrest someone under the Ninth Schedule for stock theft may be
able to do so under the First Schedule.
“Reasonable grounds” for suspicion are essential for all arrests under section 25(1)(b);
without such grounds an arrest is unlawful. The peace officer who effects an arrest
must himself have a reasonable suspicion. It is not enough for him to rely on a report
from someone else, unless the report is such as to give him reasonable grounds to sus-
pect. The circumstances, and the contents of the report, must be such that a reasonable
man in the position of the peace officer concerned would form the suspicion that a First
or Ninth Schedule crime has been committed.12 Nor is a peace officer entitled to effect
an arrest simply on orders from a superior officer.13 There must be some investigation
into the facts before there can be a reasonable suspicion that a crime has been commit-
ted.14 But all that is required is a suspicion, not a certainty. The peace officer does not
have to have a prima facie case for conviction; he does not have to be certain as to his
facts, because otherwise he ceases to be merely suspicious and becomes certain. Sus-
picion “is a state of conjecture or surmise whereof proof is lacking.”15
A peace officer is also authorised to arrest without warrant:16

12
Bull v Attorney-General 1986 (1) ZLR 117 (S).
13
cf Moll v Commissioner of Police & Ors 1983 (1) ZLR 238 (H).
14
Allan v Minister of Home Affairs 1985 (1) ZLR 339 (H); Minister of Home Affairs v Allan 1986 (1) ZLR
263 (S) at 269-70.
15
Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S) at 122B-C, cited in Muzonda v Minister of
Home Affairs & Anor 1993 (1) ZLR 92 (S) at 96D.
16
Section 25(2) of the Criminal Procedure and Evidence Act.

52
• anyone who has in his possession an implement of housebreaking and who cannot ac-
count satisfactorily for it;
• anyone who is found in possession of property reasonably suspected of being stolen and
who is reasonably suspected of having committed a crime with respect to the property;
• anyone who obstructs a peace officer in the exercise of his lawful duty, or who escapes
or tries to escape from lawful custody;
• anyone reasonably suspected of being a deserter from the Defence Forces;
• anyone found loitering in such circumstances as to afford reasonable grounds for be-
lieving that he has committed or is about to commit a crime;
• anyone reasonably suspected of being a prohibited immigrant;
• anyone who is liable to extradition from Zimbabwe;
• anyone who offers to sell or deliver to him any property which the peace officer be-
lieves on reasonable grounds to have been acquired by that person by means of a crime
for which the person can be arrested without a warrant.17
Reasonableness of arrest
Note that in all the above cases a peace officer is authorised to effect an arrest; he is not
obliged to do so. He has a discretion in the matter, and should only arrest a person if he
considers the arrest is necessary after taking into account such factors as the possibility of
escape, the prevention of further crime and the obstruction of police enquiries (i.e. the same
sort of considerations as apply to the grant or refusal of bail). The power of arrest, which is
a discretionary power, must be exercised reasonably; 18 it is not intended always, or even
ordinarily, to be exercised.19 Nevertheless, the courts will not lightly hold that a peace of-
ficer exercised his discretion wrongly, and will interfere only if the decision to arrest was so
outrageous in its defiance of logic or of accepted moral standards that no sensible person
who had applied his mind to the question could have arrived at it.20
Private persons, i.e. people who are not peace officers, may also arrest persons without a
warrant, though their power is more limited.
A private person is authorised to arrest:
• anyone who commits or attempts to commit a First Schedule crime in his presence. The
private person may also “forthwith pursue” any such person, and anyone else may join
in the pursuit.21
• anyone upon reasonable suspicion that the other person has committed a First Schedule
crime;22
• anyone whom the private person reasonably suspects has committed a crime and is es-
caping from someone else who is reasonably suspected to be entitled to arrest him;23

17
Section 31 of the Criminal Procedure and Evidence Act [Chapter 9:07].
18
Botha v Zvada & Anor 1997 (1) ZLR 415 (S) at 418G.
19
Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S).
20
Per Lord Diplock in CCSU v Minister for the Public Service [1984] 3 All ER 935 (HL) at 951a-b, cited in
Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S) at 99 D.
21
Section 27(1) of the Criminal Procedure and Evidence Act.
22
Section 30 of the Criminal Procedure and Evidence Act. Note that the section does not seem to require that
the private person must himself have the reasonable suspicion.

53
• anyone he sees fighting in a public place in order to stop the fight;24
• anyone whom he finds committing a crime on (immovable) property which he (the pri-
vate person) owns, occupies or controls;25
In addition, if the commander or person in charge of a ship, boat or aircraft knows or rea-
sonably suspects that someone is committing, has committed or is about to commit any
crime on the ship, boat or aircraft, the commander or person in charge may arrest that per-
son without a warrant or authorise anyone else to do so.26
In only one circumstance are peace officers and private persons required to arrest suspects:
if they are “authorised” to do so by a verbal order of a judge, magistrate or justice of the
peace. If so authorised, they are “empowered and required” to pursue the suspect if he runs
away and to arrest him.27

Purpose of arrest without a warrant

The purpose of an arrest without a warrant is to bring the arrested person to trial, or to make
further enquiries before deciding whether the case merits prosecution.28 It may also be to
stop the person from committing a crime. It is not to punish him for a crime for which he
has not yet been convicted:
“If the object of the arrest, though professedly to bring the accused person before the court, is
really not such, but is to frighten or harass him and so induce him to act in a way desired by
the arrestor, without his appearing in court, the arrest is, no doubt, unlawful.”29

Requirement to supply name and address

A peace officer may call upon:
• anyone whom he has power to arrest;
• anyone reasonably suspected of having committed a crime; and
• anyone who, in his opinion, may be able to give evidence regarding the commission or
suspected commission of a crime;
to furnish his full name and address.30 Failure to do so is a crime, as is giving a false name
or address, and renders the person liable to immediate arrest. A peace officer can arrest and
detain a person for up to 12 hours while he verifies the person’s name and address, if he has
reasonable grounds to suspect that the name or address furnished is false.31

23
Section 27(2) of the Criminal Procedure and Evidence Act.
24
Section 28 of the Criminal Procedure and Evidence Act.
25
Section 29 of the Criminal Procedure and Evidence Act.
26
Section 31A of the Criminal Procedure and Evidence Act.
27
Section 24 of the Criminal Procedure and Evidence Act.
28
Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 121.
29
Tsose v Minister of Justice & Ors 1951 (3) SA 10 (A), cited in Duncan v Minister of Law and Order 1984
(3) SA 460 (T) at 464.
30
Section 26(1) of the Criminal Procedure and Evidence Act.
31
Section 26(2)(b) of the Criminal Procedure and Evidence Act.

54
Procedure after arrest without a warrant
Holding of suspect by Police: length of period
A person who has been arrested without a warrant must be informed, at the time of the ar-
rest, of the reasons for the arrest and must be taken to a police station or charge office as
soon as possible.32 He must then be brought before a court as soon as possible and in any
event not later than 48 hours after the arrest.33 His detention may not be extended except
by order of a court. If he is not brought to a court within that period, he must be released
immediately.34

Arrest with warrant

Application for warrant of arrest
Written application: A warrant of arrest may be issued by a judge, magistrate or justice of
the peace (other than a justice of the peace who is a police officer).35
A written application may be made by:
• the Prosecutor-General or a local public prosecutor; or
• a police officer of or above the rank of inspector; or
• a police officer in charge of a police station, if he is of or above the rank of assistant
inspector.36
A written application must:
• set out the crime alleged to have been committed;
• state that, from information available to the applicant, the applicant has reasonable
grounds for suspicion against the suspect who is to be arrested; and
• where the application is made to a magistrate or a justice of the peace, allege that the
crime was committed within the area of jurisdiction of the magistrate or justice.
Note that under the Act the person issuing the warrant does not have to be told the infor-
mation on which the applicant relies for his reasonable suspicion, or even the gist of it. The
person issuing the warrant, in other words, does not himself have to have a reasonable sus-
picion that the suspect committed a crime.
Oral application: A warrant may also be issued by a judge, magistrate or justice if anyone
gives information on oath to him, stating that from information available to him he has rea-
sonable grounds for suspecting that a suspect has committed a crime.37 Again, the person
issuing the warrant does not have to form a reasonable suspicion against the suspect.
In both cases, all the person issuing the warrant has to be satisfied is38:
• that the alleged crime is a crime at law; and

32
Section 32 of the Criminal Procedure and Evidence Act.
33
Section 50(2) of the Constitution and section 32(3) of the Criminal Procedure and Evidence Act.
34
Section 50(3) of the Constitution.
35
Section 33(1) of the Criminal Procedure and Evidence Act.
36
Section 33 of the Criminal Procedure and Evidence Act.
37
Section 33(1) of the Criminal Procedure and Evidence Act.
38
Prinsloo & Anor v Newman 1975 (1) SA 481 (A).

55
• that the alleged crime is of such a nature and gravity as to justify the issue of a warrant;
and
• that the applicant is empowered to make the application.
Contents of warrant of arrest
A warrant of arrest states that the person named in the warrant must be apprehended and
brought before a judicial officer as soon as possible on a charge of committing the crime
named in the warrant.39
A warrant remains valid until it is executed or cancelled, or until the suspect is otherwise
arrested.40
Execution of warrants of arrest
All peace officers (not just police officers) have a duty to execute a warrant of arrest.41 A
peace officer who executes a warrant does not have to have a reasonable suspicion regard-
ing the suspect whom he arrests. He must simply execute the warrant.
When a peace officer arrests a suspect under a warrant, he must produce the warrant if the
suspect so demands, and notify the suspect of its substance (i.e. tell the suspect what it
means).42 He must also tell the arrested suspect why he is arresting him.43 The arrested
suspect must be brought to a police station or charge office as soon as possible, and from
there must be brought as soon as possible to a judicial officer.44 The same 48-hour period
applicable for arrests without warrant applies also to arrests made by virtue of a warrant.45
A person who arrests another person under a warrant is protected against legal proceedings
for wrongful arrest if:
• he arrests the wrong person, so long as he does so in good faith and on reasonable
grounds believes he is arresting the person named in the warrant;46
• the warrant is defective, so long as he believed, in good faith and without negligence,
that the warrant was valid.47

Use of force in effecting an arrest

A person who is authorised to effect an arrest may break open doors and enter any premises
where the suspect is known or suspected to be, if he is not allowed access to the premises
after audibly demanding admission and stating his purpose.48
If a suspect resists an attempt to arrest him and cannot be arrested without the use of force,
or if he runs away when it is clear that an attempt is being made to arrest him, then accord-

39
Section 38 of the Criminal Procedure and Evidence Act.
40
Section 33(3) and (4) of the Criminal Procedure and Evidence Act.
41
Section 34(1) of the Criminal Procedure and Evidence Act.
42
Section 34(2) of the Criminal Procedure and Evidence Act.
43
Section 50(1)(a) of the Constitution – which applies equally to arrests with or without warrant.
44
Section 34(3) of the Criminal Procedure and Evidence Act.
45
Section 50(2) of the Constitution, which lays down the 48-hour period, does not distinguish between arrests
with or without warrant.
46
Section 36 of the Criminal Procedure and Evidence Act.
47
Section 37 of the Criminal Procedure and Evidence Act.
48
Section 40 of the Criminal Procedure and Evidence Act.

56
ing to section 42(1) of the Criminal Procedure and Evidence Act49 the person attempting to
arrest him has the right to “use such force as is reasonably justifiable and proportionate 50 in
the circumstances” to overcome the resistance or to prevent the escape. The proviso to sec-
tion 42(1), however, creates confusion. It says, in effect, that the use of force (any force) is
permissible only if the following conditions are met:
a) the crime for which the person is being arrested is one specified in the First Sched-
ule to the Act, i.e. is one for which imprisonment for more than six months is pre-
scribed as a punishment and can be imposed without the option of a fine, and
b) the person trying to effect the arrest believes on reasonable grounds either:
i. that the force is needed to protect himself or herself, or anyone else, from
death or grievous bodily harm, or
ii. there is a substantial risk that the suspect will cause someone death or griev-
ous bodily harm if the arrest is delayed, or
iii. the crime for which the suspect is to be arrested is in progress and involves
life-threatening violence or grievous bodily harm.
According to the section, no force, however mild, can be used to effect an arrest if the
above conditions are not met. This cannot have been the real intention, because what it
means is that if for example a suspect is to be arrested for theft (not a life-threatening
crime) and the suspect refuses to submit to the arrest, the arresting officer cannot even grab
the suspect by the hand to prevent him running away. Still, that is what the section in its
present form says.
The confusion is compounded by subsection (2) of section 42, which says that “for the
avoidance of doubt” no use of “lethal force” may be used unless there is strict compliance
with the conditions laid down in section 42(1) and set out above. Lethal force is the same
as deadly force and means “violent action known to create a substantial risk of causing
death or serious bodily harm”.51 So section 42(2) does not authorise actual killing (because
of section 48 of the Constitution it cannot do so) and merely authorises force that may kill
so long as the conditions set out in section 42(1) are met. But those conditions must be pre-
sent before any force, not just lethal force, may be employed.
If those conditions are present the arresting officer may use force that is reasonable and
proportionate. He or she must prove:
• that he or she was lawfully entitled to arrest the suspect;
• that the arrest was intended to bring the suspect to justice;52
• that he or she tried to arrest the suspect;
• that the suspect resisted arrest or tried to run away;
• that the degree of force used was reasonably necessary and proportionate to effect the
arrest or prevent the escape.53

49
As amended by the Criminal Procedure and Evidence Amendment Act, 2016 (Act No. 2 of 2016).
50
“Proportionate” has the same meaning as “proportional” and is discussed below.
51
Black’s Law Dictionary, 4th pocket edition.
52
S v Malindisa 1961 (3) SA 377 (T), where the accused shot and killed someone whom he suspected of hav-
ing stolen his dagga. He could not be regarded as trying to arrest the person because there was no intention of
bringing him to justice.
53
Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 93; Lansdown & Campbell SA Criminal
Law & Procedure vol 3 p. 296.

57
Reasonableness in this context requires an objective approach, though the bona fides of the
person trying to effect the arrest is relevant in determining the question of reasonableness.54
The force must also be proportionate, and in South Africa the courts have used a propor-
tionality test in assessing reasonableness in the context of arrest: the degree of force used
must be proportional to the seriousness of the crime55 for which the suspect is being arrest-
ed, and to all the circumstances in which the force is used. 56 The arrestor must not resort to
an indiscriminate use of force; the use of a firearm to effect an arrest should be resorted to
with great caution;57 and a police officer should resort to using a firearm only if there is no
other way at all to capture the suspect.58 Indeed, because the Constitution does not permit
anyone’s life to be taken away (except the lives of criminals who have been sentenced to
death by a court), it may be said that police officers should not resort to using firearms at
all. Any force that is used must be directed at the suspected offender who is trying to es-
cape. Where, for example, the suspect is one of the occupants of a vehicle among whom
there may be innocent people, the arresting officer may not shoot indiscriminately at the
occupants (Government of RSA v Basdeo 1996 (1) SA 355 (A)).
If, however, a police officer is attacked by a suspect whom he is trying to arrest, he is enti-
tled to defend himself with whatever means are available if he has no reasonable alterna-
tive. He is not obliged to flee from an unlawful assault in such circumstances, because that
would amount to a dereliction of duty. Thus if a suspect attacks a police officer who has a
firearm in his hands, the suspect has only himself to blame if the firearm is used in self-
defence 59 — though, as pointed out above, the police officer is not entitled to kill the sus-
pect even in self-defence.
The law in South Africa regarding the use of force in effecting an arrest was summed up by
the South African Constitutional Court in Ex parte Minister of Safety & Security & Ors, in
re S v Walters & Anor 2002 (4) SA 613 (CC) at para 54 (p 643):
“In order to make perfectly clear what the law regarding this topic now is, I tabulate the main
points:
a) The purpose of arrest is to bring before court for trial persons suspected of having com-
mitted offences.
b) Arrest is not the only means of achieving this purpose, nor always the best.
c) Arrest may never be used to punish a suspect.
d) Where arrest is called for, force may be used only where it is necessary to carry out the
arrest.
e) Where force is necessary, only the least degree of force reasonably necessary to carry out
the arrest may be used.
f) In deciding what degree of force is both reasonable and necessary, all the circumstances
must be taken into account, including the threat of violence the suspect poses to the ar-

54
S v Purcell-Gilpin 1971 (1) RLR 241 (A).
55
Matlou v Makhubedu 1978 (1) SA 946 (A): in other words, the less serious the offence the less the degree
of force that may be used.
56
Govender v Minister of Safety & Security 2001 (4) SA 273 (SCA).
57
S v Martinus 1990 (2) SACR 568 (A)
58
Matlou v Makhubedu 1978 (1) SA 946 (A). See also R v Gege 1945 SR 134, where Tredgold J said that the
power under what is now section 42(2) of the Act should be exercised only when it appears to the arrestor
that, in all the circumstances, there is no reasonable alternative and when he has done everything in his power
to achieve his purpose by other means.
59
Ntsomi v Minister of Law & Order 1990 (1) SA 512 (C).

58
 rester or others, and the nature and circumstance of the offence the suspect is suspected of
having committed; the force being proportional in all these circumstances.”.
These points reflect our law in Zimbabwe – or at least what was probably the real intention
behind the new section 42 of the Criminal Procedure and Evidence Act. 60

Effect of unlawful arrest

If an arrest is unlawful, any subsequent detention of the suspect, and any subsequent re-
mand, is also unlawful, even if the suspect is allowed bail.61 The unlawfulness of an arrest
does not, however, affect the Prosecutor-General’s right to continue prosecuting the arrest-
ed person,62 unless the accused person was abducted or illegally arrested outside the coun-
try and brought into Zimbabwe to stand trial,63 or if the decision to prosecute is based on
evidence unlawfully extracted from the accused person by torture or ill-treatment while he
was in custody.64

Taking of fingerprints, etc.

A peace officer may take the fingerprints, palm-prints, footprints and photographs of a per-
son who has been arrested, and may examine the arrested person to ascertain if his body has
any mark or characteristic. He or she is entitled to use reasonable force to take the finger-
prints, palm-prints, etc.65 An authorised person66 may take a buccal sample67 from an ar-
rested person,68 and at the request of a police officer of or above the rank of superintendent
a medical officer may take an “intimate sample”69 from an arrested person. Furthermore, a
government medical officer or a prison medical officer may take a sample of an arrested
person’s blood, saliva or tissue, but this can only be done at the request of a police officer
of or above the rank of superintendent.70
Any fingerprints, palm-prints, etc, taken from an accused person must be destroyed if the
accused is acquitted, or if his conviction is set aside on appeal or review, or if the Prosecu-
tor-General declines to prosecute him, or if the charge against him is otherwise with-
drawn.71

Records to be kept of arrested persons

As already noted, persons who have been arrested without warrant must be brought without
delay to a police station. The police officer in charge of the station must ensure that a rec-

60
Additional points made by the court in regard to the killing of suspects have been omitted from the above
quotation, because South African law differs from our law on the subject.
61
S v Poli 1987 (2) ZLR 30 (H) and sec 50(8) of the Constitution.
62
Bull v Attorney-General & Anor 1986 (1) ZLR 117 (S) at 125D.
63
S v Beahan 1991 (2) ZLR 98 (S) at 111B-C. In Chinanzvavana & Anor v Attorney-General 2010 (2) ZLR
43 (H) at 57C it was suggested that the same might apply where the accused was abducted locally.
64
Mukoko v Attorney-General 2012 (1) ZLR 321 (S).
65
Jesse v Attorney-General & Ors 1994 (2) ZLR 416 (H) at 423-4.
66
An authorised person is defined in section 2 of the Criminal Procedure and Evidence Act as a medical of-
ficer, health professional or other person trained to take samples.
67
A saliva sample taken from the mouth.
68
Section 41(3) of the Criminal Procedure and Evidence Act.
69
There is no definition of “intimate sample” in the Act. It is not clear whether it covers a blood sample.
70
Section 41D of the Criminal Procedure and Evidence Act.
71
Sections 41(5) and 41D(4) of the Criminal Procedure and Evidence Act.

59
ord is kept of all persons brought to the station or detained there, detailing their identities,
when they were brought there or first detained there, the crime for which they were arrest-
ed, when they were released (if they are released) and, if they were transferred to some oth-
er place, when they were transferred, where they were transferred to and why. These rec-
ords must be open to inspection by interested persons (presumably family members and
lawyers).72

Rights of suspect and his practitioner after arrest

A person who is arrested and detained must be informed, at the time of his arrest,73 of:
a) the reason for the arrest,
b) his or her right to remain silent and of the consequences of remaining silent or of
speaking,
c) his or her right to contact, at the expense of the State, anyone of their choice.74
A form of words to guide peace officers in explaining their rights to accused persons is set
out in the Tenth Schedule to the Criminal Procedure and Evidence Act.
A person who has been arrested or detained must be permitted, without delay, to contact, at
the State’s expense, anyone of his or her choice, including his legal practitioner, spouse or
relative.75 If the arrested or detained person cannot contact his first choice of person, then
the police or other authorities responsible for his detention must allow him to try anyone
else until he finally makes contact with someone.76 Also, the authority responsible for de-
taining a person must inform any interested party, promptly on request, of the detained per-
son’s whereabouts and the reasons for the detention – unless there are compelling reasons
for not doing so.77
The right to obtain and consult, in private, with a legal practitioner of one’s choice does not
mean that the accused person is entitled to immediate access to his legal practitioner; it
means he must be allowed to consult the practitioner as soon as is reasonably practicable in
the circumstances.78 Nor is his access completely unfettered: after all, he is in detention. It
is doubtful if a suspect is entitled to have his legal practitioner present when he is finger-
printed, but there are good grounds for holding that he has a right to consult his practitioner
before he is questioned by the Police or makes a statement to them. A statement made by
an accused who has been arrested will not be admissible at his trial, even if it has been con-
firmed by a magistrate, if the accused was denied access to his legal practitioner before and
during the confirmation proceedings. As Dumbutshena JP (as he then was) said in S v Slat-
ter & Ors 1983 (2) ZLR 144 (H) at 166, “If an accused person wants a legal practitioner
before, or during, interrogation, the police investigators must stop their investigations [sic:
he meant “interrogation”] and only resume after the accused has had consultations with his
legal practitioner.” And the statement will also be inadmissible if the accused person’s

72
Section 41C of the Criminal Procedure and Evidence Act [Chapter 9:07].
73
Section 50(1)(a) of the Constitution says “at the time of arrest”; section 41A of the Criminal Procedure and
Evidence Act says “promptly”.
74
Section 50 of the Constitution and section 41A of the Criminal Procedure and Evidence Act.
75
Section 385A of the Criminal Procedure and Evidence Act, echoing section 41A of the Act and section 50
of the Constitution.
76
Ibid.
77
Section 385A(3) of the Criminal Procedure and Evidence Act.
78
Reid Rowland Criminal Procedure in Zimbabwe p. 5-21.

60
lawyer was denied access to the accused, even though the accused had no knowledge of the
lawyer’s efforts on his behalf.79 For that reason, the practice of refusing to tell an accused
person’s legal representative where the accused is being detained — apart from being an
unconstitutional violation of the accused’s right to legal representation and a contravention
of section 385(3) of the Criminal Procedure and Evidence Act — may also result in any
statement being rendered inadmissible.

Remand
An arrested person, as we have seen, must be brought before a court within 48 hours. The
court is usually not be in a position to try him immediately, however, so it may postpone
his trial. This is called a “remand”.
The distinction between remand and bail must be kept in mind. Remand is simply a post-
ponement of trial, and during the remand (i.e. while the accused person is awaiting trial) he
may be kept in custody or allowed his freedom – that is to say, released on bail. He is on
remand whether he is in custody or out on bail. In practice the distinction is blurred be-
cause when an accused person is remanded the court will simultaneously or immediately
afterwards consider the question of bail, i.e. whether to order the accused to remain in cus-
tody or to allow him bail. But the issues are separate and distinct: the court has first to de-
cide whether or not to remand the accused, and then – only if it decides he should be re-
manded – decide whether he should be allowed bail.
A remand may properly be sought for several reasons, of which the usual ones are:
• the Police need time to complete their investigations;
• the need to find a convenient time for the trial to take place;
• the accused person needs to arrange his defence;
• to await the Prosecutor-General’s authority to prosecute the accused, where this is nec-
essary;
• difficulties in locating or subpoenaing witnesses.
The reasons must be explained to the court by the prosecutor who seeks the remand.
When court may/may not remand an accused
On a remand, the prosecutor normally informs the court of the facts alleged against the
accused person, using a “request for remand” form prepared by the Police. The State
(i.e. the prosecutor) must show that there are facts and circumstances sufficient to war-
rant a prudent man in suspecting that the accused person had committed or was about
to commit a crime.80 The criterion is one of reasonable suspicion, “a practical, non-
technical concept” which balances the State’s duty to control crime with the individu-
al’s right to liberty.81 The test of reasonable suspicion for the purpose of remand is the
same as the test used for arrest without warrant.82 The question whether or not there is
a reasonable suspicion can be determined without a full adversary hearing, and normal-
ly the court acts on the word of the prosecutor. But, as with an arrest, the prosecutor
must provide enough information to give the remand court a reasonable suspicion that

79
S v Slatter & Ors 1983 (2) ZLR 144 (H) at 154. See also S v Woods & Ors 1993 (2) ZLR 258 (S) at 266.
80
Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S) at 122A-B. It is doubtful, however, that a per-
son could properly be arrested on suspicion that he was about to commit a crime.
81
Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S) at 122.
82
Martin v Attorney-General & Anor 1993 (1) ZLR 153 (S).

61
 the accused person had committed or was about to commit the crime with which he is
charged: the court itself must have that reasonable suspicion before it can remand the
accused. Hence the court must be careful to elicit from the prosecutor the grounds on
which a reasonable suspicion can be founded, and prosecutors must where possible be
open and forthright with the court in disclosing those grounds.83 If one or more of the
elements of the crime with which the accused is charged are not alleged either in the
request for remand form or orally by the prosecutor, then it cannot be said that a rea-
sonable suspicion has been established justifying placing the accused on remand.84
An accused person is entitled to challenge his remand. If the State cannot show suffi-
cient facts to justify a reasonable suspicion, or cannot show that the accused’s alleged
conduct, if proved, would constitute a crime, then the court should refuse to remand the
accused.
It is not proper for an accused person to be kept on remand on a minor crime when the
real purpose of keeping him in custody is to investigate a much more serious crime.85
The fact that an accused person was unlawfully arrested should not, on principle, pre-
vent his being remanded if there are proper grounds for the remand, i.e. if there are
facts and circumstances sufficient to give rise to a reasonable suspicion that he has
committed or was about to commit a crime. In such a case, however, the remanding
magistrate should be alert to the possibility that the prosecution is based on evidence
that was elicited from the accused person through torture or similar unlawful treat-
ment.86
Period of remand
High Court
There is no limit to the period that the High Court can remand an accused person.
Magistrates court
General rule: Where an accused person has been brought before a magistrate, his case
cannot be remanded (postponed) for longer than 14 days at any one time unless he consents
to a longer period.87 In practice 14-day remands are the norm, even though in petty cases a
shorter period may be justified.
Exceptions to the general rule:
Section 32(3a) & (3b) of the Criminal Procedure and Evidence Act specify circumstances
in which accused persons must be remanded for 21 days without bail, where they have been
charged with certain crimes:
• If the accused has been arrested for any of the following crimes:
➢ subverting constitutional government (section 22 of the Criminal Law Code); or
➢ crimes relating to insurgency, banditry, sabotage or terrorism (sections 23 to 29
of the Criminal Law Code);

83
Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S)
84
S v Chiyangwa 2005 (1) ZLR 163 (H).
85
R v Sambo 1964 RLR 565 (A) at 570A.
86
Cf Mukoko v Attorney-General 2012 (1) ZLR 321 (S).
87
Section 165 of the Criminal Procedure and Evidence Act.

62
 and the judicial officer before whom the accused is brought is satisfied that there is a
reasonable suspicion that he committed the crime concerned, the judicial officer must
order his further detention for 21 days88 [plus a further 48 hours, within which an ap-
plication is made to a judge or magistrate for a warrant authorising the accused’s fur-
ther detention89].
• Similarly, if the accused has been arrested for a crime set out in the Ninth Schedule to
the Criminal Procedure and Evidence Act (i.e. a crime involving corruption, organised
crime or serious dishonesty), the judicial officer before whom the accused is brought
must order his further detention for 21 days90, or a shorter period specified by the Pros-
ecutor-General, if:
➢ the prosecutor produces a certificate stating that the Prosecutor-General consid-
ers the crime involves significant prejudice or potential prejudice to the national
economy and that the accused’s continued detention is necessary; and
➢ the judicial officer is satisfied that the accused’s arrest is lawful; and
➢ the judicial officer is satisfied that there is a reasonable suspicion that the ac-
cused committed the crime concerned.91
These provisions are unconstitutional, because they deny the remanding court the pow-
er to grant bail to the accused person [we shall deal with the right to bail in a subse-
quent lecture].
Right to trial within a reasonable time
Everyone has a right to a trial within a reasonable time92, so the total length of successive
remands must not infringe the accused’s right in that respect. Some delay is inevitable in
most cases but the delays must be reasonable. If the delay has become unreasonable, the
magistrate or judge must refuse any further remand. What is a reasonable time? That de-
pends on the circumstances of the case, and it is not possible to lay down a specific period
that would be unreasonable in all cases. Much depends on the reason for the delay, as well
as the extent of the delay. The period begins from the moment the suspect is “charged”, i.e.
officially informed of an allegation that he has committed a crime; a mere investigation is
not enough.93 The running of the period is not interrupted by the withdrawal of charges be-
fore plea, if the accused is subsequently charged with the same crimes. To constitute a vio-
lation of the right to trial within a reasonable time, the delay must be “extraordinary” 94. In
one case95, where the accused person was facing serious fraud charges, a delay of four years

88
Sections 32(3a) and 34(4)(a) of the Criminal Procedure and Evidence Act. The effect, indeed the validity,
of those provisions is doubtful. They refer to a crime “referred to in paragraph 10 of the Third Schedule” to
the Act, but the Third Schedule has since been amended and there is no longer a paragraph 10. Furthermore,
the crimes concerned, which were set out in the Public Order and Security Act, are now contained in Chapter
III of the Criminal Law Code.
89
Section 34(6) of the Criminal Procedure and Evidence Act.
90
Which, under section 34(6) of the Criminal Procedure and Evidence Act, may be extended for 48 hours to
enable an application to be made to a judge or magistrate for a warrant authorizing the accused’s further de-
tention.
91
Sections 32(3b) and 34(4)(b) of the Criminal Procedure and Evidence Act.
92
Section 69(1) of the Constitution.
93
Smyth v Ushekowunze & Anor 1997 (2) ZLR 544 (S); see Linington Constitutional Law of Zimbabwe
p. 400.
94
Fikilini v Attorney-General 1990 (1) ZLR 105 (S).
95
In re Mlambo 1991 (2) ZLR 339 (S).

63
and seven months was enough to trigger an inquiry into whether the accused’s right had
been violated; in another96 a delay of seven years was enough. In S v Tau 1997 (1) ZLR 93
(H), Gillespie J said:
“[The Supreme Court’s decision in S v Midzi & Ors 1994 (2) ZLR 218 (S)] was no doubt an
appropriate conclusion for a complicated case of fraud and corruption where the accused were
on bail. In a different situation, however, twelve months delay might well be unreasonable
and oppressive. I would venture to suggest that the scrupulous magistrate would in all cases
be questioning the State very closely indeed on any application for further remand made after
delays approaching a year.”
Under section 167A of the Criminal Procedure and Evidence Act [Chapter 9:07] courts are
now obliged to investigate delays in cases pending before them where the delay appears
unreasonable and could cause substantial prejudice to the prosecution, to the accused or his
or her lawyer, to a witness or any other person concerned in the proceedings, or to the pub-
lic interest. In deciding whether a delay is unreasonable, a court considers amongst other
things:
• the extent of the delay and the reasons for it;
• whether anyone can be blamed for the delay;
• whether the accused has raised such objections to the delay as he might reasonably have
been expected to have raised;97
• the seriousness and complexity of the charges;
• prejudice the delay may have caused to the State, the accused or anyone else concerned
in the proceedings;
• the adverse effect that stopping the prosecution would have on the public interest or the
interests of victims.
If the delay is found to be unreasonable, the court can refuse or impose conditions on fur-
ther postponements or remands, or permanently stay the prosecution, and in addition can
refer the matter to the appropriate authorities for investigation and possible disciplinary ac-
tion. The Prosecutor-General is entitled to appeal against an order permanently staying a
prosecution.98
Before the courts will enquire into a violation of the accused’s right to a speedy trial, it
must be shown that the accused suffered prejudice from the delay; this is assessed in the
light of the interests which the right to a speedy trial is intended to protect, namely:
• to prevent oppressive pre-trial imprisonment;
• to minimise the anxiety and concern of the accused while he awaits trial;
• to limit the possibility that his defence will be impaired (e.g. witnesses may no longer
be available for the trial).

96
In re Masendeke 1992 (2) ZLR 5 (S).
97
This suggests that if the accused is not legally represented and is ignorant of the law, he should not be pe-
nalised for not objecting to a delay. This point was made in S v Tau 1997 (1) ZLR 93 (H) and S v Mavharamu
1998 (2) ZLR 341 (H). See also Woods & Ors v Minister of Justice, Legal and Parliamentary Affairs & Ors
1993 (2) ZLR 443 (S) at 445H, where Gubbay CJ said: “[P]assivity in the assertion of a constitutional right
necessarily implies an awareness that there has been a breach and that a meaningful remedy is available.”
98
Section 167A(4) of the Criminal Procedure and Evidence Act.

64
The factors which a court must take into account in deciding whether there has been an un-
reasonable delay in bringing an accused person to trial are set out in section 167A(2) of the
Criminal Procedure and Evidence Act [Chapter 9:07].

2. Summons
A summons is a formal notice to the accused person setting out the charges against him and
requiring him to appear at a magistrates court at a stated time to stand trial on the charges.
Note that summonses are not issued to bring accused persons to trial in the High Court.
Issuing a summons to secure the attendance of an accused person at his trial, rather than
arresting him, should be preferred in those cases in which there is no reason to suppose that
he will fail to appear in court, or interfere with the State evidence or commit further crimes.
There is no rule of law, however, that requires the issue of a summons where it would be
appropriate, or that renders an arrest unlawful if a summons would be equally effective99 —
unless, of course, the decision to arrest an accused is one that no reasonable person would
take.100

Issue of summons
A summons is prepared by a public prosecutor and lodged with the clerk of the magistrates
court.101 The clerk then issues the summons and delivers it to the messenger of court.102

Contents of summons103
A summons must:
• identify the accused person by his name, place of abode and occupation;
• set out, shortly and clearly, the nature of the crime and the time and place at which it
was committed; and
• require the accused to appear at a stated time and place to answer the charge (i.e. to
stand trial on the charge).

Service of summons
A summons may be served on the accused:
• by giving it to him personally;
• if he cannot be found104, by leaving it for him at his place of business or at his usual or
last-known place of abode.105
A summons is served on the accused by a “prescribed officer”106. There is no specific pre-
scription of officers under the Criminal Procedure and Evidence Act, but messengers of

99
Tsose v Minister of Justice 1951 (3) SA 10 (A) at 17. That may not, however, be the law any longer in
South Africa: see Coetzee v National Commissioner of Police & Ors 2011 (2) SA 227 (GNP) at 243.
100
Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S).
101
Section 139 of the Criminal Procedure and Evidence Act.
102
Section 140(1) of the Criminal Procedure and Evidence Act.
103
Section 139 of the Criminal Procedure and Evidence Act.
104
Whether or not he cannot be found depends on the circumstances of every particular case: Minister van
Polisie v Goldschagg 1981 (1) SA 37 (A).
105
Section 140(2) of the Criminal Procedure and Evidence Act.
106
Section 141(2) of the Criminal Procedure and Evidence Act.

65
magistrates courts would presumably be entitled to serve summonses107 and police officers
are qualified to serve all documents under the Act108 (Most summonses are in fact served
by police officers). In addition to service by messengers of court and police officers, the
Magistrates Court (Criminal) Rules, 1966 (RGN 871 of 1966), permit summonses for
crimes under certain statutes to be served by officials appointed under those statutes.109
If more than one person is being charged jointly, a copy of the summons must be served on
each of them.
A summons must be served on the accused at least two working days before the date of his
trial.110 Except in the simplest of cases this may be too short a time for him to prepare his
defence, as required by section 70(1)(c) of the Constitution.

Proof of service of summons if accused fails to appear in court

If the accused does not appear in court on the date and at the time specified in the sum-
mons, proof that it was served on him may be given by:
• evidence on oath by the person who served it;
• an affidavit sworn by that person; or
• a return of service written on the summons by that person.111
The last of these methods is the usual one that is used.
Where the accused has not appeared, on proof that the summons was served, the magistrate
may, at the prosecutor’s request, issue a warrant for the accused’s arrest and impose a de-
fault fine.112 A default fine is one that may be remitted by the court if the accused person
shows cause why it should be remitted (e.g. that he did not see the summons).

3. Written Notice to Appear

In the case of petty crimes, particularly road traffic violations, the accused may be handed a
“ticket”, a notice to appear in court, by a peace officer.113 This is applicable where the
peace officer believes on reasonable grounds that the crime will attract a fine of not more
than level three.114 The notice must:
• give reasonable particulars of the crime , though it is not necessary to specify the provi-
sions of the enactment concerned;
• set out the accused’s full names and address;

107
Because, having issued a summons, the clerk of court delivers it to the messenger for service under section
140(1) of the Criminal Procedure and Evidence Act.
108
Section 382(4) of the Criminal Procedure and Evidence Act.
109
Order IIA of the rules, as read with the Second Schedule to the rules. For example, a summons for a crime
under the Plant Pests and Diseases Act [Chapter 20:01] can be served by an inspector appointed under that
Act.
110
Section 382(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].
111
Section 140(3) of the Criminal Procedure and Evidence Act.
112
Section 140(4) of the Criminal Procedure and Evidence Act. The court does not have to be satisfied that
the accused was blameworthy in failing to appear; that becomes relevant at a later stage when he is brought
before the court after being arrested: Minister van Polisie v Goldschagg 1981 (1) SA 37 (A).
113
Section 141 of the Criminal Procedure and Evidence Act.
114
Currently (March 2019) $60.

66
• call upon the accused to appear in court at a specified date, time and place, to answer a
charge of committing the crime;
• state that instead of appearing in court, the accused may pay a deposit fine on or before
a specified date; and
• contain a written certificate by the peace officer that he has handed the notice to the ac-
cused and explained it to him.
If the accused fails to pay the fine by the specified date, the notice has the effect of a sum-
mons.115

4. Warning to Appear
The court may warn an accused person to appear in court to be charged with a crime. 116 In
practice this seldom if ever happens. The procedure is potentially useful, for example in
ensuring the attendance of juveniles at their trial (instead of releasing a juvenile accused on
bail, the court could simply warn him to appear for trial at a particular date and time, and
release him into the custody of his parents). It suffers from the disadvantage, however, that
there seems to be no penalty for failure to comply with a warning.

5. Extradition
This is a method of bringing people from one country to stand trial in another country. It is
a procedure whereby, for example, a person who has committed a crime in Zimbabwe and
has fled to South Africa can be returned to Zimbabwe for trial.

6. Merits of the different methods of securing attendance of ac-

cused
Each of the four methods of securing an accused person’s attendance which have been dealt
with above has advantages and drawbacks (some of which have already been mentioned):

Arrest and Remand

This is by far the most drastic method in that it deprives the suspect of his liberty, at least
for a time. On the other hand it may be the most appropriate method to employ, for exam-
ple where the suspect is arrested while committing a crime. It has the following ad-
vantages:
• It may prevent the suspect from continuing to commit a crime or from committing fur-
ther crimes.
• If the suspect is kept in custody, it is the most certain method of preventing him from
absconding or interfering with the evidence – e.g. by intimidating witnesses. While the
suspect is in custody his ability to abscond or interfere with evidence is severely re-
duced. Even if the suspect is granted bail, the court will be able to impose conditions
on the grant which will ensure so far as possible that he does not abscond or interfere
with witnesses.
• Again if the suspect is in custody, it removes him from society. This may be justifiable
where the suspicion against him is strong and well-founded, and the crime which he is
suspected of having committed is a serious one which he is likely to repeat.

115
Section 141(5) of the Criminal Procedure and Evidence Act.
116
Section 142(1) of the Criminal Procedure and Evidence Act.

67
• In a few cases it may protect the suspect, for example a suspected rapist who is liable to
retribution from the complainant’s family.
Set against the above advantages, however, are the following drawbacks:
• It can lead to serious abuses:
➢ The police may be tempted to use the power of arrest and detention as a means
of intimidating a suspect or punishing him or getting him to make a statement or
to admit committing a crime.
➢ There is an implicit threat of violence in arrest and post-arrest detention, in that
the suspect has reason to fear that if he does not do what the arresting police of-
ficer wants, he will be forced to comply. All too often, the police succumb to
the temptation to use violence against arrested suspects, usually to force them to
make incriminating statements.
• The power to use reasonable force in effecting an arrest can cause serious damage and
loss to innocent people. If a suspect is injured when resisting or fleeing from an arrest,
he will not be entitled to compensation if the arrest was a lawful one (e.g. if the peace
officer had reasonable grounds to suspect that he had committed a First Schedule crime)
and the degree of force was reasonably justifiable in the circumstances. And this will
be so even if it turns out that the suspect was in fact innocent of the crime. Similarly, if
a householder’s doors and windows are lawfully broken down by the police in an at-
tempt to arrest a person in the householder’s premises, the householder will not be enti-
tled to compensation.
• Peace officers often have to make a decision to arrest a suspect, or not to arrest him,
very quickly; they cannot spend a long time debating whether or not the suspect is like-
ly to abscond if he is not arrested. Because the decision has to be made quickly, peace
officers are likely to err on the side of caution and arrest suspects knowing that when
they are brought before a remand court the court will be able to decide whether they
should be released or kept in custody.
• An arrest almost invariably humiliates the suspect, and the humiliation can be lasting.
People tend to believe, consciously or unconsciously, that a person who has been ar-
rested is a criminal or at least a person of doubtful character.
• An arrest is expensive to the State, if the suspect is detained after being arrested.

Summons
Bringing an accused person to court through a summons has the great advantage, from a
human-rights perspective, of not infringing the person’s right to liberty. It is also relatively
cheap because there is no question of keeping the person in detention. On the other hand, it
does have certain disadvantages:
• If the summons is not served personally (i.e. handed to the accused person concerned)
the accused may not see it and will not realise that he has to attend court. If he does not
appear in court, the magistrate will be entitled to issue a warrant for his arrest without
enquiring at that stage whether or not the accused’s failure to appear was blamewor-
thy.117
• Section 382(1) of the Criminal Procedure and Evidence Act states that summonses must
be served at least two working days before the trial date. This may not give the accused

117
Minister van Polisie v Goldschagg 1981 (1) SA 37 (A).

68
 adequate time to prepare his defence, though he can always ask the trial court for an ad-
journment.
• Summonses cannot be issued to compel attendance of accused persons in the High
Court; the only way to compel their attendance in that court is through committal for
trial under Part VII of the Criminal Procedure and Evidence Act.

Written notice to appear

This has obvious advantages:
• The problem of service, which arises in relation to summonses, does not apply because
the written notice is usually given directly to the accused person by the peace officer
who issues it. For example, traffic tickets are normally handed directly to the offending
motorists.
• Apart from notifying the accused person that he will have to attend court, a written no-
tice gives him the option of avoiding a court appearance by paying a deposit fine (not
exceeding level three118). Because most people prefer to pay the fine, the courts do not
have to conduct numerous trials into petty crimes.
On the other hand, written notices have certain disadvantages:
• In present circumstances in Zimbabwe, the power to issue such notices, particularly
traffic tickets, is likely to tempt peace officers to engage in corrupt practices (e.g. offer-
ing to refrain from issuing a ticket if the offender pays a bribe).
• The current Standard Scale of Fines fixes the monetary amount of level three at US $30.
This limits the scope of written notices to petty crimes.
• It has been said that written notices deprive offenders of a fair trial, because in many
cases they will prefer to avoid the trouble and expense of a trial by paying the deposit
fine even if they believe they are not guilty. This is not a convincing objection, because
the choice of paying or going to court rests with the offender.

Warning to appear
As pointed out earlier, this has the disadvantage that there is no way of compelling attend-
ance by a person who has been warned to appear in court. In other words, there is no sanc-
tion that can be imposed on a person who fails to appear after having been warned to do so.

118
Section 141(1) of the Criminal Procedure and Evidence Act. Level 3 is currently $60.

69
 5. BAIL PENDING TRIAL
What is Bail?
Bail is a way of allowing a person who has been remanded for trial at a later date to remain
at liberty until his trial. To grant bail means to allow a person to enter into a contract or
undertaking (called “a recognisance”) whereby he remains at liberty in consideration for his
paying or guaranteeing to pay a sum of money if he fails to appear in court at the date, time
and place appointed for his trial or further remand. Once bail is granted, the accused person
should not be deprived of his liberty until his bail bond is terminated, unless he breaches
any conditions under which bail was granted, and the State has an implied obligation to al-
low him to remain at liberty so long as he abides by those conditions.1
The need for a mechanism such as bail must be understood in the light of the following
principles:2
1. Arrested persons have a right to be released, unconditionally or on reasonable condi-
tions, unless there are compelling reasons justifying their continued detention.3
2. An accused person is presumed to be innocent until he has been convicted by a court of
law. He should not, therefore, be deprived of his liberty until he has been convicted.
On the other hand, the State has an interest in ensuring that accused persons appear in
court for their trial, and in some cases this can only be ensured by keeping them in cus-
tody pending trial. A balance must be struck between these two interests.
3. It is not in the interests of justice for bail to be granted to a person who will not stand
his trial or will abuse his liberty by, e.g. intimidating the witnesses against him. But nor
is it in the interests of justice to refuse bail to a person who will stand his trial and will
not abuse his liberty: he will probably lose his employment and the respect he enjoys in
the community, and will find it more difficult to make arrangements for his defence at
his trial.
4. In deciding whether or not to grant bail, a court must consider the constitutional rights
of the accused person and his or her dependants. Where the accused is the primary
care-giver of a child, the best interests of the child must be considered together with all
the other circumstances.4
Bail is non-penal in character, and neither the amount of bail nor the refusal of bail may be
influenced by a desire to punish the accused or to deter other offenders. 5 Nor should the
grant or refusal of bail be used as an inducement to get the accused to make a statement to
the police.6
Although the grant of bail in any particular case is pre-eminently a matter for the judicial
officer, he or she usually acts on information given by the prosecutor, so the prosecutor has

1
Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 p. 311.
2
See Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 165.
3
Section 50(1)(d) of the Constitution. Note that under our constitution they have a greater right to be released
than they do in South Africa, where sec 35(1)(f) of the S.A. Constitution allows them to be released only “if
the interests of justice permit”.
4
See section 81 of the Constitution.
5
S v Visser 1975 (2) SA 342 (C).
6
S v Joone 1973 (1) SA 841 (C) at 846H.

70
a duty to place before the court any information he or she has relevant to the grant or re-
fusal of bail.7

Who May Grant Bail

A judge may grant bail in respect of any crime. A magistrate within whose area of jurisdic-
tion the accused is being kept in custody may grant him bail in respect of all crimes except
a serious crime specified in the Third Schedule to the Criminal Procedure and Evidence
Act,8 of which the most important are:
• treason;
• murder or attempted murder;
• rape or aggravated indecent assault;
• robbery;
• indecent assault of a child;
• kidnapping or unlawful detention involving the infliction of serious bodily harm;
• crimes involving insurgency, banditry, sabotage or terrorism;
• any crime where the accused is to be indicted to the High Court for trial.
If, however, the Prosecutor-General personally consents to the magistrate granting bail for
any of the above crimes, then the magistrate has power to do so.9
When an accused person is indicted for trial in the High Court, the bail will stand but a
judge of the High Court may revoke it or alter any condition under which it was granted.10
Bail may also be granted by a police officer; that is dealt with in a later section.

Application for Bail

Before an accused person can be granted bail, he must apply for it, and the application can-
not be made until he or she has appeared in court on a charge — that is, when he is formally
placed on remand.11
An accused person who appears before a judge or magistrate before trial (for example,
when he appears on remand) may apply verbally12 to be admitted to bail immediately; al-
ternatively he may make a written application in the form prescribed in rules of court. 13
Every such application must be dealt with promptly. 14

7
Carmichele v Minister of Safety & Security & Anor 2001 (4) SA 938 (CC) at pp 967E-968A.
8
Section 116(a) and (b) of the Criminal Procedure and Evidence Act.
9
Section 116(b), proviso, of the Criminal Procedure and Evidence Act. See also proviso (iii) to section 116.
10
Section 66(2a) of the Criminal Procedure and Evidence Act.
11
Section 117(1) of the Criminal Procedure and Evidence Act. See S v Mukoko 2009 (1) ZLR 93 (H).
12
That is the word used in the Act; “orally” would be more accurate.
13
Section 117A of the Criminal Procedure and Evidence Act. The form to be used in the High Court is pre-
scribed in the High Court of Zimbabwe (Bail) Rules, 1991 (SI 109 of 1991). There is no form prescribed for
use in the magistrates court (applications for bail in the magistrates court are normally made orally) but if a
written application is made to a magistrate it would be wise to follow the format of the High Court applica-
tion.
14
Section 117A(3) of the Criminal Procedure and Evidence Act.

71
The Prosecutor-General or the local public prosecutor must be given reasonable notice of
oral bail applications15 — though in practice applications are made by accused persons on
their first remand without giving such notice.
When a written bail application is made to the High Court, the application is filed with the
Registrar of the High Court and a copy must be served on the Prosecutor-General either by
the Registrar or by the accused’s legal practitioner. The Registrar must set the matter down
for hearing within 48 hours after it was filed. The Prosecutor-General must file a written
response to the application within three hours before the hearing.
In a bail application, the judge or magistrate can receive evidence on oath or by affidavit,
and hearsay evidence is admissible.16 In practice, formal evidence is not given in most ap-
plications; the accused asks for bail and is questioned by the court to ascertain his circum-
stances and what amount of bail he can afford. The prosecutor indicates his attitude to the
grant or refusal of bail, and the judge or magistrate decides the question on the basis of
what he has been told by the accused and the prosecutor. Bail proceedings, in fact, follow
the inquisitorial rather than the adversarial model of criminal procedure. Both sides can be
required to adduce evidence.17 If the accused gives evidence, however, the court must in-
form him that his evidence will be admissible and may be used against him at his trial.18
An accused person “is compelled to inform the court” whether he has any previous convic-
tions and whether he is facing other charges and, if he is, whether he has been granted bail
on those charges.19 It is not clear if this means that he must volunteer the information or
need disclose it only if asked. If he wilfully fails or refuses to give this information, or
gives false information on these matters, he commits a crime. This requirement is almost
certainly unconstitutional in that it violates the accused’s right to silence.
In bail proceedings an accused person is not entitled to have access to information con-
tained in the police docket of his case, unless the Prosecutor-General consents.20 This
statutory provision runs counter to the judgment in S v Sithole 1996 (2) ZLR 575 (H)21, in
which Devittie J said that in High Court proceedings an accused ought ordinarily to be enti-
tled, if he so requests, to copies of statements of witnesses whom the State proposes to call.
(In Sithole’s case however the court was concerned with the accused person’s rights for the
purposes of a trial, not bail proceedings before trial).
Bail applications should be recorded, and the record forms part of the record of the trial —
though any information the accused may have given regarding his previous convictions is
excluded22 (query: how?).
If an application for bail is refused by a judge or magistrate, a further application cannot be
made unless it is based on facts that were not placed before the judge or magistrate who
first determined the application and which arose or were discovered after he made the deci-
sion.23 If no new facts arise, the only recourse the accused has is to appeal. It should be

15
Section 116, proviso (i), of the Criminal Procedure and Evidence Act.
16
Section 117A(4) of the Criminal Procedure and Evidence Act.
17
Section 117A(4)(c) & (d) of the Criminal Procedure and Evidence Act.
18
Section 117A(7), proviso, of the Criminal Procedure and Evidence Act.
19
Section 117A(5) of the Criminal Procedure and Evidence Act.
20
Section 117A(10) of the Criminal Procedure and Evidence Act.
21
Approved by Gowora J in S v Chibaya & Ors 2007 (1) ZLR 71 (H) (HH-4-2007).
22
Section 117A(7) of the Criminal Procedure and Evidence Act.
23
Section 116, proviso (ii), of the Criminal Procedure and Evidence Act.

72
noted, however, that the passage of time can itself constitute a “new fact”: in other words,
the fact that a long time has elapsed since an application for bail was made and refused can
be placed before the court as a justification for a fresh application.24

Principles Governing the Grant of Bail

The refusal or granting of bail is a vitally important part of the criminal process. As
Hungwe J said in S v Chiyangwa 2005 (1) ZLR 163 (H) at 168G-169A:
“Initial remand is an important step in a citizen’s loss of liberty. After arrest without warrant,
it is the first time that his case is presented to a neutral body for arbitration of the issue wheth-
er or not, on the basis of mere suspicion, the citizen must lose his freedom. If he loses his
freedom at that stage, before his guilt is proved, he may face total ruin. He may lose his job,
or other means of his livelihood. He could lose his home too if he is a lodger or a mortgagee
as he falls into arrears. This could drive his family into destitution and he is forced to rely on
State support for livelihood whilst in custody. The consequences are just too ghastly to con-
template for both the rich and the poor. Magistrates are therefore to take the greatest care
when approaching the question whether to deny or grant bail.”
The following principles govern the grant or refusal of bail:

Right to bail
Section 50(1)(d) of the Constitution states that a person who has been arrested:
“must be released unconditionally, or on reasonable conditions, pending a charge or trial, un-
less there are compelling reasons justifying their continued detention.”
According to section 117(1) of the Criminal Procedure and Evidence Act, every accused
person has a right to bail, subject to the interests of justice:
“[A] person who is in custody in respect of an offence shall be entitled to be released on bail at
any time after he or she has appeared in court on a charge and before sentence is imposed, un-
less the court finds that it is in the interests of justice that he or she should be detained in cus-
tody.”
The constitutional provision protects liberty more stringently: an accused person must be
released unless there are “compelling reasons” for keeping him in detention; the Criminal
Procedure and Evidence Act on the other hand says that he may be detained if it is “in the
interests of justice” to do so. Section 115C of the Act seeks to align the Act with the Con-
stitution by saying, in effect, that the grounds listed in section 117 as justifying continued
detention in the interests of justice must be regarded as “compelling reasons”. That is fatu-
ous: it is not for Parliament to dictate to the courts what factors they must regard as com-
pelling in order to justify depriving a person of his or her liberty.

Compelling reasons justifying detention

What are “compelling reasons” justifying the detention of a suspect? It is impossible to de-
fine them comprehensively because what is compelling will vary according to the personal
circumstances of each suspect and the facts of his or her case. There are three reasons
which normally justify continued detention:
• that the suspect is likely to abscond
• that the suspect is likely to interfere with the evidence, e.g. by intimidating witnesses
• that the suspect is likely to commit further crimes if released.

24
S v Murambiwa S-62-92; S v Aitken (2) 1992 (2) ZLR 463 (S) at 464.

73
Whether those reasons, individually or in combination, will be compelling depends on the
facts and circumstances of each case, as already pointed out. The more likely the suspect is
to do any of these things, the more compelling the reason for keeping him in custody.

Section 117 of the Criminal Procedure and Evidence Act

Section 117 of the Act seems to be based loosely on the equivalent provision of the South
African Criminal Procedure Act, 197725, which in turn is based on section 35(1)(f) of that
country’s constitution. Section 35(1)(f) states that everyone who is arrested has the right to
be released from detention “if the interests of justice permit”. Our Constitution is different,
as already noted. Arrested persons in Zimbabwe have a greater constitutional right to bail
than is granted them in South Africa; so section 117 does not go far enough in guarantee-
ing to arrested persons their right to bail. To that extent, therefore, it is unconstitutional.
Merely saying, as section 115C does, that the reasons listed in section 117 amount to com-
pelling reasons does not render section 117 constitutional.
Be that as it may, section 117 of the Criminal Procedure and Evidence Act elaborates on the
three reasons for continued detention listed above, and sets out in detail the considerations
to be taken into account by a judge or magistrate when deciding whether to grant or refuse
bail:
• It will be in the interests of justice to refuse bail where it is established that if the ac-
cused is granted bail he is likely:
o to endanger public safety or the safety of an individual person;
o to commit a First Schedule crime;
o not to stand trial;
o to try to intimidate witnesses or interfere with the evidence; or
o to “undermine or jeopardise the objectives or proper functioning of the criminal
justice system, including the bail system” (whatever that means).26
• It will also be in the interests of justice to refuse bail if “in exceptional circumstances”27
it is likely that the release of the accused will disturb public order or undermine public
peace or security. It seems that this ground for refusing bail is intended to cover crimes
that cause shock or outrage to the community, or cases where the public might feel un-
easy or unsafe if the accused were let out on bail.28
• The court must balance the interests of justice against the right of the accused to person-
al freedom, taking into account the following, amongst other factors:
o the period the accused has already spent in custody and the period he is likely to
spend before his trial;
o any delay in bringing him to trial, and whether he is to blame for any such de-
lay;
o any prejudice he may suffer in preparing his defence if he remains in custody;
o the state of his health.
There are various other restrictions on the grant of bail:

25
In particular, section 60 of that Act.
26
Section 117(2)(a) of the Criminal Procedure and Evidence Act.
27
Again, whatever that means.
28
See section 117(3)(e).

74
• Accused persons who have been arrested on a charge of committing a crime set out in
the Third and Ninth Schedules to the Criminal Procedure and Evidence Act must be
remanded without bail for 21 days (the requirements for this have been dealt with above
on page 61 of these notes).
• If an accused person is charged with a crime set out in Part I of the Third Schedule to
the Criminal Procedure and Evidence Act, he must satisfy the court that exceptional cir-
cumstances exist justifying his release, before the court can grant him bail.29
• Accused persons who have been committed for trial in the High Court can only be
granted bail by that court. If however a magistrate has granted them bail before their
committal the bail stands unless a judge alters or revokes it.30
• Where an accused person has been extradited to Zimbabwe from a foreign country in
order to stand trial here, and the Minister responsible for administering the Extradition
Act [Chapter 9:08] certifies that he has given an undertaking to the foreign country
concerned that the person will not be granted bail, or will be granted bail subject to cer-
tain conditions, the court must refuse that person bail, or grant it subject to those condi-
tions, as the case may be.31
As indicated above, these provisions are unconstitutional in so far as they allow a person to
be denied bail in the absence of compelling reasons for such denial.
It is undesirable that accused persons should be deprived of their liberty if the sentence like-
ly to be imposed will be a fine or another non-custodial sentence.
Each case must be decided on its merits, and the prosecutor must make an independent as-
sessment of the case and should not blindly follow the recommendations of the police as to
the grant or refusal of bail. Similarly, the court must consider each case and not act as a
rubber stamp.

Onus of proof
Generally, the onus of showing that bail should not be granted rests with the prosecution,
where bail is sought before the accused person has been found guilty. 32 As Mathonsi J said
in S v Munsaka 2016 (1) ZLR 427 (H), the onus of proving compelling reasons for not
granting bail lies on the State. The degree of proof required is a balance of probabilities.
Under section 115C of the Criminal Procedure and Evidence Act however the onus is shift-
ed to the accused where he is charged with a crime listed in Part I of the Third Schedule to
the Act (some of them are listed above, in the section headed “Who may grant bail”). In
that event the accused bears the onus of showing, on a balance of probabilities, that it is in
the interests of justice for him to be admitted to bail. 33 Where the accused is charged with
a crime listed in Part II of that Schedule (premeditated murder, murder of a police officer,
serious rape or indecent assault, indecent assault of a child, crimes involving terrorism) he
must go further and show, again on a balance of probabilities, that exceptional circumstanc-

29
Section 117(6)(a) of the Criminal Procedure and Evidence Act.
30
Section 65(2a) of the Criminal Procedure and Evidence Act.
31
Section 117(8) of the Criminal Procedure and Evidence Act. The provision is intended to ensure that crim-
inals who are in custody in a foreign country are not freed on bail when they are extradited to Zimbabwe.
32
Section 115C(2) of the Criminal Procedure and Evidence Act. See also S v Chiadzwa 1988 (2) ZLR 19 (S).
33
Section 115C(2)(a)(ii)A of the Criminal Procedure and Evidence Act.

75
es exist permitting him to be released.34 It is doubtful if these provisions of section 115C
are constitutional.
It is not sufficient for the prosecutor to make bald assertions that a particular ground for re-
fusing bail exists; he must show that his assertions are well founded. Simply alleging that
the accused will abscond, will endanger the public or will interfere with witnesses, without
substantiating such allegations, does not meet the threshold of compelling reasons set by
the Constitution.35 In S v Kuruneri 2004 (1) ZLR 409 (H), Hlatshwayo J (as he then was)
said that there was no basis for the view that the accused person has an onus to discharge to
enable him to be admitted to bail. The presumption of innocence operates fully in bail ap-
plications made before the accused has been found guilty, and so the court is expected and
required to lean in favour of the liberty of the accused. If the State’s fears that the accused
will abscond or interfere with witnesses are equally balanced against the accused’s assur-
ances to the contrary, then the presumption of innocence requires the court to lean in favour
of the accused’s liberty and grant bail. In other words, if the State opposes bail it must
prove that justice will be served by denying bail.36 The view expressed in Kuruneri’s case
is clearly correct, though now that section 50(1)(d) of the Constitution provides that arrest-
ed persons must be released pending trial unless there are “compelling reasons justifying
their continued detention”, the State’s onus is heavier: it must prove the existence of those
compelling reasons.
Once, however, the prosecution has made credible allegations against the accused which
would provide grounds for refusing bail, the onus shifts to the accused person, who must
show on a balance of probabilities that his admission to bail would not prejudice the inter-
ests of justice.37

Methods of Granting Bail

Bail may be granted in two ways:

Deposit of money or property

The accused may be permitted to deposit a sum of money or any other property (e.g. title
deeds to his house) as security for his appearing in court for his trial.38 This is by far the
most common way in which accused persons are granted bail.

Recognizances
Alternatively, the accused (and, sometimes, one or more sureties) may be required to enter
into recognizances, i.e. a written undertaking or bond by which they agree to pay the court a
specified sum of money if the accused fails to comply with the conditions of his bail.
If sureties have entered into a recognizance they will generally remain liable on it until the
accused is sentenced or discharged, but they can apply to the court which granted bail to be
released from the recognizance. In that event, the court will issue a warrant of arrest for the
accused, and when the accused comes to court the judge or magistrate will discharge the

34
Section 115C(2)(a)(ii)B of the Criminal Procedure and Evidence Act.
35
S v Munsaka HB-55-2016.
36
Headnote to S v Kuruneri 2004 (1) ZLR 409 (H).
37
Kuruneri’s case supra. Or rather, to conform with section 50(1)(d) of the Constitution, he must show that
the allegations put forward by the prosecution do not amount to compelling reasons justifying his continued
detention.
38
Section 131 of the Criminal Procedure and Evidence Act.

76
surety and require the accused to find another person to stand as surety; if the accused fails
to do so he may be committed to prison.39 Alternatively, the surety may get his discharge
from the recognizance by bringing the accused person to court; in that event the accused
may be committed to prison or granted bail on fresh conditions.40

Bail Conditions
The essential condition of bail is that the accused must appear in court at the appointed
times and places until the proceedings against him are completed. 41 Further conditions are
usually added to ensure that the accused complies with the main condition. The court’s
power to impose such conditions is very wide,42 and they may include: the surrender by the
accused of his passport; reporting to the police at regular intervals; a prohibition against
his communicating with witnesses for the prosecution.
Conditions must be practically feasible43 and should be neither vague nor ambiguous.

Amount of Bail
The amount of bail taken in any case, whether in the form of a deposit or a recognizances,
is in the discretion of the court, but excessive bail must not be fixed.44 What is excessive in
any particular case will depend on the financial resources of the accused person, so these
must be investigated carefully by the court. When fixing the amount of bail, the court must
reconcile the twin objectives of allowing the accused to be at liberty, while ensuring that he
is sufficiently motivated to appear in court when required.

Amendment or Withdrawal of Bail

If new facts are brought to the attention of a judge or magistrate as a result of which he con-
siders it necessary or advisable in the interests of justice to amend or add to the conditions
of bail, he may do so. He may also order that the accused be committed to prison and issue
a warrant for his arrest.45

Breach of Conditions of Bail

If an accused person breaches or is believed likely to breach his conditions of bail, there are
three remedies:
1. If the accused fails to appear at his trial after his name has been called three times
outside the court, the court, on the application of the prosecutor, can issue a warrant
for his arrest and declare the recognizance or the money deposited as bail to be for-
feited to the State.46
2. If a peace officer believes on reasonable grounds that the accused is about to ab-
scond to evade justice, or is about to interfere with evidence, the peace officer may

39
Section 128 of the Criminal Procedure and Evidence Act.
40
Section 129 of the Criminal Procedure and Evidence Act.
41
Section 118(1) of the Criminal Procedure and Evidence Act.
42
Section 118(3) of the Criminal Procedure and Evidence Act.
43
R v Fourie 1947 (2) SA 574 (O).
44
Section 120 of the Criminal Procedure and Evidence Act. To fix excessive bail amounts to a refusal of bail:
S v Shaban 1965 (4) SA 646 (W).
45
Section 126 of the Criminal Procedure and Evidence Act.
46
Section 119(2) of the Criminal Procedure and Evidence Act.

77
 arrest the accused and take him before a magistrate as soon as possible, and in any
event within 48 hours. The magistrate may commit the accused to prison.47
3. If it appears to a judge or magistrate that an accused person has breached the condi-
tions of his bail (e.g. does not report to the police), he may order the accused’s re-
cognizance to be forfeited and issue a warrant for the accused’s arrest. 48 Presuma-
bly, before making the declaration of forfeiture in such circumstances he must give
the accused an opportunity to make representations.

Appeal against Grant or Refusal of Bail

Appeal by accused against decision of magistrate
An accused person may appeal to a judge of the High Court at any time against a magis-
trate’s refusal to grant him bail, or against the amount of bail or conditions of bail fixed by
a magistrate.49 The appeal does not suspend the decision,50 so the accused will remain in
custody pending the result of the appeal.
The appeal must be in writing and must give sufficient particulars to identify the decision
that is the subject of the appeal and must state the grounds on which the decision is ap-
pealed against.51 A copy of the written statement of appeal must be served on the Prosecu-
tor-General, and the appeal must be set down within 96 hours after it is filed with the Reg-
istrar of the High Court.
The judge has wide powers on appeal, equivalent to those of the magistrate whose decision
is the subject of the appeal, and the appeal amounts to a rehearing: it is an appeal in the
wide sense, and the judge can substitute his own discretion for that of the magistrate.52
There is no further appeal to the Supreme Court from a decision of a judge of the High
Court on appeal, unless the accused person has been charged with any of the following
crimes53
• subverting constitutional government (section 22 of the Criminal Law Code); or
• crimes relating to insurgency, banditry, sabotage or terrorism (sections 23 to 29 of the
Criminal Law Code); or
• an economic crime set out in the Ninth Schedule to the Criminal Procedure and Evi-
dence Act.
In such a case, either the accused person or the Prosecutor-General can appeal to the Su-
preme Court against a decision of a judge of the High Court on appeal.

47
Section 127 of the Criminal Procedure and Evidence Act.
48
Section 133 of the Criminal Procedure and Evidence Act.
49
Section 121 of the Criminal Procedure and Evidence Act.
50
Section 121(4) of the Criminal Procedure and Evidence Act.
51
Section 6 of the High Court of Zimbabwe (Bail) Rules, 1991 (SI 109 of 1991).
52
S v Ruturi (1) 2003 (1) ZLR 259 (H).
53
Section 121(8) of the Criminal Procedure and Evidence Act; cp S v Dzawo 1998 (1) ZLR 536 (S). The
effect, indeed the validity, of the subsection is doubtful. It refers to a crime “referred to in paragraph 10 of the
Third Schedule” to the Act, but the Third Schedule has since been amended and there is no longer a paragraph
10. Furthermore, the crimes concerned, which were set out in the Public Order and Security Act, are now
contained in Chapter III of the Criminal Law Code.

78
Appeal by accused against decision of judge
An accused person who has been refused bail by a judge, or who is aggrieved by conditions
of bail imposed by a judge acting as a court of first instance, may appeal to a judge of the
Supreme Court.54 Leave to appeal must first be obtained from the judge or, if he refuses it,
from a judge of the Supreme Court.55 As with an appeal against a magistrate’s decision, the
appeal does not suspend the decision appealed against.
The procedure to be followed in such appeals is the same as that for appeals to the High
Court against decisions of magistrates on bail,56 and the Supreme Court’s power on appeal
are the same as those of the High Court in such appeals. In other words, the appeal
amounts to a rehearing and the Supreme Court can substitute its own discretion for that of
the judge of the High Court. This is because section 121(5) of the Criminal Procedure and
Evidence Act [Chapter 9:07] makes no distinction between appeals to the High Court and
appeals to the Supreme Court Earlier cases, such as S v Chikumbirike 1986 (2) ZLR 145
(S) at 16457, which held that the Supreme Court will interfere with a decision of a judge in a
bail application only if the judge committed an irregularity or misdirection or exercised his
discretion so unreasonably or improperly as to vitiate his decision, no longer reflect the cur-
rent law.

Appeal by Prosecutor-General against bail decisions

The Prosecutor-General may appeal against a decision made by a judge or magistrate in
regard to bail.58 Where he appeals against a magistrate’s decision, the appeal lies to a judge
of the High Court; where he appeals against a decision of a judge of the High Court, the
appeal lies to a judge of the Supreme Court. As with an appeal by an accused person, leave
must be obtained before an appeal against a decision of a judge is noted.
If the Prosecutor-General wants to appeal against a grant of bail, he must do so within 48
hours after the decision to grant bail.59 After he has noted his appeal the decision to grant
bail remains in force unless, on the application of the Prosecutor-General or a public prose-
cutor, the judge or magistrate suspends the decision on being satisfied that there is a rea-
sonable possibility that the interests of justice may be defeated if the accused person is re-
leased.
The procedure to be followed in appeals by the Prosecutor-General is the same as the pro-
cedure to be followed in appeals by accused persons.
As with appeals by accused persons against decisions of magistrates, there is no further ap-
peal to a judge of the Supreme Court against a decision of a judge of the High Court on ap-
peal, unless the accused is charged with certain serious crimes (as to which, see above).

54
Section 121(1) & (2) of the Criminal Procedure and Evidence Act.
55
Cp S v Aitken 1992 (2) ZLR 84 (S) at 87 and S v Dzawo 1998 (1) ZLR 536 (S).
56
Section 6 of the Supreme Court of Zimbabwe (Bail) Rules, 1991 (SI 290 of 1991).
57
Erroneously followed in S v Chivhayo S-94-2005 and S v Kuruneri S-35-2006.
58
Section 121 of the Criminal Procedure and Evidence Act.
59
Section 121(1)(a) of the Criminal Procedure and Evidence Act. The section does not say whether the ac-
cused person must remain in custody until the 48-hour period has expired; presumably not.

79
 Bail Granted by Police
It is a fundamental principle that the courts, not the Executive (i.e. the police) should decide
whether or not a person who is awaiting trial should be granted bail or be kept in custody.60
Nevertheless, if a suspect has been arrested on a relatively minor charge and is unlikely to
abscond or interfere with the evidence, or to commit further crimes, it is obviously desira-
ble for him to be granted bail as soon as possible, even if a magistrate is not immediately
available to hear his application for bail.
Hence section 132 of the Criminal Procedure and Evidence Act states that a police officer
of or above the rank of Assistant Inspector, or a police officer in charge of a police station,
can grant an arrested suspect bail if no judicial officer is available, so long as the suspect is
not charged with a crime specified in the Fifth Schedule to the Act, namely:
• Murder
• Rape or aggravated indecent assault
• Robbery
• Assault in which a dangerous injury is inflicted
• Malicious damage to property committed in aggravating circumstances as provided in
section 143 of the Criminal Law Code (i.e. if it is committed with fire or explosives, or
causes considerable loss, or is committed against State property).
• Unlawful entry into premises committed in aggravating circumstances as provided in
section 131 (2) of the Criminal Law Code (i.e. if the accused entered a dwelling, or used
violence, or committed some other crime — e.g. theft)
• Theft, making off without payment, receiving any stolen property knowing it to have
been stolen, fraud or forgery, if the amount or value involved in any such crime exceeds
five hundred thousand dollars.
• Stock theft.
• Any crime under any enactment relating to the unlawful possession of, or dealing in,
precious metals or precious stones.
• Any crime relating to the coinage or banknotes.
• Contravening section 20, 21, 22, 23, 24, 25, 26, 27 or 29 of the Criminal Law Code (i.e.
treason, subverting constitutional government or crimes involving insurgency, banditry,
sabotage or terrorism).
• A conspiracy, incitement or attempt to commit any of the above crimes
Although section 132 of the Act does not say so expressly, a police officer cannot grant bail
after the accused person’s first appearance in court; this limitation is essential to ensure
that courts remain in direct and exclusive control over release on bail once the case is on the
court roll.
Police officers should be prepared to grant bail in proper cases.61 As stated by Reid Row-
land Criminal Procedure in Zimbabwe p. 6-3:
“[S]ince the Act gives the authority to police officers to grant bail, they should not shirk their
responsibility for deciding the question of bail on the pretext that a judicial officer will be
available at some time in the future. Nor should a police officer take the line that he is not

60
Bull v Minister of Home Affairs 1986 (3) SA 870 (ZH) at 871E.
61
Coetzee v National Commissioner of Police & Ors 2011 (2) SA 227 (GNP) at 239.

80
 qualified to decide such matters. By virtue of his rank or appointment, he is qualified. If the
accused requests bail and the offence is one in respect of which a police officer may grant
bail, the police officer should give proper consideration to the request.”
It has been suggested that an action for damages will lie against a police officer who refuses
police bail on malicious grounds, or where a properly authorised police officer has simply
refused to exercise his discretion.62
A police officer may accept a deposit of bail money; he has no power to accept sureties.

62
Shaw v Collins (1883) 2 SC 389, cited in Geldenhuys & Joubert Criminal Procedure Handbook 10th ed
p. 169.

81
 6. SEARCH AND SEIZURE
An important power given to the Police is that of search and entry of premises and the sei-
zure of articles required for a trial.
All searches are prima facie unlawful and the onus is on the person conducting the search
to justify it.1

Search of a Person on Arrest

As indicated above, a peace officer or private person making an arrest may search the ar-
rested person and, if he does so, must keep in safe custody all articles found as a result of
the search.2 If the person making the arrest is not a police officer, he must deliver the arti-
cles to a police officer.3
A police officer to whom articles are delivered must provide a full receipt for the articles;
failure to do so entitles the owner of the articles to have them returned to him or her unless
they are articles whose possession is intrinsically unlawful (e.g. dangerous drugs).4
If a woman is searched, the search must be made by a medical practitioner or by a woman
and must be made with strict regard to decency.5 So, indeed, must any search.6

Search With and Without Warrant

Like arrests, searches can be effected with or without a warrant. Unlike the case of arrests,
however, the law encourages the police to conduct searches with a warrant rather than
without.

Search and seizure of articles with warrant

What may be seized
Certain articles7 may be seized by virtue of a search warrant in terms of section 49 of the
Criminal Procedure and Evidence Act. These articles are8:
• articles concerned in or on reasonable grounds believed to be concerned in the commis-
sion or suspected commission of a crime in Zimbabwe or elsewhere;9
• articles which it is on reasonable grounds believed may afford evidence of the commis-
sion of a crime in Zimbabwe or elsewhere; 10

1
S v Pogrund 1974 (1) SA 244 (T) at 247.
2
Sections 41(2) and 49 of the Criminal Procedure and Evidence Act.
3
Section 52(1) of the Criminal Procedure and Evidence Act.
4
Section 52(2) of the Criminal Procedure and Evidence Act.
5
Section 41(4) of the Criminal Procedure and Evidence Act.
6
Section 57 of the Criminal Procedure and Evidence Act.
7
This term is defined widely in section 47 of the Criminal Procedure and Evidence Act as including docu-
ments and substances.
8
Section 49 of the Criminal Procedure and Evidence Act.
9
There is no requirement that the owner of the articles must be the perpetrator of the crime; he or she may be
a victim.
10
Section 49(b) of the Criminal Procedure and Evidence Act.

82
• articles which are intended or on reasonable grounds are believed to be intended to be
used in the commission of a crime.
Other statutes (in particular the Customs and Excise Act, the Dangerous Drugs Act, the
Medicines and Allied Substances (Control) Act and the Precious Stones Trade Act) allow
other articles to be seized.
Documents which are privileged, e.g. documents that record communications between a
lawyer and his client, may not be seized.11 Such documents may not be handed over with-
out the consent of the client. If the State were able to seize such documents the whole ob-
ject of privilege would be defeated.12
Issue of search warrant
A search warrant may be issued before trial by a magistrate or justice of the peace (other
than a justice of the peace who is a police officer). 13 A judge has no power to issue a
search warrant, except during the course of a criminal trial. Information must be given on
oath, and the information must give the magistrate or justice reasonable grounds for believ-
ing that an article which may be seized is in the possession of or under the control of a per-
son, or on or in property, within the area of jurisdiction of the magistrate or justice. Note
that, unlike a warrant of arrest, it is not enough for the applicant to say that he has reasona-
ble grounds for such a belief: he must communicate that belief to the magistrate or jus-
tice.14
A judge or magistrate may issue a search warrant during trial if he considers that an article
that may be seized is required in evidence in the proceedings. There is no need for infor-
mation to be given on oath before such a warrant is issued, nor need the article be within
the magistrate’s area of jurisdiction.15
Anyone may apply for a search warrant, though normally only police officers do so. 16
Form of and requirements for search warrant
A search warrant requires a police officer (not a peace officer) to seize the property named
or identified in the warrant. The police officer has no discretion in the matter; he must ex-
ecute the warrant. The warrant authorises the police officer to search any person identified
in the warrant or to enter and search premises identified in the warrant or within an area
identified in the warrant, and to search any person found there.17
A search warrant must:

11
The South African case of Andresen v Minister of Justice 1954 (2) SA 473 (W), which held that privileged
documents could be seized, was probably wrongly decided. See Sasol III (Edms) Bpk v Minister van Wet en
Orde & Anor 1991 (3) SA 766 (T) and Jeeva & Ors v Receiver of Revenue, Port Elizabeth, & Ors 1995 (2)
SA 433 (SE) at 452 and the cases there cited.
12
Cf Prinsloo v Newman 1975 (1) SA 481 (A) at 493F-G.
13
Section 50(1) of the Criminal Procedure and Evidence Act.
14
See section 50 of the Criminal Procedure and Evidence Act.
15
Section 50(1)(b) of the Criminal Procedure and Evidence Act.
16
The Anti-Corruption Commission is given power by paragraph 2 of the Schedule to the Anti-Corruption
Commission Act [Chapter 9:22] to obtain search warrants from magistrates or justices. It is submitted that
this does not give the Commission or its officers power to execute search warrants (i.e. to search premises or
persons in terms of these warrants); only police officers can do that.
17
Section 50(2) of the Criminal Procedure and Evidence Act.

83
• state whether it is to be executed by night (if that is the intention); otherwise it may be
executed only by day;18
• describe precisely the premises or persons to be searched – though the premises can be
described as being within an area identified in the warrant19;
• specifically state the articles to be searched for. If the warrant is phrased only in gen-
eral terms, it will be invalid.20
Generally, a search warrant must be sufficiently precise as to lead to the correct identifica-
tion of the property, persons and premises to be searched and to preclude the possibility of
the wrong property being seized or the wrong person or premises being searched. It must
be reasonably intelligible to both the searcher and the searched person. Warrants that are
too vague or wide will be set aside wholly or in part.
Search warrants are to be interpreted reasonably strictly, to protect the individual against
excessive interference by the State.21
It is desirable, though not legally necessary, for a search warrant to have a preamble or re-
cital setting out the reason why the warrant is being issued and the statutory provisions au-
thorising its issue. A preamble:
“apprises the occupier whose premises are searched of the reason for the encroachment on his
rights and thus may tend to allay resentment and prevent obstruction of the police.”22
A preamble also, of course, apprises the police of the extent of their powers. If there is a
preamble which sets out statutory provisions, it should follow the wording of the statute
precisely.
A warrant should also specify the alleged crime that gives rise to its issue, and the alleged
offender; failure to do so will invalidate it.23
Execution of search warrant
A search warrant is “executed” when the search or seizure authorised by it is carried out. A
warrant must be executed by day unless the person issuing it authorises in writing its execu-
tion by night.24
If the person affected by the warrant so demands, the police officer executing the warrant
must, either before or after it is executed, hand him a copy of it. 25 Ideally, the warrant
should be shown to the person before the search, to allow him to obtain an interdict if the
search is unlawful; it should also be shown to the person whether or not he demands to see
it. Many people are unaware of their right to see the warrant and will not ask to see it.

18
Section 50(3)(b) of the Criminal Procedure and Evidence Act.
19
Section 50(2)(a) of the Criminal Procedure and Evidence Act.
20
Elliott v Commissioner of Police 1986 (1) ZLR 228 (H), where it was held that a warrant which authorised
the seizure of “subversive documents” was too vague.
21
Minister of Safety & Security v van der Merwe & Ors 2011 (5) SA 61 (CC) and NUSAS v Divisional Com-
missioner, S.A. Police 1971 (2) SA 553 (C).
22
Minister of Justice & Ors v Desai NO 1948 (3) SA 395 (A) at 405.
23
Minister of Safety & Security v van der Merwe & Ors 2011 (5) SA 61 (CC). The Criminal Procedure and
Evidence Act does not specifically require this, however.
24
Section 50(3)(b) of the Criminal Procedure and Evidence Act.
25
Section 50(4) of the Criminal Procedure and Evidence Act.

84
A police officer who seizes or removes articles under a search warrant must issue a receipt
for them and give it to their owner or possessor; a police officer who fails to do so is guilty
of a crime and liable to a fine of level 4 or up to three months’ imprisonment.26
A police officer may use such force as is reasonably necessary in order to overcome any
resistance against a search or entry of premises, and may break down a door or window to
effect entry. Before doing so, however, he must audibly demand admission to the premises
and state why he wants to enter them — unless he is reasonably of the opinion that to do so
will lead to the destruction or disposal of the article that is being searched for.27 The use of
force in such circumstances does not extend to the killing of persons who resist a search or
entry of premises.28

Search without warrant

Wherever possible, searches should be conducted in terms of a warrant, because the proce-
dure of obtaining a warrant serves to protect, to some extent, the rights of the individual.
The law does, however, permit searches to be conducted without a warrant in certain cir-
cumstances.
A police officer (not a peace officer) may search a person, container or premises for the
purpose of seizing an article referred to in section 49 of the Criminal Procedure and Evi-
dence Act (see above):
• with the consent of the person concerned;
• if the police officer believes on reasonable grounds that a search warrant would be is-
sued to him if he applied for one, and that delay in obtaining a warrant would prevent
the seizure of the article or defeat the object of the search.29
A police officer who conducts a search in the second of the above circumstances (i.e. with-
out consent) must, if asked by anyone whose rights are affected by the search, inform that
person of his or her name, rank and force number and of the reasons for carrying out the
search without a warrant. If the police officer fails to do so, he or she will be guilty of a
crime and liable to a fine of level 4 or up to three months’ imprisonment.30
A private person may not normally search people except as part of an arrest, but an occupi-
er of land may search any premises or person on the land if he reasonably suspects that sto-
len stock or produce, or illicit drink, drugs, firearms, ammunition or explosives are in the
premises or under the control of the person concerned.31 He may do so, however, only if a
police officer is not readily available.
Both police officers and private persons may search premises in order to find and arrest a
suspect whom they are authorised to arrest, if they know or suspect the person to be in the
premises.32
And a police officer investigating a crime may enter premises without a warrant for two
reasons. Firstly, to interrogate and take a statement from a person whom he reasonably

26
Section 49(2), (3) & (4) of the Criminal Procedure and Evidence Act.
27
Section 55 of the Criminal Procedure and Evidence Act.
28
See the earlier discussion of killing in order to effect an arrest.
29
Section 51(1) of the Criminal Procedure and Evidence Act.
30
Section 51(4) & (5) of the Criminal Procedure and Evidence Act.
31
Section 53 of the Criminal Procedure and Evidence Act.
32
Section 40 of the Criminal Procedure and Evidence Act.

85
suspects is on the premises and can give information about the crime.33 He may not, how-
ever, enter a dwelling for this purpose without the occupier’s consent. Secondly, a police
officer of or above the rank of inspector may enter premises to inspect books, documents or
records and may make copies of them.34 He may not, however, take possession of them
without a warrant. A police officer who exercises these powers must, on demand by any-
one whose rights are affected by the powers, inform the person of his or her name, rank and
force number and the reasons for exercising the powers. An officer who fails to do so is
guilty of a crime and liable to a fine of level 4 or imprisonment for up to three months.35
A police officer who seizes or removes articles following a search without a warrant must
issue a receipt for them and give it to their owner or possessor; a police officer who fails to
do so is guilty of a crime and liable to a fine of level 4 or up to three months’ imprison-
ment.36
Force may be used to effect a search without a warrant in the same circumstances and to the
same extent as in the case of search with a warrant.
What has been said above is laid down in the Criminal Procedure and Evidence Act [Chap-
ter 9:07]. Other statutes confer powers of search on particular officers, for example cus-
toms officers (the Customs and Excise Act), parks officers (the Parks and Wild Life Act)
and drugs inspectors (the Dangerous Drugs Act). This last Act – the Dangerous Drugs Act
– goes further and actually limits the power of police officers. Only police sergeants or
more senior officers may search persons and premises for dangerous drugs; police consta-
bles may do so only if authorised to do so in writing by a more senior officer.37

Effect of Unlawful Search

Evidence obtained as a result of an unlawful search is inadmissible if its admission would
render the trial unfair or would otherwise be detrimental to the administration of justice or
the public interest.38
In South Africa, where there is a similar constitutional provision,39 the courts have held that
where there has been a deliberate and conscious violation of constitutional rights by the
State or its agents, evidence obtained by such a violation should in general be excluded,
though there may be certain extraordinary excusing circumstances which may warrant its
admission.40 In Zimbabwe, however, section 258A of the Criminal Procedure and Evi-
dence Act [Chapter 9:07] seems to be an attempt to limit the application of section 70(3) of
our Constitution. It says that when deciding whether to exclude illegally-obtained evidence
a court must balance the rights of the accused and the need to protect the criminal justice
system against serious or persistent breaches of the law, on the one hand, and the public
interest in doing justice to victims and upholding public confidence in the effectiveness of
the system, on the other. The section goes on to say that it is only serious or persistent

33
Section 54(1) of the Criminal Procedure and Evidence Act.
34
Section 54(2) of the Criminal Procedure and Evidence Act.
35
Section 54(3) & (4) of the Criminal Procedure and Evidence Act.
36
Section 49(2), (3) & (4) of the Criminal Procedure and Evidence Act.
37
Section 14D of the Dangerous Drugs Act [Chapter 15:02].
38
Section 70(3) of the Constitution. Before the Constitution came into force such evidence was generally
admissible: R v Mabuya 1927 CPD 181.
39
Section 35(5) of the Constitution of South Africa.
40
S v Motloutsi 1996 (1) SA 584 (C), following the Irish case of People (Attorney-General) v O’Brien [1965]
IR 142.

86
breaches of substantive rather than procedural rights41 that will justify the interests of the
accused prevailing over the public interest in doing justice to victims and upholding public
confidence in the justice system; and similarly, only compelling reasons will justify the
accused’s interests prevailing over the public interest. The section says further that if a
court admits illegally-obtained evidence after balancing those considerations the trial must
not be regarded as unfair. Even though the section can only apply where a court balances
the considerations correctly, the section is still unconstitutional because it is not for Parlia-
ment to dictate whether or not a trial is unfair: that is for the courts to decide in each par-
ticular case.
It is not clear if a person is entitled to resist an unlawful search in the same way that he can
forcibly resist a wrongful arrest. He probably can do so if he believes on reasonable
grounds that the search is a violation of his right to privacy.

Subsequent Disposal of Seized Articles

According to section 58 of the Criminal Procedure and Evidence Act [Chapter 9:07], a po-
lice officer who seizes articles, or who receives seized articles from someone other than a
police officer who has seized them, must take them to a place of security under the control
of a police officer and enter in an inventory their particulars and particulars of how they
were seized. The articles must be kept safe in that secure place until criminal proceedings
relating to the article have been concluded or abandoned or discontinued. If the accused
person has not been convicted in those proceedings then the articles must be returned to
their owner unless they are articles whose possession is intrinsically unlawful.
If articles whose possession is intrinsically unlawful have been seized by a police officer,
he or she must as soon as possible notify the police officer in command of the police dis-
trict where the articles are being held.42
If an article is perishable or hazardous to health, the police officer may either return it to its
owner or the person to whom a receipt was given, or dispose of it or destroy it in such man-
ner as the circumstances may require after giving its owner or possessor at least 14 days’
notice of the disposal or destruction.43 If the owner or possessor objects, the police office
must get a warrant of destruction or disposal from a magistrate or from a justice of the
peace who is not a police officer. 44
If an article is stolen or suspected of being stolen, a police officer may, with the consent of
the person from whom it was seized,45 deliver it to the person from whom the officer be-
lieves it was stolen, to be held pending the trial.46
If no prosecution is initiated47 within 21 days after an article was seized, then the article
must be returned to the place from which it was taken unless it is an article whose posses-
sion is intrinsically unlawful. If its return is impracticable, the person concerned must be

41
It is not all clear what the distinction between these rights is, or why the breach of “procedural rights”
should never be allowed to justify a court refusing to admit illegally-obtained evidence.
42
Section 63A(1) of the Criminal Procedure and Evidence Act.
43
Section 58(3) of the Criminal Procedure and Evidence Act.
44
Section 58(5) of the Criminal Procedure and Evidence Act.
45
The person’s consent is necessary in case his rights are prejudiced by handing the property to the original
owner.
46
Section 58(2) of the Criminal Procedure and Evidence Act.
47
i.e. if no summons is issued or statement of charge lodged or indictment served (section 58A(1) of the
Criminal Procedure and Evidence Act).

87
notified that he or she can collect it from the police. If, however, within 72 hours before the
21-day period expires, the person is served with a notice of continued retention and either
he or she does not object or his or her objections are rejected by a magistrate or justice of
the peace (other than a police officer) then the police may continue to keep the article until
criminal proceedings have been concluded, abandoned or discontinued.48
Section 59 of the Criminal Procedure and Evidence Act says that if no criminal proceedings
are instituted, or the seized article is not required at the trial, or the accused person admits
guilt and pays a deposit fine, then the article must be returned to the person from whom it
was seized (if he may lawfully possess it); or if he is not allowed to possess it, to the per-
son who may; or if no one may lawfully possess it or the police officer knows of no one
who may, then it is forfeited to the State.49 The police must send a registered letter notify-
ing the person who may lawfully possess the article that he may collect it, and if he fails to
do so within three months it is forfeited to the State.50
At the conclusion of criminal proceedings, the judge or magistrate may order that any arti-
cle seized under the above provisions be returned to the person from whom it was taken, if
that person may lawfully possess it; or that it be returned to anyone else who is lawfully
entitled to it, if that person may lawfully possess it; or if no one is entitled to possess it,
that it should be forfeited to the State.51 The mere fact that the accused is acquitted does
not mean that he is automatically entitled to have the article returned to him. 52 And a com-
plainant is not entitled to be awarded goods purchased with stolen money — the goods are
the property of the accused.53
Articles whose possession is intrinsically unlawful – for example, dangerous drugs – are
destroyed or disposed of in terms of section 63A of the Criminal Procedure and Evidence
Act [Chapter 9:07]. This is done in the presence of the Prosecutor-General or his or her
representative, as well as representatives of any agency with statutory responsibility for the
article (for example, in the case of rhino horns, the Parks and Wild Life Management Au-
thority).
Where an article has been forfeited to the State under section 59, a person claiming that it
was his property may apply to a magistrate, within three years, for its return. The magis-
trate may order the police to return the article or, if it has been disposed of, may order that
the applicant be paid adequate compensation.54 The applicant may, however, be ordered to
pay the police their costs incurred in keeping the article if the applicant was unduly dilatory
or negligent in reclaiming it.55

48
Section 58A of the Criminal Procedure and Evidence Act.
49
Section 59(1) of the Criminal Procedure and Evidence Act.
50
Section 59(2) of the Criminal Procedure and Evidence Act.
51
Section 61(1) of the Criminal Procedure and Evidence Act.
52
Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 p. 165 and the cases there cited.
53
R v Munene 1956 R & N 432 (SR).
54
Section 59(3) of the Criminal Procedure and Evidence Act.
55
Section 59(6) of the Criminal Procedure and Evidence Act.

88
 7. JUDICIAL OFFICERS
Judicial officer’s conduct
Once the accused has pleaded and the trial proceeds, the conduct of the trial is managed by
the presiding judge or magistrate in accordance with procedural rules laid down in the
Criminal Procedure and Evidence Act. All orders given by him for the proper conduct of
the trial must be obeyed by the parties, the court staff and the public.
A trial must be conducted fairly:
“A long line of cases shows that it is not merely of some importance, but of fundamental im-
portance, that justice should both be done and be manifestly seen to be done … The rule is
that nothing is to be done which creates even a suspicion that there has been an improper in-
terference with the course of justice.”1
So a judicial officer must be fair, objective and impartial, and must avoid any conduct that
may create the impression that he is biased either for or against the accused. He must be
honest and upright, patient and understanding. He must be prompt and businesslike in the
performance of his duties. He must apply the law as it is, not as he thinks it ought to be.
He must avoid extravagant and emotional language while on the bench. 2 He must ensure
that witnesses and accused persons are treated courteously by the court, the defence and the
prosecution.3
It is desirable for a judicial officer to avoid communicating with either party to a case ex-
cept in the presence of the other4 but it is not really possible in a magistrates court where
magistrates and prosecutors must meet to arrange the court’s schedule and to discuss other
administrative matters. When they do meet outside the courtroom, however, they must
never discuss the merits of any case except in the presence of the accused or his representa-
tive.

Questioning of witnesses
There is a fine line between asking necessary questions of witnesses (including the accused
when he gives evidence) and “descending into the arena”. Sometimes the judicial officer
will need to question witnesses in order to clarify a particular point in the interests of jus-
tice, or to assist an unrepresented accused put a question clearly, but generally he should
leave the questioning to the parties. Lengthy questioning of a witness is undesirable, par-
ticularly if it gives the impression that the judicial officer is favouring one side rather than

1
Lord Hewart in The King v Sussex Justices [1924] 1 KB 256 at 259, cited in Geldenhuys & Joubert Criminal
Procedure Handbook 10th ed p. 228.
2
For a full discussion of the necessary attributes of a judicial officer, see “Attributes, Attitudes and Com-
portment of Judicial Officers” by Gubbay JA (as he then was) in Legal Forum (1988) vol 1 no. 1 p. 3; see
also Reid Rowland Criminal Procedure in Zimbabwe p. 16–4.
3
For an example of how a judicial officer should not conduct a trial, see Jesse v Pratt & Anor 2001 (1) ZLR
48 (H). That case also illustrates the point that sometimes, where a magistrate has conducted a trial in a bi-
ased fashion, the appropriate remedy is not just a setting aside of the proceedings but an order staying any
future prosecution.
4
R v Maharaj 1960 (4) SA 256 (N).

89
the other 5, and he should avoid intimidating or disconcerting a witness by his questions or
influencing the witness’s replies.6

Calling of evidence
The court has a general power to call witnesses in a criminal case7 Essentially the court can
and should call a witness if it considers that to do so will help it reach a just decision, 8 but
this power should be exercised sparingly. It is not the court’s function to build up a case
which the prosecution has failed to establish or to rebuild the defence case. 9 Only in excep-
tional circumstances should the court call a witness in a defended case, but if there is a con-
flict in the evidence which can be resolved by a witness who has not been called, the court
should call that witness.10

Assistance to undefended accused persons

A judicial officer must assist an unrepresented accused so far as is necessary to ensure that
justice is done, because such accused persons are often at a considerable disadvantage vis-
à-vis the prosecutor. The judicial officer must not assume the role of defence lawyer or at-
tempt to conduct the defence; he must, however, ensure that points which are pertinent to
the defence case are brought out.
As part of this duty, the judicial officer should explain to the accused:
• the charge, so that he understands the case he has to meet;11
• the accused’s right to legal representation and, where appropriate, to legal aid if sub-
stantial injustice would result from the accused not being represented;12
• any special onus that is cast on the accused, e.g. any presumptions that he has to rebut;13
• any mandatory minimum sentence to which the accused is liable, and (where appropri-
ate) the nature of any special circumstances that may allow the accused to escape the
mandatory sentence;14
• at the end of the State case, the courses open to the accused and the effect of taking
those courses.15
Generally, the court should ensure that an undefended accused is informed of his rights and
of the options open to him at all stages of the trial:
“The right to a fair trial demands that there should be informed participation by the unrepre-
sented accused. A court is therefore required to explain all procedural rights and options to an

5
S v Magoge 1988 (1) ZLR 163 (S).
6
S v Mangezi 1985 (1) ZLR 272 (S).
7
Section 232 of the Criminal Procedure and Evidence Act.
8
R v Green 1936 SR 181.
9
S v Nyamaro & Anor 1987 (2) ZLR 222 (S) at 229-230.
10
S v Buitendag 1976 (1) RLR 345 (A).
11
Section 70(1)(b) of the Constitution.
12
Section 70(1)(d) & (e) of the Constitution. Under section 163A of the Criminal Procedure and Evidence
Act, accused persons in the magistrates court must be informed of his right to legal or other representation.
13
R v Lebang 1965 RLR 169 (G).
14
S v Chaerera 1988 (2) ZLR 226 (S) at 229.
15
S v M & Ors 1975 (2) RLR 270 (A).

90
 unrepresented accused — and to do so at every critical stage. The fact that the accused’s
rights have been explained should be properly recorded.”16
The court should allow an undefended accused considerable latitude in cross-examination
and should avoid cutting the accused short.

Protecting witnesses
A judicial officer should protect witnesses, including the accused, from offensive or op-
pressive questioning by legal practitioners on either side, and must stop practitioners if they
exceed the bounds of propriety or courtesy.17

Recusal of judicial officer

To recuse oneself means to remove oneself as a judicial officer from a particular case be-
cause of actual or potential bias, prejudice or conflict of interest.18
A judge or magistrate must not sit in a case where he or she may not be able to administer
justice impartially, either on the ground of hostility or interest. The principle involved is
that no reasonable person should have grounds for suspecting that justice will not be admin-
istered in an impartial and unbiased manner.19 It is an objective test, i.e. whether the judi-
cial officer’s conduct leaves a right-thinking observer or litigant with the impression that
the accused would not or did not receive a fair trial.20 The fact that the judicial officer is in
fact impartial is not the test: it is the reasonable perception of the parties, or the right-
thinking observer, that is important.21
The general approach to an application for recusal was laid down by the South African
Constitutional Court as follows:
“The question is whether a reasonable, objective and informed person would on the correct facts
reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the
adjudication of the case, that is a mind open to persuasion by the evidence and the submissions
of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of
office taken by the Judges to administer justice without fear or favour; and their ability to carry
out that oath by reason of their training and experience. It must be assumed that they can disa-
buse their minds of any irrelevant personal beliefs or predispositions. They must take into ac-
count the fact that they have a duty to sit in any case in which they are not obliged to recuse
themselves. At the same time, it must never be forgotten that an impartial Judge is a funda-
mental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or
himself if there are reasonable grounds on the part of a litigant for apprehending that the judi-
cial officer, for whatever reasons, was not or will not be impartial.”22
In a later case, the South African Constitutional Court reiterated the following rule of prac-
tice which, the court said, had become established for a long time:
“The question which a judicial officer should subjectively ask himself or herself, therefore, is
whether, having regard to his or her … interest in … proceedings, he or she can bring the nec-
essary judicial dispassion to the issues in the case. If the answer to this question is in the nega-

16
Geldenhuys & Joubert Criminal Procedure Handbook 10th ed page 283.
17
S v Jakarasi 1983 (1) ZLR 218 (S) at 225; Jesse v Pratt & Anor 2001 (1) ZLR 48 (H).
18
Cf the definition in Black’s Law Dictionary (4th pocket edition).
19
S v Herbst 1980 (3) SA 1026 (E) at 1029.
20
S v Mutizwa 2006 (1) ZLR 78 (H) at 81.
21
S v Malindi 1990 (1) SA 962 (A) at 969G, cited in S v Mutizwa 2006 (1) ZLR 78 (H) at 83-4.
22
President of RSA v SA Rugby Football Union 1999 (4) SA 147 (CC) at 177B-E.

91
 tive, the judicial officer must, of his or her own accord, recuse himself or herself. If, on the
other hand, the answer to this question is in the affirmative, the second question to ask is
whether there is any basis for a reasonable apprehension of bias on the part of the parties … If
the answer to this question is in the affirmative, the judicial officer must disclose his or her in-
terest in the case, no matter how small or trivial that interest may be. And, in the event of any
doubt, a judicial officer should err in favour of disclosure.”23
Grounds justifying recusal include the following:
• Where the judicial officer is related to or is friendly with or hostile to the accused or to
a principal witness for the prosecution.24
• Where the judicial officer has an interest in the outcome of the case. The interest must
not be so slight, however, that it would be unreasonable to suppose that it could have
any effect on the judicial officer’s mind.
• Where the judicial officer’s personal feelings in regard to the case, or any issue arising
in the case, would make it impossible for him or her to act in an impartial manner.
• Generally, where there is a reasonable suspicion of bias.
Examples of cases where a judicial officer should recuse himself or herself are:
• Where the judicial officer, prior to his or her appointment, was a prosecutor concerned
with the merits of the case.25
• Where the judicial officer has actual knowledge of many of the facts that will be in dis-
pute in the case, e.g. where he or she has tried and sentenced one of two joint accused
whose trials have been separated.26
• Where the judicial officer knows that the accused has relevant previous convictions —
though such knowledge will not invariably disqualify the judicial officer from trying the
case.27
• Where a magistrate presides over a case in which a fellow-magistrate from the same
province is the accused.28
An application for recusal may be made by any party to the proceedings, but where possible
it should be made at the commencement of the proceedings to avoid the inconvenience of
stopping the trial and starting it again de novo before another judicial officer. It is improper
for a legal practitioner who knows of a ground on which an application for recusal should
be made, to refrain from making the application in order to keep it in reserve, as it were, in
order to use it as a ground of appeal if the accused is convicted. 29 An application for
recusal must be made respectfully and tactfully, and where possible the judicial officer
should be approached in chambers (by both parties) and informed of the application and the

23
Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) at 111A-C.
24
Feltoe Criminal Defenders Handbook (revised ed 2008) p. 71.
25
Levy v Additional Magistrate, Rustenburg 1925 TPD 316, and S v Geldenhuys 1978 (2) PH H127.
26
S v Batata 1965 (1) PH H50 (E).
27
Khan v Koch 1970 (1) RLR 59 (G).
28
SA Motor Acceptance Corp v Oberholzer 1974 (4) SA 808 (T).
29
Bernert v ABSA Bank Ltd 2011 (3) SA 92 (CC) at 114C. In English law the rule is the same (Locabail (UK)
Ltd v Bayfiled Properties Ltd [2000] 1 All ER 65 (CA) (cited in Bernert’s case) but is based on waiver rather
than the interests of justice.

92
grounds for it before it is made in open court.30 The applicant must show a reasonable fear,
based on objective grounds, that the trial will not be impartial.31
While judicial officers must recuse themselves when there are proper grounds for doing so,
they must remember that their duty to sit in cases where they are not disqualified from do-
ing so is just as compelling as their duty not to sit when disqualified.32
When a judicial officer recuses himself or herself, he or she becomes functus officio. If the
recusal occurs after the trial has commenced, the trial becomes void. The recusal in itself
shows that the court was not competent to hear the case. A new trial may therefore be insti-
tuted.33 Obviously, if the judicial officer recuses himself or herself before the trial has
started, the trial will simply proceed before another judicial officer.
A failure by a judicial officer to recuse himself or herself when he or she ought to have
done so is a ground for having the proceedings set aside on review.

Incapacity of judge or magistrate

This has been touched on earlier under Pleas. If after the accused has pleaded and evidence
has been led, the presiding judicial officer dies or is incapacitated (other than temporarily),
the proceedings are regarded as a nullity and the accused may be tried again. It is not per-
missible for another judicial officer to continue the trial where the former officer left off. If
the judicial officer retires or resigns, the proceedings are abortive and lapse without their
having to be set aside — though in terms of sec 186(4) of the Constitution a judge who re-
tires may complete proceedings that were begun by him or her.
If a magistrate becomes ill and is unlikely to be able to continue a trial for a considerable
period, the proceedings can be set aside on review so that they can be commenced afresh
before another magistrate.34

30
Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR
226 (H).
31
Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H).
32
Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Co (Pvt) Ltd 2001 (1) ZLR
226 (H).
33
Zackey v Magistrate of Benoni 1957 (3) SA 12 (T); Magubane v Van der Merwe NO 1969 (2) SA 417 (N).
34
S v Makoni & Ors 1975 (2) RLR 75 (G).

93
 8. PROSECUTORS
Public prosecutions (“prosecutions at the public instance”)
Almost all prosecutions in Zimbabwe are conducted by officers of the National Prosecuting
Authority on behalf of State (i.e. the Government). Such prosecutions are sometimes called
“prosecutions at the public instance”. Section 263 envisages an Act of Parliament confer-
ring prosecuting powers on other bodies, but to date no such Act has done so (apart from
private prosecutions, which will be dealt with later).
All public prosecutions are instituted in the name of the State1

The National Prosecuting Authority and the Prosecutor-General

In terms of section 258 of the Constitution, the National Prosecuting Authority, headed by
the Prosecutor-General, is responsible for instituting and undertaking criminal prosecutions
on behalf of the State. Prosecutors who make up the staff of the Authority are to be ap-
pointed by a board established under the National Prosecuting Authority Act [Chapter
7:20]. Professional members of the NPA must be qualified to practise law in Zimbabwe,
i.e. they must be registered legal practitioners.2 The Prosecutor-General is declared by sec-
tion 260 of the Constitution to be independent and impartial, and his staff must exercise
their functions in a non-partisan manner.3
The Criminal Procedure and Evidence Act elaborates on the functions of prosecutors. Un-
der the Act, the Prosecutor-General may:
• delegate his functions to any public prosecutor or legal practitioner;4
• stop prosecutions (but probably not private prosecutions), in which event the accused
person is entitled to an acquittal if he has already pleaded, but not if he has not plead-
ed;5
• take over the prosecution of cases which have been instituted by a private prosecutor;6
• issue a warrant ordering the liberation from custody of a person whom he has decided
not to prosecute.7
The Prosecutor-General has power to direct the Commissioner-General of Police to investi-
gate crimes, 8 but neither he nor his staff plays any direct part in such investigations.
The Prosecutor-General is appointed by the President on the advice of the Judicial Service
Commission, following the procedure for the appointment of a judge (i.e. public interviews
to select suitable candidates).9 His security of tenure is the same as that of a judge — i.e.

1
Section 5 of the Criminal Procedure and Evidence Act.
2
Section 9 of the National Prosecuting Authority Act.
3
Section 261 of the Constitution.
4
Section 5 of the Criminal Procedure and Evidence Act.
5
Section 8 of the Criminal Procedure and Evidence Act.
6
Section 20 of the Criminal Procedure and Evidence Act.
7
Section 10 of the Criminal Procedure and Evidence Act.
8
Section 259(11) of the Constitution.
9
Section 259(3) of the Constitution.

94
he cannot be removed from office except for misconduct and after a tribunal has recom-
mended his removal.10
In the exercise of his prosecutorial functions, he is not subject to the direction or control of
anyone.11 Hence a court will not normally comment on the exercise of the Prosecutor-
General’s discretion to prosecute a case, and has no power to interdict (i.e. prevent) the
Prosecutor-General from doing so or, by order, compel him to do so.12 On the other hand,
there is South African authority to the effect that a court can intervene when the Prosecutor-
General’s discretion is improperly exercised, and the same would probably apply in Zim-
babwe.13

Other law officers

The National Prosecuting Authority Act [Chapter 7:20] provides for the appointment of a
National Director of Public Prosecutions and other professional staff of the National Prose-
cuting Authority, who must possess legal qualifications entitling them to practise in all
courts in Zimbabwe.14 The Prosecutor-General can delegate his or her functions to the Na-
tional Director of Public Prosecutions and other professional staff members of the Authori-
ty.15
In magistrates courts, prosecutions are conducted by public prosecutors as representatives
of the Prosecutor-General.16 They are appointed by the Prosecutor-General in writing, and
this letter of appointment gives them their authority to prosecute, usually within a particular
magisterial province or regional division. Police officers have been appointed to conduct
prosecutions, particularly in smaller centres. This practice is unconstitutional.17

Independence of prosecutors
According to sections 260 and 261 of the Constitution, the Prosecutor-General is independ-
ent and he and all the other officers of the National Prosecuting Authority must exercise
their functions impartially and without political bias.
Is this a good idea? In some countries such as Italy and Ireland, prosecutors are completely
independent. In Zimbabwe, before the new constitution came into operation, the Attorney-
General (who was responsible for prosecutions) was not insulated from political pressure
since he was a member of Cabinet and Parliament.
To some extent this was justifiable, since a prosecutor occasionally has to take the public
interest into account in deciding whether or not to prosecute a case, but there is a growing
international consensus that in a democracy the decision whether or not to prosecute should

10
Section 259(7) of the Constitution.
11
Section 260(1) of the Constitution.
12
Allen v Attorney-General 1936 CPD 302 and Gillingham v Attorney-General 1909 TS 572, cited in
Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 62.
13
Highstead Entertainments (Pty) Ltd v Minister of Law and Order & Ors 1994 (1) SA 387 (C) and Ncube &
Ors v Attorney-General 2002 (2) ZLR 130 (H). Note, however, that the South African constitution does not
have a provision directly equivalent to section 260(1) of our Constitution.
14
Sections 8 and 9 of the Act.
15
Section 12 of the National Prosecuting Authority Act [Chapter 7:20] and section 5 of the Criminal Proce-
dure and Evidence Act.
16
Section 11 of the Criminal Procedure and Evidence Act.
17
Zimbabwe Law Officers Association & Anor v National Prosecuting Authority & Ors CCZ 1-2019. The
Court gave the NPA two years in which to “disengage” all police officers currently serving as prosecutors.

95
not be influenced by partisan political considerations or even suspected of being so influ-
enced. This is because instituting a prosecution adversely affects the accused person’s dig-
nity, status and reputation, and if the decision to prosecute is influenced by the dominant
political party prosecutions may be used to discredit political opponents. Even the percep-
tion that the decision to prosecute may be influenced by political considerations is enough
to discredit the prosecution process and hence to undermine public confidence in the law.
In some cases, for example where public security is involved or where public policy must
be taken into account, the decision to prosecute may legitimately be influenced by political
considerations, but if the rule of law is to be observed these considerations should be set out
in written guidelines for prosecutors and the final decision whether or not to prosecute must
be left to the independent judgement of the prosecutor.
Hence, in terms of section 260(2) of the Constitution and section 11A of the Criminal Pro-
cedure and Evidence Act [Chapter 9:07], the Prosecutor-General must formulate and pub-
lish the general principles by which he decides whether and how to institute and conduct
criminal proceedings. The Prosecutor-General has published these principles18, and we
shall consider them shortly when we deal with the decision to prosecute.

Duties of prosecutors
All prosecutors, whether legal practitioners or not, must dedicate themselves to the
achievement of justice, and must pursue that aim impartially. They must conduct the case
against the accused person with candour and absolute fairness. They have a special duty to
ensure that the truth emerges in the court, and must produce all relevant evidence and en-
sure, as best they can, the truth of that evidence. If they know of a point in favour of the
accused person, they must bring it out, and if they know of a credible witness who can
speak of facts which go to show the innocence of the accused, they must themselves call
that witness if the accused is unrepresented, and if the accused is represented, they must
tender the witness to the defence.19 If a State witness departs from his statement, the prose-
cutor must draw the court’s attention to the discrepancy or reveal the contradiction to the
defending practitioner.20
Disclosure of discrepancies in witnesses’ testimony
A prosecutor has a duty to disclose material inconsistencies between what a State witness
has said in court and what he told the police in his statement.21 If the accused is legally rep-
resented, the disclosure should be made to the defence counsel by making the statement
available to him; if not, the court should be informed about the discrepancy. Minor dis-
crepancies need not be disclosed, however, but if in doubt as to whether a discrepancy is
material or minor the prosecutor should disclose it.22
Another way to deal with discrepancies is by impeaching the witness’s credibility. This
involves confronting the witness with his previous statement. The procedure for doing this
will be set out later in these notes.

18
They are published in General Notice 247 of 2015.
19
S v Van Rensburg 1963 (2) SA 343 (N).
20
This paragraph is a summary of a passage from Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (S) at
549C-G. See also Jesse v Pratt & Anor 2001 (1) ZLR 48 (H) for an illustration of how a prosecutor should
not conduct himself.
21
S v Mutsinziri 1997 (1) ZLR 6 (H) and the cases there cited.
22
S v Mutsinziri supra

96
The decision to prosecute
The Prosecutor-General has a discretion whether or not to prosecute and, as already men-
tioned, in the exercise of that discretion he is not subject to interference from any other per-
son or authority though he is obliged to publish the principles on which he bases that dis-
cretion.23 But if he exercises his discretion mala fide or for an ulterior or improper motive,
or if he has not applied his mind to the matter or has disregarded the provisions of a statute,
in such a case his decision may be subject to review.24
In most cases, the decision whether or not to prosecute is taken by a public prosecutor on
behalf of the Prosecutor-General; and many cases are simply dropped by the police before
the accused is brought to court. But sensitive cases should be referred to the Prosecutor-
General for his decision.
In deciding whether or not to prosecute a particular case, the Prosecutor-General (or, where
the decision is taken by a public prosecutor, the public prosecutor) should take the follow-
ing considerations into account:25
• Prosecution is a way of enforcing the law, and if the law is not enforced it will fall into
disrepute. So generally speaking, if someone commits a crime he should be prosecuted
for it. This is a requirement of the rule of law, one of whose basic tenets is that in a
democratic State laws should be enforced and make no distinction between classes and
rank. Those who break the law should not be allowed to do so with impunity.
• Sufficiency of evidence: at the very least, a prima facie case (i.e. one in which, accord-
ing to the available evidence, the accused is apparently guilty of the crime charged)
should exist before it would be justifiable to prosecute the accused. The prosecutor
should ask if there is reasonable and probable cause for prosecution.26 The meaning of
“reasonable and probable cause” has been explained as follows:
“… an honest belief in the guilt of the accused based upon a full conviction founded upon rea-
sonable grounds of the existence of a state of circumstances which, assuming them to be true,
would reasonably lead any ordinarily prudent and cautious man placed in the position of the
accuser to the conclusion that the person charged was probably guilty of the crime imput-
ed.”27
• Whether the accused is able to rely on a special defence, for example a pardon, or dip-
lomatic immunity, or parliamentary immunity, or prescription of the crime (for all
crimes except murder the right to prosecute lapses after 20 years). Accomplices who
have given satisfactory evidence for the State are not liable to be prosecuted for the
crime about which they have given evidence.28

23
Section 260(1) & (2) of the Constitution. These principles have now been published in General Notice 247
of 2015.
24
Highstead Entertainment (Pty) Ltd v Minister of Law & Order 1994 (1) SA 387 (C) and Ncube & Ors v
Attorney-General 2002 (2) ZLR 130 (H); contra, see Central African Examiner (Pvt) Ltd v Howman & Ors
NNO 1966 RLR 75 (G) at 81-2 and S v Hamadziripi 1989 (2) ZLR 38 (H).
25
These considerations are a summary of those listed by Reid Rowland Criminal Procedure in Zimbabwe pp.
3-11-12.
26
In Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A), it was held that a prosecutor would have no
reasonable cause for prosecuting (and so would be liable to an action for malicious prosecution) if he did not
have such information as would lead a reasonable person to conclude that the accused had probably been
guilty of the crime charged.
27
Hicks v Faulkner (1878) 8 QBD 167 at 171, cited in Bande v Muchinguri 1999 (1) ZLR 476 (H) at 485C.
28
Section 267 of the Criminal Procedure and Evidence Act. The section is dealt with in more detail later un-
der Pleas.

97
• The triviality of the crime. Even where the maxim de minimis non curat lex does not
apply, the triviality of the crime may make a prosecution pointless. And where the con-
sequences of a prosecution to the accused would be out of all proportion to the gravity
of the crime, it is proper to decline to prosecute.
• The age of the accused person. If he is very old and infirm, little may be achieved by
prosecuting him; if, on the other hand, he is a juvenile it may be better to deal with him
in other ways.
• Mental illness or stress. If there is medical evidence that the accused is suffering from a
mental condition that would be seriously worsened by the strain of prosecution, it may
be a reason for declining to prosecute.
• The attitude of the complainant. This is important, though not decisive, since the deci-
sion to proceed with a criminal case vests in the police and the Prosecutor-General, not
the complainant. If the complainant does not wish to proceed with the case, the Prose-
cutor-General should pay due regard to his or her views, since the relationship between
the complainant and the accused may be such that prosecution would do more harm
than good.
• The fact that the accused has already been sufficiently punished. For example, it would
offend many people’s sensibilities if a person who had been badly injured in a traffic
accident caused by his negligence were to be prosecuted, where no one else was in-
jured.
• The need to use the accused as a witness against someone else.
• Whether any useful purpose will be served by prosecuting the accused. If prosecution
will serve no useful purpose then the Prosecutor-General should decline.29
• Finally, the public interest should be considered in appropriate cases.30
In deciding whether or not to prosecute, the police and prosecuting authorities should not
knowingly allow a pattern of contravention of a particular statute to develop and then, un-
expectedly, arrest and prosecute. This offends the principle of legality and is unfair. Sec-
ondly, they should not adopt a discriminatory approach and prosecute selectively, distin-
guishing unjustifiably between persons in similar circumstances.31
If a prosecutor doubts the strength of the State case, he should not invite the accused to pay
a deposit fine in the hope that the accused may pay the fine and relieve the State of the bur-
den of proving its case.32
If a decision is made not to prosecute a case, the charge should be withdrawn against the
accused as soon as possible, and if the accused is in custody he must be released “forth-
with”.33 If the charge is withdrawn before the accused has pleaded, it is possible to bring it
again; that is to say, the accused can be charged again with the same crime arising from the
same facts.34

29
S v Hamadziripi 1989 (2) ZLR 38 (H).
30
See the address given by Prof Jeffrey Jowell Q.C. to students at the University of Cape Town, 2010.
31
Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 54. See also S v Humbarume & Anor 2001
(2) ZLR 234 (H) at 238C.
32
S v Eusuf 1949 (1) SA 656 (N).
33
Section 321 of the Criminal Procedure and Evidence Act.
34
Section 320(3) of the Criminal Procedure and Evidence Act.

98
 Private prosecutions
Almost all prosecutions in Zimbabwe are brought by the State, but private persons are al-
lowed to prosecute crimes in limited circumstances. This provides a “safety valve” in the
machinery of the law, and is an indirect method of controlling corruption or incompetence
in the State’s prosecution services.35 Can companies and other corporate bodies bring pri-
vate prosecutions? The Supreme Court has held that a company can do so,36 but section
16(2)(a)(iii) of the Criminal Procedure and Evidence Act, as amended in 2016, suggests
that only individuals, i.e. human beings, can do so.37

Who may prosecute

In order to bring a prosecution, a private person must show:38
• some substantial and peculiar interest (i.e. an interest greater than that of any other
member of the public)39
• in the issue of the trial (i.e. in the conviction or acquittal of the alleged offender)
• arising out of some injury (which must be an actual, not an anticipated, injury but need
not be of a patrimonial nature. It must be an injury that would be civilly actionable.)40
• which he or she individually has suffered.
• in consequence of the commission of the crime. (there must be a causal connection be-
tween the injury suffered and the commission of the crime).41
The onus is on the private prosecutor to show compliance with these requirements.
Other persons may also bring private prosecutions:42
• husbands and wives may bring prosecutions for crimes committed against their spouses;
• guardians or curators of minors or mentally disordered or defective persons may bring
prosecutions for crimes against their wards;
• the surviving spouse or child or, failing them, the next of kin, of a deceased person may
bring a prosecution for a crime by which the person’s death was caused.

Procedure for instituting private prosecution

Before instituting a private prosecution, the prosecutor must obtain a certificate from the
Prosecutor-General stating that he declines to prosecute at the public instance. 43 This cer-

35
Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 57. For an outline of the history and pur-
pose of private prosecutions, see Black v Barclays Zimbabwe Nominees(Pvt) Ltd 1990 (1) SACR 433 (W).
36
Telecel (Zimbabwe) (Pvt) Ltd v Attorney-General S-1-2014, disapproving the South African case of Bar-
clays Zimbabwe Nominees (Pvt) Ltd v Black 1990 (4) SA 720 (A).
37
The provision is mentioned below; it states that the Prosecutor-General may issue a certificate of nolle
prosequi only if he is satisfied that the party who intends to institute a private prosecution “will conduct the
private prosecution as an individual (whether personally or through his or her legal practitioner) …”
38
Section 13 of the Criminal Procedure and Evidence Act.
39
Attorney-General v Van der Merwe & Bornman 1946 OPD 197.
40
See Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 p. 122; Ellis v Visser 1954 (2) SA 431
(T) and Levy v Benatar 1987 (1) ZLR 120 (S). For a contrary view, see Phillips v Botha 1995 (3) SA 948
(W), where the court held that fraudulently stopping cheques given in payment of a gambling debt (which was
not civilly enforceable) could be the subject of a private prosecution brought by the injured party.
41
Phillips v Botha 1995 (3) SA 948 (W)
42
Section 14 of the Criminal Procedure and Evidence Act.

99
tificate is called a nolle prosequi (“to decline to prosecute”). If the Prosecutor-General de-
clines to prosecute a case, he must issue a certificate to a person who wishes to institute a
private prosecution if the person produces a sworn statement from which it appears to the
Prosecutor-General that:
• the person is the victim of the alleged crime, or otherwise has personally suffered, as a
direct consequence of the crime, an invasion of a legal right beyond that suffered by the
public generally [this is essentially the same as saying the person must have “a substan-
tial and peculiar interest” in the outcome of the case], and
• the person has the means to conduct the private prosecution promptly and timeously,
and
• the person will conduct it as an individual or as representative of a class in terms of the
Class Actions Act [Chapter 8:17]. What this seems to mean is that bodies corporate
cannot be granted a certificate nolle prosequi.44
The Prosecutor-General can refuse to grant a certificate on the following grounds:45
• that the conduct complained of does not constitute a crime, or
• that there is no possibility, or only a remote one, of proving the charge against the ac-
cused, or
• whether the accused has adequate means to conduct a defence to the charge, where the
person would have qualified for legal aid if he had been prosecuted by the State, or46
• that it is not in the interests of national security or the public interest to grant the certifi-
cate.
These appear to be the only grounds on which the Prosecutor-General can refuse to issue a
certificate of nolle prosequi. The last ground – national security and public interest – is ex-
cessively wide.
If the accused person is already in prison or on bail, and a warrant for his liberation has
been issued by the Prosecutor-General under section 10 of the Criminal Procedure and Evi-
dence Act, the private prosecutor can apply to the High Court or a judge for a warrant for
the accused’s further detention. In such an event, a nolle prosequi is not required, because
the Prosecutor-General has already signified his intention not to proceed with the prosecu-
tion.
Normally, however, the accused would be brought to court by the issue of a summons, and
before a summons can be issued the private prosecutor must produce a nolle prosequi.47
A court may order a private prosecutor to give security for the accused person’s costs in the
event of an acquittal, and in that event no further steps can be taken in the prosecution until
the security has been given.48

43
Section 16 of the Criminal Procedure and Evidence Act.
44
Section 16(2) of the Criminal Procedure and Evidence Act. This is contrary to the Telecel case mentioned
in footnote 36 and may well be unconstitutional in that it denies corporate bodies the right of access to courts.
45
Section 16(3) of the Criminal Procedure and Evidence Act.
46
It is not clear what this provision (section 16(3)(c) of the Criminal Procedure and Evidence Act) is sup-
posed to mean. The accused’s ability to conduct a defence is not considered by the Prosecutor-General when
deciding whether or not to prosecute him at the public instance, so why should it be relevant in a private pros-
ecution?
47
Section 16 of the Criminal Procedure and Evidence Act.
48
Section 17 of the Criminal Procedure and Evidence Act.

100
If the private prosecutor does not appear on the day set down for the accused’s trial, the
court will dismiss the charge against the accused and proceedings may not be re-instituted
by any private party. But if the court has reason to believe that the private prosecutor’s ab-
sence was due to circumstances beyond his control, it may adjourn the case.49
The Prosecutor-General or a public prosecutor may intervene in a private prosecution by
taking over the case at any stage of the proceedings. This is done by applying to the court
for an order to stop all further proceedings in the private prosecution; the court must grant
such an order.50
The procedure at the trial of a private prosecution is the same as in a criminal trial at the
public instance, except that the indictment is in the name of the private prosecutor.
If the accused person is acquitted, the court may order the private prosecutor to pay the
whole or part of his expenses, and may award costs against the private prosecutor if it con-
siders the charge or complaint to have been unfounded and vexatious.51 On the other hand,
if the accused is convicted, the court may order him or the State to pay the prosecutor’s
costs and expenses.52

49
Section 18 of the Criminal Procedure and Evidence Act.
50
Section 20 of the Criminal Procedure and Evidence Act; Central African Examiner (Pvt) Ltd v Howman &
Ors NNO 1966 RLR 75 (G) at 82G-I.
51
Section 22 of the Criminal Procedure and Evidence Act.
52
Section 22 of the Criminal Procedure and Evidence Act.

101
 9. PROSECUTION OF COMPANIES AND ASSOCIATIONS
Criminal liability of corporate bodies and associations
Companies and other corporate bodies (e.g. parastatals) have legal personality separate
from that of their members, but they cannot act except through the agency of their directors
and employees. Partnerships and associations, similarly, can act only through their mem-
bers. If a director, employee or member acts unlawfully then the company, corporate body
or association on whose behalf the act was done may become criminally liable for the act.
This liability can arise in the following ways:
• In the case of a company or other corporate body, through vicarious liability or, more
broadly, through section 277 of the Criminal Law Code, which imposes liability on a
corporate body for any act performed:
o by a director or employee of the corporate body; or
o by anyone on the instructions of a director or employee of the corporate body;
or
o by anyone with express or implied permission given by a director or employee
of the corporate body.
But liability will attach only where the director, employee or authorised person 1 was
acting in the exercise of his powers or duties as such, or was furthering or trying to fur-
ther the interests of the corporate body.
• In the case of an unincorporated association, through section 277(4) of the Criminal
Law Code, which imposes liability on a member of the association (or, where there is a
managing committee, on a member of the committee) for criminal acts committed by
other members, where the member was acting in the exercise of their powers or duties
as such, or was furthering or trying to further the interests of the association. The
member can however escape liability if he or she can show that he or she did not take
part in the commission of the crime.
Conversely, directors or employees of a corporate body are personally liable for the crimes
of the corporate body (i.e. they can be charged personally for the crimes) unless they can
show on a balance of probabilities that they did not take part in the commission of the
crimes (sec 277(3) of the Criminal Law Code). It is very doubtful if sec 277(3) is constitu-
tional even though it should probably be construed so as to impose liability on only those
directors and employees who form part of the “directing mind” of the corporate body.2 In S
v Coetzee & Ors 1997 (3) SA 527 (CC), the South African Constitutional Court struck
down the SA equivalent of sec 277(3) of the Criminal Law Code, on the ground that by
making directors liable for their companies’ crimes it laid an unconstitutional onus on them
to prove that they took no part in the crime. Our Constitutional Court might well come to
the same conclusion.

1
i.e. a person who was acting on the instructions or with the express or implied permission of a director or
employee of the corporate body.
2
Tesco Supermarkets Ltd v Natrass [1971] 2 All ER 127 (HL). In the case of a company, the “directing
mind” would be the board of directors.

102
Note that the word “director” is given an extended meaning by section 277: it means any-
one who governs or controls the corporate body, whether lawfully or otherwise, or who is a
member of a committee that governs or controls it, whether lawfully or otherwise.

Charging corporate bodies and associations

Where a company or other corporate body is charged with a crime, a director or employee
must be cited as representative of the corporate body. If he is individually liable for the
crime, then he will be cited in his personal capacity as well. A director or employee who is
cited in his representative capacity may not be committed to prison pending trial, nor may
he be punished personally for the crime (and, of course, the corporate body cannot be sen-
tenced to imprisonment if it is convicted of the crime).3
In the case of an association, the charge will aver the commission of the crime by one
member and the vicarious liability of any other member who is being charged.

Evidence and presumptions

Proof of a body’s corporate nature
In the case of a company, proof of incorporation is provided by a certified copy of the com-
pany’s certificate of incorporation issued by the Registrar of Companies. This may be
handed in by the prosecutor.
Proof of the corporate status of a statutory body, including a local authority, is provided by
reference to the statute under which the body is incorporated (though such proof would sel-
dom if ever be needed because courts can take judicial notice of statutes4).
Evidence of the constitution of any other body would be needed to prove its corporate sta-
tus.

Presumptions
Documents and records that were made or kept by a director, employee or agent of a corpo-
rate body, or that were in the custody or under the control of a director, employee or agent,
are admissible in evidence against the corporate body. And if a record or document is
proved to have been at any time in the custody or under the control of a director, employee
or agent then it is presumed to have been made or kept by him within the scope of his activ-
ities as a director, employee or agent.5
Similar provisions exist for unincorporated associations: records kept by a member of such
an association within the scope of his duties as such, and documents that were at any time
in the custody or under the control of a member, are admissible in evidence against the ac-
cused member, and those records and documents are presumed to have been made or kept
within the scope of the member’s activities.6
As already indicated, section 277(3) of the Criminal Law Code states that where a corporate
body is liable for prosecution for a crime for any conduct, “that conduct shall be deemed to

3
Section 385(3), provisos (iii) and (iv), of the Criminal Procedure and Evidence Act. A director or employee
may be punished for failing to appear in court to answer the charge, even if he is cited only in his representa-
tive capacity, because he is being punished for his own default.
4
Section 32(1) of the Interpretation Act [Chapter 1:01].
5
Section 385(4) and (5) of the Criminal Procedure and Evidence Act.
6
Section 385(9) & (10) of the Criminal Procedure and Evidence Act.

103
have been the conduct of every person who at the time was a director or employee of the
corporate body” unless it is proved that he took no part in the conduct.
And section 277(4) of the Criminal Law Code has a similar deeming provision in regard to
members of unincorporated associations.

104
 10. MENTALLY DISORDERED ACCUSED PERSONS
Introduction1
Accused persons who are found to be mentally disordered or intellectually handicapped,
either when they committed the alleged crime or when they are to stand trial for a crime,
cannot be treated in the same way as persons who are sane, and generally speaking they
have to be dealt with under the Mental Health Act [Chapter 15:12].2
There are five situations in which the problem of dealing with mentally disordered or intel-
lectually handicapped persons may be encountered:
1. a person who appears to be mentally disordered is arrested by the police;
2. an accused person is awaiting trial and it appears to the authorities that he or she may be
mentally disordered or intellectually handicapped;
3. after a trial has begun, it appears to the court that the accused person is or may be men-
tally disordered or intellectually handicapped;
4. after an accused person has been convicted, it appears that the accused person may be
mentally disordered or intellectually handicapped;
5. evidence led at the trial shows that the accused person was mentally disordered or intel-
lectually handicapped at the time the crime was committed, though he is now sane.
Dealing with each in turn:

Police powers on arrest of mentally disordered or intellectually

handicapped person
If a person who appears to be mentally disordered or intellectually handicapped is arrested
for a petty crime such as shouting or screaming in a public place, a police officer can apply
to a magistrate for a reception order under section 4 of the Mental Health Act [Chapter
15:12]. The application must be accompanied by an affidavit in which the applicant states
that he or she believes the person concerned to be mentally disordered and the grounds for
that belief. A reception order is an order issued by a magistrate or a judge (usually a magis-
trate) and directing that the person in respect of whom it is issued should be removed to and
detained in an institution. On receipt of the application the magistrate must get the person
examined by two medical practitioners, one of whom should be a government medical
practitioner,3 and if the magistrate is satisfied from the certificates of the practitioners that
the person is mentally disordered or intellectually handicapped and a danger to himself or
others,4 the magistrate may issue a reception order committing the person to an institution.
Once a reception order is issued, the person is detained in the institution for up to six weeks
where he or she is examined and treated under the Mental Health Act [Chapter 15:12].5

1
What follows is based on Reid Rowland, Criminal Procedure in Zimbabwe, Chapter 12.
2
Section 192 of the Criminal Procedure and Evidence Act [Chapter 9:07].
3
Section 5 of the Mental Health Act [Chapter 15:12].
4
That is the usual ground; there are others set out in section 8 of the Mental Health Act, such as that the per-
son is addicted to drugs or alcohol, or is a psychopath, or is of no fixed abode.
5
Section 9 of the Act.

105
Alternatively, a police officer may make what is called an urgency application under sec-
tion 11 of the Mental Health Act [Chapter 15:12]. Under this procedure, the police officer
obtains a certificate from a medical practitioner or a psychiatric nurse practitioner indicat-
ing that the person is mentally disordered or intellectually handicapped and, on the basis of
that certificate and an affidavit from the applicant, the person is received into a “suitable
place” (usually a hospital or similar institution). The person in charge of the “suitable
place” must notify a magistrate within 24 hours of the person’s admission, and thereafter
the magistrate must proceed in the same way as if an application had been made for a re-
ception order.6
This procedure is particularly suitable for keeping mentally disordered people who commit
petty crimes out of the criminal courts. They can be given treatment rather than punish-
ment.

Mental illness disclosed before trial

If it appears to the Prosecutor-General, a public prosecutor or a person in charge of a prison
or a police lock-up that a person who is being detained there pending trial is mentally dis-
ordered or intellectually handicapped, he or she must report it to a magistrate of the prov-
ince where the person is being detained.7 If the trial has already begun, the report must be
made to the judge or magistrate presiding at the trial. There is no reason why such a report
should not be made by a defence lawyer, if he or she considers his or her detained client is
mentally disordered or intellectually handicapped.
A magistrate to whom such a report is made must, within 24 hours, direct two medical
practitioners (or one medical practitioner and a psychiatric nurse) to examine the accused
person and certify his or her mental state.8 In practice, the magistrate will ask the superin-
tendent of the prison where the person is detained to arrange for such examination. If the
accused person is on remand, the case will have to be remanded for long enough to allow
the examination to take place — but not for longer than two weeks at a time.
The magistrate will consider the medical certificates when they have been prepared and, if
he or she is satisfied that the accused person is mentally disordered or intellectually handi-
capped and would not be able to understand the nature of any criminal proceedings or to
conduct his defence properly, he must order the accused person to be detained in an institu-
tion (or in a special institution if the medical practitioners have certified that the accused is
a danger to others).9 If the accused person was being detained for a petty crime (i.e. if the
magistrate considers that he would not receive a sentence of imprisonment or a fine of more
than level 3) the magistrate must stay the criminal proceedings and either order the accused
person to submit himself to medical treatment or order the accused’s guardian or close rela-
tive to apply for the accused to be received into an institution for treatment as a civil pa-
tient.10
The concern at this stage is whether the accused person is so mentally disordered or intel-
lectually handicapped as to be unable to understand the nature of any criminal proceedings
or to conduct his defence. Note that amnesia in respect of the facts and circumstances of

6
Section 11(5) of the Mental Health Act [Chapter 15:12].
7
Section 27 of the Mental Health Act [Chapter 15:12].
8
Section 27 of the Mental Health Act [Chapter 15:12].
9
Section 27 of the Mental Health Act [Chapter 15:12].
10
Section 27(3)(a)(iii) of the Mental Health Act [Chapter 15:12].

106
the crime with which the accused is charged does not in itself render him unfit to stand tri-
al.11

Mental illness disclosed during trial

1. Mental disorder rendering accused unfit to stand trial
If, after a trial has commenced, the accused person appears to the presiding judge or magis-
trate to be mentally disordered or intellectually handicapped or if the judge or magistrate
receives a report to that effect from the prosecutor or the person in charge of the place
where the accused is detained, the judge or magistrate may adjourn the proceedings for up
to 14 days and remand the accused person in custody so that his mental condition may be
investigated.12 The judge or magistrate will direct two medical practitioners (or, if two are
not available, one medical practitioner and one psychiatric nurse) to examine the accused
and prepare certificates as to his mental state.
If, after considering the medical certificates and hearing any other evidence he or she con-
siders necessary, including oral evidence from the medical personnel, the judge or magis-
trate considers the accused person to be so mentally disordered or intellectually handi-
capped as to be unable to understand the nature of the proceedings or to conduct his de-
fence properly, he or she must record that fact, and then must do one or other of the follow-
ing:
• issue an order directing that the accused be removed to an institution and detained there;
• if the judge or magistrate considers that the accused would be a danger to others and a
medical certificate by a designated medical practitioner13 so recommends, order the ac-
cused to be detained in a special institution;
• If the judge or magistrate considers that the crime for which the accused person is being
charged will not result in imprisonment without the option of a fine or a fine of more
than level 3, order the proceedings to be stayed and either order the accused person to
submit himself to medical treatment or order the accused’s guardian or close relative to
apply for the accused to be received into an institution for treatment as a civil patient.14
Where a magistrate orders the detention of the accused, the order has the effect of a recep-
tion order and is subject to confirmation by a judge.15
If after considering the medical reports and other evidence the judge or magistrate is not
able to come to a conclusion about the accused person’s mental state, he or she may order
that the accused be removed to an institution for further examination, but in that event the
accused may not be detained for more than eight weeks. Alternatively he or she may order
the accused person’s release for the purpose of further examination.16

11
R v Njiri 1959 (2) R & N 241 (SR). Amnesia must, however, be taken into account by the trial court since
it may disadvantage the accused through depriving him of a possible defence (Ibid).
12
Section 28 of the Mental Health Act [Chapter 15:12].
13
That is, a practitioner whose name appears on a list of specialised practitioners prepared by the Secretary
for Health in terms of section 108 of the Mental Health Act [Chapter 15:12].
14
Section 28 of the Mental Health Act [Chapter 15:12].
15
Section 28(5) as read with section 18 of the Mental Health Act [Chapter 15:12].
16
Section 28(9) of the Mental Health Act [Chapter 15:12].

107
If the judge or magistrate finds that the accused person is mentally disordered or intellectu-
ally handicapped, the trial is held in abeyance until the accused recovers and he cannot de-
mand that he be either acquitted or convicted.17

2. Mental disorder not rendering accused unfit to stand trial

If medical evidence adduced in the circumstances outlined above shows that the accused
person, though mentally disordered or intellectually handicapped, is able to understand the
nature of the criminal proceedings and to conduct his defence properly, the trial will nor-
mally proceed. However, if the medical evidence from two medical practitioners, one of
whom is a designated practitioner, indicates that the accused is a danger to others, then spe-
cial procedures must be followed after the verdict in the trial.
• If the accused is acquitted or discharged, the court may immediately thereafter order
that he be returned to prison and subsequently detained in a special institution.18 If a
magistrate makes such an order, the accused cannot be detained for longer than eight
weeks, and the papers are sent to the Registrar of the High Court, via the Prosecutor-
General, for consideration of a judge who can order the accused’s continued detention
in the institution for an indefinite period.
• If the accused is convicted, the court may impose sentence in the ordinary way and, in
addition, order that the accused should be returned to prison and subsequently detained
in a special institution.19 If the sentence is one of imprisonment it will be served in the
special institution. A magistrate’s order that the accused should be detained in a special
institution is subject to review by a judge of the High Court 20, and such an order,
whether made by a magistrate or a judge, counts as a conviction for the purposes of an
appeal.21

Recovery of person found unfit to plead or stand trial

Upon the recovery of a person who is in an institution after an order under section 27 or 28
of the Mental Health Act [Chapter 15:12] (i.e. a person who has been detained in the insti-
tution after being found before or during trial to be mentally disordered), he or she must not
be released unless the Prosecutor-General has been given at least 14 days’ notice of the
proposed release.22 The Prosecutor-General will then decide whether or not to revive the
prosecution.

Mental illness becoming apparent after conviction

Where it becomes apparent after conviction in a magistrates court that the accused was
mentally disordered or intellectually handicapped, the High Court should set aside the ver-
dict on review and have the convicted person examined in terms of section 28 of the Mental
Health Act [Chapter 15:12]. After that, the magistrate would be free to deal with him un-
der section 28 of the Act (i.e. following the procedure as if the person had been found men-

17
Section 28(11) of the Mental Health Act [Chapter 15:12].
18
Section 38(2)(a) of the Mental Health Act [Chapter 15:12].
19
Section 38(2)(b) of the Mental Health Act [Chapter 15:12].
20
Section 38(7) of the Mental Health Act [Chapter 15:12].
21
Section 38(8) of the Mental Health Act [Chapter 15:12].
22
Section 31 of the Mental Health Act [Chapter 15:12].

108
tally disordered during the trial) or, if the person can understand the nature of the criminal
proceedings, to proceed with the trial.23
If a convicted person appears to an officer in charge of the prison to be mentally disordered,
the officer must report it to the nearest magistrate, who must direct that the convicted per-
son be medically examined. If the medical evidence shows that the person is mentally dis-
ordered or intellectually handicapped, the magistrate must order his removal to an institu-
tion or special institution (depending on the medical evidence).24

Accused person who was mentally disordered when the crime

was committed
The courts most frequently deal with mental disorder in cases where the accused person,
though sane when the trial takes place, was mentally disordered or intellectually handi-
capped when the crime was committed.
If, having heard evidence, including medical evidence, a judge or magistrate finds that the
accused “did the act constituting the offence charged … but that when he did the act 25 he
was mentally disordered or intellectually handicapped so as to have a complete defence in
terms of section 24826 of the Criminal Law Code”, the court must return a special verdict to
the effect that the accused is not guilty because of insanity. The court must then make one
of the following orders:
• that the accused be returned to prison for transfer to a mental institution for examina-
tion;
• if the court considers that the accused is charged with a petty crime (i.e. that he would
not have been sentenced to imprisonment without the option of a fine or to a fine of
more than level 3), either order the accused person to submit himself to medical treat-
ment or order the accused’s guardian or close relative to apply for the accused to be re-
ceived into an institution for treatment as a civil patient;
• if the court is satisfied that the accused is no longer mentally disordered or intellectually
handicapped or is otherwise fit to be discharged, order his discharge and, where appro-
priate, his release from custody.27
Within 14 days after the accused person has been received into an institution under the first
of the above options, the superintendent of the institution must issue a written certificate
about the accused’s mental condition, and the certificate is sent to a three-member special
board28 with a copy to the Prosecutor-General, and the special board makes recommenda-
tions as to the accused person’s release, detention, care, management and treatment. The
board’s recommendations are sent to the Mental Health Review Tribunal29, again with a
copy to the Prosecutor-General, for review.30

23
S v Mageza 1979 RLR 399 (G) at 400, which referred to R v Ayling 1969 (2) RLR 426 (G).
24
Section 30 of the Mental Health Act [Chapter 15:12].
25
“Act” is defined in section 29(1) of the Mental Health Act [Chapter 15:12] as including an omission.
26
This reference is incorrect — it should be to section 227 of the Criminal Law Code.
27
Section 29 of the Mental Health Act [Chapter 15:12].
28
Established by the Minister of Health in terms of section 73 of the Mental Health Act [Chapter 15:12].
29
Established under section 75 of the Mental Health Act [Chapter 15:12]. It is chaired by a judge or former
judge and has general oversight over the treatment of mental patients, both civil and criminal, in order to en-
sure that their rights are respected.
30
Section 29(4) to (6) of the Mental Health Act [Chapter 15:12].

109
It should be pointed out that before the Mental Health Act [Chapter 15:12] came into force
in 2000, the consequences of a “special verdict” were much more drastic for the accused
person. A court had to order the accused’s further detention in an institution after giving a
special verdict, even if the accused was charged with a petty crime and even if he had re-
covered by the time of the trial.

Requirements for special verdict

For a defence of insanity to succeed and a special verdict to be returned, the accused must
show that at the time of committing the act, he or she was suffering from a mental illness,
arrested or incomplete development of mind, psychopathic disorder or any other disorder or
disability of the mind, however caused, which made him:
• incapable of appreciating the nature of his conduct, and/or of appreciating that his con-
duct was unlawful; or
• incapable of acting in accordance with any appreciation he may have of the nature of
his conduct and/or that his conduct was unlawful.31
Even temporary mental disorder may entitle an accused person to a special verdict.32
The burden of proof of a defence of insanity lies on the accused person, and it is discharged
by proof on a balance of probabilities.33 It has been said that it is illogical to place the bur-
den of proving insanity upon the accused, because he is the person least capable of dis-
charging the burden and is often anxious to deny that he is insane.34 However, there is
nothing to prevent the prosecution from accepting that the accused was mentally disordered
and undertaking the onus of proof, thereby assisting the court to come to a just conclu-
sion.35 In almost all cases, moreover, if the accused claims to have been mentally disor-
dered or intellectually handicapped when he committed the crime, he is examined at State
expense and the defence and prosecution accept the findings of the medical practitioners
who examined him.

Evidence required for special verdict

Section 29 of the Mental Health Act [Chapter 15:12] states that a special verdict can be
given if the court is satisfied from “evidence, including medical evidence” that the accused
person was mentally disordered or intellectually handicapped when the crime was commit-
ted. This seems to mean that medical evidence is essential, but it has been held that it is not
always necessary.36

31
This is a paraphrase of section 227 of the Criminal Law Code.
32
See for example S v Machona 2002 (1) ZLR 61 (H), where the accused suffered a brief psychotic episode
during which he attacked and seriously injured a doctor who was treating him. He was found not guilty by
reason of insanity and, having recovered from the episode, was released from custody.
33
Section 18(4) (proviso) of the Criminal Law Code.
34
R v Benjamin 1968 (1) RLR 126 (G); S v Taanorwa 1987 (1) ZLR 62 (S) at 65.
35
R v Benjamin 1968 (1) RLR 126 (G) at 127 A-B.
36
R v Moyo 1969 (2) RLR 111 (G) at 115-6, where the medical evidence was ambivalent and the court based
its verdict on the extraordinary nature of the accused’s actions.

110
 What constitutes mental disorder or intellectual handicap37
The term “mentally disordered or intellectually handicapped person” is defined in the Men-
tal Health Act [Chapter 15:12] as a person who is “suffering from mental illness, arrested
or incomplete development of mind, psychopathic disorder or any other disorder or disabil-
ity of the mind”. This is a wide definition, but the term “mentally disordered or intellectu-
ally handicapped” in section 29 extends beyond the definition. It can cover a purely tempo-
rary condition, however caused. The only issue is whether the accused’s mental condition
prevents or prevented him from knowing the nature and quality of his act or that his act was
wrong, or whether it gives or gave rise to an irresistible impulse.
The following conditions (listed in John Reid Rowland’s book Criminal Procedure in Zim-
babwe at p. 12-11) have been held to amount to a mental disorder or intellectual handicap
which could give rise to a special verdict:
• a state of automatism due to head injuries received;38
• feeble-mindedness which results in an adult having the mental age of a young child;39
• a state of hysterical dissociation associated with a trance;40
• a somnambulistic (i.e. sleep-walking) condition;41
• irresistible impulse resulting from a disease of the mind, if the impulse could not have
been resisted by the accused in the particular circumstances, even though he may have
known that his act was wrong.42
• consumption of drugs or alcohol resulting in a mental disease such as delirium tremens,
though normally voluntary intoxication does not give rise to a special verdict even if it
renders the accused incapable of knowing that what he was doing was wrong.43
On the other hand, a black-out caused by tiredness and overwork rather than injury, which
results in a temporary loss of memory, consciousness and vision, does not constitute a men-
tal disorder or intellectual handicap that would justify a special verdict.44 And amnesia, or
an inability to remember what happened, would not justify a special verdict unless it was
associated with a mental disorder or unconscious action amounting to automatism.45

Deaf mutes
People who are deaf or mute, or both, are not mentally disordered, but communicating with
them may cause problems, so if such a person is an accused in a criminal trial it may be
necessary to find someone who is conversant with sign language to act as an interpreter, if
the accused has been trained in that language.

37
For a detailed discussion of this topic, see Burchell & Hunt S.A. Criminal Law and Procedure 2nd ed vol 1
pp 258 ff.
38
Attorney-General v Senekal 1969 (2) RLR 368 (A).
39
R v Joseph 1968 (2) RLR 243 (A).
40
R v Mawonani 1970 (1) RLR 41 (A).
41
S v Ncube 1977 (2) RLR 304 (G).
42
J. Reid Rowland op cit p. 12-12.
43
J. Reid Rowland “Is Voluntary Intoxication a Mental Disorder?” 1971 (2) RLJ 145.
44
S v Evans 1985 (1) ZLR 95 (S) at 108.
45
R v Johnson 1970 (1) RLR 58 (G).

111
Section 193 of the Criminal Procedure and Evidence Act [Chapter 9:07] deals with the sit-
uation where an accused person is unable to conduct his defence properly because he is
deaf or mute or both, although he is not mentally disordered or intellectually handicapped.
If the court is satisfied, having heard evidence, that it is in the interests of public safety or
for the protection of the accused that he should be kept in custody, the court may order that
he be kept in custody in a prison. The nature of the evidence to be led is not specified, but
there would need to be convincing medical evidence of the need to incarcerate the accused
before such an order could be justified. If such an order is made, it must be transmitted to
the Minister responsible for justice, who ascertains the President’s decision for the further
detention or care of the accused.
Query: Is this procedure constitutional in the light of section 49 of the Constitution?
Probably not.

112
 11. CHARGES AND INDICTMENTS
Nature of charges
These are dealt with in Part X of the Criminal Procedure and Evidence Act. The charge in
a criminal trial serves roughly the same function as a summons in a civil trial.
In the High Court, charges are contained in a document called an “indictment”; in magis-
trates courts, the document is called a “summons” or “charge sheet”. The preambles to
these documents are different, but the wording of the charges in them will follow the same
form.
Where more than one charge is set out in an indictment, summons or charge-sheet, they are
called “counts”.
The purpose of a charge is to tell the accused in clear and unmistakable language what the
charge is that he has to meet. As the Criminal Procedure and Evidence Act puts it, a charge
must:
“set forth the offence with which the accused is charged in such manner, and with such particu-
lars as to the alleged time and place of committing the offence and the person, if any, against
whom and the property, if any, in respect of which the offence is alleged to have been com-
mitted, as may be reasonably sufficient to inform the accused of the nature of the charge.”1
As with a civil summons, the charge must not be vague and embarrassing so that the ac-
cused has to puzzle out what the real charge is that he faces. So:
• a charge will be defective if it does not disclose a crime, in the same way that a civil
summons must disclose a cause of action.2
• a charge must set out the crime, not necessarily the evidence necessary to prove the
crime.
As a rule, a person cannot be found guilty of a crime of which he has not been charged, but
there are exceptions: for example, permissible (competent) verdicts — see the Fourth
Schedule to the Criminal Law Code. So a person charged with robbery can be found guilty
of assault or theft.

Choice of crime to charge

An accused person’s conduct may constitute more than one crime, and it is for the Prosecu-
tor-General or the public prosecutor to choose which crime to charge. The discretion of the
Prosecutor-General or the prosecutor in this regard is usually regarded as absolute — the
court cannot order that the accused be charged with a different crime. If, however, an inap-
propriate charge has been selected the High Court on review can refuse to certify the pro-
ceedings as being in accordance with real and substantial justice.3

1
Section 146(1) of the Criminal Procedure and Evidence Act. The “nature of the offence” means the material
facts constituting the offence: R v Wantenaar 1940 SR 174.
2
R v Mlotshwa 1968 (2) RLR 172 (G) at 174-5.
3
See Reid Rowland Criminal Procedure in Zimbabwe p. 3-10. In S v Thebe 2006 (1) ZLR 208 (H), the court
suggested (wrongly, it is submitted) that judicial officers could interfere with the prosecutor’s choice as to the
crime to be charged.

113
 Essentials of charge
Indictments and charge sheets must specify the accused’s full name.4 Aliases should not be
given, since they suggest that the accused has had previous run-ins with the police.5
Charge sheets in the magistrates court must specify the accused’s home address and occu-
pation.6 If, however, the accused’s occupation is illegal or undesirable, it should be left out.
It is prejudicial, for example to call an accused “a loafer” in the charge.7
Companies must be given their ordinary name in an indictment or charge sheet (e.g. “XYZ
(Pvt) Ltd”) and it is not necessary to specify that a company is “a limited liability company
there carrying on business”. Partnerships and firms can be given their ordinary title. It is
not necessary to add the names of shareholders or partners, unless they are being charged
separately.8
All charges must specify9:
• the nature of the charge, that is to say all the averments that make up the essential ele-
ments of the crime;10
• reasonably sufficient particulars as to the date and place at which the crime was com-
mitted;
• reasonably sufficient particulars as to any person against whom the crime was commit-
ted; and
• reasonably sufficient particulars as to any property in respect of which the crime was
committed.
Example:
“The accused is charged with the crime of assault, in that on the 5th April, 2005, and in Samora
Machel Avenue, Harare, the accused unlawfully and intentionally assaulted Innocent Ndoro
by punching him in the face with his fist.
The accused is entitled to demand that he be informed with precision, or at least with a rea-
sonable degree of clarity, of the case he has to meet, so that he fully understands the nature
of the charge he is facing.11

Contents of charge
1. Particulars of the accused
The fact that the accused is of a particular age, gender or race is irrelevant. Equally irrele-
vant is the age, gender or race of the complainant (though for some crimes gender and age
are important — for example, having sexual intercourse with a young person in contraven-

4
The Criminal Procedure and Evidence Act does not specifically state this requirement for indictments in the
High Court, though it is implied. For magistrates courts, the requirement is stated in sections 139, 141 and
142.
5
Reid Rowland Criminal Procedure in Zimbabwe p. 10-4.
6
Section 139 of the Criminal Procedure and Evidence Act.
7
S v Tashangase 1966 (1) SA 606 (E).
8
Section 152 if the Criminal Procedure and Evidence Act.
9
Section 146 of the Criminal Procedure and Evidence Act.
10
R v Wantenaar 1940 SR 174.
11
S v Sikaruma 1984 (1) ZLR 170 (H).

114
tion of section 70 of the Criminal Law Code). There is no need to use phrases such as “a
woman there residing”. The accused’s aliases should not be used in a charge, only his
name as given to the Police.

2. Time and place of crime

The date of the crime should be stated (day, month, year) but not the time unless time is an
element of the crime (e.g., where the crime can only be committed at night). If the date is
not known, it is permissible to say the crime was committed “on or about” a particular date,
or between two specific dates.
If the place where the crime was committed is precisely known, it should be inserted in the
charge. If not, it is permissible to say “at or near” such and such a place. Be careful of the
“at or near” formula: in R v van Biljon 1949 (3) SA 1212 (T), a charge of drunken driving
alleged that the crime was committed “at or near” a public road. The charge was held to be
defective because the crime could only be committed by driving “upon” a public road. The
place where the crime was committed needs to be specified in magistrates court trials be-
cause, apart from giving the accused necessary information, it will also enable the magis-
trate to ascertain whether or not the crime was committed within his or her area of jurisdic-
tion.
Remember section 173 of the Criminal Procedure and Evidence Act: in most cases, where
time is not the essence of the crime, it is enough for the prosecution to prove that the crime
was committed within three months of the date specified in the charge.
Where several crimes are committed over a period or where even the approximate dates are
unknown, one can use the formula:
“On a date unknown to the prosecutor, but during the period extending from the … to the …”
If it is known that the accused’s defence is an alibi, the date must be specified exactly in the
charge.

3. Essentials of the crime

These will usually fall into the two categories of actus reus and mens rea.
The element of unlawfulness which categorises actus reus is expressed in charges by the
word “unlawfully”. The element of mens rea is expressed by the word “intentionally”. It is
not necessary to use the word “wrongfully” as well. If, however, the accused is charged
with a statutory crime which requires the accused to have acted “knowingly” or “malicious-
ly”, then those words should be used otherwise the charge may not disclose a crime.
Generally, for statutory crimes, it is enough to repeat the words of the statutory provision
concerned: section 146(2)(a) of the Criminal Procedure and Evidence Act.
For some crimes, mens rea is not an element — crimes of strict liability — and in such cas-
es mens rea should not be alleged.12
The facts alleged in the charge must disclose a crime.13
A charge of a statutory crime should refer to the section of the statute that is alleged to have
been contravened. If it doesn’t, or if an incorrect section is cited, this will not invalidate the
charge if, notwithstanding the error, the charge describes the crime with sufficient accuracy

12
The test for determining whether a crime is one of strict liability is set out in section 17(5) of the Criminal
Law (Codification and Reform) Act [Chapter 9:23].
13
S v Mlotshwa 1968 (2) RLR 172 (G).

115
so that no prejudice can be said to have accrued to the accused. The test remains one of
prejudice to the accused.
A charge of a statutory crime need not refer to the penalty that may be imposed on the ac-
cused, unless it is a mandatory minimum penalty. In that event, the penalty should be spec-
ified.14
If a statute prohibits something unless the accused can show a lawful excuse, or unless the
accused has “reasonable cause”, etc, those words should form part of the charge in order to
inform the accused that he has a defence if he can raise a lawful excuse, or show reasonable
cause.15

Particular crimes
Crimes requiring particular intent
If a crime requires a particular form of mens rea — for example, if the act constituting the
crime must be committed recklessly, knowingly, wilfully, corruptly or intentionally — the
charge must reflect this. It is not a fatal defect to fail to make such an allegation, however,
so long as there is evidence at the trial to cure the defect.16

Theft
In a charge of theft of money or property by a person to whom the money or property was
entrusted, it is sufficient to allege that there was a general deficiency in the money or prop-
erty held by that person. The charge would allege that the accused received the money or
property, and that there was a general deficiency in it of a stated amount, which the accused
converted to his own use.17
Where an accused is charged with theft of money, it is not necessary to specify the particu-
lar notes that were stolen; the amount of money is all that is needed.18

Section 146(2)
Although a charge must be sufficient to inform the accused of the nature of the charge (sec-
tion 146(1) of the Criminal Procedure and Evidence Act), section 146(2) provides im-
portant exceptions to this rule, which can make it difficult for an accused person to know
the precise nature of the charge against him:
• Section 146(2)(a): a description of a statutory crime, in the words of the enactment cre-
ating the crime, or in similar words, is sufficient in any charge. This can cause prob-
lems if there are several different ways set out in a statute as to how a crime can be
committed. For example, in R v Rabe 1947 (2) SA 1198 (C), the accused was charged
with “selling” adulterated milk. There was an extended definition of “sell” which in-
cluded offering, advertising, keeping, exposing, transmitting, consigning, conveying or
delivering milk for sale. It was held that the charge should have indicated in what way
the accused was alleged to have “sold” the milk.

14
S v Zvinyenge & Ors 1987 (2) ZLR 42 (S) at 46.
15
S v Janyure 1988 (2) ZLR 470 (S) at 474.
16
Section 203 of the Criminal Procedure and Evidence Act.
17
Section 148 of the Criminal Procedure and Evidence Act.
18
Section 149 of the Criminal Procedure and Evidence Act.

116
 Another problem arises if the section does not create a crime on its own: In R v Freit-
ag 1953 (2) SA 178 (E), the accused was charged with “carrying on motor carrier
transportation” in contravention of a section of a statute; the phrase “motor carrier
transportation” was defined in another section as operating a vehicle for reward. The
charge did not allege that the accused operated his vehicle for reward, and was there-
fore held to be defective. This problem occurs frequently when a statutory provision
states that “No person shall” do something, and another provision of the statute states
that contravention of the first-mentioned provision is a crime. It is necessary to cite
both provisions in the charge.
• Section 146(2)(b): An exception, exemption, proviso, excuse or qualification in the de-
scription of a crime, need not be alleged and, if alleged, need not be proved by the pros-
ecution. Sometimes it is not clear whether a particular part of an enactment is creating
an exception, or whether it is part of the crime. For example, if a statute makes it a
crime to walk down a street unless decently dressed: what is the prohibition here? In
this case it is obvious, but it is not always so:
➢ Practising as a lawyer without a practising certificate.
➢ A person, not being a member of the Police Service, holding himself out to be a
member of the Service.
➢ Dealing in uncut diamonds without being in possession of a licence.
If the crime is dealing in uncut diamonds, it will be sufficient for the State to
charge the accused with dealing in them, and to leave out any reference to his
not having a licence. It would then be up to the accused to prove that he has a
licence.19
One test to be used in determining whether a provision which accompanies a statutory
crime is actually an exemption or exception or is an additional element of the crime, is to
decide whether, if all references to the exceptions relevant to the case are eliminated from
the charge, what remains of the charge discloses the crime.20

Joinder of counts
In terms of section 144 of the Criminal Procedure and Evidence Act, any number of charg-
es may be joined in the same proceedings against an accused. Each charge is then num-
bered consecutively: count 1, count 2, count 3 and so on. Each such charge should contain
one crime only.
If there are a large number of counts, particularly if they are similar, they can be listed in a
schedule attached to the charge sheet:
“The accused is charged with 10 counts of the crime of fraud, in that on the dates mentioned in
the first column of the attached schedule, and at the places mentioned in the second column of
the schedule, the accused unlawfully and fraudulently misrepresented to persons mentioned in
the third column of the schedule that …”
The purpose of a joinder of counts is to save time and trouble. It is also to ensure that all
charges the State has against an accused are brought against him at the same trial rather
than piecemeal.21

19
R v Zondagh 1931 AD 8.
20
Attorney-General v Makamba 2005 (2) ZLR 54 (S) at 59F.
21
Paweni & Anor v Attorney-General 1984 (2) ZLR 39 (S) at 45G.

117
If the court considers that it is desirable in the interests of justice to do so, it may order that
the accused should be tried separately on any one or more of the counts set out in a charge
sheet or indictment. The counts that are not tried can be the subject of fresh proceedings. 22
Before a court would be justified in ordering a separation of trials, there would have to be
some special feature rendering a single trial prejudicial or embarrassing to the accused.23

Alternative charges
If for any reason it is doubtful which of several different crimes an accused person has
committed, it is permissible to charge him with each of those crimes as alternative counts in
the indictment, summons or charge sheet.24 If so charged, he can be convicted of only one
of the crimes.
Usually the most serious crime is set out first on the indictment, summons or charge sheet,
but there is no rule to this effect.
Some crimes are usually charged together as alternatives: e.g. culpable homicide arising
out of a traffic accident is usually coupled with an alternative of negligent driving or, if the
accused has been drinking, with one of drunken driving.

Further particulars
It is open to the accused to ask for further particulars of a charge, and the prosecutor must
supply them if the court orders him to do so.25 The court can also mero motu order particu-
lars to be given.
This is particularly important in cases under the Road Traffic Act where the accused is
charged with negligent driving (and in other cases where the accused is charged with a
crime involving negligence). The prosecutor should be asked as a matter of course to sup-
ply particulars of the negligence (e.g. driving at excessive speed, failing to drive carefully
when in the vicinity of children, etc) and, once supplied, the prosecutor is restricted to those
particulars.26 When asked for such particulars, a prosecutor should not frame them cover-
ing every conceivable way of being negligent, but simply cover the negligence which is
reasonably attributable to the accused’s conduct.

Defects in charges
Section 172 of the Criminal Procedure and Evidence Act sets out various errors or deficien-
cies that will not result in the charges being held defective:

Failure to allege anything which it is unnecessary to prove.

Not always easy to determine what is covered by this: for example, if an essential element
of a crime is the subject of a presumption which facilitates proof.

22
Section 144(3) of the Criminal Procedure and Evidence Act.
23
Paweni & Anor v Attorney-General 1984 (2) ZLR 39 (S) at 45-6; Reid Rowland Criminal Procedure in
Zimbabwe p. 10-25.
24
Section 145 of the Criminal Procedure and Evidence Act.
25
Section 177 of the Criminal Procedure and Evidence Act.
26
Cf S v Makhado 1999 (1) ZLR 468 (H).

118
Incorrect designation of a person mentioned in the charge
If a person is designated in the charge by his or her office or title rather than being named,
the proceedings are not invalidated. For example, if a charge alleges that the accused false-
ly made a statement to the police officer in charge of XYZ police station, and does not
name the police officer concerned, the charge is valid

Omission to state the time of the crime

As already stated, this does not apply if the time at which the crime is committed is im-
portant (e.g. the crime of “found by night”).

Wrong date specified in the charge, or no time mentioned

As indicated above, if “time is not of the essence” of the crime, a charge will not be regard-
ed as defective for wrongly stating the date on which the crime was committed, so long as
the crime is proved to have been committed within three months before or after the date
specified in the charge.27 If the wrong date is alleged, the charge can be amended — unless
to do so would prejudice the accused in his defence.28
If, however, time is of the essence of the crime the above rule does not apply. Time will be
of the essence where, for example, the accused’s defence is an alibi.29 In such a case, if the
court considers the accused would be prejudiced in his defence if the State adduced evi-
dence that the crime was committed at a time other than that specified in the charge, then
the court must reject that evidence, and in that event the accused will be in the same condi-
tion as though he had not pleaded.30 So fresh proceedings can be instituted against him,
though presumably not before the same judicial officer.

Want of or imperfection in the addition of an accused or other person

This means that the accused cannot object if the charge fails to allege that another person
was also involved in the commission of the crime, or if the charge fails to mention, for ex-
ample, that more than one complainant was involved.

Failure to mention the value or price of anything, or the amount of damage

etc.
It is not necessary to allege the value or price of goods in respect of which the crime was
committed — e.g. goods allegedly stolen by the accused. And in cases of malicious dam-
age to property it is unnecessary to specify the amount of the loss caused by the damage.
This does not apply, however, if the value, price or amount is an essential element of the
crime.
In all the cases mentioned in section 172, however, it is submitted that if the error or defi-
ciency causes prejudice to the accused the charge will be ruled defective unless it is amend-
ed.

27
Section 173(a) of the Criminal Procedure and Evidence Act.
28
Section 173 of the Criminal Procedure and Evidence Act.
29
Alibi is Latin for “elsewhere”. When an accused claims that he was somewhere else when the crime was
committed, he is setting up a defence of an alibi, and for the success of such a defence it is often — though
not always — important to pinpoint when the crime was committed.
30
Section 175 as read with 173(b) of the Criminal Procedure and Evidence Act.

119
 Defect in charge cured by evidence
Section 203 of the Criminal Procedure and Evidence Act allows a defective charge to be
“cured” by evidence led at the trial. If a charge is defective because it is missing averments
of anything which is an essential element of the crime, the defect will be cured by evidence
proving the thing that was omitted. For example, in S v Ndhlovu 1984 (1) ZLR 175 (S), the
accused was charged under the Witchcraft Suppression Act with naming the complainant as
a witch; in fact, the relevant section required the imputation to be that of causing a disease
in any person. This defect was held to have been cured by the evidence, since it showed
that the appellant had accused the complainant of having caused a child’s illness.
However, if the charge is fatally defective it cannot be “cured”.

Amendment of charge
Section 202 of the Criminal Procedure and Evidence Act gives the court a broad power to
amend a charge, even one that did not disclose a crime, but:
• The court’s power is limited to the period before judgment;
• There must be no prejudice to the accused in his defence.31 What this means is that he
must not be placed in a worse position than he would have been in, in relation to his
defence, if the words had been added to the charge when he was called upon to plead.
For example, in S v Ndhlovu & Ors 1979 RLR 236 (G), it was held permissible to alter
a charge of housebreaking with intent unknown to one of housebreaking with intent to
steal and theft, since the accuseds’ defence was an alibi.
Before a charge is amended by the court, the accused must be afforded an opportunity
of showing whether there will be any prejudice to him in conducting his defence.

When amendment is not allowed

1. As a rule, amendment will not be allowed where there is prejudice to the accused in his
defence. The test is whether the accused would be placed in no worse position than if
the charge had been framed in its amended form when he was first called to plead to it.
2. An amendment must not introduce an entirely new charge. 32 For example, a charge of
assault cannot be altered to one of theft or rape.
3. An amendment may not introduce a new accused: a charge against an individual cannot
be amended to one against him in his representative capacity as director of a company.
4. An amendment will not be allowed where it is clear that the evidence will not support
the amendment.

Amendment on appeal
1. Generally, formal defects in a charge, which are clear from the face of the charge, can-
not be relied on for the first time on appeal.
2. Material defects of such a nature that the charge does not disclose a crime cannot be
amended on appeal, if the defects have not been cured by evidence at the trial.

31
S v Mutizwa 2006 (1) ZLR 78 (H) at 84H.
32
S v Collett (2) 1978 RLR 288 (G).

120
3. A charge will not be amended on appeal where the effect of the amendment would be to
frame a new charge against the accused and to convict him of a charge which was never
put to him.
4. Where the charge, though materially defective, discloses a crime, the defect cannot be
relied upon if the charge could have been amended at the trial without prejudicing the
accused’s defence.
5. If, however, the accused applied at the trial to have the charge amended and the applica-
tion was refused, then the charge will be regarded as fatally defective if the refusal re-
sulted in prejudice to the accused’s defence.33

Splitting of charges
What is splitting of charges?
Splitting of charges is not permissible. That is to say, the State should not bring more than
one criminal charge against an accused person in respect of what is really a single act or
course of conduct. To take an obvious example, if an accused person commits a robbery by
pointing a firearm at his victim and taking the victim’s money, it would be correct to charge
the accused with a single count of robbery. It would amount to splitting charges, on the
other hand, to charge the accused with pointing a firearm in contravention of the Firearms
Act, and with extortion (i.e. demanding money) and with theft of the money.
The reasons why splitting of charges is not allowed are:
• The overriding reason is that it leads to a duplication of convictions so that the accused
may be punished more than once for what is really a single crime. This would be un-
just.34
• It would enable a magistrate, whose sentencing jurisdiction is limited, to impose an
overall punishment in excess of his jurisdiction.
• It loses sight of the fact that the accused’s conduct consists of a single transaction, mo-
tivated by a single purpose.
• To impose several punishments for a single course of conduct is unjust.
• One count may unfairly be treated as a previous conviction in the assessment of pun-
ishment, if the different charges are tried separately.
Splitting of charges is sometimes called “duplication of convictions”, which expresses the
concern of the courts more clearly: the concern is that by multiplying the crimes of which
the accused person is convicted, the court may impose an excessive sentence upon him.35
Apart from that, it should be noted that splitting of charges has nothing to do with sentence.
A court can convict and sentence an accused only for the crime with which he has been
charged, or for a crime that is a competent verdict on a charge of that crime. At the sen-
tencing stage the court cannot split up the crime with which the accused is charged into its
component elements and impose sentence separately on each of those elements. For exam-
ple, if an accused has been charged with robbery and has pleaded to that charge, the court
must convict or acquit him of robbery. It cannot convict the accused of robbery and then

33
Section 202(3) of the Criminal Procedure and Evidence Act.
34
See the discussion in Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 215.
35
S v Zacharia 2002 (1) ZLR 48 (H).

121
sentence him for theft and assault, nor can it convict the accused of theft and assault and
then sentence him for those two crimes.

Test for splitting of charges

There are two tests:
• The “single intent” test: where a person commits two acts, each of which is criminal if
it stood alone, but he does so with a single intent and both acts are necessary to carry
out that intent, then he should be charged with a single crime (i.e. the crime which he
intended to commit) rather than separately with the two crimes.
Examples of this are36:
o Assault and intentional damage to property, where the accused assaulted a per-
son and tore the person’s clothes in the process.37
o Robbery and impersonation of a police officer, where the impersonation was
done in order to carry out the robbery.38
o Obstructing the course of justice and malicious damage to property, where the
accused threw stones and damaged a police vehicle in an attempt to prevent the
police from arresting his brother.39
• The “similar evidence” test: if the evidence necessary to prove one charge necessarily
involves proving the other, it is generally improper to charge both separately. The State
must decide which one to bring. The test applies only where the evidence is necessary
to prove an essential element of the crime.
Examples of this are:
➢ A charge of negligent driving and drunken driving arising out of a single act of
driving a motor vehicle.40
➢ A charge of rape and incest arising out of the same act of sexual intercourse by a
father on his young daughter.41
➢ Two charges of culpable homicide arising out of the killing of two people in a
single road accident. In such a case a single charge should make reference to
both the deceased.42
Where unlawful acts are committed at practically the same time, it will often (though not
always) amount to splitting to charge them separately.
Where a single act constitutes more than one crime (for example, where a single act of sex-
ual intercourse constitutes rape and incest) then the State must decide which crime to
charge. Usually the most appropriate is the one which represents the accused dominant in-
tention.43 If prosecutors are uncertain which charge to bring, they should consider bringing
alternative charges.

36
These and more examples are to be found in Reid Rowland Criminal Procedure in Zimbabwe p. 10-27.
37
R v Frank 1968 (2) RLR 257 (A).
38
S v Simon 1980 ZLR 162 (G).
39
S v Mupatsi 2010 (2) ZLR 529 (H).
40
S v dos Ramos 1978 RLR 297 (A).
41
R v T 1940 CPD 14, cited in Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 216.
42
S v Mampa 1985 (4) SA 633 (C).
43
See for example, S v Mupatsi 2010 (2) ZLR 529 (H).

122
 Withdrawal of charges
The prosecutor is entitled to withdraw charges against the accused at any stage, whether
before or after the accused has pleaded to them.

Withdrawal before plea

If the prosecutor withdraws charges before plea, the accused person can be charged again
later. He is not entitled to an acquittal, but if he is in custody he must be released (unless he
is facing other charges).44
The decision to withdraw is the prosecutor’s alone. Once he has indicated his intention to
withdraw charges, the court is not empowered to order that a charge be put to the accused.
The act of withdrawing terminates the proceedings against the accused.

Withdrawal after plea

If the prosecutor withdraws charges after the accused has pleaded but before judgment, the
accused is entitled to an acquittal45 and he cannot be charged again with the same crime
(because once he pleaded he was in jeopardy of being convicted of the crime and if he is
charged again he would be entitled to plead autrefois acquit). Again, the decision to with-
draw is the prosecutor’s alone and the court is not entitled to proceed with the trial after a
withdrawal.46
A prosecutor cannot, however, withdraw a charge after the accused has been convicted be-
cause the court, having pronounced its verdict, is functus officio in regard to verdict.47

44
Sections 8(a) and 321 of the Criminal Procedure and Evidence Act.
45
Section 8(b) of the Criminal Procedure and Evidence Act.
46
Scott v Additional Magistrate, Pretoria, & Anor 1956 (2) SA 655 (T).
47
R v Ryder-Jones 1962 R & N 833 (SR).

123
 12. JOINDER AND SEPARATION OF TRIALS
Joinder of accused
People implicated in the same crime may be tried together in the same trial. This covers:1
• persons charged as actual offenders, accomplices, co-perpetrators or accessories, even if
the extent of their participation was different and took place at different times;
• persons charged with receiving property obtained by means of a single crime, even if
the receiving took place at different times.
As a general rule, the holding of a mass trial of a number of accused at the same time on
charges that are not related to each other, is highly irregular, 2 except in the circumstances
described in section 159 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Un-
der that section, people who are not implicated in the same crime may be tried together, if
their crimes were committed at the same time and place or at the same place and about the
same time. If they are tried together, the prosecutor must inform the court that evidence
which is, in his opinion, admissible at the trial of [one of] those persons is also admissible
against the other or others.3 The application of this provision (section 159 of the Criminal
Procedure and Evidence Act) is unclear.4 While mass trials on charges that are unrelated to
each other are undesirable, the provision probably allows joint trials to take place in the fol-
lowing circumstances:
• Several persons stealing maize from the same field at about the same time.5
• Two or more people who committed perjury at the same trial in the same respect.
• Two motorists who negligently collide at an intersection.
As a general rule an accused person cannot demand that he be tried with anyone else. 6 It is
for the prosecutor to decide whether or not to try persons jointly or separately. While it is
in the interests of society as well as justice that perpetrators of the same crime should be
tried jointly,7 this does not mean that a trial is unfair because other possible perpetrators are
not charged together with an accused. The ultimate question is whether a particular trial
was unfair.8

Separation of trials
Where two or more persons are jointly charged, the court may at any time during their trial
direct that the trial of one or more of them should be held separately from that of the other

1
Section 158 of the Criminal Procedure and Evidence Act.
2
S v Marimo & Ors, S v Ndhlovu & Ors 1973 (1) RLR 70 (G).
3
Section 159 of the Criminal Procedure and Evidence Act. The words in square brackets do not appear in
section 159 but seem necessary to give it proper meaning. They do appear in the equivalent section of the
South African Act (section 156 of the Criminal Procedure Act, 1977).
4
See Reid Rowland Criminal Procedure in Zimbabwe p. 15–13.
5
As in S v Tereza & Ors; S v Leonard & Ors 1971 (1) RLR 12 (G), which was decided before section 159
was enacted.
6
Section 172(e) of the Criminal Procedure and Evidence Act.
7
S v Shuma & Anor 1994 (4) SA 583 (E) at 586J.
8
S v Shaik & Ors 2008 (2) SA 208 (CC) at 232-3.

124
or others.9 The court may make such an order on the application of the prosecutor or the
accused, but cannot do so mero motu.10 If the court orders a separation, the case subse-
quently proceeded with must be begun afresh.
It is well established that trials should be separated where one of the accused pleads guilty
but the other pleads not guilty;11 if separation is not granted in such a case there is a danger
that one of the accused will be prejudiced by evidence given by the other or others, whether
under cross-examination or otherwise. Where possible the same judicial officer should try
the various cases, and they should all be brought up at the same time for sentence.12 This
avoids widely divergent sentences being imposed on equally blameworthy accused persons.
In many cases an application for separation of trials will be made by the defence, since the
State has already decided to proceed against the accused persons together. If however one
accused pleads guilty while the other or others plead not guilty, the prosecution may want
to make an application for separation. The test, in deciding whether to order separation of
trials, is whether a joint trial is likely to prejudice (i.e. to do an injustice to) the accused. A
bare possibility of prejudice is not enough; it must be established that the joint trial is like-
ly to do the accused an injustice.13 A trial court’s decision to refuse separation will be in-
terfered with on appeal only if the decision amounted to such a gross misdirection that it
resulted in a failure of justice.14
Points to note:
• As a rule, persons who are charged jointly should be tried jointly.15
• The decision to separate trials is one for the judicial officer, and he must exercise his
discretion in a judicial manner in the interests of justice, taking into account and con-
sidering all relevant facts.16
• The fact that evidence may be admissible against one accused but inadmissible
against another (e.g. a confession made by one of the accused may incriminate the
other accused) is an important consideration, but not decisive.17
• If a real danger exists that a separation of trials will hinder the State to such an extent
in the presentation of its case that a miscarriage of justice results and a guilty person
is released, this consideration is decisive.18
• If an accused person wishes to call a co-accused to give evidence in his defence, and
the co-accused refuses to testify, refusal to order a separation of trials will limit the

9
Section 190 of the Criminal Procedure and Evidence Act.
10
S v Kachipare 1998 (2) ZLR 271 (S) at 275D. But see S v Ndwandwe 1970 (4) SA 502 (N), where it was
held that whether an application for separation is made or not, a court should make such an order if a possibil-
ity of prejudice exists.
11
R v Zonele & Ors 1959 (3) SA 319 (A) at 325D; S v Andeya 1981 ZLR 35 (A).
12
R v Rademeyer 1959 (2) R & N 100 (SR) at 101E-G; Reid Rowland Criminal Procedure in Zimbabwe p.
15–15.
13
R v Nzuza & Anor 1952 (4) SA 376 (A).
14
Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 279.
15
R v Bagas 1952 (1) SA 437 (A) at 441F-G.
16
R v Office & Anor 1966 RLR 748 (A) at 750B-C; S v Shuma & Anor 1994 (4) SA 583 (E).
17
Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 208.
18
R v Kritzinger 1952 (4) SA 651 (W).

125
 accused in his defence and may result in his conviction being set aside on appeal or
review.19

19
S v Shuma & Anor 1994 (4) SA 583 (E); Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p.
209.

126
 13. EXTRA-CURIAL STATEMENTS
What is an extra-curial statement?
An extra-curial statement is any statement made outside the court (extra curiam).1 What
we are concerned with here are statements made by accused persons outside the court, i.e.
when they are not giving evidence in court. An extra-curial statement is often called a
warned and cautioned statement, though as we shall see that is a term that describes state-
ments made by the accused to the police after being warned and cautioned.

Types of extra-curial statements

1. An extra-curial statement may be written or oral. There is no rule that a statement must
be reduced to writing, and the same rules as to admissibility govern oral and written
statements.
2. An extra-curial statement may be inculpatory or exculpatory, or partly the one and part-
ly the other. In Zimbabwe we do not have the distinction that exists in South Africa be-
tween confessions and admissions. In South Africa the rules for admissibility of con-
fessions are different, and more stringent, than those for the admissibility of admissions.
In Zimbabwe our rules are the same for all statements, and are similar to the South Af-
rican rules applicable to admissions.
3. An extra-curial statement may be made to anyone, not just to a police officer. A state-
ment made by an accused person to a bystander, or to a relative (other than his wife)
will be admissible in evidence at his trial.
4. If an accused person makes a statement to a police officer after he has been warned and
cautioned, the statement is known as a “warned and cautioned statement”. This is the
type of statement that is most frequently produced in evidence in criminal trials.
5. There is the type of “statement” known as “indications” or “pointing out”, where the
accused person shows the police something (e.g. shows the police where he buried sto-
len property). Very often this pointing out is accompanied by a statement.

Admissibility of extra-curial statements

General rule
The rules for the admissibility of extra-curial statements fall within the ambit of the law of
evidence, but it is useful to recapitulate them here.
An extra-curial statement is admissible against the accused person if tendered in evidence
by the prosecutor at his trial, if the statement is proved to have been:
• made by an accused person;
• freely and voluntarily (i.e. not induced by any threat or promise proceeding from a per-
son in authority2);
• without his having been unduly influenced to make it (i.e. there must not have been ex-
ternal influences that operated to negative the accused’s freedom of volition3 — such

1
See the article by Judge N.J. McNally, “Extra-curial Statements” in Legal Forum vol 4 no. 4 (Dec 1992).
2
R v Barlin 1926 AD 459 at 462; Hoffmann & Zeffertt S.A. Law of Evidence 4th ed pp. 200 and 216.
3
Hoffmann & Zeffertt S.A. Law of Evidence 4th ed p. 217.

127
 influences may include violence, threats, promises or subtler influences. The courts in
Zimbabwe, England and South Africa regard as “undue” any practice which, if intro-
duced into a court of law, would be repugnant to the principles on which the criminal
law is based.4);
This rule is codified in section 256 of the Criminal Procedure and Evidence Act, and ap-
plies whether the statement was made before or during the accused’s arrest, or afterwards,
and whether the statement was oral or reduced to writing. The same rules for admissibility
also apply whether the statement is exculpatory or incriminating.
Under section 256, once the State has proved that a statement has been made freely and
voluntarily and without undue influence, it “shall be admissible” in evidence against the
accused person. The court has no power to exclude it.5
Note that a statement that was made voluntarily may be excluded if it was unduly influ-
enced.6
Note, too, that under the common law, and in South African law in regard to confessions,
there is an additional requirement: that the accused must have been in his sound and sober
senses when he made the statement, i.e. he must have known what he was saying. 7 This is
not required under our Criminal Procedure and Evidence Act, though if it is shown that the
accused was not in his sound and sober senses — that his mind was so disturbed as to de-
prive him of his reason — the statement would certainly be ruled inadmissible.
The general rule is founded on various considerations. As is so often the case in criminal
procedure, there is a need to balance various considerations. On the one hand, the criminal
justice system would collapse if the prosecution could not rely on self-incriminatory state-
ments made by accused persons. On the other hand:
• there is a danger that such statements are untrue; the less voluntary they are, the greater
this danger;
• there is a need to prevent misconduct by the police and other law-enforcement agencies;
• there is a general feeling that it is unjust to convict a person on a statement that has been
unfairly obtained. In the USA it has been held that to admit in evidence an involuntary
confession is to deny the accused his constitutional right to a fair trial.8
The onus of proving that an extra-curial statement is admissible rests on the prosecution —
and it must be proved beyond a reasonable doubt.

Warning and caution

The police customarily warn and caution an accused before recording a statement from
him. This is a salutary practice, but not essential for the statement’s admissibility. If an

4
R v Hackwell & Ors 1965 RLR 1 (A) at 17C. In S v Zaranyika 1997 (1) ZLR 539 (H) at 559D-E, Gillespie J
said: “A confession or statement of an accused person can only be held to have been made without undue
influence where the making of that statement is a voluntary exercise of the accused’s power to choose be-
tween silence or speech. If any factor external to that exercise of free will influence(s) the making of that
statement, the question immediately arises whether that influence is undue. Previous decisions in this juris-
diction show that influence will be undue where the exercise of that external influence, if introduced in a court
of law, would be repugnant to the principles upon which the criminal law is based.”
5
R v Sambo 1964 RLR 565 (A) at 571E-F; 1965 (1) SA 640 (R, AD)
6
S v Pietersen & Ors 1987 (4) SA 98 (C) at 100F.
7
Hoffmann & Zeffertt S.A. Law of Evidence 4th ed p. 216.
8
Haynes v Washington 373 US 503 (1963), cited in Hoffmann & Zeffertt S.A. Law of Evidence 4th ed p. 219.

128
accused person is warned and cautioned, it is desirable to give him particulars of how it is
alleged the crime was committed, to the extent that the police know them, so that the ac-
cused understands what he is faced with. These particulars should be recorded in the pre-
amble to the statement.9 The accused must also be informed of his right to remain silent10
and even if he has already been informed of this right it is desirable to mention it in the pre-
amble.

Indications
According to section 258(2) of the Criminal Procedure and Evidence Act:
“It shall be lawful to admit evidence that anything was pointed out by the person under trial or
that any fact or thing was discovered in consequence of information given by such person
notwithstanding that such pointing out or information forms part of a confession or statement
which by law is not admissible against him on such trial.”
This appears to mean that evidence can be led that an accused person pointed out something
incriminating (for example, the place where a murder weapon was discovered) even if he
had been assaulted and compelled to point the thing out. In S v Nkomo 1989 (3) ZLR 117
(S), however, our Supreme Court held that that meaning could not be given to the section
since our Constitution outlaws torture:
“It does not seem to me that one can condemn torture while making use of the mute confession
(i.e. the pointing-out) resulting from that torture, because the effect is to encourage torture. I
conclude therefore that [s 258(2)] of the Criminal Procedure and Evidence Act must be inter-
preted in such a way as to exclude what I would describe as the mute confession element of
the pointing out where the allegation of torture in relation to the pointing out is raised and not
satisfactorily rebutted.”11
So if an accused person alleges that he was compelled by violence to make an indication, or
to point something out, the State cannot lead evidence of the indication or pointing-out un-
less it shows that it was not in fact induced by violence.
The South African Appellate Division, in the case of S v Sheehama 1991 (2) SA 860 (A),
interpreted the equivalent provision in the South African Criminal Procedure Act, 1977,12
as meaning that when evidence of a pointing out is otherwise admissible (i.e. made volun-
tarily), it will not be inadmissible merely because it forms part of an inadmissible state-
ment. The court said the legislature never intended to authorise evidence of forced point-
ings-out.
Sheehama’s case probably reflects the current law of Zimbabwe more accurately than
Nkomo’s case, which was decided in 1989 before present Constitution came into force. The
previous Constitution did not have a provision equivalent to section 70(3) of the present
Constitution, dealing with the admissibility of unlawfully-obtained evidence, and in the
light of that section it is arguable that evidence obtained as a result of an unwilling pointing
out is obtained illegally and hence is inadmissible. If, on the other hand, the pointing out is
done voluntarily then evidence obtained as a result of it is admissible.

9
Reid Rowland Criminal Procedure in Zimbabwe p. 20-4.
10
Section 50(4)(b) of the Constitution.
11
Nkomo’s case at 131F.
12
Section 69 of that Act.

129
 Failure to mention relevant facts
According to section 257 of the Criminal Procedure and Evidence Act, if an accused per-
son, when questioned by the police as a suspect in a crime that is under investigation, fails
to mention a fact that is relevant to his defence and which he could reasonably have been
expected to have mentioned, the court “may draw such inferences from his failure as appear
proper”; and the court may treat the accused’s failure to mention the fact as corroborating
the other evidence against him. In other words, the fact that an accused does not disclose
important aspects of his defence will be held against him. This is a serious limitation on the
“right to silence”.
As indicated earlier, this provision is unconstitutional in that it infringes the accused’s pre-
trial right to silence.

Production of extra-curial statements

The way in which extra-curial statements of accused persons is given in court depends on
whether or not the statements have been confirmed by a magistrate before they are tendered
in evidence. Because most extra-curial statements have not been confirmed, we shall deal
first with the procedure for producing unconfirmed statements in evidence.

Tendering of unconfirmed extra-curial statements

The procedure for introducing unconfirmed statements into evidence is through what is
called a “trial within a trial”. Where the statement was made to the police and reduced to
writing, the police officer who recorded the statement will be called by the prosecutor and
asked if the accused made a statement at the relevant time and place, whether the accused
was properly warned and cautioned before he made it and if he made it freely and volun-
tarily and without undue influence being brought to bear on him. At this stage the prosecu-
tor must not ask the police officer what the accused said.
Assuming that the police officer answers the questions affirmatively — i.e. assuming he
says that the accused did make a statement and that he did so freely and voluntarily — the
prosecutor will say: “I tender the statement in evidence”, and the magistrate or judge will
then ask the accused questions to see if he agrees that he did make a statement and, if he
did, that he made it freely and voluntarily and without undue influence.
If the accused agrees that he did make the statement freely and voluntarily and without un-
due influence, the statement will be read out by the police officer and admitted in evidence.
If, on the other hand, the accused denies making the statement, or claims that he made the
statement through any form of coercion or undue influence, the statement cannot be admit-
ted in evidence unless the court has found it to be admissible after a “trial within a trial” in
which the accused’s allegations of coercion or influence are thoroughly investigated. The
onus is on the prosecution throughout to prove that the statement was made voluntarily.
A trial within a trial begins with the court asking the accused to give particulars of his alle-
gations. While he does so, the police officers who are to be witnesses must leave the court-
room. The judge or magistrate should record the accused’s allegations in some detail. The
prosecutor then leads evidence from the police officers who were involved in recording the
statement, and in doing so should deal with the accused’s allegations in order to rebut or
contradict them. The accused is entitled to cross-examine the witnesses. Sometimes the
statement itself may be produced as evidence of its voluntariness, if for example it is long
and rambling, on the rather dubious basis that such a statement is more likely to be volun-

130
tary than a short one. This practice has, however, been queried — probably correctly so.13
After the prosecutor has led evidence for the State in order to establish the voluntariness of
the statement, the accused is entitled to lead evidence and the prosecutor can cross-examine
him and his witnesses. It should be noted that the cross-examination must be directed at the
voluntariness of the statement and cannot go into the question of whether the accused is
guilty or innocent of the crime charged against him.
At the conclusion of the trial within a trial the court must decide whether or not the prose-
cution has proved beyond a reasonable doubt that the statement was made freely and volun-
tarily and so is admissible. If the court decides that it was, its decision is an interlocutory
(i.e. provisional) one and can be altered if evidence given later in the trial shows that the
statement may have not have been made voluntarily.

Production in evidence of confirmed extra-curial statements

Confirmation procedure
Part VIII of the Criminal Procedure and Evidence Act deals with the confirmation of extra-
curial statements, that is to say, bringing an accused person before a magistrate so that the
admissibility of any statement made by him, whether orally or in writing, can be investigat-
ed and the statement, if found to have been made freely and voluntarily without undue in-
fluence, can be “confirmed”. The procedure was introduced to cut down the number of
challenges to the admissibility of extra-curial statements and to obviate the delays occa-
sioned by “trials within trials” in which their admissibility was determined.
If a statement is confirmed by a magistrate it is presumed to have been made freely and
voluntarily and without undue influence, and at the accused’s subsequent trial the onus rests
on him to prove the contrary if he challenges it.
The procedure is not mandatory, and in the majority of cases it is not followed. On the oth-
er hand, it has been said that if a statement which has not been confirmed is tendered in the
High Court, the court will regard it with some suspicion.14
At confirmation proceedings the magistrate’s role is investigatory, and the investigation is
supposed to be a thorough one. If the accused admits that he made the statement freely and
voluntarily, the magistrate should satisfy himself that the admission is genuine and une-
quivocal, made by the accused with an understanding of his rights, and that he understands
the consequences flowing from confirmation.15 The magistrate should also ascertain
whether the accused’s desire to see his legal practitioner is being frustrated.16 Finally, be-
fore commencing the proceedings, the magistrate must satisfy himself that the accused per-
son is in his sound and sober senses.17
The procedure is as follows:18
1. The prosecutor produces the statement by handing it to the magistrate and informing
him when, where and to whom the statement was made.

13
S v Donga & Anor 1993 (2) ZLR 291 (S) at 297, per McNally JA. See also the South African case of S v
Gaba 1985 (4) SA 734 (A).
14
S v Dhliwayo & Anor 1985 (2) ZLR 101 (S) at 118 D–E.
15
S v Munukwa & Ors 1982 (1) ZLR 30 (S) at 33F-G.
16
Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (S).
17
Section 113B of the Criminal Procedure and Evidence Act.
18
It is set out in section 113 of the Criminal Procedure and Evidence Act.

131
 2. The statement is read to the accused and he is informed of when, where and to
whom it was allegedly made.
3. The magistrate must ask the accused if he made the statement freely and voluntarily
and without being unduly influenced. He must also explain to the accused that if he
admits that he so made the statement, it will be confirmed and can be produced at
his trial without further proof, and that if he contests its admissibility at the trial he
will have to prove that it is inadmissible.
4. If the accused admits that he made the statement freely and voluntarily and without
undue influence, the magistrate must confirm it by so endorsing it. The same ap-
plies if the accused refuses to answer questions as to whether he made the statement
or whether he did so voluntarily: the magistrate must confirm it by endorsing it.19
5. If the statement has been translated into English, the magistrate must ensure that the
translation represents what the accused actually said.
6. If the accused denies making the statement, or alleges it was not made freely and
voluntarily, the magistrate must ask him to give sufficient particulars to inform the
State of the facts on which he relies and, where possible, to identify the people who
pressured him into making the statement. The magistrate must also tell the accused
that if he fails to mention any relevant fact which, in the circumstances, he could
reasonably be expected to mention, the court may draw adverse inferences from his
failure.
7. If the accused alleges he was subjected to physical ill-treatment, the magistrate must
note any injuries he observes and may have the accused medically examined.
8. If the accused says anything that implies that he was offered some form of induce-
ment to make the statement, the magistrate should question him to clarify the posi-
tion. Confirmation without taking this course would be improper.20
9. The magistrate should also look out for suspicious factors which may indicate that
undue pressure has been applied, such as a long period between the recording of a
statement and the bringing of the accused to court for confirmation proceedings.
The accused is entitled to be legally represented at confirmation proceedings, 21 and mem-
bers of the public are permitted to be present in the same way that they can attend criminal
trials.
After confirmation proceedings, the accused should not be returned to the custody of the
police: sending him back to police custody would make a mockery of the protection the
procedure is meant to afford.22
If the accused is subsequently tried in the magistrates court and the confirmed statement is
to be tendered in evidence at that trial, the magistrate who confirmed the statement should
not preside over the trial.

19
Section 113(3)(a) of the Criminal Procedure and Evidence Act. In this respect, i.e. endorsing the statement
if the accused remains silent, the section violates the accused’s right to silence.
20
S v Slatter & Ors 1983 (2) ZLR 144 (S) at 159.
21
This right was conferred specifically by subsection (6) of section 113 of the Criminal Procedure and Evi-
dence Act, but that subsection was repealed by Act 9 of 2006. Nevertheless, the references to “legal repre-
sentative” throughout Part VIII indicate that there was no intention to remove the right to legal representation.
22
S v Munukwa & Ors 1982 (1) ZLR 30 (S) at 38E; S v Slatter & Ors 1983 (2) ZLR 144 (S) at 160G-H.

132
Production of confirmed statement
Once a statement has been confirmed, it is admissible in any court on its production by the
prosecutor. According to section 256(2) of the Criminal Procedure and Evidence Act, if the
accused wishes to challenge its admissibility the onus is on him to prove, on a balance of
probabilities, that it was not made by him or that he did not make it freely and voluntarily
without having been unduly influenced.
In other words, an accused person who challenges a confirmed statement faces a reverse
onus. In S v Zuma & Ors 1995 (2) SA 642 (CC), the South African Constitutional Court
held that the equivalent provision in the S.A. Criminal Procedure Act violated the accused’s
right to a fair trial. The reasoning in Zuma’s case is compelling:
“[T]he common-law rule in regard to the burden of proving that a confession was voluntary has
been not a fortuitous but an integral and essential part of the right to remain silent after arrest,
the right not to be compelled to make a confession, and the right not to be a compellable wit-
ness against oneself. These rights in turn are the necessary reinforcement of Viscount San-
key’s ‘golden thread’ — that it is for the prosecution to prove the guilt of the accused beyond
reasonable doubt (Woolmington’s case supra23). Reverse the burden of proof and all these
rights are seriously compromised and undermined. I therefore consider that the common-law
rule on the burden of proof … forms part of the right to a fair trial.”24

Challenge to validity of confirmation proceedings

It is open to an accused person at his trial to challenge the validity of confirmation proceed-
ings (instead of, or as well as, challenging the admissibility of the statement). He may rely
on factors such as denial of legal representation, or threats by the police that any resistance
to confirmation would lead to further torture. If the accused raises a potentially sustainable
challenge to the confirmation of his statement, the court must determine the validity of the
challenge as a separate preliminary issue before the statement is produced in court. In such
a case the onus is on the State to prove the validity of the confirmation proceedings beyond
a reasonable doubt.25
The conduct of confirmation proceedings may be proved by producing the record of the
proceedings; the record may be handed in by any person.26

Deletion of prejudicial matter from extra-curial statements

Sometimes accused persons mention things in their statements which would be inadmissi-
ble and prejudicial to them if revealed at their trial. For example, an accused person may
admit that he has previous convictions, or that he has committed some other crime.
In terms of section 256(3) of the Criminal Procedure and Evidence Act, a prosecutor is al-
lowed to alter an accused person’s written statement by deleting such matters from it. The
accused must be given notice of the prosecutor’s intention, and this is done by serving on
him a copy of the statement from which the matters have been deleted, and giving him five
days within which to object to the deletion. If the accused does object to the deletion, then
the original statement is admissible at his trial despite the prejudicial material.
Two points should be noted. First, there is no provision in section 256(3) for the accused
person to waive the requirement of five days’ notice. This suggests that he cannot do so,

23
Woolmington v DPP [1935] AC 462 (HL).
24
At page 659G-I.
25
S v Woods & Ors S-60-93, quoted in S v Woods & Ors 1993 (2) ZLR 258 (S) at 268.
26
Section 115B of the Criminal Procedure and Evidence Act.

133
and that it is not competent for a prosecutor to alter the statement in court and obtain the
accused person’s consent to the deletion.27 Secondly, it would not be enough simply to
serve a copy of the amended statement on the accused. He should be informed what altera-
tions are proposed to be made to the statement and invited to object if he so wishes. He
should also be told of the consequences of any objection or failure to object to the proposed
deletion.

Objections to our law vis-à-vis extra-curial statements

The procedure regarding extra-curial statements is open to several objections.
It encourages suspects to make statements to the Police
The police can detain suspects for up to 48 hours. During that time the detainee has all
“non-essential wearing apparel” removed and is kept in police cells. Sometimes the detain-
ee is left there for a day or more before a warned and cautioned statement is recorded. Such
treatment gives the police, at the very least, a significant psychological advantage. In such
circumstances, can it really be said that any statement recorded from a detained suspect is
truly voluntary?

The statement may not be reliable

A suspect may think that the easiest way to escape questioning and detention is to lie and
construct an alibi. If, at his subsequent trial, the alibi is destroyed, his credibility will suf-
fers.
The police may themselves draft a statement and pressurise a suspect to sign it, leading to
the police being able to slip in terms (e.g. “intent”) which have a particular legal signifi-
cance of which the suspect is unaware. Sometimes the police may insert such terms into a
statement inadvertently, through misunderstanding what the suspect is trying to say. In ei-
ther event a statement recorded by the police may not reflect what the suspect really means.
If the police try to extract a statement from an accused person by using methods that would
be impermissible if they were employed in open court, this may not become apparent at the
subsequent trial. The rules of procedure are there to ensure fairness, and they should not be
capable of evasion in this way.
The State can tailor its case to meet the defence case
In civil proceedings, the defendant sees the plaintiff’s summons or declaration before set-
ting out his defence, and can ask for further particulars if any of its details are obscure. The
defendant can therefore ascertain the plaintiff’s full case before revealing his own. In crim-
inal proceedings, in contrast, the police do not have to reveal any evidence that they have
against the accused before asking him to give them his side of the story.
Note that from the Judges’ Rules, the purpose of police questioning is theoretically to clear
up ambiguities and establish the facts.28 In fact, it is often to persuade the suspect to talk.

Reliance on confessions leads to skimped investigations

In many cases where the prosecution relies on a confession by the accused person, there is
additional evidence available to prove the accused person’s guilt. Through relying on a

27
See Reid Rowland Criminal Procedure in Zimbabwe p. 20-13.
28
Rule (2) of the South African Judges’ Rules states: “Questions, the sole purpose of which is that the an-
swers may afford evidence against the person suspected, should not be put.”

134
confession the police often ignore this other evidence, so the only evidence presented to the
prosecutor in the police docket is evidence of the commission of the crime (the complain-
ant’s statement) and the accused’s confession. If the confession is ruled inadmissible, the
prosecution fails.
The trial court may read an accused’s statement even if it is subsequently ruled in-
admissible
When an accused person’s statement is tendered in evidence at his trial, the presiding judge
or magistrate will often be able to read the statement before ruling on its admissibility. So
even if the statement is subsequently ruled to be inadmissible, the judge or magistrate will
know what the accused told the police and, being human, he may believe that the statement
was true even if the accused was forced to make it.
The police can get statements from accused persons who are unaware of their
rights
Most Zimbabweans are ignorant of their rights. And for cultural and historical reasons,
they often regard the police as all-powerful. Hence they are not likely to object to improper
conduct on the part of the police.
Although the police have to advise accused persons of their right to engage a lawyer,29 few
Zimbabweans can afford to engage legal practitioners to advise them. Even those who can
afford legal representation cannot always get their lawyer to drop everything and rush down
to the police station. In any event, legal advice given to accused persons at a police station
is not always satisfactory. Inexperienced lawyers sent to represent a client who has been
arrested may not be as challenging as they ought to be.30
Commonly, an accused person will make a statement to the police, but at his subsequent
trial will deny making it or, more often, will deny making it freely and voluntarily. This
may be because at his trial he realises for the first time that he was not obliged to say any-
thing to the police and tries to evade the implications of his statement by falsely alleging
that he was assaulted or threatened or otherwise forced into making it. If the accused had
been given proper legal advice at the outset, he would probably not have made the state-
ment at all. But without that advice or adequate knowledge, he falls back on extravagant
allegations of assault which are easily proved to be false and which may distract the court’s
attention from the fact that other undue influences may have been brought to bear on the
accused (e.g., he may have been promised a more lenient sentence, or release on bail, if he
admits the crime).

Conviction of accused person on proof of confession

Under section 273 of the Criminal Procedure and Evidence Act [Chapter 9:07], an accused
person who has pleaded not guilty can be convicted if the prosecution proves that he con-
fessed freely and voluntarily to the crime charged, and that the crime charged was actually
committed.

29
Section 50(1)(b) of the Constitution and section 41A of the Criminal Procedure and Evidence Act.
30
Cf S v Woods & Ors 1993 (2) ZLR 258 (S) at 273.

135
 14. WITNESSES
Securing the presence of witnesses
Witnesses are brought to court in two ways: by warning them to appear, and by serving
them with subpoenas.

Warning
The Police frequently warn (i.e. order) witnesses to appear in court on a particular date and
at a particular time. The warning may be given orally or in writing. A warning by the po-
lice has no legal effect, but is a convenient way of getting witnesses to court; on the other
hand, a witness cannot be punished for failing to appear in court in response to such a warn-
ing.1
Similarly, courts occasionally warn (i.e. order) people who are in court to remain in attend-
ance as witnesses or to attend at a future date. Again there is no legal basis for such a warn-
ing, and if the person refuses to remain in attendance, or doesn’t attend court at the future
date, it is doubtful if the court can impose any sanction on him.

Subpoena
A subpoena2 is a document requiring a person to attend court as a witness on a specified
date and at a specified time. It may also require the person to produce to the court any
books, papers or documents (in which case it is called a subpoena duces tecum3).
A subpoena may be issued at the instance of either the prosecutor or the accused. The reg-
istrar, assistant registrar or clerk of the court where the trial is to be held must subpoena
witnesses for the defence on the application of the accused if the accused satisfies him that
he cannot pay the necessary costs and fees, and that the witnesses are necessary and materi-
al for his defence.4 If the registrar or clerk refuses to issue a subpoena for the defence, the
accused can have the application referred to a judge or magistrate, who may grant or refuse
it or defer a decision on it until evidence has been led at the trial.5
Subpoenas are served, usually by police officers, either personally or by handing a copy to
a person who is apparently at least 16 years old and who apparently lives or is employed at
the witness’s residence or place of business.6
When a witness attends court in obedience to a subpoena, he must remain in attendance un-
til excused by the court. If he fails to attend or to remain in attendance he may be arrested
under a warrant issued by the judge or magistrate, who may have him detained or may re-
lease him on a recognizance with or without sureties.7 In addition, the judge or magistrate
may inquire into his failure to obey the subpoena and may sentence him to a fine of up to

1
See Reid Rowland Criminal Procedure in Zimbabwe p. 8–2.
2
From the Latin sub poena, meaning “under penalty”.
3
In Latin, “under penalty bring with you”.
4
Section 229(3) of the Criminal Procedure and Evidence Act.
5
Section 229(4) of the Criminal Procedure and Evidence Act.
6
Sections 9 and 10 of the High Court (Criminal Procedure) Rules, 1964 (SI 452 of 1964).
7
Section 237 of the Criminal Procedure and Evidence Act.

136
level 38 and/or imprisonment for up to three months9. Before imposing sentence, however,
the judge or magistrate should afford the witness an opportunity to explain himself and, if
necessary, to obtain legal representation.10

Exclusion of witnesses from courtroom

The court may, at any time during a trial, order that anyone who is to be called as a witness,
apart from the accused, must leave the court and remain outside until called. The court may
also order that a witness who has given evidence must remain in court. 11 It is accepted
practice that witnesses should remain outside the court until they are called to give evi-
dence; this prevents them tailoring their testimony to fit in with evidence that has already
been given. Likewise, keeping witnesses who have testified in the courtroom will prevent
collusion between them and witnesses who have yet to testify.

Hostile witnesses
Sometimes the prosecution has to call witnesses who are reluctant to give evidence against
the accused: perhaps because they are related to the accused, or because they are his
friends or employees, or for some other reason. In such cases it may be difficult for the
prosecutor to extract evidence from the witnesses without cross-examining them, and so he
or she may ask the court to declare them hostile.
Not all witnesses who are related to or friendly with the accused are hostile, and before a
court will declare a witness hostile the witness must show an unwillingness to tell the
whole truth. As stated by De Villiers JP in Meyer’s Trustee v Malan 1911 TPD 559 at
56112:
“The court must come to a decision as to whether the witness is adverse, i.e. hostile, from his
demeanour in the box, his position towards or relationship to the party calling him, and from
the general circumstances of the case.”
The court has a discretion whether or not to declare a witness hostile, and the court’s discre-
tion will not lightly be altered on review or appeal.13
Once a witness has been declared hostile, he or she may be cross-examined by the prosecu-
tor.
What is said above about prosecution witnesses who prove hostile applies equally to de-
fence witnesses who prove hostile to the accused.

Discrediting or impeaching witnesses

If a prosecution witness gives evidence that is inconsistent with a previous statement he or
she made to the police the prosecutor may be obliged to disclose the fact to the court or the
defence lawyer (the circumstances in which the prosecutor is obliged to do so are set out
earlier). If the discrepancy is not one which the prosecutor is obliged to disclose (i.e. if it is

8
A fine of level 3 is currently fixed at $60 (First Schedule to the Criminal Law Code, as substituted by the
Finance Act, 2019 (No. 1 of 2019).
9
Section 237(3) of the Criminal Procedure and Evidence Act.
10
Reid Rowland Criminal Procedure in Zimbabwe p. 8–4.
11
Section 194(3) of the Criminal Procedure and Evidence Act.
12
Cited in Hoffman & Zeffertt The S.A. Law of Evidence 4th ed p 455.
13
Steenkamp v Street 1923 TPD 208, cited in Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p. 455.

137
not material) or if the prosecutor wants to discredit the witnesses’ evidence completely so
that the court will not rely on it, he or she may impeach the witness.
This involves confronting the witness with his previous statement. The court must first be
informed of the discrepancy, then the witness must be asked if he made the statement; he
must be given sufficient particulars about when and where the statement was made to allow
him to identify it. If the witness denies making it, then the police officer who recorded it
should be called, plus any interpreter. If the statement is proved, or the witness admits
making it, the witness must be asked to explain the discrepancy.14 This is the course to fol-
low if the prosecutor does not want the witness’s evidence to be used.
The fact that a witness has been proved to have made previous inconsistent statement does
not necessarily mean that his or her evidence must be totally disregarded. The witness’s
explanation for the inconsistency may be acceptable, and the inconsistency may not affect
the whole of the witness’s evidence. But if the inconsistency applies to the whole of his or
her evidence it will discredit the evidence completely.
What has been said about impeaching prosecution witnesses applies equally to the im-
peachment of defence witnesses if they give evidence inconsistent with previous state-
ments.

Protection of vulnerable witnesses

Under Part XIVA of the Criminal Procedure and Evidence Act [Chapter 9:07], vulnerable
witnesses — i.e. persons who are likely to suffer substantial emotional stress from giving
evidence, or are likely to be intimidated — are afforded some relief from the stresses of
giving their evidence in open court. The most usual categories of vulnerable witnesses are
women and children who are victims of crime.

Measures that can be taken to protect vulnerable witnesses

If a court considers that a witness is vulnerable and needs protection, the court can do any
of the following, either on its own volition or on application of the prosecutor or accused:15
• appoint an intermediary or a support person for the witness;
• direct that the witness should give evidence from a place, in or away from the accused’s
presence, where the witness is likely to suffer less stress or intimidation (but if the wit-
ness is to give evidence away from the accused’s presence, he and his lawyer must be
able to see and hear the person giving evidence, whether through a screen or closed-
circuit television or some other means);
• adjourn the proceedings to another place, where the court considers he or she will be
less likely to be subjected to stress or intimidation;
• make an order excluding the public from the proceedings.
Note that these measures do not include allowing the witness to give evidence before the
trial, or training or coaching the witness in how to give his or her evidence. 16 Nor do the
measures cover protecting witnesses after they have given evidence.

14
S v Mazhambe & Ors 1997 (2) ZLR 587 (H). The procedure is set out in section 316 of the Criminal Pro-
cedure and Evidence Act [Chapter 9:07].
15
Section 319B of the Criminal Procedure and Evidence Act [Chapter 9:07].
16
As to the dangers of training and coaching witnesses, see the English case of R v Momodou & Anor [2005]
2 All ER 571 (CA) cited in S v Le Roux (A746/10) [2011] ZAWCHC 367 (1 September 2011).

138
Before taking any such action the court can interview the witness to assess his or her vul-
nerability, and must give the prosecution and defence an opportunity to make representa-
tions.17
Persons who are appointed as intermediaries for vulnerable witnesses must be either court
interpreters or former court interpreters, or persons who have undergone approved training.
Support persons will be parents or guardians of the witness, or other persons whom the
court considers can give the witness moral support.18 Where an intermediary has been ap-
pointed all questions must be directed to the witness through the intermediary (except for
questions put by the court itself) and the witness’s answers may be relayed to the court
through the intermediary.19

17
Sections 319C(2) and 319D of the Criminal Procedure and Evidence Act [Chapter 9:07].
18
Section 319F of the Criminal Procedure and Evidence Act [Chapter 9:07].
19
Section 319G of the Criminal Procedure and Evidence Act [Chapter 9:07].

139
 15. PRELIMINARIES TO THE TRIAL
Date of trial
High Court
When a person is to be tried in the High Court the trial date is determined by the Prosecu-
tor-General or his representatives, though the court, on good cause shown by the accused,
may order that the trial should be held on an earlier date.1 The court may also postpone the
trial. Hence, the Prosecutor-General’s representatives must be reasonable in fixing a trial
date, and should consult the accused’s legal practitioner when doing so. 2 Note that the trial
date fixed by the Prosecutor-General must be within six months from the date of the ac-
cused’s committal for trial (excluding any time during which the accused is not available to
stand trial); if it is later, the case against him must be dismissed.3

Magistrates court
An accused must be brought up for trial on “the next possible court day”, 4 but his trial may
not take place on that date; it may be postponed. The actual date of trial is fixed by the
public prosecutor, and as with the High Court it is desirable that when fixing a date the
prosecutor should consult the accused’s legal practitioner, if any.

Postponement or adjournment of trial

A court has power to postpone and to further postpone any trial pending before it, if the
court considers it necessary and expedient, and to impose terms on any such postpone-
ment.5 In the case of a magistrates court, the trial cannot be postponed for more than 14
days without the accused person’s consent.6
Once a trial has started, it may be adjourned whether or not any evidence has been led, but
once again a magistrate may not adjourn a trial for more than 14 days at a time without the
accused’s consent.7
The court’s power of adjournment is of course limited by the constitutional provision guar-
anteeing accused persons the right to a trial within a reasonable time.8

Bringing the accused to trial in the High Court

In terms of section 65 of the Criminal Procedure and Evidence Act, no one may be tried in
the High Court at the public instance unless he has been committed for trial there by a mag-
istrate. So once the Prosecutor-General’s representative has fixed a date for the trial, he
must cause the accused person to be committed for trial there. This is done by sending a

1
Section 160(1) of the Criminal Procedure and Evidence Act.
2
S v Paweni & Anor 1984 (2) ZLR 16 (H) at 27E.
3
Section 160(2) of the Criminal Procedure and Evidence Act.
4
Section 163 of the Criminal Procedure and Evidence Act
5
Section 165 of the Criminal Procedure and Evidence Act.
6
Section 165 (proviso) of the Criminal Procedure and Evidence Act.
7
Section 166 of the Criminal Procedure and Evidence Act.
8
Section 69(1) of the Constitution. This was dealt with earlier in these lectures under Arrest and Remand.

140
notice to the magistrate stating that he has decided to indict the accused for trial in the High
Court and informing the magistrate of the charge against the accused. 9 The magistrate will
then have the accused brought before him, commit him for trial in the High Court, order his
further detention until the trial, and cause the following papers to be served on him (the pa-
pers will have been prepared by the Prosecutor-General’s representative and sent to the
magistrate with the notice):10
• the notice of trial;
• the indictment;
• a list of witnesses the State intends to call at the trial, together with a summary of the
evidence which each witness is expected to give, sufficient to inform the accused of all
the material facts on which the State relies;
• a notice requesting the accused to give an outline of his defence, and a list of any wit-
nesses he intends to call, together with a summary of the evidence which each witness
is expected to give, sufficient to inform the prosecution of all the material facts on
which the accused relies.
If the accused is to be legally represented at his trial (and most accused persons are in the
High Court), his legal practitioner must, at least three days before the trial, lodge his de-
fence outline, together with the list of witnesses and the summary of their evidence, with
the Registrar of the High Court and must deliver a copy to the Prosecutor-General.11 If the
accused is not to be legally represented at his trial, the Prosecutor-General can have him
brought before a magistrate who must:
• ask the accused if he understands the Prosecutor-General’s documents that were served
on him. If the accused doesn’t, the magistrate must explain them to him;
• inform the accused of his right to remain silent and of the consequences of doing so, in
particular that if he fails to mention anything which, in the circumstances, he could rea-
sonably be expected to have mentioned, adverse inferences may be drawn from that
failure and the failure may be regarded as corroborating the State’s evidence against
him; and
• request the accused to give his defence outline, the names of any witnesses he intends to
call and a summary of their evidence.12
So whether the accused is legally represented or not, he is induced to provide the State with
an outline of his defence before the trial starts.
There is no harm in the accused being asked to reveal his defence, so long as he is told that
he does not have to do so — and section 66(10)(b) of the Criminal Procedure and Evidence
Act requires the magistrate to do this. What is unconstitutional is the fact that if an accused
person fails to give an outline of his defence, or fails to mention a material fact, adverse in-
ferences can be drawn and the failure can be regarded as corroborating the State’s evidence.
The accused is penalised for exercising his constitutional right to silence.

9
Section 66(1) of the Criminal Procedure and Evidence Act.
10
Section 66(2) and (6) of the Criminal Procedure and Evidence Act.
11
Section 66(8) of the Criminal Procedure and Evidence Act.
12
Section 66(10) of the Criminal Procedure and Evidence Act.

141
 16. OUTLINE OF TRIAL PROCEDURE FROM PLEA TO
SENTENCE
Introduction
Each stage of a criminal trial is governed by rules, sometimes quite complex ones. The
rules are easier to understand if we have a broad picture in our minds of what usually hap-
pens in criminal trials from the time that the accused person pleads to the charge until he is
either acquitted or found guilty and sentenced. So what follows is an outline of what hap-
pens in most trials in the High Court and in magistrates courts. The rules governing each
stage of a trial, and what can happen at each of those stages, will be dealt with in more de-
tail later in these notes.

Explanation of Accused Person’s Rights

Before an accused person is called on to plead in a magistrates court, the magistrate must
inform him of his right to be represented by a lawyer ‒ this does not apply, of course, if the
accused is legally represented.

Arraignment
This is the stage when the accused person is called on to plead to the charge, which is set
out in an indictment (in the High Court) or in a summons or charge sheet (in a magistrates
court). Although the accused can put forward special pleas such as challenging the jurisdic-
tion of the court or that he has already been tried for the crime, he will normally plead ei-
ther guilty or not guilty.

Plea of guilty
If the accused person pleads guilty to the charge, he is admitting that he committed the
crime to which he is pleading guilty. He may plead guilty to all charges, or to some of
them, or to a lesser crime. If he pleads guilty to a lesser crime the court will record a plea
of not guilty unless the prosecutor indicates that he or she accepts the plea to the lesser
crime.
The High Court can convict an accused person who has pleaded guilty without hearing any
evidence, though in practice if the accused pleads guilty to murder the court will record a
plea of not guilty and require the prosecution to lead evidence.
If an accused person pleads guilty in a magistrates court the court can convict him without
hearing evidence if he is charged with a petty crime (i.e. one where a fine of level 3 or less
is imposed). If however the crime is more serious the court can convict an accused person
without hearing evidence only if the court is satisfied that he fully understands the charge
and the essential elements of the crime, and that by pleading guilty he is admitting all those
elements and the acts and omissions set out in the charge. Once the court is satisfied on
that score, it can convict him without any evidence and can impose any appropriate sen-
tence on him.

Plea of not guilty

By pleading not guilty the accused person is challenging the prosecution to prove beyond a
reasonable doubt that he or she committed the crime charged. So when an accused person
pleads not guilty, there needs to be a trial to determine his guilt.

142
 Outline of State and Defence Cases
High Court
In the High Court both parties ‒ prosecution and defence ‒ have provided the court and
each other with outlines of their respective cases before the trial begins. When an accused
person is committed for trial in the High Court, he must be given a written outline of the
State case summarising the evidence which each State witness is expected to give. And
before the trial is held, his legal practitioner must provide the prosecution with an outline of
his defence, summarising the evidence which each defence witness is expected to give. If
he fails to do so, the court may draw adverse inferences from the failure ‒ that is, the court
may infer that his failure to provide the outline indicates he has something to hide.
So before the trial starts each party knows the case the other party will try to establish.
Nonetheless, before leading any evidence the prosecutor will usually give the court a brief
explanation of what the case is about.

Magistrates court
After an accused person has pleaded not guilty in a magistrates court, the prosecutor must
provide a written outline of the nature of the State case and the material facts he or she will
rely on. The accused person is then asked to give an outline of his defence and the material
facts on which he will rely. If he fails to do so, the court may draw adverse inferences from
the failure.

The State Case

After the accused has pleaded not guilty and ‒ in a magistrates court ‒ the prosecutor and
the accused have outlined their cases, the prosecutor must lead the State’s evidence. This is
done by getting the State witnesses to come to the witness stand, one by one, and be sworn
and give their evidence orally. The prosecutor guides them through their evidence by ask-
ing them questions, though the questions must not be “leading”. When the prosecutor has
guided a witness through his or her evidence, the accused or his legal practitioner is al-
lowed to cross-examine the witness ‒ that is, ask the witness questions in order to discredit
the witness’s evidence or to bring out points in favour of the defence. After the witness has
been cross-examined the prosecutor is allowed to re-examine the witness in order to deal
with points arising from the cross-examination.
If the prosecutor wants to produce evidence of an extra-curial statement made by the ac-
cused, he can simply hand in the statement if it has been confirmed by a magistrate. If it
has not been confirmed, then the court must embark on a “trial within a trial”, i.e. an en-
quiry to determine the circumstances in which the accused made the statement. Only if the
prosecution proves that the accused made it freely and voluntarily will it be admitted in ev-
idence.
When all the State witnesses have given evidence the prosecutor must close the State case.

Discharge at End of State Case

When the State has closed its case the judge or magistrate must decide whether the State’s
evidence is sufficiently convincing to establish a prima facie case, i.e. a case that requires a
response from the accused. If it is not, the judicial officer must discharge the accused by
finding him not guilty. If there is a prima facie case against the accused, however, it is the
turn of the accused or his legal practitioner to present the defence case.

143
 Defence Case
The judicial officer must tell the accused, if he is not legally represented, that if he is going
to give evidence he must do so before any of his witnesses give theirs. The accused must
also be told that even if he does not give evidence he may be questioned by the prosecutor
and the court.
Before leading any evidence the accused or his legal practitioner may address the court,
outlining the evidence he is going to lead.
The accused (if he gives evidence) and his witnesses come to the witness stand one by one
to give their evidence orally. They are all liable to be cross-examined by the prosecutor
and, when they have been cross-examined, to be re-examined by the accused or his legal
practitioner.
When all the accused’s witnesses have given evidence, the defence case is closed.

Verdict
After the defence case is closed, the judicial officer can reach a verdict. Before doing so,
however, the prosecutor must be given an opportunity to address the court, summing up the
case against the accused, and then the accused or his legal practitioner must be allowed to
address the court. Having heard both parties the judge or magistrate can then deliver judg-
ment and verdict, i.e. the decision on whether the accused is found guilty or not guilty.
If the accused is found not guilty he is discharged and released from custody. If however
he is found guilty, the judge or magistrate has to consider what sentence to impose.

Sentence
Before imposing sentence the judicial officer must give both parties an opportunity to ad-
dress the court and lead evidence in regard to an appropriate sentence. The prosecutor
normally starts, and can lead evidence as to the accused person’s previous convictions and
deal with any other factor that relates to sentence. The accused or his legal practitioner
must also be allowed to address and lead evidence in mitigation of sentence.
Having done that, the judicial officer is in a position to impose whatever sentence is appro-
priate and lawful.

144
 17. PLEAS
Arraignment
Arraignment is the putting of charges to the accused person so that he can plead to them. If
two or more accused are being tried together, each one must be called upon personally to
plead to the charges.
It is not necessary for the charge to be read to the accused if the judge or magistrate is satis-
fied that the accused has read it and understands it. Nor need the charge be read verbatim
to the accused, so long as the judge or magistrate satisfies himself that the accused knows
exactly what he is required to plead to.1
The accused must make his plea freely and voluntarily and without having been influenced
to do so by assaults or threats of violence. If the accused pleads guilty because he has been
threatened with a more severe sentence should he plead not guilty, it is not a proper plea.2
When a charge is put to the accused, he is required to plead, or answer, to it “instantly”.3
He must plead to it personally, and his legal practitioner should not tender a plea on his be-
half unless it is confirmed by the accused.4 If the accused is a company or other corporate
body, the director or employee representing the company or corporate body will plead on
the accused’s behalf — though a plea of guilty will not be valid unless the company or cor-
porate body has authorised it.5
If the accused person refuses to plead at all, a plea of not guilty may be entered.6

Objections to charge
The accused may refuse to plead to a charge on the ground that he has not been served with
a copy of the indictment or summons.7 A conviction will be set aside if the accused is ar-
raigned on a serious charge without being given sufficient notice to prepare his defence or
seek legal representation – though this will not apply if the trial is then adjourned to give
the accused time to do so.8

Exceptions and motions to quash

Objections to a charge (apart from the example noted above) take the form of exceptions or
motions to quash.
An exception is an objection to the charge, usually on the ground that it discloses no crime.
A motion to quash is raised when the charge lacks particularity so as to prejudice or embar-
rass the accused in his defence.

1
S v Gwebu, S v Xaba 1968 (4) SA 783 (T).
2
Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 p. 401.
3
Section 168 of the Criminal Procedure and Evidence Act.
4
S v Nyandoro 1987 (2) ZLR 66 (S).
5
Section 385(3) of the Criminal Procedure and Evidence Act.
6
Section 182 of the Criminal Procedure and Evidence Act.
7
Section 168 of the Criminal Procedure and Evidence Act.
8
S v Masilela 1990 (2) SACR 116 (T), cited in Geldenhuys & Joubert Criminal Procedure Handbook 10th ed
p. 238.

145
Motions to quash are made only against indictments in the High Court; all objections to a
charge in a magistrates court are brought by way of exception. An accused can except to
the charge and plead to it at the same time, and in that event the court has a discretion
whether to dispose of the exception before evidence is led or after.9 But generally, objec-
tions to a charge or indictment must be taken before the accused person has pleaded, not
afterwards,10 and if he has already pleaded, he cannot object to the charge and the trial must
proceed — though he can raise the objection at the end of the trial as a reason for acquit-
tal.11

Notice to be given before objecting to charge, and for certain pleas

Before excepting to a charge or applying to have the charge quashed, and before tendering
any plea other than guilty or not guilty, the accused must give reasonable notice to the
Prosecutor-General or his representative, or to the public prosecutor if the trial is in a mag-
istrates court.12 The Prosecutor-General or the prosecutor may however waive notice, and
the court may dispense with the requirement of notice on good cause shown.

Particular pleas
The various pleas that may be tendered by an accused person are set out in section 180(2)
of the Criminal Procedure and Evidence Act. They are as follows:

Not guilty
By pleading not guilty, an accused person is regarded as having demanded the trial of the
questions involved, and that the prosecution should be put to the proof of its allegations
against him.13 Note that it is not necessarily a statement by the accused person that he did
not commit the crime; it is really a challenge to the prosecution to prove its case if it can.

Guilty
A plea of guilty to the charge is an admission of all the material facts stated in the charge.
After a plea of guilty there is no issue between him and the State.
The accused may, however, tender a plea of guilty to a lesser crime than the one charged:
for example, an accused charged with murder may tender a plea of guilty to culpable homi-
cide.14 The prosecutor (not the court) then has a discretion whether or not to accept the
lesser plea.15 The same applies where the accused pleads guilty to an alternative charge. If
the prosecutor accepts the plea it is not competent for the court to convict the accused of the
more serious crime that was charged.16 If, on the other hand, the prosecutor does not accept
it, then a plea of not guilty is entered and the trial goes ahead as if the accused had pleaded
not guilty — but the plea is regarded as an admission by the accused of the facts that go to
make up the lesser crime. For example, if the accused is charged with murder and tenders a

9
Section 180(4) of the Criminal Procedure and Evidence Act.
10
Section 170 of the Criminal Procedure and Evidence Act.
11
David & Ors v Van Niekerk NO & Anor 1958 (3) SA 82 (T).
12
Section 179 of the Criminal Procedure and Evidence Act.
13
Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 p. 425.
14
Section 180(2)(a) of the Criminal Procedure and Evidence Act.
15
Reid Rowland Criminal Procedure in Zimbabwe p. 16-17. See also Lansdown & Campbell S.A. Criminal
Procedure and Evidence vol 5 p. 418-9 for a discussion of plea bargaining.
16
R v Machingura 1944 SR 194.

146
plea to culpable homicide, which plea is not accepted by the prosecutor, then at the subse-
quent trial the accused will be regarded as having admitted that he unlawfully caused the
death of the deceased person.17
Note that if, after pleading not guilty, an accused person during the trial tenders a plea of
guilty to a lesser crime the prosecutor cannot accept the plea except with the leave of the
court since once he has pleaded the case is in the hands of the court.18

Procedure on plea of guilty

High Court
In the High Court, it is competent for the court to convict an accused person on his plea of
guilty without hearing any evidence.19 This does not, however, apply to a charge of mur-
der. In such a case, a plea of not guilty is entered as a matter of course and the trial pro-
ceeds as if that had been the accused person’s plea, though any admission he may have
made with his plea is taken into account.20 Oral evidence must be led, and it is not suffi-
cient for the trial to be based solely on admissions of fact.21
Magistrates court
In a magistrates court, if the accused person pleads guilty to the crime charged, or if he
pleads guilty to any other crime of which he could be convicted on the charge sheet and the
prosecutor accepts the plea of guilty to that other crime, the procedure to be followed de-
pends on whether the crime to which the accused has pleaded is a petty one or is more seri-
ous. This procedure is set out in section 271(2) of the Criminal Procedure and Evidence
Act.
Petty Crimes: If the court considers that the crime merits nothing more than a fine
of level 3,22 it may adopt the procedure set out in section 271(2)(a) of the Criminal Proce-
dure and Evidence Act and without further ado convict the accused of the crime to which
he has pleaded guilty and impose a fine of level 3 or less. The court may also impose any
additional punishment that is required by law — for example, a prohibition from driving, in
the case of a driving crime, or forfeiture of an article used in the commission of the crime
— but it may not impose a sentence of imprisonment, even if it is wholly suspended.23
This procedure should be adopted only for minor crimes, and the prosecutor should assist
the court in deciding whether the crime is a minor one. If the prosecutor, in the light of the
facts of the case, considers the crime is not minor, he should outline the facts and request
the court to proceed in terms of section 271(2)(b) of the Criminal Procedure and Evidence
Act; the court must accede to this request. (Note, however, that the court is not obliged to
follow the procedure under section 271(2)(a) merely because the prosecutor recommends it;
the discretion to do so is vested in the court, not the prosecutor.)

17
Reid Rowland Criminal Procedure in Zimbabwe p. 16-18.
18
Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 pp. 419 and 425.
19
Section 271(1) of the Criminal Procedure and Evidence Act.
20
S v Nangani 1982 (1) ZLR 150 (S); S v Dehwe 1987 (2) ZLR 231 (S).
21
S v Nzuza 1963 (3) SA 631 (A).
22
A fine of level 3 is currently fixed at $60 (First Schedule to the Criminal Law Code, as substituted by the
Finance Act, 2019 (No. 1 of 2019)).
23
S v Honde & Ors HB-27-91.

147
 More serious crimes: If the court considers the crime merits a more severe sen-
tence, then the court must follow the procedure laid down in section 271(2)(b) of the Crim-
inal Procedure and Evidence Act:
1. Where the accused person is not legally represented:
• The magistrate must carefully explain the charge and the essential elements of the crime
to the accused, and if the acts or omissions on which the charge is based are not readily
apparent, the magistrate must get the prosecutor to state what they are. Failure to give
this explanation will invalidate the conviction.24
In particular, the magistrate should deal with the following aspects in his explanation:
o Specific intent, where the crime requires a specific intent.
o Knowledge, where the crime requires knowledge of a particular fact or circum-
stance (e.g. receiving stolen property knowing it to have been stolen).
o Realisation of real risk or possibility (constructive intention): it may be neces-
sary to question the accused to establish whether he must have realised that
there was a real risk or possibility that his conduct would have a particular re-
sult.
o Particulars of negligence: where the accused has pleaded guilty to a crime in-
volving negligence, the particulars must be put to him.25
o Possession: this is a difficult concept, because sometimes the crime requires
more than mere detentio (i.e. physical possession). In such a case, the magis-
trate should explain what additional element (e.g. knowledge) is required.26
o Unlawfulness: sometimes this concept needs to be explained, for example in
cases of theft by finding, where the accused may have believed that the property
he found was res derelicta and that he was entitled to keep it.27 In rape cases,
the questioning must establish that the accused is admitting not merely sexual
intercourse, but also that it was not consensual. If the statute under which the
accused is charged specifies that the crime is committed if the act is done “with-
out lawful excuse” or “without reasonable excuse”, the magistrate must ascer-
tain that the accused admits that he had no such excuse.
o Special defences: if there are any special defences to a charge, these should be
explained to the accused (e.g. it is a defence to the crime of sexual intercourse
with a young person that the accused believed the young person was of or over
the age of 16).
o Where the accused is liable to a mandatory minimum sentence unless special
circumstances are shown, these should be pointed out to the accused and the
meaning of “special circumstances” explained.28
o Where there are competent verdicts on which the accused may be convicted, the
court should advise the accused that he might be convicted of such a crime.29

24
S v Sibanda 1989 (2) ZLR 329 (S).
25
S v Matimba 1989 (3) ZLR 173 (S).
26
S v Dube & Anor 1988 (2) ZLR 385 (S).
27
S v Bizwick 1987 (2) ZLR 83 (S), where the accused found a bicycle which he believed had been aban-
doned.
28
S v Dube & Anor 1988 (2) ZLR 385 (S).
29
Reid Rowland Criminal Procedure in Zimbabwe p. 17–8-9.

148
• The magistrate must record the explanation he gives the accused, together with any
statement of acts or omissions given by the prosecutor.30
• Having explained the charge and essential elements, the magistrate must ask the ac-
cused person if he understands the charge and the essential elements of the crime and if
his plea of guilty is an admission of those elements and of the acts or omissions set out
in the charge or stated by the prosecutor.31
• The magistrate must record any reply the accused makes to the above enquiry.
Having done all that, the magistrate may convict the accused person on the strength of his
plea of guilty.
2. Where the accused person is legally represented:
If the accused person is represented by a legal practitioner, the magistrate must still satisfy
himself that the accused understands the charge and essential elements, but may rely on a
statement to that effect by the accused’s legal practitioner.32
Evidence and conviction
The magistrate may call on the prosecutor to present evidence on any aspect of the charge,
both in regard to conviction and sentence.33 He may, for example, want to make sure be-
fore convicting the accused that the facts set out in the charge, and admitted by the accused,
do not disclose an attempt rather than the substantive crime charged.
Having followed the above procedure, the magistrate is then entitled to convict the accused
person of the crime to which he has pleaded.
If, however, the magistrate has any doubt that the accused person really is guilty of the
crime to which he has pleaded, or is not satisfied that the accused has admitted all the es-
sential elements of the crime or all the acts or omissions on which the charge is based, or if
he is not satisfied that the accused has no valid defence to the charge, then in all those cases
the magistrate must enter a plea of not guilty and require the prosecutor to proceed with the
trial. Any admissions made by the accused up to that point, however, may be used in evi-
dence at the trial.34
After conviction, the court and the prosecutor may question the accused with regard to sen-
tence, whether or not the accused elects to give evidence.35 There is no specific provision
stating that his answers, or his failure to answer, may be used as evidence against him, but
that is the implication of the provision.
Generally
An accused person is entitled to a fair trial, and the procedure laid down in section 271 of
the Criminal Procedure and Evidence Act must be seen in that context: a person’s trial
cannot be said to have been fair if he did not fully understand the charge he was facing. 36

30
Section 271(3) of the Criminal Procedure and Evidence Act. It is not enough simply to write “elements
explained”. The elements that have been explained to the accused must be recorded: S v Sibanda 1989 (2)
ZLR 329 (S).
31
Section 271(2)(b)(ii) of the Criminal Procedure and Evidence Act.
32
Section 271(2)(b), proviso, of the Criminal Procedure and Evidence Act.
33
Section 271(4) of the Criminal Procedure and Evidence Act.
34
Section 272 of the Criminal Procedure and Evidence Act.
35
Section 271(5) of the Criminal Procedure and Evidence Act.
36
S v Dube & Anor 1988 (2) ZLR 385 (S) and S v Chidawu 1998 (2) ZLR 76 (H) at 80.

149
Hence, even in cases where section 271(2)(b) does not apply — i.e. petty cases and cases
heard in the High Court — judicial officers must ensure that the accused person’s plea is
understandingly made.
A note on plea bargaining
If an accused person is legally represented, he may plead guilty on the basis of facts agreed
to by his lawyer and the prosecutor and recorded in a statement of agreed facts. This will
happen where, before the trial, the defence lawyer has negotiated the terms on which the
accused is prepared to plead guilty. The statement of agreed facts will set out facts which
the accused and his lawyer hope the court will find mitigating and justifying a more lenient
sentence. Prosecutors should be careful not to agree to improbable facts or facts which are
not justified by the evidence.
Where a plea of guilty has been negotiated in this way, the prosecutor or the defence lawyer
will hand in the statement of agreed facts to the court after the accused has pleaded, and the
judge or magistrate will impose sentence on the basis of those facts. However, the state-
ment does not and cannot bind the judge or magistrate to impose a particular sentence, so
when negotiating the plea the prosecutor cannot guarantee the sentence that the accused
will receive.
In other countries plea bargaining, as it is called, is more institutionalised and does involve
the courts. Plea bargaining began in the United States of America in the 1920s, when an
increasing backlog of criminal cases made it imperative to find a way to deal with them
quickly. In Federal courts in the USA there are two types of plea bargain: those that do not
bind the court to impose any particular sentence (i.e. like the Zimbabwean system outlined
above) and those that do bind the court.37 The US Supreme Court ruled in 197038 that plea
bargaining was constitutional so long as the incentives to plead guilty were not so large or
coercive as to overrule accused persons’ ability to act freely, and so long as the system was
not used in such a manner as to give rise to a significant number of innocent people plead-
ing guilty.
Plea bargaining is now so widespread in the United States that in 1980 only 19 per cent of
defendants (i.e. accused persons) were tried on pleas of not guilty; now (2017) only 3 per
cent are.39
Plea bargaining has spread beyond the United States, and now some 66 countries round the
world use it.
In South Africa plea bargaining is regulated by section 105A of the Criminal Procedure Act
1977 (No. 51 of 1977). Under that section prosecutors can negotiate plea bargains only
with accused persons who are legally represented. They must also consult the police and,
where it is reasonable to do so, allow victims or their representatives an opportunity to
comment on the proposed terms of the bargain. Where a plea bargain has been agreed on,
the prosecutor must inform the court before the accused has pleaded that it has been entered
into and, if the court is satisfied that it was properly negotiated, the plea bargain is disclosed
to the court. The court must then question the accused to make sure that he admits commit-
ting the crime and that he entered into the agreement freely and voluntarily, in his sound
and sober senses and without undue influence. Then, if the court is satisfied that the ac-

37
They are agreements under rules 11(c)(1)(B) and 11(c)(1)(C) respectively of the Federal Rules of Criminal
Procedure.
38
In Brady v United States 397 US 742 (1970).
39
“A Deal You Can’t Refuse”, The Economist 17th November 2017.

150
cused is indeed guilty of the crime and that any agreement as to sentence is just, the court
will proceed to sentence the accused in accordance with the agreement.
Advantages and disadvantages of plea bargaining
Plea bargaining allows criminal cases to be disposed of efficiently and speedily by giving
accused persons an incentive to plead guilty. It may also afford them an opportunity to get
out of prison quickly if they are in custody pending trial.
On the other hand, it can all too easily lead to innocent people being pressured into plead-
ing guilty and serving sentences for crimes they did not commit. This may happen through
prosecutors charging accused persons with multiple counts of serious crimes, sometimes
with little evidence to back them up, in order to frighten the accused into pleading guilty to
a less serious crime. In the USA, a study was conducted of 300 cases where accused per-
sons had been convicted of serious crimes but later DNA evidence, not available at the time
of their trials, showed that they were innocent. Of those 300, just over 30 of the accused
had pleaded guilty. Another study showed that a quarter of persons convicted of murder
but later cleared had falsely confessed to the crimes.40

Autrefois Acquit or Autrefois Convict

The accused may plead that he has already been acquitted or convicted of the crime with
which he is being charged; such a plea is known respectively as autrefois acquit (previous-
ly acquitted) or autrefois convict (previously convicted). This plea gives effect to the rule,
stated in section 70(1)(m) of the Constitution, that no one should be tried twice for the same
crime (nemo debet bis vexari pro una et eadem causa). If the plea is successful, it effec-
tively bars any further proceedings, so it must be adjudicated upon before the trial com-
mences.
When the plea is raised, the court should determine the issues arising from it separately
from the main issues at the trial, and should deliver a separate judgment on it.
For the plea to succeed, the accused must show that he was “in jeopardy” (i.e. in danger) at
the previous trial of being convicted of the charge that he now faces,41 or a substantially
similar charge, i.e. that he was previously tried, whether inside or outside Zimbabwe42:
• on substantially the same charge;
• by a court of competent jurisdiction; and
• the conviction or acquittal was on the merits.43
It is not enough for him to show that the charge in the previous trial was based on the same
facts: he must have been in jeopardy of being convicted of the charge which he now faces.
In all such cases, it is the substance and not the mere form of the charges that must be
looked at: the question is whether the charges are substantially the same.44

40
Ibid.
41
Which means, of course, that the earlier proceedings must have been criminal rather than civil. If they were
civil proceedings then the accused would have been in no danger of being convicted, even if the proceedings
concerned the same subject-matter: S v Paragon Real Estate & Anor 2009 (1) ZLR 208 (H).
42
In S v Pokela 1968 (4) SA 702 (E), the accused was able to raise the plea on the ground that he had been
tried and acquitted of a crime in Lesotho which was the equivalent of the one for which he was being tried in
South Africa.
43
Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 p. 437. Strictly, the requirement that the pre-
vious conviction must have been on the merits is superfluous, since a conviction can only be on the merits.
44
R v Manasewitz 1933 AD 165, 1934 AD 95.

151
Examples:
• Where a person is charged with murder and is acquitted of that charge, but is convicted
of assault (a competent verdict on a charge of murder), he cannot subsequently be
charged with culpable homicide in respect of the same victim.
• Where a person has been convicted or acquitted of attempted murder, on the other hand,
he may be charged with murder or culpable homicide if his victim later dies as a result
of the assault.45
The requirement that the acquittal must have been on the merits means that the court, at the
trial or on appeal, must have considered the merits of the case and not have acquitted the
accused on a mere procedural technicality. Hence, where an accused had been convicted of
murder, but his conviction was overturned on appeal on a technicality — that a deputy sher-
iff had sat with the jury while they deliberated — it was held that he could subsequently be
tried again for the same murder.46 This was because the defect in the proceedings was so
great as to render them a nullity ‒ no proper decision had been reached by the jury, so there
had not been a conviction at all. Hence the accused had not been in jeopardy. On the other
hand, where an interpreter who interpreted the evidence of three witnesses in a murder trial
was not properly sworn, it was held that the defect was not so great as to nullify the trial so
the accused could not be tried again for the same murder.47 If a prosecutor withdraws a
charge after the accused has pleaded not guilty, the accused’s resultant acquittal would be
on the merits even if no evidence has been led, because the accused was in jeopardy of be-
ing convicted; hence the accused could not be tried again on the same charge.48 It may
seem strange that a person can be regarded as having been acquitted on the merits if no evi-
dence has been led, but as was explained in S v Mthetwa 1970 (2) SA 310 (N), once an ac-
cused person has pleaded he is entitled to an acquittal, and it would be illogical if he could
plead autrefois acquit if he was acquitted on the ground of insufficiency of evidence, but
could not plead it if he was acquitted because no evidence at all had been led. On the other
hand, if a prosecutor withdraws a charge before the accused has pleaded, the accused can be
charged again with the same crime because until he has pleaded he is not in jeopardy of be-
ing convicted.
According to section 381 of the Criminal Procedure and Evidence Act, if a conviction is set
aside on appeal or review on the ground that the indictment or charge sheet is invalid or de-
fective, or that there were technical irregularities or defects, or that the proceedings were a
nullity, proceedings may be brought again in respect of the same crime. The same judicial
officer must not, however, preside over the subsequent trial.
The onus of establishing that the earlier crime is the same or substantially similar to the
crime with which the accused is currently charged, rests on the accused and must be done
by producing the record of the previous trial, or a copy of the record, certified by the clerk
or registrar of the court concerned, and by oral evidence that the accused is the same person
as the accused in that trial.49 In raising the plea, however, all the accused has to say is that
he was previously convicted or acquitted of the crime; only when he has raised the plea
may he be required to establish the facts on which it is based by producing the record of the

45
S v Gabriel 1970 (2) RLR 251 (A).
46
S v Moodie 1962 (1) SA 587 (A).
47
S v Naidoo 1962 (4) SA 348 (A).
48
S v Ndou & Ors 1971 (1) SA 668 (A); S v Nhari 1984 (2) ZLR 69 (S).
49
Lansdown & Campbell S.A. Criminal Law and Procedure vol 5 p. 446.

152
previous proceedings.50 In practice, particularly where the accused is not legally represent-
ed, the prosecutor is called on to look into whether or not the accused was previously con-
victed or acquitted.

Absence of jurisdiction
The accused may plead that the court has no jurisdiction to try him, for example that the
crime was committed outside the court’s area of jurisdiction or because the crime is not one
which can be tried by the court. Other examples would be a claim of diplomatic immunity,
i.e. that the accused is protected by diplomatic immunity from being tried by the court,51 or
a claim of parliamentary privilege, i.e. that the charge against the accused arises from some-
thing that was said in Parliament which is protected by privilege.52
As with a plea of autrefois acquit/convict, once a plea to the jurisdiction has been made the
court must proceed to try the issues arising from the plea. The onus of showing that the
court has jurisdiction rests with the prosecution.53
If the accused does not raise the question of jurisdiction in a magistrates court, the fact that
the court did not have territorial jurisdiction to try him does not affect the validity of the
conviction.54 Conversely, however, it is not altogether clear from section 164 of the Crimi-
nal Procedure and Evidence Act what happens if the accused successfully raises a plea to
the jurisdiction of a magistrates court but does not request that he be tried by some proper
court.55

Presidential pardon
The accused may plead that he has been pardoned by the President for the crime charged.
The onus here is on the accused to prove the pardon. Note, incidentally, that the effect of
an amnesty is the same as that of a pardon: an amnesty is a pardon granted simultaneously
to a number of people.

Plea that accused was given immunity after giving evidence as accomplice
• Under section 267 of the Criminal Procedure and Evidence Act [Chapter 9:07] an ac-
complice can be compelled to give evidence in a criminal trial and answer incriminating
questions. If he answers all questions put to him fully to the satisfaction of the court
(i.e. if he answers the questions truthfully) the court will discharge him from liability to
prosecution for the crime to which he was an accomplice. The immunity has the effect
of a pardon. There are certain requirements to be fulfilled before they can be given this
immunity:
o The prosecutor must inform the court that the witness is, in his opinion, an ac-
complice;

50
Section 184 of the Criminal Procedure and Evidence Act.
51
A claim that was unsuccessfully raised in the case of S v Penrose 1966 (1) SA 5 (N).
52
Note that members of Parliament cannot be brought before a court outside Harare, whether as a witness or
as a party, in civil proceedings while Parliament is in session. This does not apply to criminal proceedings,
however: sec 7 of the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08].
53
S v Radebe 1945 AD 590.
54
Section 187 of the Criminal Procedure and Evidence Act.
55
See Reid Rowland Criminal Procedure in Zimbabwe p. 16–21.

153
 o The accomplice must fully and to the satisfaction of the court answer all lawful
questions put to him.
This is not one of the pleas mentioned in section 180 of the Criminal Procedure and Evi-
dence Act.
It should be pointed out, incidentally, that the evidence of unconvicted accomplices – i.e.
accomplices who give evidence under section 267 – may not accorded much weight be-
cause of the suspicion that they are trying to exonerate themselves by putting all the blame
on the accused persons against whom they are giving evidence. If therefore an accomplice
is willing to give evidence against his fellows, it may be better for the prosecutor to have
the accomplice tried and convicted separately, on a plea of guilty, and once the accomplice
has been sentenced and, probably, given a lenient sentence, to call him to give evidence
against the others.

Permanent stay of prosecution

The accused may plead that a court has ordered a permanent stay of the prosecution in
terms of section 167A of the Criminal Procedure and Evidence Act [Chapter 9:07], or that
he is entitled to such a stay on the ground of an unreasonable delay in bringing him to trial
for the crime. In an earlier lecture we dealt with what amounts to an unreasonable delay.

Absence of title by the prosecutor

The accused may plead that the prosecutor has no title to prosecute. The most likely use of
this plea is in a private prosecution, where the accused challenges the right of the private
person to bring the prosecution, but it may also be raised if the prosecutor has not been au-
thorised by the Prosecutor-General to prosecute within the province or regional division
where the trial is taking place.

Lis pendens
This plea is not mentioned in section 180, but it is available to an accused person. It is that
a criminal case on the same charge is pending in another court.

[Truth of defamatory matter]

Section 183 of the Criminal Procedure and Evidence Act states that if a person charged
with criminal defamation wants to plead justification (i.e. truth and public interest), he must
specially plead that defence. Since defamation is no longer a crime, 56 section 183 falls
away.

Combination of pleas
Any combination of pleas may be tendered, though a guilty plea may not be joined to any
other plea.57

Notice of pleas
If an accused person intends to tender a plea other than guilty or not guilty, he must give
reasonable notice to the Prosecutor-General or his representative, if the trial is in the High
Court, or to the public prosecutor, if the trial is in the magistrates court.58 The Prosecutor-

56
Madanhire & Anor v Attorney-General CCZ 2-2015.
57
Section 180(3) of the Criminal Procedure and Evidence Act.
58
Section 179 of the Criminal Procedure and Evidence Act.

154
General’s representative or the public prosecutor may waive the requirement of notice, or
the court may dispense with it on good cause shown.

Alteration of plea
After pleading guilty, an accused may apply, whether before or after conviction, for his plea
to be altered to one of not guilty. The accused need merely give a reasonable explanation
for having pleaded guilty originally; he need not prove the explanation, and the court must
allow him to change the plea unless the court is satisfied beyond a reasonable doubt that the
explanation is false.59 If the application is granted, the court will require the prosecutor to
proceed with the case, but any admissions made by the accused before the alteration of his
plea will stand as evidence in the trial.60
An accused person can at any time during the trial alter a plea of not guilty to one of guilty.
He may do this if he realises that his defence to the charge unlikely to succeed, and hopes to
get the benefit of a lighter sentence by pleading guilty.
After sentence has been passed it is no longer possible for the trial court to alter an accused
person’s plea because the court is now functus officio. The accused’s only recourse is to
take the matter up on appeal or review.

Accused entitled to verdict after plea

Once an accused person has been called upon to plead to a charge, he is entitled to demand
that he be acquitted or found guilty by the judge or magistrate before whom he has plead-
ed.61 There are exceptions, however:
• Where the accused has pleaded not guilty and no evidence has been led, the trial may be
continued before another judge or magistrate. The same applies where the accused has
pleaded guilty and no evidence has been led and no inquiry has been made in terms of
section 271(2)(b) of the Criminal Procedure and Evidence Act. 62
• Where the judge or magistrate recuses himself from the trial.
• Where a separation of trials takes place.
• Where, after evidence has been led, the judge or magistrate dies, retires, resigns or is
dismissed. In the case of death or incapacity (other than temporary incapacity), the trial
is a nullity and can be commenced afresh before another judicial officer. If a magistrate
becomes ill and his incapacity is likely to last for a considerable time, the proceedings
should be set aside on review so that they can be commenced afresh before another
magistrate.63 In the event of retirement, resignation or dismissal the proceedings be-
come abortive and lapse without their having to be set aside.64
• Where the Prosecutor-General applies for a private prosecution to be stopped so that the
State can prosecute the accused de novo.

59
R v Difford 1937 AD 370; S v Matare 1993 (2) ZLR 88 (S); Attorney-General, Tvl v Botha 1994 (1) SA
306 (A); S v Dzvairo & Ors 2006 (1) ZLR 45 (H) at 57G; S v Chikwashira 2014 (2) ZLR 10 (H).
60
Section 272 of the Criminal Procedure and Evidence Act.
61
Section 180(6) of the Criminal Procedure and Evidence Act.
62
Section 180(6), proviso, of the Criminal Procedure and Evidence Act.
63
S v Makoni & Ors 1975 (2) RLR 75 (G).
64
Reid Rowland Criminal Procedure in Zimbabwe p. 28-6. Note, though, that judges who retire may contin-
ue to deal with part-heard cases: section 186(4) of the Constitution.

155
• Where the accused is found to be mentally disordered.

156
 18. OUTLINE OF STATE AND DEFENCE CASES
High Court
In the High Court, after the accused has pleaded not guilty, the prosecutor may (and usually
does) address the court in order to explain the charge and outline the evidence which he in-
tends to lead. He must not comment on the evidence.1

Magistrates court
In a trial before a magistrate, once the accused has pleaded not guilty the prosecutor must
make a statement outlining the nature of his case and the material facts on which he relies.2
This statement must be recorded.3 The statement should concisely outline the nature of the
case and the material facts; it should not contain evidence that the prosecutor does not in-
tend to lead. It is most irregular for the prosecutor to include the contents of any statement
made by the accused — all he should say, if he intends to lead evidence of such a state-
ment, is that the accused made a statement which will be tendered in evidence.4
After the prosecutor has outlined his case, the accused must be asked to make a statement
outlining the nature of his defence and the material facts on which he relies. If the accused
is not legally represented, the magistrate is obliged by section 188(b) of the Criminal Pro-
cedure and Evidence Act to advise him of his right to remain silent and of the consequences
of exercising that right. Section 189 of the Act goes on to say that if an accused fails to
mention any fact which he could reasonably be expected to have mentioned, the court can
draw adverse inferences from the failure and may treat the failure as corroborating other
evidence against him. This may well be unconstitutional because the accused has a right to
silence5 and he cannot be penalised for exercising that right.
If the accused does make a statement:
• It may be taken into account in deciding whether or not he is guilty, but may not be tak-
en into account in deciding whether he should be acquitted (i.e. discharged) at the end
of the State case.6
• If the accused departs from the statement in a material respect in any evidence he gives
later in the trial, this may be a matter for comment and adverse conclusion. 7 Note that
this does not apply to the State: if there is a divergence between the outline of the State
case and the testimony of the witnesses, an adverse inference will not be drawn unless
the divergence is so great as to be utterly irreconcilable. This is because the State out-
line is often a précis of the witnesses’ statements, compiled by a police officer with lit-
tle legal training, and is usually compiled without consulting the complainant or other
witnesses.8 (But is this a real justification for the distinction between the defence and

1
Section 198(1) of the Criminal Procedure and Evidence Act.
2
Section 188(a) of the Criminal Procedure and Evidence Act.
3
S v Seda 1980 ZLR 109 (G).
4
S v Nkomo 1989 (3) ZLR 117 (S).
5
In terms of section 70(1)(i) of the Constitution.
6
Section 189(1) of the Criminal Procedure and Evidence Act.
7
Reid Rowland Criminal Procedure in Zimbabwe p. 16–28. S v Seda 1980 ZLR 109 (G) at 110 and S v
Mandwe 1993 (2) ZLR 233 (S) at 236-7.
8
S v Chigova 1992 (2) ZLR 206 (S) at 213 and S v Mandwe 1993 (2) ZLR 233 (S) at 237C-D.

157
 State outlines? A discrepancy is a discrepancy, whether it is in the State or the defence
outline, and if it is material it should be explained.)
The court is entitled to put questions to the accused to clarify any matter with regard to the
statement in order to establish which allegations in the charge are in dispute. But the ques-
tioning must not go beyond that, and the court must inform the accused that he is not
obliged to answer the questions — failure to inform the accused of this is an irregularity.9

9
S v Mbisi 1992 (2) SACR 441 (W), cited in Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p.
253.

158
 19. PROSECUTION CASE
Evidence for the prosecution
After the opening address, the prosecutor should then call witnesses for the prosecution and
adduce whatever evidence is admissible to prove that the accused is guilty of the crime
charged, or any other crime of which he may be convicted on that charge.
Except where provision is made to the contrary in a statute, witnesses must give their evi-
dence orally in open court.1 They must give their evidence on oath, unless they are allowed
to make an affirmation or they are too young or ignorant to understand the nature of an oath
or affirmation or to recognise its religious obligation.2
The prosecutor has a discretion as to the order in which he calls witnesses and leads evi-
dence, but Reid Rowland (Criminal Procedure in Zimbabwe p. 16–29) suggests the follow-
ing:
• Where there are several counts, the witnesses should be called, as far as possible, in the
order in which the counts are set out in the charge.
• Exhibits should be put in as soon as possible. Where there are several counts, the ex-
hibits should be put in following the order of the counts to which they relate.
• When there are several counts and numerous witnesses, the court should be told which
count or counts each witness is giving evidence on.
A document that is admitted in evidence should be read out by the witness who is produc-
ing it (where it is susceptible of being read; if it is a document such as a receipt or an ac-
count which cannot be read out easily, its nature and salient features should be explained by
the witness). If it is admissible on its mere production, then the prosecutor should read it
out, unless the accused or his legal practitioner has consented to dispense with having it
read out.3
When examining a State witness, the prosecutor should not put leading questions (i.e. ques-
tions which suggest the answer the prosecutor is seeking), at least not in regard to matters
which are or may be in dispute. Leading questions may be asked to elicit introductory or
undisputed matters, such as the witness’s name and address.4
The prosecutor’s duty to disclose discrepancies between the evidence given by State wit-
nesses and their statements to the police has been dealt with above, under the heading
“Prosecution of the Case — Duties of Prosecutors”.
Once a witness is giving evidence it is grossly improper for the prosecutor to interview the
witness privately (e.g. during an adjournment), without informing the court before doing so
and explaining why the interview is necessary.5

1
Section 194(1) of the Criminal Procedure and Evidence Act.
2
Sections 249 to 251 of the Criminal Procedure and Evidence Act.
3
Section 198(2) of the Criminal Procedure and Evidence Act.
4
For a discussion of leading questions in examination-in-chief and cross-examination, see Hoffmann & Zef-
fertt The S.A. Law of Evidence 4th ed p. 444-6.
5
S v Wise 1974 (2) RLR 194 (A).

159
Cross-examination and re-examination of State witnesses
After each State witness has been examined by the prosecutor, the accused or his legal
practitioner is entitled to cross-examine the witness.6 The purpose of cross-examination is
to elicit evidence which supports the cross-examiner’s case and, secondly, to cast doubt on
the evidence given for the opposing party. Accordingly, the accused or his representative
should put to each State witness as much of the defence case as concerns that witness and
inform the witness of other witnesses who will contradict him. The witness should be giv-
en a fair opportunity to explain the contradictions put to him. It is improper to let a wit-
ness’s statement go unchallenged in cross-examination and then argue later that the witness
should not be believed.7
Unrepresented accused persons often do not understand the purposes of cross-examination
and are unskilled in its techniques. The judicial officer has a duty, therefore, to assist such
an accused who shows an insufficient understanding of his right to cross-examine and of
the consequences of a failure to exercise that right 8, and should put pertinent questions to
the witness. A judicial officer must always grant the accused or his representative suffi-
cient opportunity to cross-examine fully.
After a State witness has been cross-examined, the prosecutor is entitled to re-examine the
witness, to enable the witness to explain his answers to questions put to him in cross-
examination. Hence questions in re-examination must be confined to matters arising from
cross-examination.9

Close of State case

After all the evidence for the State has been led, the prosecutor must close his case. The
judicial officer cannot close it if the prosecutor is unwilling to do so. But if the prosecutor
refuses to do so after the court has rejected an application for postponement, and declines to
lead any further evidence, then the court may proceed as if the prosecutor had indeed closed
the State case.10

Discharge of accused at close of State case

If at the end of the State case the court considers that there is no evidence that the accused
committed the crime charged or any other crime of which he might be convicted on that
charge, the court must (“shall”) return a verdict of not guilty. 11 The court may do so of its
own volition or on the application of the accused or his legal representative.12 If an applica-
tion for discharge is granted it terminates the case completely.13

6
Section 191 of the Criminal Procedure and Evidence Act.
7
But there is no absolute rule in this regard: S v Chigwana & Ors 1976 (1) RLR 349 (A). And where the
accused is not legally represented it may be unfair and unjust to draw an adverse inference from his failure to
cross-examine: S v Sebatana 1983 (1) SA 809 (O).
8
S v Khambule 1991 (2) SACR 277 (W), cited by Geldenhuys & Joubert Criminal Procedure Handbook 10th
ed p. 231.
9
For a discussion of re-examination, see Hoffmann & Zeffertt The S.A. Law of Evidence 4th ed p. 469.
10
S v Magoda 1984 (4) SA 462 (C).
11
Section 198(3) of the Criminal Procedure and Evidence Act.
12
S v Mkize & Ors 1960 (1) SA 276 (N) at 280E-G.
13
R v Dzingayi & Ors 1965 RLR 171 (G).

160
When application for discharge may be made
An application for the accused’s discharge should be made at the close of the State case and
before the defence case has been opened. There is no statutory provision requiring the
court to inform the accused of his right to ask for a discharge. On the other hand, as already
indicated the judicial officer has a duty to ensure that an unrepresented accused understands
his rights and the options open to him at all stages of the trial 14, so in appropriate cases the
judge or magistrate should invite an unrepresented accused to apply for his discharge.

When discharge should be ordered

Section 198(3) of the Criminal Procedure and Evidence Act does not give the judicial of-
ficer a discretion to discharge, or not to discharge, an accused:
“If … the court considers that there is no evidence that the accused committed the offence
charged, or any other offence of which he might be convicted … it shall return a verdict of
not guilty.”
If the court considers there is no evidence against the accused, then it must discharge him
by returning a verdict of not guilty.15
There is a basis for ordering the discharge of the accused where:16
• there is no evidence to prove an essential element of the crime;
• there is no evidence on which a reasonable court, acting carefully, might properly con-
vict;
• the evidence adduced on behalf of the State is so manifestly unreliable that no reasona-
ble court could safely act on it.17
Because of the word “shall” in section 198(3), a court must discharge the accused in all
these three circumstances; the court has no discretion.
In making a decision whether or not to discharge the accused, the court must look at the
State’s evidence; the court is not allowed to look at the accused’s outline of his defence,
except in so far as the accused has admitted any of the State’s allegations. 18 Also, the court
is not allowed to refrain from discharging the accused on the ground that the inadequate
evidence of the prosecution may be supplemented by defence evidence (i.e. on the ground
that the accused may convict himself out of his own mouth or that a co-accused may in-
criminate him).19
However, if the court omits to discharge the accused in these circumstances, and the ac-
cused subsequently gives evidence and incriminates himself, does that irregularity vitiate
the proceedings? In S v Kachipare 1998 (2) ZLR 271 (S), the Supreme Court held that it
would not do so. In Kachipare’s case the appellant and a co-accused were jointly charged
with the murder of a child. The appellant pleaded not guilty, the co-accused guilty, but as

14
Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 283.
15
Note that in South Africa the court is given a discretion whether or not to discharge the accused: see sec-
tion 174 of the Criminal Procedure Act, 1977. As to how that discretion is to be exercised, see S v Lubaxa
2001 (4) SA 1251 (SCA) at 1255D to 1257A.
16
S v Kachipare 1998 (2) ZLR 271 (S) at 276.
17
This will happen only rarely, in clear cases where the credibility of a witness has been so utterly destroyed
that no material part of his or her evidence can be believed: S v Tsvangirai & Ors 2003 (2) ZLR 88 (H) at
94E-F.
18
Section 189(1) of the Criminal Procedure and Evidence Act.
19
S v Kachipare 1998 (2) ZLR 271 (S) at 276.

161
mentioned earlier there is a rule of practice in the High Court that when an accused person
pleads guilty to murder a plea of not guilty is entered, so pleas of not guilty were entered
for both the appellant and her co-accused. The trials were not separated because no appli-
cation for separation was made. The only evidence led by the State which linked the appel-
lant to the crime was purely circumstantial, and at the end of the State case the appellant’s
legal practitioner applied for her discharge. The trial judge refused it, wrongly, and when
the co-accused came to give evidence she implicated the appellant. The appellant was ac-
cordingly convicted. On appeal it was argued that the trial court should have ordered the
appellant’s discharge at the close of the State case. The Supreme Court agreed with that
submission, but said that the trial court’s failure to do so was not such an irregularity that it
resulted in a substantial miscarriage of justice justifying the setting aside of the conviction
in terms of section 12(2) of the Supreme Court Act [Chapter 7:13]. At page 280D-E Gub-
bay CJ said:
“I think there is good sense in the approach that a refusal to discharge the accused upon the
conclusion of the State case is not in itself a sustainable ground for appeal against an ultimate
conviction. … [I]n order to decide whether the conviction was justified, it would be absurd
for the appeal court to close its eyes to any evidence led on behalf of the accused … which,
taken in conjunction with the State evidence, had been held correctly by the trial court to
prove guilt conclusively.”
See also S v Noormohamed 2012 (1) ZLR 367 (H).
In S v Lubaxa 2001 (4) SA 1251 (SCA), the South African Supreme Court of Appeal came
to a different conclusion, holding that failure to discharge an accused person at the close of
the State case, where there is no possibility of a conviction unless the accused gives evi-
dence and incriminates himself, is a breach of the accused’s constitutional right to a fair
trial and ordinarily vitiates a conviction based exclusively on his or her self-incriminatory
evidence. The court suggested that the accused’s right to a discharge in these circumstanc-
es arises not necessarily from the right to silence or the right not to testify, but from an ex-
tension of the common-law principle that a person should not be prosecuted unless there is
“reasonable and probable” cause to believe that he or she is guilty of a crime: if a prosecu-
tion cannot be commenced without that minimum of evidence, the court said, a prosecution
should cease when the evidence finally falls below that threshold. This view, with respect,
is preferable to the one expressed by our court in Kachipare’s case.
If the Prosecutor-General is dissatisfied with a decision to discharge the accused at the
close of the State case, he may appeal against that decision to the High Court (where the
decision was made by a magistrate) or to the Supreme Court (where the decision was made
by a judge of the High Court). In either case he must get leave from a judge of the appel-
late court before he can appeal.20 On an appeal the appeal court may confirm the trial
court’s decision or set it aside and remit the case for a continuation of the trial or for trial
afresh before a different judicial officer.21
The accused has no right to appeal against a refusal by the court to discharge him, until af-
ter the final determination of the case – i.e. until after the court has convicted and sentenced
him. Then he has a right to appeal, but his appeal will succeed only:

20
Section 198(4) of the Criminal Procedure and Evidence Act.
21
Section 198(5) of the Criminal Procedure and Evidence Act.

162
 “if it is found that at the close of the prosecution’s case evidence justifying a conviction was
absent and the defence case furnished no proof of guilt.”22
It seems, however, that an accused may be entitled to approach the High Court to set aside
on review a magistrate’s decision not to discharge him at the close of the State case, if he
can show that the decision amounted to a gross irregularity.23

22
Per Gubbay CJ in S v Hunzvi 2000 (1) ZLR 540 (S) at 542. This of course assumes that Kachipare’s case is
correct and that a trial court’s wrongful decision not to discharge the accused at the close of the State case will
not justify acquitting the accused on appeal if the defence case ends up incriminating the accused.
23
Attorney-General v Makamba 2005 (2) ZLR 54 (S).

163
 20. DEFENCE CASE
Informing the accused of his rights
If the accused is not discharged, the court must ask him or his legal practitioner if he in-
tends to lead evidence and if the accused himself will give evidence. If the accused is not
legally represented, the court is obliged by section 198 of the Criminal Procedure and Evi-
dence Act1 to inform him that:
• he will not be allowed to call his witnesses, if any, until after he has given evidence or
been questioned by the prosecutor or the court;
• even if he chooses not to give evidence he is liable to be questioned by the prosecutor
and the court;
• if he gives evidence or is questioned and refuses to give an answer, he will be asked
why he refuses to answer; and
• if he persists in his refusal, the court may draw such inferences from the refusal as ap-
pear proper and that the refusal may be treated as corroborating any other evidence giv-
en against the accused.
This provision, in so far as it refers to the accused being questioned by the court and the
prosecutor, and to inferences that may be drawn from a failure to mention facts, is unconsti-
tutional in that it infringes the accused’s right to silence. On the other hand, in the interests
of a fair trial the court must inform an unrepresented accused of his right to give evidence
and of the consequences of not doing so (i.e. failing to rebut the prosecution case) and must
also inform him that if he chooses to give evidence he must do so before calling any other
witnesses.

Defence evidence
Normally, the accused must give his evidence or be questioned by the prosecutor and the
court before any other evidence is led for the defence, unless the court orders otherwise.
This prevents the accused from tailoring his evidence to fit that of his witnesses. If he gives
evidence the prosecutor has a right to cross-examine him.
If when giving evidence an accused person fails to mention facts, or lies, or is otherwise
unreliable the court can obviously draw whatever inferences are appropriate. On the other
hand, if an accused person fails when giving evidence to mention facts relevant to his de-
fence, the court should not necessarily draw adverse inferences, particularly if he is unde-
fended and has mentioned the fact either to the police or in his defence outline or in cross-
examination of State witnesses.2
The prosecutor is entitled to cross-examine witnesses called by the defence, and following
the cross-examination the accused or his legal practitioner is entitled to re-examine them.
What has been said previously in relation to cross-examination and re-examination of State
witnesses applies equally here.

1
Section 198(6) as read with sections 198(8) & (9) and 199(1).
2
Reid Rowland Criminal Procedure in Zimbabwe p. 16–37.

164
 Questioning of accused
If the accused declines to give evidence, the prosecutor and the court are permitted by sec-
tion 198(9) of the Criminal Procedure and Evidence Act to question him, and if he is legal-
ly represented his legal practitioner may question him afterwards. This provision is proba-
bly unconstitutional by virtue of section 70(1)(i) of the Constitution, which states that an
accused person has the right “to remain silent and not to testify or be compelled to give
self-incriminating evidence”.

165
 21. PROCEDURE AFTER CLOSE OF EVIDENCE
Addresses by the parties
After the defence case has been closed the prosecutor is entitled to address the court, sum-
ming up the whole case.1 He has the right to decide whether or not to do so. In his address
the prosecutor must, as always, be fair and not strive at all costs for a conviction.2
The accused or his legal practitioner also has a right to address the court. 3 If the judicial
officer fails or refuses to permit this right to be exercised, it is an irregularity which will
generally result in the setting aside of a conviction.4
If the accused or his legal practitioner raises a matter of law, the prosecutor may reply and
he may also, with the leave of the court, reply on any matter of fact raised by the accused in
his address.

Record of trial
A full and comprehensive record should be kept of the trial, and a failure to do so amounts
to a gross irregularity, because without a record a review or appellate court cannot assess
the correctness of the proceedings.5
The presiding judicial officer has the duty to ensure that a record is kept of the proceedings.
If there is no mechanical recorder or shorthand writer available, the judicial officer must
write down completely, clearly and accurately everything that is said and happens before
him that is of any relevance to the merits of the case.6
Save in exceptional circumstances, a judicial officer must not alter the record after the trial;
informal amendments may amount to a gross irregularity, leading to the quashing of the
conviction.7 The usual procedure for altering a magistrates court record is for the State to
apply to the High Court for an amendment, serving a copy of the application on the magis-
trate and the accused. The application is accompanied by affidavits from persons who can
indicate how the record is faulty and what corrections should be made to it.8

Stopping of trial before verdict

Generally, after the accused has pleaded to the charge, the trial must continue until a verdict
is reached, because once the accused has pleaded he is entitled to a verdict.9 However,
there are exceptions to this rule.

1
Section 200 of the Criminal Procedure and Evidence Act [Chapter 9:07].
2
Reid Rowland Criminal Procedure in Zimbabwe p. 16–38.
3
Section 200 of the Criminal Procedure and Evidence Act [Chapter 9:07].
4
Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 p. 526; Geldenhuys & Joubert Criminal Pro-
cedure Handbook 2nd ed p. 222.
5
S v Ndebele 1988 (2) ZLR 249 (H); S v Ncube 2012 (1) ZLR 422 (H); Reid Rowland Criminal Procedure
in Zimbabwe p. 16–39; Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 222.
6
Reid Rowland Criminal Procedure in Zimbabwe p. 16–40.
7
S v Ndebele 1988 (2) ZLR 249 (H); S v Zuze 2013 (2) ZLR 25 (H).
8
Reid Rowland Criminal Procedure in Zimbabwe p. 16–40; Geldenhuys & Joubert Criminal Procedure
Handbook 2nd ed p. 222.
9
Section 180(6) of the Criminal Procedure and Evidence Act [Chapter 9:07].

166
In terms of section 54(1) of the Magistrates Court Act [Chapter 7:10], a magistrate must
stop a trial at any stage before verdict, even if the accused has pleaded guilty, in two cir-
cumstances:
• if it appears that the crime is from its nature only subject to the jurisdiction of a court of
higher jurisdiction or is more properly dealt with by a court of higher jurisdiction (This
might occur, for example, if the accused is charged with indecent assault and the evi-
dence shows that the accused actually committed rape, or if he is charged with culpable
homicide and the evidence shows that he killed intentionally); or
• if the prosecutor requests that the trial be stopped. Note that this isn’t really a request
on the part of the prosecutor; it is more a demand since the magistrate must stop the tri-
al upon a request being made. The prosecutor might make such a request if the magis-
trate has refused to amend the charge against the accused and the prosecutor believes
that the refusal will result in the accused being wrongly acquitted. The prosecutor
should not make such a request lightly, since stopping a trial involves inconvenience to
everyone concerned, particularly to an accused who is in custody. It is wrong, for ex-
ample, to use the section to correct careless mistakes which should have been avoided at
the outset.10
In both these cases the magistrate must stop the trial, adjourn the case and remand the ac-
cused, and submit a written report to the Prosecutor-General together with the record of the
proceedings.
When a trial has been stopped in terms of section 54(1), the Prosecutor-General may:
• direct that the case be continued before the same magistrate (and if the magistrate is a
junior magistrate, his or her jurisdiction is increased to four years’ imprisonment or a
fine of level nine or both;11 or
• direct that proceedings be started afresh before a regional magistrate.12
The magistrate must inform the accused of the Prosecutor-General’s decision, and must
take steps to comply with the decision, either by continuing with the trial or by issuing a
warrant committing the accused to prison until brought to trial in a regional court or admit-
ted to bail.13
There is no provision in the law for trials in the High Court to be stopped in this way.

10
S v Moyo (2) 1978 RLR 469 (G) and Reid Rowland Criminal Procedure in Zimbabwe p.23-2.
11
Section 50(1)(b) of the Magistrates Court Act [Chapter 7:10].
12
Section 225 of the Criminal Procedure and Evidence Act [Chapter 9:07].
13
Section 226(a) & (b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

167
 22. VERDICT
Verdicts and judgments
A verdict is the decision of a court in a criminal case, i.e. the decision whether the accused
is guilty or not guilty. A judgment is a statement of the reasons for the verdict. Judgments
may be given orally, but must be recorded. Judgments can also be simply handed down in
writing without being read out, though the verdict reached by the court should be read out
by the judicial officer in open court. Sometimes a court will announce its verdict and say
that reasons will follow – i.e. that a written judgment setting out the reasons for the verdict
will be handed down later.
The verdict must generally be given in open court, subject to the rules relating to trials in
camera.1

When judgment should be given

The court will normally give its judgment immediately, where the facts and the law in-
volved in the case are straightforward (an ex tempore judgment) but it may adjourn the pro-
ceedings to consider judgment.2 A court has a duty to give its judgment promptly and
without undue delay, because parties are entitled to judgment as soon as reasonably possi-
ble and lengthy delays destroy public confidence in the courts.3 Under the judges’ code of
ethics issued by the Judicial Service Commission, judges must use their best efforts to en-
sure that judgments are given within 90 days and, save in unusual and exceptional circum-
stances judgments must be given within 180 days.4 This does not override the general rule
that judgments must be delivered as soon as possible, because justice delayed is justice de-
nied.

Reasons for judgment

A judgment must set out the judicial officer’s reasons for reaching his decision.5 If it does
not it will be impossible to determine how the judge or magistrate reached his decision and
whether it was reached on a properly reasoned basis. For a judicial officer not to record his
reasons is a gross irregularity and will usually result in the conviction being set aside on
appeal or review,6 though it may be upheld if the evidence on record supports it.

1
Section 334(1) of the Criminal Procedure and Evidence Act.
2
Section 332 of the Criminal Procedure and Evidence Act.
3
Pharmaceutical Society of SA & Ors v Tshabalala-Msimang & Anor NNO 2005 (3) SA 238 (SCA) at 261H.
Section 19 of the Judicial Service (Code of Ethics) Regulations, 2012 (SI 107/2012) requires judges to use
their best efforts to deliver judgment within 90 days and, save in exceptional circumstances, requires them to
do so within 180 days.
4
Judicial Service (Code of Ethics) Regulations, 2012 (S.I. 107 of 2012), section 19.
5
R v Majerero & Ors 1948 (3) SA 1032 (A); R v Van der Walt 1952 (4) SA 382 (A). See also Geldenhuys &
Joubert Criminal Procedure Handbook 10th ed p. 302.
6
S v Makawa & Anor 1991 (1) ZLR 142 (S) at 146; S v Maimba 2014 (1) ZLR 705 (H).

168
 Possible verdicts
Acquittal
If the verdict is one of not guilty, the accused is acquitted of the charge and is entitled to be
liberated from custody on that charge.7

Conviction
If the court is satisfied beyond reasonable doubt that the accused is guilty, it will convict
him of the crime charged or of some other crime which the court has found proved.

Alternative counts
If the accused was charged with two or more crimes in the alternative, the court can decide
on which charge to convict him, if the evidence justifies finding him guilty on all the alter-
natives. In that event the court should find the accused guilty of whichever charge the court
considers to be the most appropriate.8 In that event also, the court should acquit the ac-
cused on the other alternatives.

Permissible [competent] verdicts

If the law allows a person who is charged with a particular crime to be convicted of some
other crime, then a conviction of that other crime is called a “permissible verdict”. To illus-
trate: a person charged with murder may be convicted of assault, if the evidence shows that
he assaulted the deceased person but does not prove that he killed him. Hence, assault is
said to be a permissible verdict on a charge of murder. Permissible verdicts are also called
“competent verdicts”.
Most of the permissible verdicts are set out in the Criminal Law Code (sections 273-5 and
the Fourth Schedule). The more general ones are as follows:
Section Charge Permissible (competent) verdict
273(a) Any crime Threatening, inciting, conspiring or attempting to com-
mit that crime or any other crime of which the accused
might be convicted on that charge
273(b) Any crime Assisting a perpetrator of that crime or of any other
crime of which the accused might be convicted on that
charge
274 Any crime Any other crime whose essential elements are included
in the crime charged
Fourth Schedule Murder Infanticide, culpable homicide, and any crime of which
a person might be convicted if he were charged with in-
fanticide or culpable homicide.
And so on. Other statutes also provide for permissible verdicts: for example the Road
Traffic Act [Chapter 13:11]9 allows a person who is charged with reckless driving to be
convicted of the lesser crimes of negligent driving or driving without due care and atten-
tion.

7
Section 341 of the Criminal Procedure and Evidence Act.
8
R v Tshuma & Anor 1964 RLR 578 (G).
9
Section 53(1).

169
 23. SENTENCE

Pre-sentence investigation
The presiding judicial officer has a wide discretion as to sentence, and must exercise it in
order to arrive at a suitable sentence, one that fits the criminal as well as the crime, is fair to
society, and is blended with a measure of mercy according to the circumstances. 1 The court
must therefore ensure that it is in a position to arrive at a proper and just sentence. In order
to arrive at such a sentence, the court must have as much factual information about the cir-
cumstances as possible.
Before assessing sentence, a judicial officer must equip himself with sufficient information
to enable him to assess sentence humanely and meaningfully, and to reach a decision based
on fairness and proportion; the needs of the individual and the interests of society should
be balanced with care and understanding.2 Hence pre-sentencing information is very im-
portant. Where the accused is not represented, the magistrate has a duty to canvass all these
aspects with the accused, if necessary postponing the trial to enable the information to be
obtained.
The need for pre-sentencing information is particularly important in the case of juvenile
offenders:
“There can never be a just cause to proceed and sentence juvenile offenders without getting all
useful information to guide the court on the question of sentence. This would include obtain-
ing probation officers’ reports … [and] … might entail calling the accused’s parents or guard-
ians or school authorities to shed light in the matter. The need for the probation officer’s re-
ports in cases of this nature cannot be over-emphasised. While the courts face challenges in
their dealings with the Department of Social Welfare, this can never be a just cause to proceed
to sentence juvenile offenders without gathering all useful information to guide the court on
the question of sentence. Even in the absence of a probation officer and probation officers’
reports, a trial court handling the matter of a juvenile should be innovative and seek to involve
the family of the juvenile before coming up with a management scheme or sentence.”3
For a useful statement of the broad principles of sentencing, see S v Shariwa 2003 (1) ZLR
314 (H).

Proof of previous convictions

The fact that an accused person has previous convictions will usually affect the sentence to
be imposed upon him, though it is not an aggravating feature.4 The weight that the court
will attach to the previous convictions will depend on their nature.
The onus is on the prosecution to prove that the accused has previous convictions, and if he
has any it is generally important to prove them, particularly in cases where he was previ-
ously given a suspended sentence and his current conviction is a breach of the conditions of
suspension.

1
S v Rabie 1975 (4) SA 855 (A) at 862.
2
S v Ngulube 2002 (1) ZLR 316 (H).
3
S v Ncube & Ors 2011 (1) ZLR 608 (H) (headnote).
4
R v Harris 1959 (2) R & N 394 (SR).

170
After conviction in a magistrates court the prosecutor will state whether the person convict-
ed has any previous convictions. If he has, his record as shown on ZRP form 125 will be
put to him: that is, the prosecutor will read them out to the accused and the court will ask
the accused if he admits them. If the accused denies any or all of them the prosecutor has
the right to request a remand so that he can bring evidence to prove them.5
In the High Court the procedure is the same (note that there is no longer provision in the
Criminal Procedure and Evidence Act for previous convictions to be proved at a preparato-
ry examination), but if the prosecutor wishes to prove previous convictions he or she must
give the accused at least 72 hours’ notice of intention to do so.6
It is undesirable for the court to proceed to sentence an accused person on the basis of a
general statement by the prosecutor that he has previous convictions and a general admis-
sion by the accused that he has a previous conviction for the crime concerned.7 Particularly
where the accused is unrepresented, the prosecutor should state precisely what the convic-
tions are, and those convictions should be admitted or proved.
As regards the type of evidence which can be produced to establish previous convictions,
see sections 328-329 of the Criminal Procedure and Evidence Act [Chapter 9:07]. A certi-
fied fingerprint record from a police officer, a prison officer or an immigration officer is
admissible as prima facie evidence against the accused in relation to previous convictions.8
If the accused admits the previous convictions contained in the ZRP Form 125 this form
becomes part of the record.

Evidence on sentence
Section 334(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] sets out the
types of evidence and information which the court may receive for the purpose of inform-
ing itself as to the proper sentence to be passed. This includes:
• evidence on oath from the accused and his witnesses or from State witnesses;
• an unsworn statement from the accused;
• written statements from the prosecutor, the accused or his legal representative; and
• affidavits and written reports tendered by the prosecutor, the accused or his legal repre-
sentative.
Hearsay evidence, affidavits and written statements may be tendered by one side only if the
other side consents.9 The court can decide to call the person who made any affidavit or
written report submitted in evidence to give oral evidence.
Accused persons and witnesses who testify in relation to sentence are subject to cross-
examination.
Generally the rules as to the admissibility of evidence are relaxed in relation to sentence.

5
Section 327 of the Criminal Procedure and Evidence Act [Chapter 9:07].
6
Section 326 of the Criminal Procedure and Evidence Act [Chapter 9:07].
7
S v McCormick HB-56-90.
8
Section 329 of the Criminal Procedure and Evidence Act [Chapter 9:07].
9
Section 334(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

171
Order in which evidence is presented or addresses are made
Where the prosecutor wishes to lead evidence in aggravation of sentence (including where
he wants to prove previous convictions), he or she should do so before the accused leads
evidence in mitigation of sentence. After that, the accused or his legal practitioner should
lead any evidence he wishes to adduce in mitigation of sentence. Then the parties may ad-
dress the court, first the prosecutor in aggravation of sentence and then the accused or his
representative in mitigation.10
In practice, however, the parties seldom lead evidence in aggravation or mitigation. What
usually happens is that the parties address the court (the prosecutor usually first, then the
accused or his legal practitioner), stating aggravating or mitigating facts, sometimes putting
forward propositions of law, and arguing for a particular sentence. If the prosecutor accepts
the facts advanced by the accused or his representative, the prosecutor should say so and
then they are accepted as correct without further proof. 11 If the court does not accept those
facts despite the prosecutor having done so, the court must inform the parties before pass-
ing sentence so that the defence has an opportunity to lead evidence to establish them.12 A
prosecutor should not accept improbable facts alleged by the defence, unless he or she has
good reason to believe them to be true, nor facts that are inconsistent with the evidence led
at the trial.13
Unrepresented accused
An unrepresented accused person must always be afforded the opportunity to lead mitigato-
ry evidence and to address the court in mitigation of sentence. 14 His address can contain
both assertions of fact and an appeal to the court for clemency. Additionally, where the ac-
cused is unrepresented the court has a duty to ensure that the factors of mitigation are fully
canvassed because the accused will often be unaware of the sort of things which are rele-
vant when it comes to sentence. The court must thus offer guidance to the accused in this
regard.
The court itself should also investigate what mitigatory features exist and take into account
mitigatory factors which have emerged in evidence before conviction. This is particularly
so when the accused is a juvenile.15
If the police docket contains evidence of mitigating features the prosecutor has a duty to
bring them to the attention of the court: S v Le Roux S-172-1981.
As indicated above, the court has a duty to make sure that it is in a position to arrive at a
proper and just sentence. In order to arrive at such a sentence, the court must have as much
factual information about the circumstances as possible. Unless those facts have emerged
from the evidence at the trial, if an unrepresented accused does not say anything in mitiga-
tion, then the judicial officer should put such questions to the accused as will elicit that in-
formation. This applies particularly where the unrepresented accused is unsophisticated
and has been convicted of a serious crime.16

10
Reid Rowland Criminal Procedure in Zimbabwe p. 25-9.
11
R v Hartley 1966 RLR 522 (A).
12
R v Hartley 1966 RLR 522 (A) at 526.
13
S v Ndebele 1988 (2) ZLR 249 (H) at 256D-E.
14
S v Million & Ors HH-53-92.
15
S v W HH-276-83.
16
S v Mlilo HB-27-88; S v Mafu HB-68-90

172
Defended accused
The legal representative of the accused must be given the opportunity to lead mitigatory
evidence to and address the court in mitigation of sentence. Without calling evidence, the
legal representative may simply set out what he considers to be the salient mitigatory fac-
tors in the case, and may draw the court’s attention to salient case law. 17 The prosecutor
may either accept these facts or dispute them. However, as regards factors such as contri-
tion, the court is likely to attach less weight to what a legal representative has said regard-
ing his client’s penitence than to a personal and credible expression of regret and repent-
ance by the accused himself.
If the accused or his representative is not given an opportunity to address the court in miti-
gation of sentence, the sentence imposed by the court may have to be reconsidered on ap-
peal or review.18
Prosecutor
If the prosecutor wishes to do so, he must be allowed to address the court to draw attention
to the aggravating features of the case and to make submissions as to the appropriate sen-
tence in the case and to refer to any relevant case law in this regard.
The prosecutor’s duty is to assist the court in arriving at a proper sentence. He or she
should be able to advise what sentences are proper and what sentences have been approved
by the High Court and the Supreme Court for similar crimes. He or she is duty bound to
dispute facts advanced in mitigation if he or she knows them to be incorrect or if they are
highly improbable or absurd. Where the accused is not legally represented, the prosecutor
is also expected to draw the court’s attention to any facts of which he or she is aware which
are mitigatory, such as that the accused has paid compensation to his victim.

Onus of proof
In S v Chinyani 1969 (2) RLR 42 (A), the court stated that there were no rigid rules govern-
ing the burden of proof or the degree of proof in relation to evidence or statements in miti-
gation of sentence. It said that a high degree of flexibility must exist in considering the va-
riety of factors which are relevant to sentence; there need not always be proof of an asser-
tion of fact before it is accepted for the purposes of sentence. If there is any doubt at the
stage of sentence as to the existence of any relevant fact, the trial court must reach its own
conclusions, as it thinks right, and is entitled to disregard any such fact for the purposes of
sentence if it is not satisfied that the fact exists. Before rejecting any fact advanced in miti-
gation, however, the court should generally inform the accused or his representative.

Passing of sentence
Sentence to be passed in open court
Sentence must be passed in open court, where the accused is over the age of 18, unless the
proceedings are in camera.19

17
S v Fusirayi 1981 ZLR 56 (A) at 58.
18
R v Fedrew 1956 R & N 47.
19
Section 334(1) of the Criminal Procedure and Evidence Act [Chapter 9:07]. Reid Rowland Criminal Pro-
cedure in Zimbabwe at p 25-11 suggests that even where the proceedings have been held in camera, the sen-
tence may have to be delivered in open court, except in the case of juveniles.

173
Where sentence is to be pronounced on a person under the age of 18, the only people who
may be present, apart from officers of the court, are: the accused and any co-accused, to-
gether with their spouses and legal practitioners; parents, guardians or persons in loco
parentis; other persons whose presence is necessary to the proceedings (e.g. probation of-
ficers); and other people who have been authorised by the judicial officer to be present.20

By whom sentence may be passed

In the High Court, sentence should normally be passed “forthwith” by the judge who deliv-
ered the verdict; if it is not, then it may be passed by any judge of the court.21
In a magistrates court, sentence is normally passed forthwith by the magistrate who presid-
ed over the trial, but if for any reason that is not possible (e.g. if the original sentence has
been set aside on review and it is necessary to pass sentence afresh) or in the absence of the
magistrate who convicted the offender, any other magistrate of the court may impose sen-
tence: section 334(7) of the Criminal Procedure and Evidence Act [Chapter 9:07]. In or-
der to use this provision, the sentencing magistrate must, firstly, note on the record the ab-
sence of the trial magistrate and the reasons for the absence. Secondly, the accused must be
given the opportunity of addressing in mitigation. Finally, it is incumbent on the second
magistrate to consider the evidence recorded and upon which the verdict was returned. The
words “in the absence of the magistrate who convicted” are unqualified by the statute and
should be given the widest possible meaning, which is that the magistrate in question could
be absent for whatever reason, e.g. retirement, leave, discharge from service, death, or
lengthy absence abroad for whatever reason. While these are normal forms of absence,
there can be no doubt that any absence for an appreciable length of time would bring into
play the provisions of the section, especially if prejudice were to be caused if the convicted
person is made to await the return of the magistrate to the courthouse. Similarly, the fact
that the trial magistrate is an appreciable distance away from the court would allow the pro-
vision to be invoked. The phrase must thus be measured in terms of the triad of time, space
and circumstances.22

Correction of sentence
A judicial officer may correct a sentence either before or immediately after it has been rec-
orded,23 so long as there has been a genuine mistake in the delivery of the sentence (e.g. it
does not reflect what the judicial officer meant or it is incompetent) and that the correction
is made immediately, i.e. within a reasonable time.24
It is not every mistake that can be corrected. A judicial officer may correct a sentence if,
for example, he intended to impose a sentence of six weeks’ imprisonment and discovers
immediately afterwards that he erroneously recorded a sentence of six months’ imprison-
ment.25 But if he imposed a competent sentence and then merely has second thoughts about
it, he cannot change it because he is functus officio. For example, if a magistrate has im-
posed a prison sentence on a first offender and some time later decides that the offender
should not be sent to prison after all but should instead be sentenced to a fine or community

20
Section 334(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].
21
Section 333 of the Criminal Procedure and Evidence Act [Chapter 9:07].
22
S v Manga 2006 (2) ZLR 304 (H).
23
Section 201(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].
24
R v Sikumbozo 1967 RLR 348 (A).
25
R v Sikumbuzo 1967 (4) SA 602 (RA).

174
service, the magistrate cannot alter the sentence.26 And if a magistrate has imposed a fine
for cycle theft, he cannot later decide that the sentence was too lenient and alter it to a pris-
on sentence.27

Sentencing for untried crimes

An accused person may apply to the court to be sentenced for untried crimes, and with the
prosecutor’s consent the court may do so as if the crimes had been separately charged.28
The court must be satisfied that the accused freely and voluntarily admits to having com-
mitted the crimes. A magistrate can pass sentence on the accused even if the crimes con-
cerned were committed outside his or her province.29 The court must record the date, place
and nature of each crime and the sentence imposed in respect of it.
Where sentence is imposed for such a crime, the accused is deemed to have been convicted
of it and generally cannot be charged with it again; though if the conviction for the crime
of which the accused was convicted is set aside on appeal or review then the accused can be
charged again with the untried crimes.

Adjournment of case where sentence exceeding magistrate’s jurisdiction is

justified
If, after conviction, a magistrate forms the opinion that a sentence in excess of his or her
jurisdiction is warranted, he should adjourn the case, remand the accused and submit a re-
port to the Prosecutor-General, together with a copy of the record of the proceedings.30
Where a magistrate has taken this step, the Prosecutor-General may direct either that the
case be transferred to the High Court for sentence, or that it be continued before the magis-
trate.31 On receiving the Prosecutor-General’s direction, the magistrate must cause the ac-
cused to be informed of it.
Transfer to High Court for sentence
Where the Prosecutor-General has directed that the case be transferred to the High Court
for sentence, the magistrate must issue a warrant committing the accused to prison pending
the imposition of sentence (though the accused can be admitted to bail) and send the record
of the case to the High Court.32 On receiving the record the registrar of the High Court
must lay it before a judge, who must consider the verdict and any finding the magistrate
may have come to in regard to the accused’s previous convictions. In other words, the
judge must review the proceedings. If the judge considers the proceedings to be in accord-
ance with real and substantial justice, the accused will be brought before the judge in open
court and sentenced either for the crime of which he was convicted or for any other crime
that the judge may have substituted in the exercise of his or her review powers.33 The judge

26
S v Chikumbirike HH-307-84.
27
S v Nyamufarira HH-335-83.
28
Section 335 of the Criminal Procedure and Evidence Act [Chapter 9:07].
29
Section 335(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].
30
Section 54(2) of the Magistrates Court Act [Chapter 7:10]. The magistrate should note on the record why
he or she is taking this step, and inform the accused of the reasons, so that the accused can make proper repre-
sentations on sentence: S v Julieta & Anor 1998 (1) ZLR 432 (S).
31
Section 225(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].
32
Section 226(c) of the Criminal Procedure and Evidence Act [Chapter 9:07].
33
Section 227(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].

175
can impose any appropriate sentence and is not limited by the jurisdictional limits that ap-
plied to the trial magistrate.
Remittal to trial magistrate
If the Prosecutor-General remits the case back to the trial magistrate, the accused will be
brought before the magistrate and sentenced. Note that if the Prosecutor-General takes this
course and the magistrate is an ordinary (or junior) magistrate, the magistrate’s jurisdiction
to impose punishment is increased to a maximum of a fine of level 934 or four years’ im-
prisonment or both.

Penal provisions
All our crimes are now statutory (i.e. prescribed in statutes); there are no longer any com-
mon-law crimes. Statutes which create crimes almost invariably specify the maximum
punishment that a court may impose, and sometimes they prescribe a minimum punishment
as well. A court is not allowed to exceed the maximum punishment prescribed in the stat-
ute for the crime concerned. So even though it is said that the High Court has unlimited
jurisdiction as to punishment, the court is not permitted to impose a heavier punishment
than the relevant statute prescribes for the crime concerned: for example, if a statute pre-
scribes a fine of level 9 or imprisonment for three years as the maximum sentence for a
crime, the High Court cannot impose a sentence of four years’ imprisonment for that crime.
In addition, a magistrates court is not allowed to impose a punishment that exceeds its ju-
risdiction, so, in the example just mentioned, where a statute prescribes a fine of level 9 or
imprisonment for three years as the maximum sentence for a crime, an ordinary magistrate
will not be able to impose that maximum (because an ordinary magistrate’s jurisdiction is
limited to a fine of level 7 or two years’ imprisonment).
If a statutory provision states that a person who contravenes the provision is liable to a fine
not exceeding level X or to imprisonment for a period not exceeding Y years, the court has
a discretion to impose either a fine or imprisonment, but not both. It may not, for example,
impose imprisonment directly and as an alternative to a fine, 35 nor may it impose a fine and
a suspended sentence of imprisonment.36 That is why most statutes imposing penalties em-
power a court to impose “a fine not exceeding level X or imprisonment for a period not ex-
ceeding Y years or both such fine and such imprisonment.”

Forms of sentence
General
Under section 336 of the Criminal Procedure and Evidence Act [Chapter 9:07], the follow-
ing punishments are legally recognised in Zimbabwe:
• the death sentence (capital punishment);
• imprisonment, including imprisonment for life and extended imprisonment;
• a fine;
• community service;
• putting the convicted person under recognizance, with conditions.

34
Currently US $1 600.
35
S v Arends 1988 (4) SA 792 (E) at 794I.
36
S v Sailas 1978 RLR 400 (G).

176
Death sentence
The death sentence is permitted under the Constitution37 and is carried out by hanging.38
Under section 48 of the Constitution, echoed by section 336(1)(a) of the Criminal Proce-
dure and Evidence Act, the death sentence can be imposed only for murder committed in
aggravating circumstances — there is no indication in the Constitution what is meant by
“aggravating circumstances”, so its meaning should be worked out by the courts on a case-
by-case basis. Section 47(2) of the Criminal Law Code, however, purports to set out fac-
tors which a court must (“shall”) regard as aggravating: for example if the murder was
committed in the course of rape or sexual assault, or was one of two or more committed in
the same episode, or if the murder was accompanied by physical torture. This section, to
the extent that it tries to compel courts to regard certain factors as aggravating, is almost
certainly unconstitutional.
The sentence cannot be imposed on women, or on men below the age of 21 years or over
the age of 70 years.39
Provisions of the Criminal Law Code which allow the death sentence to be imposed for
treason40 or for insurgency, banditry, sabotage or terrorism (where the crime results in the
death of a person)41 are unconstitutional.
No executions have been carried out in Zimbabwe since 2005, and Zimbabwe is regarded
internationally as a country which has placed a moratorium on the death penalty. Unfortu-
nately people have continued to be sentenced to death and there has been a build-up of
prisoners awaiting execution: as at 2017 one man was on “Death Row” for over 25 years.
Then in March 2018 the President published Clemency Order No. 1 of 201842 which com-
muted to life imprisonment the death sentences of all prisoners who had been on “Death
Row” for ten years and more. Undue delay in executing a prisoner who has been sentenced
to death amounts to cruel and inhuman treatment and it is submitted that if a prisoner is
kept on “Death Row” for even five years it can legitimately be claimed that he has been
treated cruelly and inhumanly.43

Imprisonment
It is generally recognised that offenders should be kept out of prison as far as possible, par-
ticularly if they are first offenders. It has been said that imprisonment should be imposed

37
Section 48 of the Constitution. There has been a de facto stay on executions since 2005, though the courts
continue to impose the death penalty and no amnesty has been granted to prisoners awaiting execution. Some
prisoners have been on “death row” awaiting execution for horrifying periods: one man for 24 years, one
woman for just under 14 years.
38
Section 339 of the Criminal Procedure and Evidence Act [Chapter 9:07].
39
Section 48(2)(c) of the Constitution and section 338 of the Criminal Procedure and Evidence Act.
40
Section 20 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
41
Section 23(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
42
Published in General Notice 164 of 2018 on the 10th March 2018.
43
Catholic Commission for Justice & Peace in Zimbabwe v Attorney-General, Zimbabwe, & Ors 1993 (1)
ZLR 242 (S) and Woods & Ors v Minister of Justice, Legal and Parliamentary Affairs & Ors 1993 (2) ZLR
443 (S).

177
only as a last resort.44 But sometimes, because of the seriousness of the crime, prison is the
only option. For some crimes, only imprisonment can be imposed.45
Imprisonment is a means of removing dangerous persons from society, but it has disad-
vantages:
• It is very expensive to keep prisoners in custody.
• Contact with hardened criminals in prison makes an offender’s rehabilitation difficult.
Young offenders (i.e. offenders in the age-group 18 to 21) should be kept out of prison
where possible.46 There are special provisions for the treatment of juvenile offenders (i.e.
offenders below the age of 18). First offenders are normally treated with a measure of leni-
ency.47
Court’s discretion as to period of imprisonment
Where a statute provides that the maximum sentence for a crime is imprisonment for life, or
imprisonment for a specified period, the court can sentence the offender to a shorter period
within the limit of the court’s sentencing jurisdiction.48 Where however a statute provides
for a minimum sentence of imprisonment, the court may not pass a shorter sentence, 49 nor
may it suspend any part of the sentence.50
A magistrates court cannot pass a sentence of imprisonment of less than four days, except
where it sentences a person to imprisonment until the rising of the court.51
A sentence of imprisonment cannot be pre-dated to take into account any period that an of-
fender has been detained before his trial.52 But the courts usually take pre-trial incarcera-
tion into account when fixing the length of a sentence of imprisonment.
Imprisonment for life
According to section 344A of the Criminal Procedure and Evidence Act [Chapter 9:07],
where a court sentences a person to imprisonment for life the person must be imprisoned
for the rest of his or her life. The section is unconstitutional, because imprisoning a person
without hope of release violates human dignity and amounts to cruel and inhuman punish-
ment.53 What life imprisonment means, therefore, is that the prisoner is kept in prison in-
definitely but is entitled to be considered for release on parole in terms of the Prisons Act.

Periodical imprisonment
Where a person is convicted of a crime specified in the Sixth Schedule to the Criminal Pro-
cedure and Evidence Act [Chapter 9:07] (certain traffic crimes and failing to pay mainte-

44
S v Mpofu (2) 1985 (1) ZLR 285 (H).
45
For example, subverting constitutional government (section 22 of the Criminal Law (Codification and Re-
form) Act [Chapter 9:23] and recruiting or training insurgents, bandits, saboteurs or terrorists (section 24 of
that Act).
46
See for example, S v Mantwana S-20-82.
47
S v Mpofu (2) 1985 (1) ZLR 285 (H).
48
Section 344 of the Criminal Procedure and Evidence Act [Chapter 9:07].
49
Section 344(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].
50
Paragraph 3 of the Eighth Schedule to the Criminal Procedure and Evidence Act [Chapter 9:07].
51
Section 359 of the Criminal Procedure and Evidence Act [Chapter 9:07].
52
S v Nkomonde 1993 (2) SACR 597 (W).
53
Makoni v Commissioner of Prisons & Anor 2016 (2) ZLR 196 (CC).

178
nance) he may be sentenced to periodical imprisonment in an appropriate prison for a peri-
od of between 96 and 2000 hours.54 Before imposing such a sentence the court must ascer-
tain from the officer that there is accommodation for the offender in an appropriate prison.
Periodical imprisonment is intended to cater for offenders who should be sentenced to im-
prisonment but who ought to be allowed to continue to work and support their families
while serving their sentences. It is intended for offenders who are in regular employment.
The way in which sentences of periodical imprisonment are to be served is laid down in the
Prisons (General) Regulations, 1996 (SI 1 of 1996). What happens is that the offenders
have to report to the prison every evening during their sentences and are released the fol-
lowing morning.
Extended imprisonment (formerly indeterminate imprisonment of habitual criminals)
A judge may sentence an offender to extended imprisonment where the offender:
• is convicted of a crime in the Seventh Schedule to the Criminal Procedure and Evidence
Act [Chapter 9:07] (which specifies serious crimes such as murder, rape, robbery, theft
and fraud); and
• has previously been convicted in at least three separate trials of a Seventh Schedule
crime; and
• was at least 25 years old when he sustained the last of those convictions.55
Before a person is sentenced to extended imprisonment he should be warned of the possi-
bility that he may be so sentenced, but a warning is not a prerequisite for such a sentence to
be imposed.56 Where such a warning is given, it is noted on the record.
A sentence of extended imprisonment lasts from seven to 15 years, where the offender has
not previously been sentenced to extended imprisonment, and from 15 to 20 years where he
has. When sentencing the offender, the judge must inform him of the minimum and maxi-
mum periods he will have to serve.57

Imprisonment in default of payment of a fine

Whenever an offender is sentenced to a fine, the court may impose a period of imprison-
ment as an alternative to the fine. The imprisonment can be of any length up to the court’s
limit of jurisdiction,58 but it should not, either alone or together with any sentence of im-
prisonment imposed as a direct punishment, exceed the maximum period provided by the
statute concerned for the crime.59 The ratio between the fine and the imprisonment is in the
discretion of the sentencing court, but a due proportion should be observed between the
two. The imprisonment should be long enough to induce the offender to pay the fine, but it
should not be excessive.60 It has been said that the period of imprisonment should general-
ly be roughly the period the offender takes to earn the fine.61

54
Section 345 of the Criminal Procedure and Evidence Act [Chapter 9:07].
55
Section 346 of the Criminal Procedure and Evidence Act [Chapter 9:07].
56
S v Moyo 1981 ZLR 222 (G); S v Wayi 1994 (2) SACR 334 (E).
57
Section 346(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].
58
Section 347(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].
59
S v Taba 1996 (1) ZLR 309 (H).
60
S v Nyati 1972 (2) RLR 215 (G).
61
S v Nyirenda 1988 (1) ZLR 160 (H).

179
Remission of sentence
Under section 109 of the Prisons Act [Chapter 7:11], prisoners can earn remission of up to
one-third of their sentences “through satisfactory industry and good conduct”. In other
words, if they behave themselves in prison they will be released early. This does not apply
to prisoners serving sentences of one month or less, or to prisoners who have been sen-
tenced to life imprisonment,62 periodical imprisonment or extended imprisonment. And it
does not apply if the remission would result in the prisoner serving less than one month’s
imprisonment.

Fine
Fines are an important alternative to imprisonment. A fine can be an effective deterrent and
it does not have the highly destructive consequences that incarceration often has. However,
the way in which fines are imposed can be highly discriminatory against the poor. As was
pointed out in the case of S v Munyakwe & Ors HH-92-93, the failure to assess fines in ac-
cordance with means can result in grave injustice to poorer people.
Assessment of offender’s ability to pay fine
Time and time again, the higher courts have stressed that there should be a proper investi-
gation into the means of the accused to pay and that the fine should be tailored to his
means. Unless judicial officers gather adequate information on the means of the accused, it
will be impossible for them to tailor the fine to the means of the accused. In probing the
means of the accused, earnings from the informal sector should be taken into account be-
cause large numbers of the urban population now earn their livelihood in the informal sec-
tor.
The main principles to be borne in mind in assessing the amount of a fine are as follows:
• The object of a fine is to keep the offender out of prison, and that object will be defeat-
ed if a fine is imposed which there is no reason to suppose the accused can pay. The fi-
ne must be a real alternative to the sentence of imprisonment imposed in default of
payment.
• The fine should be adjusted to the accused’s means, though not necessarily his immedi-
ate means: his financial prospects must be taken into account and, where necessary he
may be given time to pay the fine. If the accused is a poor person, the fine should be
lower than if he is rich. And if he is rich, there is no reason why an upward adjustment
of the normal fine should not be made.63 At the same time, care must be taken to ensure
that the wealthy are not unduly punished.
• Even if the court has reason to believe that any fine is beyond the means of the offend-
er, a fine may still be imposed; in such a case it would be proper to impose a fine
commensurate with the rough average earnings of a person in a similar position to the
offender.64

62
But prisoners sentenced to life imprisonment are eligible to early release through parole: see Makoni v
Commissioner of Prisons & Anor 2016 (2) ZLR 196 (CC).
63
See S v Ntlele 1993 (2) SACR 610 (W), where it was pointed out that equality before the law means that
justice must be even-handed. When a fine is imposed on a rich offender which he can pay out of one day’s
earnings and the same fine is imposed for the same crime on a poor offender who can pay it only after he has
toiled for 60 days, then the requirements of even-handedness are manifestly not met.
64
S v Moyo 1984 (1) ZLR 74 (H).

180
• A fine should be assessed on the basis of the offender’s ability to pay, not on the ability
of his family or friends to pay. Otherwise his family and friends will be punished for
his crime.65
• Where the offender has been convicted of a crime which involves making money by
illegal means, such as unlawfully dealing in gold, the amount of any fine imposed must
be such as to deprive the offender of his profit.66
Recovery of fines
The court may enforce the payment of a fine by ordering the seizure of money which the
offender has in his possession. This is seldom done. Instead the court may issue a warrant
authorising the sheriff or messenger of court to attach the offender’s property and sell it.67
Alternatively, the court may issue a garnishee order directing the offender’s employer to
deduct specified amounts from the offender’s salary or wages and to pay them to the regis-
trar or clerk of court.68
The purpose of these provisions is to exact payment of a fine from a person who is able to
pay but refuses to do so, insisting on going to prison in order to make a martyr of himself
and a be nuisance to the State. The provisions can also be used where the offender has been
sentenced to an effective term of imprisonment as well as a fine.
Part payment of fine
If an offender pays part of a fine, the period of imprisonment imposed as an alternative to
the fine is reduced accordingly. The reduction must be in whole days, and any payment
that would reduce the period by a fraction of a day must not be accepted.69
Time to pay fine
A court that sentences an offender to a fine may give him up to 12 months in which to pay
the fine. This is done by suspending the warrant committing the offender to prison in de-
fault of payment. Conditions may be imposed on the suspension of the warrant. The court
may allow the fine to be paid in instalments.70
Generally, whenever the court imposes a fine on an unrepresented offender, it should inves-
tigate the question whether or not he should be given time to pay, even in the absence of an
application from the offender.71

Community service
Community service consists of any service for the benefit of the community or a section of
the community which an offender is ordered to provide in terms of section 347, 350A or
358 of the Criminal Procedure and Evidence Act [Chapter 9:07].

65
S v Ndhlovu 1971 (1) RLR 104 (G).
66
S v Manwere 1972 (2) RLR 139 (A) at 145F.
67
Section 348(1) of the Criminal Procedure and Evidence Act [Chapter 9:07]. Only movable property may
be attached and sold in the first instance, but if the sale does not realize enough to pay the fine, the High Court
or the magistrate (if authorized by a judge) may issue a warrant for the attachment of the offender’s immova-
ble property.
68
Section 349 of the Criminal Procedure and Evidence Act [Chapter 9:07].
69
Section 348A of the Criminal Procedure and Evidence Act [Chapter 9:07].
70
Section 358(2)(c) of the Criminal Procedure and Evidence Act [Chapter 9:07].
71
S v Nyirenda 1988 (1) ZLR 160 (H).

181
It may be imposed:
• as an alternative to a fine;
• as a condition of suspension of a sentence of imprisonment; or
• directly as a substantive punishment.
It provides an alternative to imprisonment and is particularly beneficial for first and youth-
ful offenders. The offender is not only kept out of prison where he would come into con-
tact with the worst elements in society but he is also made to pay reparation for his wrongs
to society. It can be an exacting form of punishment and is not intended to be an easy way
out for convicted persons.
Details as to the imposition of community service are contained in the Criminal Procedure
and Evidence (Community Service) Regulations, 1998 (SI 12 of 1998).
Crimes for which community service may be imposed
Community service may be imposed in respect of less serious crimes, i.e. crimes in which
the court would have imposed an effective prison sentence of 24 months or less72; accord-
ing to the Community Service Guidelines, anyone who would otherwise be sentenced to an
effective prison sentence of 12 months or less is eligible for community service. Failure by
a court to consider imposing community service in suitable cases is a misdirection.73 It
may be imposed even if the enactment which creates the crime concerned makes no provi-
sion for community service.74 It may not be imposed in cases of murder, rape, armed rob-
bery, robbery with violence, car theft, stock theft (of cattle). Special caution must be exer-
cised in imposing community service for crimes such as unarmed robbery, culpable homi-
cide, infanticide, abortion, corruption involving public officers, etc. Only where the mitiga-
tory circumstances are very compelling should community service be considered for those
crimes.
Inquiry before imposition of community service
The court must make a proper enquiry before imposing community service,75 and should
consider the following:
• It should be regarded as a fine on leisure time and is particularly appropriate for persons
who exhibit anti-social behaviour, as it gives the opportunity for constructive activity as
well as a possible change of outlook on the part of the offender.
• Even if the crime is one for which community service is appropriate, the offender may
not be: he may indicate unwillingness to carry out the service; he may fail to attend,
requiring a warrant of arrest to be issued; or he may commit further crimes. For these
reasons, courts should err on the side of caution for, if inappropriate offenders are al-
lowed the option of community service, or if it is imposed for inappropriate crimes,
public confidence in the system will be lost.
• Is a suitable place available? If so, where? If the offender possesses particular skills or
expertise, he may be ordered to perform community service where those skills and ex-
pertise can be used to good advantage (for example, a doctor can be ordered to perform
community service at a local clinic or hospital).

72
S v Shariwa 2003 (1) ZLR 314 (H) at 322F; S v Gumede 2003 (1) ZLR 408 (H) at 410C.
73
S v Shariwa 2003 (1) ZLR 314 (H).
74
Section 350A(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].
75
S v Chinzenze 1998 (1) ZLR 470 (H) at 477E-F and S v Gumbo 1995 (1) ZLR 163 (H) at 168C-E.

182
• Is the work suitable for making reparation to the community? The work should not be
such that it is demeaning and amounts to degrading treatment, but on the other hand
should not be so easy that it appears to be meaningless.
• If the offender is employed, can community service be arranged so as to enable him to
continue in employment? Special care should be taken to ensure that the community
service does not interfere with his employment (e.g. he may be ordered to carry out
community service after normal working hours or on weekends).
• The recommendations of the community service officers. In S v Banda 2004 (1) ZLR
493 (H), the judge pointed out that community service officers are trained officers of
the court whose main function is to assess the suitability of a candidate for community
service. Their recommendations should not be disregarded without good cause. If a
recommendation is not accepted, it is essential that the trial court show that it consid-
ered the recommendation and why it ignored it. Failure to do so is a misdirection.
Consent of offender
In terms of section 12 of the Criminal Procedure and Evidence (Community Service) Regu-
lations, 1998 (SI 12 of 1998), a court is required to do the following:
• Explain to the offender
o the aims and objectives of community service;
o his duties in terms of the order;
o his right to apply for variation of the order;
o the consequences of his failing to comply with the order; and
• Ascertain whether the offender is willing to perform community service.
If the offender refuses to perform community service after this explanation, it should not be
imposed in any form.

Imposition of community service

Community service is measured in hours of service. The minimum length is 35 hours
(meaning that a sentence of less than 35 hours should only be imposed in exceptional cas-
es); the maximum will depend on the circumstances of the case, but should generally not
exceed 420 hours. The number of hours should not be chosen arbitrarily.
The court must specify the hours of work and the times of starting and ending work, and
should have regard to the offender’s circumstances — e.g. is he a full-time student or in
full-time employment?76 If he is, the court should allow community service to be carried
out over week-ends or after working hours, by arrangement with the institution concerned.
If the hours fixed by the court become inconvenient either to the institution or to the of-
fender, then the court must be approached to vary the conditions imposed in the order. It is
not for the institution to allow the offender time off.
Where community service is imposed as an alternative to a fine, it should only be imposed
where the appropriate sentence is a fine and there is doubt whether the offender will be able
to pay the fine even if it is reduced to take account of his means or if he is given time to
pay. Community service could be imposed directly where the court does not wish the of-
fender to go to prison or to pay a fine, for example, where the fine might be paid by some-

76
S v Sithole & Anor 2003 (2) ZLR 1 (H).

183
one else or where a fine would have little deterrent effect but imprisonment would be inap-
propriate.
Amendment of community service order
In terms of section 350D of the Criminal Procedure and Evidence Act [Chapter 9:07], a
community service order can be amended or revoked by the same judicial officer who im-
posed it or by a judicial officer of the same or greater jurisdiction. An application for
amendment or revocation can be made by the offender or, if he is a minor, by his parent or
guardian, or by the Prosecutor-General or a public prosecutor.
Failure to comply with community service order
If an offender fails to comply with a community service order, a magistrate can order him
to be arrested and brought before the High Court (where the order was imposed by that
court) or before a magistrates court, where the court will undertake an enquiry into the de-
fault. If the court is satisfied that the offender has failed to comply with the order, it may:
• amend or extend the order;
• order the offender to pay a fine or serve any sentence of imprisonment that was imposed
on him as an alternative to community service; or
• if no alternative punishment was imposed on the offender, impose any sentence on him
that could have been imposed by the original trial court.

Corporal punishment
Section 353 of the Criminal Procedure and Evidence Act permits corporal punishment (i.e.
a whipping of up to six strokes) to be imposed on boys under the age of 18 who have been
convicted of any crime.
Corporal punishment, whether imposed on juveniles or adults, is an unconstitutional form
of punishment, and section 353 is therefore void: see the case of S v Chokuramba CCZ
10/2019.

Putting the offender under recognizances (binding a person over to keep the
peace)
Where the High Court has convicted a person of a crime, other than a capital crime 77, it
may order him to enter into recognizances, with or without sureties, in an amount fixed by
the court. The court may make such an order in addition to, or as an alternative to, any oth-
er punishment it may impose on the convicted person. The condition of the recognizance is
that the offender will keep the peace and be of good behaviour for the time fixed by the
court.78
A magistrate has similar powers, where an offender has been convicted of a crime involv-
ing assault or injury to the person, but the amount of the recognizances must not exceed
level 6 and the period for which the offender is bound must not exceed one year.79
If a person fails to observe the conditions of recognizances he has entered into, a magistrate
may order him to be brought before a judge or magistrate (depending on which court im-

77
That is, a crime for which the death penalty may be imposed — which now means murder committed in
aggravating circumstances.
78
Section 354(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].
79
Section 354(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

184
posed the recognizances). A peace officer who believes that a person has failed to observe
the conditions of his recognizances may arrest him without warrant in order to bring him
before a judge or magistrate. A judge or magistrate before whom a person has been
brought may enquire into the matter and declare the recognizances to be forfeited.80

Caution and discharge

This is not really a punishment. It can be imposed by a court for any crime except one
listed in the Eighth Schedule to the Criminal Procedure and Evidence Act [Chapter 9:07]
(i.e. murder, or conspiracy or incitement to commit murder, or a crime for which a manda-
tory minimum sentence is imposable).81
A caution and discharge is generally regarded as an acquittal, except that the Prosecutor-
General is entitled to appeal against the sentence.82

Mandatory minimum sentences

Several statutes provide for mandatory minimum sentences.83 Where such sentences are
provided, the court’s general discretion to impose a lesser sentence is removed.84
Mandatory minimum sentences are constitutional so long as:
• The minimum sentence is not grossly disproportionate to the crime, having regard to its
nature and the mischief which is sought to be remedied; and
• The sentence can be mitigated by a finding that special circumstances exist which allow
the court to impose a lesser punishment.85
A mandatory minimum sentence does not apply to attempts to commit the crime concerned,
unless the statute specifically provides that it does apply.86
A mandatory minimum sentence cannot be suspended, and if it is a fine the offender cannot
be given time to pay.87

Special circumstances or reasons

For the reasons given above, most statutes imposing minimum sentences state that the sen-
tences need not be imposed where there are “special circumstances” or “special reasons”
not to do so. To qualify as special, a circumstance or reason must be out of the ordinary,
though the court is entitled to take into account a cumulative effect of a number of circum-
stances or reasons. Mitigating features such as good character cannot be taken as special,
nor does contrition or co-operation on the part of the offender.88 In a case involving the
illegal possession of precious stones, the fact that the stones have a minimal value does not

80
Section 354 of the Criminal Procedure and Evidence Act [Chapter 9:07].
81
Section 358(2)(d) of the Criminal Procedure and Evidence Act [Chapter 9:07].
82
Section 62(2) of the Magistrates Court Act [Chapter 7:10].
83
For example, section 80 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (rape, where
the accused person is infected with HIV, and section 114 of that Act (stock theft).
84
Section 344(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].
85
S v Arab 1990 (1) ZLR 253 (S).
86
S v Mapuranga 1988 (1) ZLR 124 (S).
87
Section 358(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] as read with the Eighth
Schedule to that Act; S v de Montille 1979 RLR 105 (G); S v Kudavaranda 1988 (2) ZLR 367 (H).
88
S v Mbewe & Ors 1988 (1) ZLR 7 (H).

185
by itself amount to a special circumstance. Special circumstances or reasons may relate to
the crime or the offender, unless the statute indicates the contrary — though most statutes
define the phrase as “special circumstances (or reasons) surrounding the commission of the
offence”, which excludes circumstances relating to the offender.

Multiple counts
Where a person is convicted at one trial of two or more counts, the court may sentence him
to punishment in respect of each count.89

Cumulative or consecutive sentences

Normally, when an offender is sentenced to separate punishments on two or more counts,
the sentences must be served consecutively, i.e. one after the other. The court may direct
the order in which the sentences will be served or, alternatively, may order that the sentenc-
es should run concurrently (i.e. that they should be served together).90 Sentences of cor-
poral punishment or of fines cannot, however, be made to run concurrently. It is not possi-
ble, for example, to sentence a juvenile to four strokes on one count and four strokes on an-
other and order that the sentences run concurrently. The proper procedure to adopt where a
number of crimes warranting corporal punishment or a fine are committed and the aggre-
gate would be too severe, is to treat several counts as one for the purposes of sentence.
In fixing the length of each sentence, the court should take into account whether the sen-
tence is going to be made consecutive to or concurrent with the other sentences. There is
no requirement that the sentences on closely related counts should run concurrently with
one another. The ultimate test is whether or not the aggregate sentence is reasonable in re-
lation to the offender’s total culpability.91 The overall sentence must always be borne in
mind. Even if the sentences on individual counts, taken separately, are appropriate, the to-
tal sentence may not be. Where a person is convicted of several counts of varying degrees
of gravity, it is wrong to assess an appropriate aggregate sentence and then divide it equally
between the different counts. Inappropriate sentences should not be imposed on individual
counts in order to arrive at an acceptable total. There are two alternative correct methods:
• One is to impose a globular sentence, i.e. treating all the counts as one for sentence. 92
This is not always desirable. It is preferable for an offender to be sentenced separately
for each crime, especially where the crimes are entirely different. In most cases, there
is no practical advantage in imposing a globular sentence. An exception might arise
where it is decided, in dealing with a juvenile, to place him in a training institute or im-
pose a sentence of whipping. The imposition of a globular sentence often causes diffi-
culties on appeal or review. Consequently, one globular sentence for two or more
crimes should only be considered where the crimes are of the same or a similar nature
and are closely linked in time (or, if they are not closely linked in time, if they are of a
similar nature and are part of a continuous course of conduct 93). A common example
would be charges of forging a document and using the document to perpetrate a fraud.
Where a magistrate takes counts as one for sentence, the globular sentence must be
within his punitive jurisdiction.

89
Section 343(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].
90
Section 343(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].
91
R v Malela 1967 RLR 359 (A).
92
S v Damba; S v Chanakira 2004 (1) ZLR 296 (H); S v Chawasirira 1991 (1) ZLR 66 (H).
93
S v Damba; S v Chanakira, supra.

186
 Where additional punishments – such as prohibition from driving or forfeiture of goods
– are provided for in respect of one of the counts on which the accused was convicted,
the fact that all the counts are treated as one for sentence does not take away the right of
the court to impose the additional punishment for that one count. However, the court
should make it clear that the subsidiary punishment relates only to a particular count.
• The other is to impose an adequate and appropriate sentence on each count separately.
If the total period is too high, the sentence, or part of it, on one count should be ordered
to run concurrently with the sentence on another count; or a portion of the total may be
suspended.94
It may be appropriate to group related counts together and make the sentences on the counts
within each group run concurrently. But where counts are grouped together, there should
be some rational basis for doing so.95
Where counts are treated separately for the purposes of sentence (even if they are made to
run concurrently), a magistrate may impose any proper sentence in respect of each count
which is within the limits of his or her punitive jurisdiction, even though the total sentence
may be in excess of that jurisdiction.96 But, as pointed out already, the magistrate must
bear in mind that the overall sentence should appropriately reflect the offender’s culpabil-
ity.

Sentencing guidelines
Inconsistency in sentencing — i.e. courts imposing widely different sentences for similar
crimes — will always be a problem so long as judges and magistrates are given a broad
discretion as to sentence. So too will the problem of inadequate or unduly harsh sentences,
because judges and magistrates, being human, will differ in their assessment of the serious-
ness of different crimes and in their assessment of mitigating and aggravating factors.
In order to mitigate both these problems, the Criminal Procedure and Evidence Act now
provides97 for conferences to be convened by the Judicial Service Commission in order to
discuss the objectives, policies, standards and criteria for sentencing offenders and formu-
lating sentencing guidelines. The conferences will bring together judges, magistrates, the
National Prosecuting Authority, the Police, the Prison Service, the Law Society and other
interested parties and experts.
Sentencing guidelines may deal with:
• pre-sentencing investigations;
• factors to be considered when imposing sentence;
• forms of punishment to be imposed as alternatives to imprisonment;
• principles and criteria to promote consistency in sentencing.
In formulating sentencing guidelines, conferences will have to pay regard to:
• the need for consistency in sentencing;
• the impact of sentences on offenders and their families as well as on vicims;
• the need for public confidence in the criminal justice system;

94
S v Banda 1984 (1) ZLR 96 (H).
95
S v Sawyer 1999 (2) ZLR 390 (H).
96
Section 50 of the Magistrates Court Act [Chapter 7:10].
97
In section 334A.

187
• the cost of different sentences and their relative effectiveness.
Sentencing guidelines will normally take the form of tables of “presumptive penalties”, i.e.
penalties which are midway between augmented penalties that may be imposed where there
are aggravating circumstances in a case, and diminished penalties that may be imposed
where there are mitigating circumstances. These presumptive penalties may be supple-
mented by guidelines “addressing such of the factors referred to in subsection (5) [i.e. the
factors that are bulleted above] as are relevant to each offence or class of offence.”98
Sentencing guidelines formulated by a conference will be subject to approval by the Judi-
cial Service Commission which will send them to the Minister of Justice, Legal and Par-
liamentary Affairs for publication as regulations under the Criminal Procedure and Evi-
dence Act. If the Minister has any objections to the guidelines he or she may refer them
back to the Commission for reconsideration by the Commission or at the next conference.
If the Commission agrees to modify them, the Minister will have to publish them as modi-
fied; if the Commission refuses to do so, then the Minister will have to publish them in
their original form.
Courts will have to pay due regard to sentencing guidelines when they impose sentence on
offenders, and though they are not bound to follow the guidelines if they depart from them
they must record their reasons for doing so.99

Suspension or postponement of sentence

Where a person is convicted of a crime other than one specified in the Eighth Schedule to
the Criminal Procedure and Evidence Act [Chapter 9:07] (i.e. murder or a crime for which
a mandatory minimum sentence is prescribed, or a conspiracy, incitement or attempt to
commit such a crime100), the court may:
• postpone the passing of sentence for up to five years and release the offender on such
conditions as the court may specify; or
• pass sentence, but suspend the whole or part of it for up to five years on such conditions
as the court may specify.101
The conditions that may be imposed are dealt with below.

General considerations as to suspension or postponement

The purpose of a suspended or postponed sentence is rehabilitation and the court should be
satisfied that a suspended portion of the sentence will have a rehabilitative effect.102
There is no requirement that a first offender should receive a totally suspended sentence.
Whether a totally suspended sentence is appropriate or not will depend on all the circum-
stances. In the case of a young first offender, for example, a suspended sentence is usually
desirable and appropriate.103

98
Section 334A(7) of the Criminal Procedure and Evidence Act. It is not clear what the quoted words mean.
99
Section 334A(9) of the Criminal Procedure and Evidence Act [Chapter 9:07].
100
Though for some reason attempted murder is not included in the Eighth Schedule, so an offender can be
sentenced to a suspended sentence if he attempts to commit murder but not if he conspires with or incites an-
other person to commit the crime.
101
Section 358 of the Criminal Procedure and Evidence Act [Chapter 9:07].
102
S v Gorogodo 1988 (2) ZLR 378 (S).
103
S v Chirara & Ors 1990 (2) ZLR 156 (H).

188
There is no general rule that before a court may impose a suspended sentence, whether total
or partial, it must be satisfied that special or exceptional circumstances exist. But if the ap-
propriate sentence is an effective term of imprisonment, special circumstances would have
to be shown before the court would be justified in wholly suspending the sentence.104 Nor
is there any rule that every first offender who is to be imprisoned is entitled to have a por-
tion of the sentence suspended, though they usually do receive a partially suspended sen-
tence.
Where a very long effective sentence of imprisonment is imposed, a suspended portion will
generally serve little purpose105, though it is sometimes appropriate — for example, where
the sentence is suspended on condition that the offender compensates the victim.

Conditions of suspension or postponement

Conditions on which a sentence may be suspended or postponed may relate to:
• good conduct;
• compensation for damage or loss caused by the offender;
• rendering some benefit or service to anyone injured by the crime;
• submission to instruction or treatment;
• submission to the supervision or control of a probation officer or other suitable person;
• compulsory attendance or residence at a specified centre for a specified purpose;
• any other matter which the court may specify, having regard to the interests of the of-
fender or any other person or the general public.106
The conditions must be appropriate to the crime and must be stated with such precision that
the offender clearly understands the ambit of the condition. If there is any doubt as to how
a condition should be interpreted, the doubt must be resolved in favour of the offender.
Thus, if the offender is convicted of a crime involving assault, it would be appropriate to
suspend the sentence or a part of it on a condition relating to physical violence. The use of
the word “violence” alone, however, may be vague and other wording may be needed to
ensure that the offender knows exactly what he must do to avoid having the suspended sen-
tence brought into operation. For example, “statutory rape” would probably not be a crime
involving violence. Similarly, a condition that the offender does not commit any crime in-
volving theft or dishonesty would not apply to unlawful entry into premises. It would only
apply to crimes akin to theft.107
A condition of suspension must be reasonably capable of fulfilment; if the condition can-
not be fulfilled, it should not be included.108
It is improper for a court to attach more than one condition to the suspension of a portion of
a sentence. Where the offender is convicted of theft and it is desired to suspend a portion of
the sentence on conditions of both restitution and subsequent good behaviour, it would be
better to suspend a portion on condition of restitution and suspend a further portion on con-

104
S v Joelson 1971 (1) RLR 214 (A).
105
S v Kanhukamwe 1987 (1) ZLR 158 (S); S v Sawyer 1999 (2) ZLR 390 (H).
106
Section 385(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].
107
S v van Beek & Anor 1971 (1) RLR 75 (G).
108
S v Manzini 1984 (1) ZLR 33 (H).

189
dition of subsequent good behaviour.109 Any other course could lead to complications.
Similarly, it would be improper to impose a single suspended sentence in respect of two
unrelated crimes.110

Length of suspended sentence and period of suspension

In assessing sentence, a portion of which is to be suspended, the proper approach is to look
primarily at the sentence which the crime should attract and, having determined that, con-
sider what portion should be suspended. It is not correct to decide what effective sentence
the offender should undergo and then add a suspended sentence.
The period of suspension should also be considered judicially. The maximum period of
suspension or postponement of sentence is five years111 and there is a tendency for the
courts automatically to suspend or postpone sentences for the maximum period. The court
should determine in each case whether the maximum period is warranted.

Bringing suspended sentence into effect

If the offender breaches any of the conditions on which a sentence was suspended or post-
poned, the sentence may be brought into effect.
If the breach consists of a subsequent conviction, the prosecutor at the later trial should,
having proved the offender’s previous convictions, point out to the court that the offender
has breached the condition and apply for the suspended sentence to be brought into effect or
for sentence to be passed (where the sentence was postponed). The court should not act on
its own initiative.112
If the breach does not consist of a subsequent conviction, it is normally the duty of the local
public prosecutor to report to the magistrate that the offender has breached the conditions,
though any other interested party may do so — e.g. the person supervising community ser-
vice would have to report if the offender has failed to perform the service.
The magistrate to whom the matter is reported, or the court subsequently convicting the of-
fender, should consider the following:
• whether the new crime was committed before the period of suspension expired; and
• if the period of suspension has not expired, whether the present crime amounts to a
breach of the conditions of suspension.

Deciding whether period of suspension has expired

A sentence may be suspended for up to five years. The period of suspension normally
commences on the date that the accused was sentenced. If, however, only a portion of a
prison sentence has been suspended and the accused has had to serve a term of imprison-
ment, the period of suspension only begins to run after the accused is released from prison
after serving that term with or without remission of sentence. Evidence from the prison
service of the date of release should be elicited where necessary.
Sentences are usually suspended on condition that the accused does not commit a particular
type of crime during the period of suspension. In such a case, the vital question is whether
he committed the crime during the period of suspension. If he did so, the fact that he is on-

109
S v Bajilla 1981 ZLR 151 (A).
110
S v Ncube (1) 1989 (2) ZLR 52 (H).
111
Section 358(2)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07].
112
R v Dudzayi 1963 R & N 728 (SR).

190
ly tried for the crime after the suspended sentence expired does not prevent the suspended
sentence from being brought into operation.113
Sometimes sentences are suspended on condition that the accused is not convicted of a par-
ticular type of crime during the period of the suspension. Here the question will be whether
or not the period of suspension had expired at the date when the accused was convicted of
the current crime. Conditions of suspension should not be formulated in this way: condi-
tions should be phrased so that the sentences are suspended on condition the offender does
not commit (rather than is convicted of) a particular type of crime during the period of sus-
pension.

Deciding whether accused had breached conditions of suspension

The criminal action of the accused must constitute a breach of the conditions laid down for
suspension of the previous sentence. If the condition was that he does not commit a crime
of dishonesty during the period of suspension, the commission of the crime of negligent
driving or assault, for example, will not amount to a breach of this condition.
Suspended sentence imposed by High Court
A magistrate cannot bring into effect a suspended sentence imposed by the High Court.114
After sentencing the accused for his current crime, the magistrate must proceed in terms of
section 54(2) of the Magistrates Court Act [Chapter 7:10] and refer the case to the High
Court so that the High Court can bring into effect the suspended sentence if it considers that
it is appropriate to do so.
Where the suspended sentence was imposed by a magistrate, it does not have to be brought
into operation by the magistrate who originally imposed it. A magistrate other than the
magistrate who originally imposed it can bring into effect a suspended sentence.
Passing of postponed sentence
Most of what is stated above relating to suspended sentences applies to situations where it
emerges that previously the passing of sentence on the accused was conditionally post-
poned. The magistrate convicting and sentencing the accused for the current crime must
also decide whether the accused must also now be sentenced for the previous crime because
he has breached the conditions of the postponement within the period for which sentence
was postponed. However, it must be noted that the period of postponement begins on the
date of conviction.
As with suspension, a magistrate cannot pass sentence if the High Court postponed the
passing of sentence. The case must be referred to the High Court.
A magistrate other than the magistrate who originally postponed sentence can pass sentence
on the offender, but in such a case the sentencing magistrate should have the record of the
previous proceedings before him. And his sentencing jurisdiction is limited to his own ju-
risdiction or that of the convicting magistrate, whichever is the lower.115

113
S v Deuss 1972 (1) RLR 121 (G).
114
Section 358(5) of the Criminal Procedure and Evidence Act [Chapter 9:07]; S v Chitengu 1980 ZLR 84
(G).
115
Reid Rowland Criminal Procedure in Zimbabwe p. 25-53.

191
Further suspension or postponement
It is open to a court to grant a further suspension or postponement for a further period not
exceeding five years, on good cause shown by the offender, subject to such conditions as
might have been imposed when the sentence was originally suspended or postponed.116
What is good cause must be decided in the light of the circumstances of each case, but
“good” means “sufficient” or “satisfactory”,117 giving the court a wide discretion to consid-
er factors relating to the offender and the crime.

Reasons for Sentence

Courts should give reasons for the penalties they impose, and the reasons should record
when sentence is pronounced. Full written reasons should be given even if the judicial of-
ficer thinks that the reasons for the sentence are obvious. It is particularly important that
the judicial officer should record his reasons for departing from any general policy which
has been laid down by the higher courts in respect of sentence. The imposition of an inap-
propriate sentence is an injustice and the review or appeal court can only determine the ap-
propriateness of a sentence if the reasons for the sentence are given.118

Factors affecting sentence

General approach to sentence
The triad of factors
When assessing an appropriate sentence to impose, courts generally consider what in the
South African case of S v Zinn 1969 (2) SA 537 (A) was called:
“[T]he triad consisting of the crime, the offender and the interests of society.”
As it was put by Holmes JA in the often-quoted case of S v Sparks & Anor 1972 (3) SA 396
(A) at 410H:
“Punishment should fit the criminal as well as the crime, be fair to the State and to the accused,
and be blended with a measure of mercy.”
So the three general guides in determining an appropriate sentence to impose are: the seri-
ousness of the crime, the personal circumstances of the offender, and the public interest.
These factors must be considered equally and no one of them should be ignored or over-
emphasised at the expense of the others; they must be balanced with care and understand-
ing.119
1. The crime
Punishment must not be disproportionate to the crime; this is a constitutional requirement,
laid down by section 53 of the Constitution which prohibits cruel, inhuman or degrading
punishment.120 The proportionality of the punishment imposed in any particular case is as-
certained by looking at the seriousness of the crime and the aggravating and mitigating cir-
cumstances relating to it. Some crimes are inherently more serious than others: for exam-

116
Section 358(7)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07].
117
R v Montgomery 1969 (2) RLR 294 (A).
118
S v Duri HH-89-91; S v Nyamupanda HH-101-91.
119
S v Holder 1979 (2) SA 70 (A).
120
S v Arab 1990 (1) ZLR 253 (S) at 260.

192
ple, murder or rape are inherently more serious than, say, driving a motor vehicle without
due care and attention. As to the aggravating features, these will vary from case to case. If
the crime is one of possessing dangerous drugs, an aggravating factor may be the amount of
the drugs involved. If the crime involves violence, aggravating factors may be the extent of
the violence, the brutality of the attack, and the helplessness of the victim. Other aggravat-
ing factors applicable to this leg of the triad may include the fact that the crime was planned
or that it was committed by a criminal gang.
Mitigating factors with regard to the first leg of the triad may include, for example, that the
offender was convicted only of an attempt rather than of a completed crime, or that the
crime was petty, or that the offender’s involvement in it was limited.
2. The offender
The second element of the triad entails considering the offender’s personal circumstances to
ensure that the sentence fits the offender. Aggravating features in this regard would be, for
example: that the accused is a repeat offender, that he was motivated by greed, that he
lacked remorse, that he committed the crime by abusing a position of trust. Mitigating fac-
tors would include: youth, old age, and the fact that he is a first offender. Other factors to
be considered are: ill health, gainful employment, the fact that the offender has a family or
that he has shown remorse and pleaded guilty, and so on.
3. The interests of the public
Considerations under this head include the traditional purposes of punishment (deterrence,
rehabilitation, protection, and retribution). It can also be interpreted more widely to include
additional considerations, such as restitution or payment of compensation that can help re-
establish social relationships. Aggravating factors to be considered under this head may
include that the offender is dangerous and imprisoning him will protect the community, or
the crime is so prevalent that a heavy sentence is appropriate as a deterrent. It may also be
an aggravating feature if the victim was defenceless (e.g. a child) or a law enforcement
agent.
The triad laid down in Zinn’s case has been criticised. It has been called elementary, vague
and unsophisticated.121 The three elements of the triad are not watertight; they overlap,
and sentencing factors may fall to be considered under more than one of them. The ambi-
guity of the triad has often led to judges imposing sentences instinctively and using the
guidelines established by the triad to justify the sentences. In addition, the triad has also
been criticised for failing to emphasise the role of victims.122
In S v Shariwa 2003 (1) ZLR 314 (H) Ndou J stressed that judicial officers must adopt a
rational approach towards sentencing and must have adequate information before they pass
sentences. The court said that there is no room in our system for an “instinctive” approach
to sentencing; it should be a rational process. The sentencing court must always strive to
find a punishment which will fit both the crime and the offender. Whatever the gravity of
the crime and the interests of society, the most important factors in determining the sen-
tence are the person, and the character and circumstances of the crime. 123 The determina-
tion of an equitable quantum of punishment must chiefly bear a relationship to the moral
blameworthiness of the offender. However, there can be no injustice where in the weighing

121
S.A. Law Commission, Issue Paper 11 (1997), paragraph 2.44.
122
Ibid.
123
Here Ndou J was presumably thinking of the triad in Zinn’s case.

193
of crime, offender and the interests of society, more weight is attached to one or another of
these, unless there is over-emphasis of one which leads to disregard of the other. The court
should not be over-influenced by the seriousness of the type of the crime and fail to pay
sufficient attention to other factors which are of no less importance in the actual case before
the court. The over-emphasis of a wrongdoer’s crimes and the under-estimation of his per-
sonal circumstances constitute a misdirection which justifies the substitution of the sen-
tence. Justice should also be tempered with mercy. The court should equip itself with suf-
ficient and meaningful pre-sentencing information in order to come up with suitable pun-
ishment.
In S v Manyevere HB-38-03 the court stressed that the sentencing process is as distinct and
vital a factual enquiry as the determination of the guilt of an offender. Punishment should
as far as possible be individualised by conducting meaningful pre-sentencing investiga-
tions. Assessment of punishment should not be left to a haphazard guess based on no or
inadequate information.
In S v Ngulube 2002 (1) ZLR 316 (H) the court stated that the needs of the individual and
the interests of society should be balanced with care and understanding. Pre-sentencing
information is very important. Whilst the age, marital and family status, employment, sav-
ings and assets are important aspects in the assessment of sentence, courts should always
bear in mind that the reason why the offender committed the crime and the circumstances
of the crime are of equal importance.

Considerations applicable in particular cases

Factors relating to the accused
Age
Very young and very old people are normally treated more leniently than mature people.
Young people (this term includes juveniles, but is not confined to juveniles) are more
prone to making ill- considered and unwise decisions and cannot be expected to show the
same stability, responsibility and self-restraint as a fully mature adult. A person in his or
her early twenties may benefit from this. Note that there is no absolute dividing line as to
when a person can be regarded as fully mature: even persons in their late twenties could be
regarded as immature,124 but the nearer the person is to 30, the less weight will be attached
to the factor of age.
Very old people seldom commit crimes. An elderly first offender, who probably has never
been in prison before and whose health is not likely to be good, would suffer far more from
imprisonment than a younger and more resilient person would. It would be undesirable for
an elderly person to end his days in prison and so the very elderly should normally be ex-
empted from imprisonment. Old age should evoke a note of compassion.125 Furthermore,
in terms of section 82 of the Constitution the State owes some duty of care to persons over
the age of 70. A criminal court, as part of the State machinery, can play a protective role by
ensuring that the elderly are not unduly penalised for crimes committed in an effort to sur-
vive.126

124
S v Manda S-194-95.
125
S v Heller 1971 (2) SA 29 (A).
126
S v Dzotizei 2014 (1) ZLR 242 (H).

194
This does not mean that an elderly person should never be sent to prison. The crime may
be such that there is no other option, or the accused may have a long criminal record.
Gender
Female first offenders are generally treated more leniently than males, for three reasons:
• males commit more crimes;
• recidivism is commoner among males;
• women often have young children to care for.
In some cases, though, these factors may be absent or of lesser importance.
There may be circumstances where there is no reason to discriminate in favour of the wom-
an, particularly where she is jointly convicted with a man and there is nothing to indicate
that the man was the dominant partner.127
Where a female has a previous conviction for the same crime, she cannot expect the same
leniency that is shown to female first offenders.
Marital status and dependants
If a person with a spouse and dependants is imprisoned, the family will suffer. If this can
be avoided, it should, but sometimes it is unavoidable. It is often said that the accused
should have thought of the consequences to his/her family before committing the crime, but
this approach often overlooks human nature, the other circumstances of the case, and the
actual effect on the family.
Employment
Imprisonment is serious for any person, but it is more serious to imprison someone who is
employed than someone who is not, because of the financial loss to the offender and his
dependants. Employment is also difficult to find and it may be hard to find another job.128
The nature of the job and the offender’s income are relevant to his ability to pay a fine,
whether immediately or in instalments.
The mere fact of conviction may result in the accused being dismissed, irrespective of the
sentence imposed. This should not be overlooked.
Many people are not in formal employment, but have a steady or even substantial income
from other sources in the informal sector. This should be investigated, particularly if a fine
is being considered.
Character
Good character should be taken into account as a mitigating feature.
Imprisonment before trial
The fact that an offender was incarcerated while awaiting trial should be taken into account
in reducing any prison sentence imposed on him.129 It is not proper, however, to back-date
the sentence to cover any period of pre-trial imprisonment.130

127
S v Jones & Anor 1984 (1) ZLR 38 (H).
128
S v Mutize 1978 RLR 148 (A).
129
S v Jagne & Anor S-55-1987.
130
S v Mutandwa & Anor 1977 (1) RLR 273 (G).

195
Other punishment or personal consequences
The fact that the offender has been assaulted by a member of the public as retribution for
his crime131 or that he has been tortured or otherwise maltreated by the police before the
trial132 will usually be mitigating. The court should not seek to punish the person twice.
Mental condition
The offender’s mental state, if not sufficient to make him “not responsible according to
law” for the act, may amount to “diminished responsibility” and thus be relevant to sen-
tence. Clinical depression and post-traumatic stress could contribute to such a mitigating
mental state. Evidence would have to be led.
Plea of guilty
If there has been a plea of guilty, the plea must be indicative of penitence before weight can
be attached to it. It may be that the accused had little option but to plead guilty. Some
weight must, however, be attached to a plea of guilty. On the other hand, it is not aggravat-
ing for the offender to plead not guilty. He is entitled to do so.
Other indications of contrition
Assistance by the accused to the police, though not affecting his moral guilt, can be an indi-
cation of genuine repentance and if so it is relevant to sentence.133
Previous convictions
Previous convictions must usually be taken into account, though the weight to be attached
to them varies.
A previous conviction may be irrelevant, because the previous crime was trivial or occurred
long ago or is totally unrelated to the current crime. For example, a conviction for a driving
crime would generally not have bearing on what is an appropriate sentence for theft. But
the commission of several crimes different from that with which the accused is now
charged may indicate a disrespect for the law.
A previous conviction may render the accused liable to a particular form of sentence or to a
minimum sentence. It may render him liable to undergo a suspended sentence or to have a
postponed sentence passed.

The crime
Nature of the crime
Obviously this must be taken into account in all cases.
Prevalence of crime
The prevalence of a particular kind of crime must always be taken into account, but judicial
officers should avoid the temptation to pass sentences of ever-increasing severity in an at-
tempt to stem the tide of increasing lawlessness.134 The prevalence of a crime should not
be taken too far as a factor.

131
S v Ponder 1989 (1) ZLR 235 (S).
132
S v Harington 1988 (2) ZLR 344 (S).
133
S v Buka 1995 (2) ZLR 130 (S).
134
S v Mupanduki 1985 (2) ZLR 169 (S).

196
The court should also bear in mind that a particular crime may be prevalent in one area and
much less so elsewhere. The place of commission could therefore be relevant.
The prevalence of a particular kind of crime may be such that it is a matter of which a court
could take judicial notice, but it may be necessary for statistical evidence to be led by the
prosecutor or called by the court.
Effect on victim and victim’s family
Financial effect: Evidence must establish the financial effect. The court cannot assume
what the effect is.
Physical or psychological effect: This is not limited to crimes of violence. A housebreak-
ing could severely affect a nervous person. But there must be some evidence, even if it is
only that of the victim. The court should also be aware of the possibility of exaggeration by
the victim.

Other factors
Accused/victim relationship
This factor applies particularly to crimes of violence and sexual crimes, but is not confined
to such crimes. Theft and other crimes of dishonesty can be viewed in a more serious light
if they involve a betrayal of trust, such as theft by a servant.
Marital or blood relationship: This is particularly important in cases of domestic vio-
lence and sexual crimes.
Employer/employee, teacher/pupil: Again, this is important in sexual crimes, where the
offender’s dominant position may have resulted in coercion without physical violence.
Relative ages: This is particularly important in cases of “statutory rape”. The closer the
ages of the parties, the more likely it is that the incident was one of passion and not one of
an adult taking advantage of an innocent child. On the other hand, a great disparity in the
ages of the accused and complainant is usually regarded as aggravating; and where there
has in addition been a breach of trust a prison sentence is regarded as the norm.
Victim’s consent to acts
The rationale for creating the crime of “statutory rape” is the protection of young persons.
The fact that the “complainant” consented or was even willing may be mitigating, depend-
ing on the relative ages and the relationship of the parties.
Possibility of restitution, compensation, etc
It is highly desirable in crimes against property that the accused should make good the loss
caused, whether by restoring stolen property or repairing or replacing damaged or destroyed
property. A willingness to make restitution is always a mitigatory factor and will generally
be given considerable weight, particularly where the accused is a first offender. 135 The of-
fender’s willingness and ability to make restitution should be carefully investigated. But
restitution will not necessarily mean a non-custodial sentence. It is mitigating, but its miti-
gatory nature must be weighed against the nature of the crime and any aggravating features.

135
See for example, R v Zindoga 1980 ZLR 86 (A).

197
Entrapment
Entrapment may be mitigating if the accused was tempted to commit a crime which he oth-
erwise would not have committed. If the trap did not constitute an inducement, then the
accused should be treated as though there was no trap.
Motive
The accused’s motive in committing a crime bears strongly on his moral guilt. An altruistic
motive would be significantly mitigatory, such as where a person steals in order to feed his
starving family. Conversely, where the motive for the crime is to enable the offender to
commit another crime, his moral blameworthiness is higher.136 However, if the accused
does commit another crime, and he is not charged with it, and if that other crime is more
serious than the one with which he is charged, the fact that he committed that other crime
should not be taken into account as an aggravating feature.137
Because motive bears so strongly on moral blameworthiness it is vital for courts to invite
unrepresented accused persons to explain why they committed the crime: S v Muchena
HH-162-1983.
Delay in bringing the accused to trial or in dealing with appeal
Justice delayed is justice denied, and even if there has not been sufficient delay in bringing
an accused person to trial to justify a permanent stay in prosecution, the delay can be miti-
gating if it is not the accused’s fault. In S v Pretorius 1969 (2) RLR 95 (A) the court said
that because there had been a delay of seven years in bringing the appellant to trial, and the
delay was not the appellant’s fault, the prison sentence imposed on him by the trial court
should be wholly suspended.

Costs
Costs are generally not awarded in criminal cases conducted at the public instance (though
they may be awarded in private prosecutions).

Compensation for victims

Part XIX (ss 361-375 of the Criminal Procedure and Evidence Act [Chapter 9:07]) lays
down the procedures for awarding compensation to victims at the end of criminal trials. As
a result of amendments effected in 1992, all criminal courts now have very extensive pow-
ers to order convicted persons to pay compensation to persons who have been physically
injured or suffered loss or damage to their property as a result of the crimes in question.
Previously, courts could award compensation at the end of a criminal trial only for property
damage. Now they can also award compensation for physical injury138, compensate inno-
cent purchasers of property139 and order the restitution of unlawfully-obtained property140.
The extended capacity to award compensation at the conclusion of criminal cases is aimed
at ensuring that as many victims of crime as possible are compensated without their having

136
Attorney-General v Moyo 1979 RLR 283 (A).
137
R v Rice 1958 R & N 690 (SR).
138
Section 363 of the Criminal Procedure and Evidence Act [Chapter 9:07].
139
Section 364 of the Criminal Procedure and Evidence Act [Chapter 9:07].
140
Section 365 of the Criminal Procedure and Evidence Act [Chapter 9:07].

198
to institute civil proceedings against the perpetrators. The effectiveness of the new provi-
sions, however, depends on the financial resources of the offenders.
A magistrates court is not limited in the amount it may award, or in the value of property
which it can order to be returned.141 Hence it can make an award in excess of its civil juris-
diction fixed in terms of section 11 of the Magistrates Court Act [Chapter 7:11].142
But a court may not award compensation for loss or injury resulting from motor accidents,
unless the loss or injury results from theft (e.g. if the loss or injury took place while a stolen
vehicle was in the possession of a thief. Nor may a court award compensation for loss or
personal injury in any other cases, if:
• the amount of compensation is not readily quantifiable;
• the extent of liability of the wrongdoer is not readily ascertainable, or
• the convicted person may suffer prejudice as a result of the order.143
And a court cannot order the return of stolen property if its return would prejudice the
rights of innocent third parties.144
A court may not award compensation or order the return of property unless the injured par-
ty, or the prosecutor acting on the instructions of the injured party, applies for such an
award.145
The court is under an obligation to ensure, wherever possible, that the injured person is ac-
quainted with his right to apply for an award of compensation or restitution. 146 The prose-
cutor should also draw the attention of the injured party to his right to claim compensation
at the end of the criminal trial and, if requested to do so, must make the application on be-
half of the injured party.
Under section 62A of the Criminal Procedure and Evidence Act [Chapter 9:07] a court that
convicts a person of bribery may give summary judgment in favour of the State or the con-
victed person’s employer or principal for the amount the person received as a bribe, plus
interest. It is submitted that a magistrate’s court is limited, in the amount it may award un-
der the section, by its civil jurisdiction.147

Forfeiture of items
In terms of section 62 of the Criminal Procedure and Evidence Act [Chapter 9:07], a court
is given a discretion to order the forfeiture of certain items which have been used in con-
nection with criminal activity. This discretion lies with the court and its exercise does not
depend on prior application for forfeiture by the prosecution.
In summary, a court can order the following items to be forfeited to the State:

141
Section 367 of the Criminal Procedure and Evidence Act [Chapter 9:07].
142
Currently $300 000, fixed in the Magistrates Court (Civil Jurisdiction) (Monetary Limits) Rules, 2019 (SI
126 of 2019).
143
Section 366(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].
144
Section 366 (2) of the Criminal Procedure and Evidence Act [Chapter 9:07].
145
Section 368 of the Criminal Procedure and Evidence Act [Chapter 9:07].
146
Section 368(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].
147
Currently $300 000, fixed in the Magistrates Court (Civil Jurisdiction) (Monetary Limits) Rules, 2019 (SI
126 of 2019).

199
• in respect of any crimes — weapons, instruments and articles used in the commission of
crimes;
• in respect of theft-related crimes — vehicles used to transport stolen goods;
• in respect of statutory crimes relating to possession, conveyance or supply of habit-
forming drugs or harmful liquids, possession or dealing in precious metals or stones,
theft under common law or statute and housebreaking with intent to commit a common
law or statutory crime — vehicles, containers and articles used in the commission of
these crimes.
The factors which should be taken into account when deciding whether to order forfeiture
are:
• the nature of the article;
• what its role was in the commission of the crime;
• what possibility there is of the article being used again to commit similar crimes;
• the effect of the forfeiture on the person or persons affected by it;
• whether, in the light of the value of the article, its forfeiture will lead to the imposition
of a penalty which is disproportionate to the gravity of the crime committed;
• where the article is of considerable value, such as a motor-vehicle, whether that article
has previously been used for a similar criminal purpose.148
Forfeiture is part of the punishment and the value of the goods or articles which may be de-
clared to be forfeit must be taken into account. Especially where these may be of substan-
tial value, the courts should make some inquiry to determine their value.149
A court can make a forfeiture order without notice, but if it does so the order will not affect
the rights of a person who is proved not to have known that the goods or articles were being
or would be used to commit the crime, or to have been unable to prevent their use for that
purpose.150

148
S v Ndhlovu (1) 1980 ZLR 96 (G).
149
R v Poswell & Anor 1969 (4) SA 194 (R); R v Barclay 1969 (4) SA 195 (RA); R v Pretorius & Anor 1969
(4) SA 198 (R); S v Kurimwi 1985 (2) ZLR 63 (S) (which held that forfeiture of a motor vehicle was inappro-
priate where it was used for smuggling only a small amount of goods).
150
The proviso to section 62(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].

200
 24. SCRUTINY AND REVIEW
Scrutiny by regional magistrate
Where a magistrate (other than a regional magistrate) sentences a person to a period of im-
prisonment of more than three months but not exceeding 12 months, or to a fine of more
than level 41 but not exceeding level 62, the clerk of the court must send the record of the
case to a regional magistrate within one week after the sentence was imposed. Where the
person was convicted on two or more counts, it is the aggregate sentence imposed on him
which determines whether or not the case must be sent for scrutiny. 3 The trial magistrate
may include with the record any remarks he may wish to make.4 Unless the trial magistrate
orders otherwise, a transcript of the evidence is not sent; the magistrate’s manuscript notes
are sufficient.5
A record will not be sent in the following cases:6
• where the accused was represented by a legal practitioner or is a company;
• where the accused has requested that the case should be sent to the High Court for re-
view;
• where the accused has been fined in absentia in terms of section 356(1) of the Criminal
Procedure and Evidence Act (i.e. where he has paid a deposit fine).
A regional magistrate to whom a record is sent must consider it as soon as possible and, if
satisfied that the proceedings in the case are in accordance with real and substantial justice,
must endorse the record with a certificate to that effect. If, however, he has any doubts
about the proceedings he must forward the papers to the registrar of the High Court who
will lay them before a judge for review.7
Note that a regional magistrate has no power to alter or correct the proceedings of the mag-
istrates court.

Automatic review by High Court

Where a magistrate (including a regional magistrate) sentences a person to a period of im-
prisonment of more than 12 months, or to a fine of more than level 6, the clerk of the court
must send the record of the case to the registrar of the High Court within one week after the
sentence was imposed. This time-limit is important: the High Court has frequently criti-
cised magistrates for delays in sending records for review.8 Where the accused person was
convicted on two or more counts, it is the aggregate sentence imposed on him which deter-

1
Currently US $100.
2
Currently US $400.
3
Compare R v Mapinkila 1939 SR 104, which considered this point with regard to review. So for example, if
an accused is sentenced to two months’ imprisonment on each of three separate counts the case must be sent
for scrutiny because the total sentence imposed on him is six months’ imprisonment.
4
Section 58(1) of the Magistrates Court Act [Chapter 7:10].
5
Section 58(1), proviso (i) of the Magistrates Court Act [Chapter 7:10].
6
Section 58(1), proviso (ii) of the Magistrates Court Act [Chapter 7:10].
7
Section 58(3) of the Magistrates Court Act [Chapter 7:10].
8
See for example, S v Hunda & Anor 2010 (1) ZLR 387 (H) at 390E-F and S v Mutero & Ors 2014 (2) ZLR
139 (H) at 146-7.

201
mines whether or not the case must be sent on review. 9 As with scrutiny, the magistrate
may include with the record any remarks he may wish to make.10 Unless the trial magis-
trate orders otherwise, a transcript of the evidence is not sent; the magistrate’s manuscript
notes are sufficient.11
If the accused is aggrieved by the sentence in a case that is subject to automatic review, he
may deliver a statement to the clerk of the court, within three days after sentence was
passed, setting out his reasons for considering the sentence excessive. This statement must
be sent on review with the record and must be taken into account by the reviewing judge.12
The accused must be informed of his right to send a statement on review.
If the accused was represented by a legal practitioner, or is a company, the record will not
be sent for review unless the legal practitioner or the company’s representative requests the
clerk of court, in writing and with reasons and within three days after sentence was im-
posed, to send the record for review.13 Similarly, where less than 12 months’ imprisonment
or a fine of less than level 6 was imposed on the accused, he may request the clerk of court,
in writing and with reasons and within three days after sentence was imposed, to send the
record for a review of the sentence.14

Purpose of review
The purpose of review is to ensure that every case in which a magistrate imposes a sentence
of more than the limits prescribed in section 57(1) of the Magistrates Court Act [Chapter
7:10] is examined by a judge of the High Court, who must satisfy himself that the proceed-
ings are in accordance with real and substantial justice. It is a way of ensuring, albeit ex
post facto, that unrepresented accused persons are treated fairly.
A review is not a re-trial nor is it an appeal. The reviewing judge must be satisfied that the
proceedings in the magistrates court were substantially just.15 If there is evidence on which
a reasonable court could have convicted, the reviewing judge will not interfere. Even so,
the powers of the High Court on review are very similar to the court’s powers on appeal.16

Powers of judge on review

In terms of section 29 of the High Court Act [Chapter 7:06], if a judge on review considers
that the proceedings of the magistrates court are in accordance with real and substantial jus-
tice, he will confirm the proceedings.
If, however, the judge does not consider the proceedings to be in accordance with real and
substantial justice, he may:
• quash the conviction. A judgment based on fact will not be set aside unless there is no
evidence to support it or the trial court acted on inadmissible evidence, or unless the ev-

9
R v Mapinkila 1939 SR 104. So for example, if an accused is sentenced to six months’ imprisonment on
each of three separate counts the case must be sent on review because the total sentence imposed on him is 18
months’ imprisonment.
10
Section 57(1) of the Magistrates Court Act [Chapter 7:10].
11
Section 57(1), proviso (i) of the Magistrates Court Act [Chapter 7:10].
12
Section 59 of the Magistrates Court Act [Chapter 7:10].
13
Section 57(1), proviso (ii) and 57(2) of the Magistrates Court Act [Chapter 7:10].
14
Section 57(3) of the Magistrates Court Act [Chapter 7:10].
15
Fikilini v Attorney-General 1990 (1) ZLR 105 (S).
16
Compare section 29 with sections 38 to 41 of the High Court Act [Chapter 7:06].

202
 idence is such that, in the view of the reviewing judge, it does not prove the accused’s
guilt beyond reasonable doubt.17
• alter the conviction to one which the magistrate could and should have reached, consid-
ering the charge that was brought and the evidence that was, or should have been, ac-
cepted. Thus the reviewing judge may alter the conviction so that the accused is found
guilty of a crime alleged as an alternative charge in the charge-sheet, or so that the ac-
cused is convicted of a permissible verdict to the crime charged.
• reduce or set aside the sentence or any order made by the magistrate ancillary to the
sentence (e.g. forfeiture). A sentence of imprisonment may not be substituted for a fine,
however, unless the enactment under which the accused was convicted does not provide
for a fine, and generally the substituted sentence must not be more severe than that im-
posed by the magistrate. The exception to this is where the accused, who was repre-
sented by a legal practitioner in the magistrates court or is a company, requested that the
proceedings be sent on review.
• correct or set aside the proceedings of the magistrate, or any part of the proceedings,
and give whatever judgment or impose whatever sentence or make whatever order the
magistrate ought to have given, imposed or made.18
• remit the case to the magistrates court for trial afresh before a different magistrate, or
for the hearing of further evidence, or for sentence to be imposed afresh.
Note that the power to alter or quash a conviction, and to alter the sentence, may not be ex-
ercised on automatic review unless another judge of the High Court has agreed to the altera-
tion.19
Note, too, that a judge should not quash or set aside a conviction or sentence on review be-
cause of an irregularity or other defect unless the judge considers that a substantial miscar-
riage of justice has actually occurred.20 The object of this restriction is to prevent proceed-
ings being set aside on petty, insubstantial technical grounds. The test is whether there has
been substantial prejudice to the accused.

Real and substantial justice

A scrutinising regional magistrate and a reviewing judge should only query or interfere in
proceedings if he or she considers they are not in accordance with real and substantial jus-
tice. The phrase “real and substantial justice” is not defined in the High Court Act or the
Magistrates Court Act, and they defy precise definition. Greenland J explained them in S v
Chidodo & Anor 1988 (1) ZLR 299 (H) at 302 as follows:
“It seems clear from the words employed … that a judge (and regional magistrate) is required
to make a value judgement on the question. He must be satisfied that everything that tran-
spired at the criminal trial conforms with the notions of justice that these words imply. The
words employed are individually and collectively very wide in ambit. Notions of justice, be-
ing essentially abstract, are necessary as wide, as any textbook on jurisprudence will show. …
What is to be considered just, depends on the norms and sense of values generally prevailing
in society.”

17
R v Chidongo 1939 SR 210.
18
Section 29(2)(b)(iii) of the High Court Act [Chapter 7:06]. As to the effect of this provision, see Reid
Rowland Criminal Procedure in Zimbabwe p. 26–8.
19
Section 29(5)(b), proviso, of the High Court Act [Chapter 7:06].
20
Section 29(3) of the High Court Act [Chapter 7:06].

203
Uchena J developed this in S v Kawareware 2011 (2) ZLR 281 (H):
“Real and substantial justice would … be the considerable judicious exercise of judicial author-
ity by the trial court, which satisfies in the main the essential requirements of the law and pro-
cedure. Failure to comply with minor requirements, minor mistakes and immaterial irregular-
ities should, however, not result in the scrutinising or reviewing judicial officer’s refusal to
certify proceedings as being in accordance with real and substantial justice.” (page 287E)
“The critical consideration is … whether the proceedings broadly satisfy the requirements of
justice.” (page 288D)
The main features that scrutinising and reviewing judicial officers should look for in deter-
mining whether proceedings are in accordance with real and substantial justice are:21
1. The correctness of the charge.
2. The agreed facts or State and defence outlines.
3. Compliance with statutory requirements in taking a plea of guilty or in conducting a
trial where the accused pleads not guilty.
4. The acceptance or proof of the facts on which the charge is based.
5. The assessment of evidence, i.e. matching the law and the accepted or proved facts.
6. The trial court’s reasons for judgment.
7. The correctness or otherwise of the conviction.
8. The justifiability (i.e. appropriateness) of the charge or sentence.

Non-automatic Review
Automatic review is not the only form of review. Under section 29(4) of the High Court
Act [Chapter 7:06], whenever it comes to the notice of a judge of the High Court that crim-
inal proceedings in a magistrates court are not in accordance with real and substantial jus-
tice, the judge can send for the record and exercise the same powers as if the proceedings
had come on automatic review. Under this section, a magistrate who is doubtful about the
correctness of proceedings which are not subject to automatic review can send the record to
a judge for review.
As stated above, if an accused was represented by a legal practitioner or is a company, the
proceedings will not be sent for automatic review unless the legal practitioner or the com-
pany’s representative requests the clerk of court to send the proceedings for review. The
request must be made in writing within three days after the case was finalised. Similarly, in
cases where a sentence of less than 12 months’ imprisonment or a fine of less than level 6
was imposed, the accused may request the clerk of court to send the record for a review of
the sentence. Again, the request must be made in writing within three days after sentence
was imposed.
Another way to bring a case on review to the High Court is by court application, asking the
court to exercise its general powers of review on the ground of:
• absence of jurisdiction on the part of the magistrates court;
• interest in the case, bias, malice or corruption on the part of the person presiding over
the magistrates court;22 or
• gross irregularity in the proceedings.

21
They are set out in S v Kawareware 2011 (2) ZLR 281 (H) at 289.
22
This ground does not seem to cover bias, malice or corruption on the part of the prosecutor

204
These grounds are set out in section 27 of the High Court Act [Chapter 7:06]. They are not
as restrictive as they may seem, because section 27 begins with the words “Subject to …
any other law” which suggests that another law could extend the grounds of review. In fact
the Constitution probably has, by requiring all trials to be fair, i.e. conducted according to
notions of basic fairness and justice.23
Such an application must be made within eight weeks after the proceedings were finalised,
though this period may be extended for good cause shown.24

Incomplete proceedings
The High Court has power to review criminal proceedings at any stage, but it is reluctant to
review uncompleted proceedings unless a miscarriage of justice would result if the proceed-
ings are allowed to continue to completion.25

Bail pending review

A convicted person can be granted bail pending review. The same principles apply to the
granting of such bail as apply to bail pending appeal.

23
Section 69(1) of the Constitution. See also S v Zuma & Ors 1995 (2) SA 642 (CC) at para 16 (page 652).
24
High Court Rules, 1971, O. 33 Rr. 256 and 259.
25
Dombodzvuku & Anor v Sithole NO & Anor 2004 (2) ZLR 242 (H); S v Rose 2012 (1) ZLR 238 (H).

205
 25. APPEALS
Distinction Between Appeal and Review
Traditionally appeals are distinguished from reviews in that an appeal is concerned with the
substantive correctness of the decision based on the facts on the record or on the law rele-
vant to those facts, while a review is primarily concerned with the procedural validity of the
proceedings. In practice, at least in criminal cases, the distinction is less clear-cut. On au-
tomatic review convictions are often set aside or altered on factual grounds, and on appeal
convictions may be set aside because of procedural irregularities.
Nonetheless there are differences, the main ones being:
1. An appeal may be brought against the findings of a lower court on any point of law
and/or fact, but a review may be brought only on the ground of specific procedural ir-
regularities — absence of jurisdiction, interest in the cause, bias, malice or gross irregu-
larity1. This applies to reviews brought under the High Court Rules, not to automatic
review.
2. In an appeal the parties are confined to the record, whereas in a review it is permissible
to prove a ground of review (e.g. bias) through affidavit. But on automatic review the
court is confined to the record. Here too the distinction between review and appeal
doesn’t always hold true, because it is possible for further evidence to be heard on ap-
peal.
3. An appeal must be brought within a fixed time.2 There is no time-limit for review un-
der the common law3, but cases must be sent for automatic review within one week af-
ter sentence was passed4 and non-automatic reviews must be brought within eight
weeks after the termination of the proceedings.5 This latter time-limit can be extended,
but the High Court will not condone the bringing of review proceedings after an unrea-
sonable time has elapsed.
4. A court has no inherent appellate jurisdiction, whereas the High Court and Supreme
Court have inherent review powers.6
5. An appeal is final and conclusive, unless a statute gives the parties a further right of ap-
peal to another court (for example, an appeal from a magistrates court lies to the High
Court, and from that court to the Supreme Court). A review, on the other hand, is not
final in that a case that has been the subject of review may be reviewed again, though
on different grounds.7

1
Section 27 of the High Court Act [Chapter 7:06].
2
See page 11 of these notes.
3
S v Moyo 1972 (2) RLR 38 (G).
4
Section 57(1) of the Magistrates Court Act [Chapter 7:10].
5
Rule 259 of the High Court Rules, 1971 (RGN 1047/71).
6
They have always claimed such powers in regard to procedural matters (see Bheka v Disablement Benefits
Board 1994 (1) ZLR 353 (S) at 357), and section 171(1)(b) of the Constitution gives the High Court review
powers while the Supreme Court’s review powers are derived from section 25 of the Supreme Court Act
[Chapter 7:13].
7
See S v Moyo (1) 1978 RLR 316 (A) at 322-3.

206
Note, however, that on automatic review the powers of the High Court are in many respects
as wide as the Court’s powers on appeal.8

Appeal Courts
Generally, appeals from magistrates courts, whether against conviction or sentence, lie to
the High Court; appeals from the High Court lie to the Supreme Court.
The Supreme Court is the final court of appeal. There is no appeal from its decisions, ex-
cept on constitutional issues,9 and its decisions are not subject to review.

Appeals by Accused
From High Court
Appeals from criminal cases tried in the High Court lie to the Supreme Court. In some cas-
es, convicted persons may appeal as of right, in others only with the leave of a judge of the
High Court (usually the trial judge) or, if he or she refuses to grant leave, with the leave of a
judge of the Supreme Court.

Appeal as of Right
Under section 44 of the High Court Act [Chapter 7:06], a person convicted at a trial in
the High Court has an appeal as of right:
• on a point of law alone;
• against conviction or sentence, if he has been sentenced to death;
• against sentence, if the sentence imposed on him was not permitted by law, e.g. if a
statute allowed only a fine to be imposed, and he was sentenced to imprisonment).
Under section 70(5) of the Constitution, anyone who has been tried and convicted of a
crime has the right, subject to reasonable restrictions prescribed by law, to appeal to a
higher court against the conviction and sentence.
Appeal with Leave
Under section 44 of the High Court Act [Chapter 7:06], with the leave of a judge of the
High Court or, if such leave is refused, with leave of a judge of the Supreme Court, a
convicted person may appeal to the Supreme Court:
• against conviction on a ground involving fact or mixed fact and law. A ground of
appeal alleging that there was insufficient evidence to support the conviction is re-
garded as a ground involving a question of fact alone;
• against sentence, or against any order of forfeiture or other order ancillary to sen-
tence.
The requirement to get leave to appeal is undoubtedly a restriction on a person’s right
to appeal conferred by section 70(5) of the Constitution, but it is probably a reasonable
restriction envisaged by that section. In the South African case of Shinga v S & Anor
2007 (4) SA 611 (CC), the Constitutional Court of that country held that requiring a
person to get leave to appeal to the High Court was not inherently unconstitutional so

8
Section 29 of the High Court Act [Chapter 7:06], and see R v Chidongo 1939 SR 210 at 213.
9
Section 26(1) of the Supreme Court Act [Chapter 7:13].

207
 long as the judges who grant leave see the record and have an adequate opportunity to
re-appraise the case. Two judges should see the record. With that proviso, the court
held that the requirement of leave to appeal was desirable because it allowed unmerito-
rious appeals to be identified and prevented, thereby preventing the waste of judicial
resources.

From magistrates courts

Appeals from magistrates courts in criminal cases lie to the High Court. There is greater
scope for appealing against a judgment or order of magistrates court than there is against a
judgment or order of the High Court.
An appeal lies to the High Court:
• against conviction and/or sentence and/or any order following sentence (e.g. an order
of forfeiture).10 Note, however, that this applies to convictions and sentences imposed
by magistrates courts. If a person is convicted by a magistrate and transferred to the
High Court for sentence, an appeal will lie against conviction and/or sentence as if he
had been convicted and sentenced by the High Court;11
• against punishment for failing to obey a subpoena issued by a magistrate;
• against punishment for failure to obey an order of a magistrate (in cases which do not
fall directly within the category of contempt of court).12

From other courts

Members of the Defence Forces who have been convicted by a court martial may appeal to
the Court Martial Appeal Court (i.e. the Supreme Court) against conviction on any ground
that involves a question of law alone or mixed questions of law and fact, or on any ground
which the Appeal Court certifies as sufficient.13 There is no provision for an appeal against
sentence.
Members of the Police Service convicted of crimes by a board of officers may appeal
against their conviction or sentence to the High Court.14

Interlocutory rulings
An interlocutory order or judgment is, essentially, one where the trial court’s decision does
not finally decide any issue between the parties, but rather decides the procedure by which
one or more of the issues will be presented to the court for decision. Examples are rulings
on jurisdiction or on the admissibility of evidence.
An appeal from an interlocutory order or judgment given by the High Court lies to the Su-
preme Court, but such an appeal is permissible only if a judge of the High Court (usually

10
Section 60 of the Magistrates Court Act [Chapter 7:10]
11
Section 60(4) of the Magistrates Court Act [Chapter 7:10].
12
Section 71(3) of the Magistrates Court Act [Chapter 7:10]. A conviction for contempt in facie curiae —
i.e. contempt committed in the courtroom — must be reviewed by a judge of the High Court in terms of sec-
tion 71(2) of the Magistrates Court Act.
13
Section 80 of the Defence Act [Chapter 11:02].
14
Section 33 of the Police Act [Chapter 11:10].

208
the judge who gave the order or judgment) grants leave or, if he or she refuses leave, if a
judge of the Supreme Court grants leave.15
No similar right of appeal is allowed for interlocutory rulings of magistrates.
The courts are not inclined to entertain appeals against interlocutory judgments if it results
in the piecemeal hearing of appeals, unless the appellant will suffer irreparable prejudice if
the trial continues.16

Bail pending appeal

A person who has been convicted and sentenced, and who wants to appeal, may be granted
bail pending appeal or pending the grant of leave to appeal, or pending an application for an
extension of time within which to note an appeal.

Application for bail pending appeal

Where the person was convicted and sentenced by a magistrates court, the application for
bail should be made either to a magistrate or to a judge of the High Court. Where he was
convicted by the High Court, the application should be made to a judge of the High Court
or the Supreme Court. Normally the application is made to the magistrate or judge who
convicted and sentenced the person, but it need not be.17
Unless the Prosecutor-General consents, a magistrate cannot grant bail pending appeal to a
person who has been convicted of a crime specified in the Third Schedule to the Criminal
Procedure and Evidence Act [Chapter 9:07].18
The convicted person must give reasonable notice of his application for bail to the public
prosecutor (where he has been convicted and sentenced by a magistrates court) or to the
Prosecutor-General (where he has been convicted and sentenced by the High Court).19

Principles governing bail pending appeal

The presumption of innocence no longer applies where a convicted person applies for bail
pending appeal. This is particularly so where the appeal is against sentence, not against
conviction, and the usual sentence for the crime is a substantial effective prison sentence.20
If there are no positive grounds for granting bail, the proper approach is that it should be
refused.
The onus is on the convicted person to show why justice requires that he should be granted
bail.21 Whether the person can discharge that onus will depend on two main factors:22
• the likelihood of his absconding, which depends amongst other things, on the length of
the prison sentence which he faces; and
• the prospects of success on appeal.

15
Section 44(5) of the High Court Act [Chapter 7:06].
16
S v Beahan (2) 1989 (1) ZLR 359 (H) at 362-3.
17
Section 123(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].
18
Section 123(1), proviso (iii) of the Criminal Procedure and Evidence Act [Chapter 9:07].
19
Section 123(1), proviso (i) of the Criminal Procedure and Evidence Act [Chapter 9:07].
20
S v Kilpin 1978 RLR 282 (A) at 285-6, where it was said that it is wrong that a person who should properly
be in gaol should be at large.
21
S v Williams 1980 ZLR 466 (A) at 468, and S v Dzvairo & Ors 2006 (1) ZLR 45 at 60.
22
S v Williams 1980 ZLR 466 (A) at 468.

209
These factors must be balanced: the greater the likelihood of the person absconding, the
greater his prospects of success must be, and vice versa. In balancing the factors, the court
must not ignore the person’s right to liberty.23
As with bail pending trial, a Ministerial certificate may be issued preventing the grant of
bail pending appeal, and a person who has been extradited to Zimbabwe must be refused
bail if the Minister of Home Affairs gave an undertaking when the person was extradited
that he would not be granted bail.24
What has been said above relating to bail pending appeal applies equally to bail pending
review.25

Appeals by Prosecutor-General
The Prosecutor-General’s right of appeal in criminal cases is substantially the same for both
the High Court and the magistrates courts.

Appeal on point of law or against acquittal or against discharge at end of

State case
If the Prosecutor-General is dissatisfied with the judgment of a magistrates court on a point
of law or because it has acquitted the accused on a view of the facts which could not rea-
sonably be entertained, he may appeal against the judgment to the High Court, but must ob-
tain the leave of a judge of the High Court to do so.26 The accused person has the right to
appear in such an appeal.
And similarly, if the Prosecutor-General is dissatisfied with the judgment of the High court
(whether at a trial or on appeal) on a point of law or because it has acquitted the accused on
a view of the facts which could not reasonably be entertained, he may appeal against the
judgment to the Supreme Court, but must obtain the leave of a judge of the Supreme Court
to do so.27 The accused person has the right to appear in such an appeal.
Not every error of law entitles the Prosecutor-General to lodge an appeal: the point of law
must relate to a decision made by the trial court on a legal issue relevant to the acquittal. 28
And the Prosecutor-General will succeed in an appeal against an acquittal on the facts only
when the inference drawn by the court from the primary facts is so inconsistent with logic
and common sense that the judgment is perverse, if on a proper view of the facts the trial
court could not reasonably have inferred the innocence of the accused.29
The Prosecutor-General is entitled to appeal against a decision of a judge or magistrate to
discharge an accused person at the end of the State case. 30 In the case of a decision of a
magistrate, the appeal lies to the High Court and the Prosecutor-General must obtain leave
from a judge of that court before he can appeal; in the case of a decision of a High Court
judge, the appeal lies to the Supreme Court with leave from a judge of the Supreme Court.

23
S v Benatar 1985 (2) ZLR 205 (H).
24
Section 123(5) & (6) of the Criminal Procedure and Evidence Act [Chapter 9:07].
25
Section 123(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].
26
Section 61 of the Magistrates Court Act [Chapter 7:10].
27
Section 44(6) of the High Court Act [Chapter 7:06].
28
Attorney-General v Lafleur & Anor 1998 (1) ZLR 520 (S).
29
Attorney-General v Paweni Trading Corpn (Pvt) Ltd & Ors 1990 (1) ZLR 24 (S), Attorney-General v
Lafleur & Anor 1998 (1) ZLR 520 (S).
30
Section 198(4) of the Criminal Procedure and Evidence Act [Chapter 9:07].

210
In such an appeal, the appeal court can remit the case back to the trial court for the trial to
proceed.

Appeal against sentence

If the Prosecutor-General considers that a sentence imposed by a magistrate is incompetent,
he may appeal to the High Court against the sentence.31 If he considers it inadequate, he
may appeal to the High Court — but he must obtain leave of a judge of the High Court to
do so.32
Similarly, if the Prosecutor-General considers that a sentence imposed by the High Court
(whether at a trial or on appeal) is incompetent, he may appeal to the Supreme Court
against the sentence.33 If he considers it inadequate, he may appeal to the Supreme Court
— but he must obtain leave of a judge of the Supreme Court to do so.34

Appeal against interlocutory rulings

The Prosecutor-General’s right to appeal against interlocutory rulings is the same as that of
an accused person, which has been dealt with above.

Application for Leave to Appeal

An application for leave to appeal from a decision of the High Court should be made orally
to the trial judge immediately after sentence, stating the grounds of appeal. If application is
not made then, it must be made in writing within 12 days (i.e. business days) of the date of
sentence, accompanied by the proposed grounds of appeal and an explanation of why appli-
cation was not made earlier.35 A copy of a written application must be submitted to the
Prosecutor-General, and he must be given an opportunity to file written submissions.36
An application for leave to appeal is normally dealt with by the trial judge, but if he is not
available it may be dealt with by any other judge of the High Court.37
For an application to be granted, there must be a reasonable prospect of success in the ap-
peal. If the prospects are reasonable, the application should be granted; otherwise it should
be refused. It is not enough to make out an “arguable” case, for there are very few cases
which are not arguable in the wide sense of the word, but where there is substance in the
argument, there must ipso facto be a reasonable prospect of success. Applications for leave
to appeal against sentence should be treated less rigidly than those against conviction, be-
cause assessment of sentence is a matter of discretion and there is always room for a differ-
ence of opinion.38
If the judge of the High Court refuses to grant leave to appeal, an application for leave may
be made to a judge of the Supreme Court within 10 days of the date of the refusal or within
15 days of the conviction, whichever is the later.39

31
Section 62(1)(a) of the Magistrates Court Act [Chapter 7:10].
32
Section 62(1)(b) of the Magistrates Court Act [Chapter 7:10].
33
Section 44(7)(a) of the High Court Act [Chapter 7:06].
34
Section 44(7)(b) of the High Court Act [Chapter 7:06].
35
O 34 Rr 262 & 263 of the High Court Rules, 1971.
36
O 34 R 264 of the High Court Rules, 1971.
37
O 34 Rr 265 & 268 of the High Court Rules, 1971.
38
S v McGown 1995 (2) ZLR 81 (S).
39
R 20(1) of the Supreme Court Rules, 2018 (SI 84/2018).

211
 Notice of Appeal
An appeal is noted by lodging a notice of appeal with the clerk of the magistrates court (in
the case of appeals from a magistrates court to the High Court) or with the Registrar of the
High Court (in the case of appeals to the Supreme Court).

Time-limits for noting appeals

Appeals from magistrates courts
By Prosecutor-General:
• Appeal on a point of law — no time-limit, but it should be noted as soon as practi-
cable.
• Appeal against sentence — within 10 days after sentence was passed.40.
• Appeal against acquittal — no time-limit is prescribed.
By convicted person:
• Appeal against conviction or conviction & sentence — within 10 days after sen-
tence was passed41 or, where the appellant’s legal practitioner has requested the
magistrate’s reasons for conviction and sentence, within five days after receiving
them. If the proceedings have been sent on review, the appellant may within four
days after sentence, elect to defer noting the appeal until the case has been re-
viewed.42
Where the accused is not legally represented, the notice of appeal must be lodged
within 10 days of the passing of sentence.43
• Appeal against sentence only — where the appellant is legally represented, within
five days after the passing of sentence. If the case has been sent on review, the ap-
pellant may elect to defer noting the appeal until it has been reviewed.44

Appeals from High Court

1. By Prosecutor-General:
• Appeal on a point of law — no time-limit, but it should be noted as soon as practi-
cable.
• Appeal against sentence — within 10 days after sentence was passed.45 Where
leave to appeal is required, leave must be sought within the same period.
• Appeal against acquittal — no time-limit is prescribed, but it should be brought as
soon as possible.46
2. By convicted person:

40
R 11(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979
41
R 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979.
42
R 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979.
43
R 27 of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979
44
R 34(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979
45
R 30(1) of the Supreme Court Rules, 2018 (SI 84/2018).
46
Attorney-General v Lafleur & Anor 1998 (1) ZLR 520 (S).

212
 Where leave to appeal is not required, within 10 days of the conviction or sentence
against which the appeal is made.47 Where leave is required, notice must be lodged
within four days of the granting of leave, or within 10 days of the conviction or sen-
tence, whichever is later.48

Extension of time
If a convicted person fails to note an appeal within the requisite time-limit, he can apply for
leave to appeal out of time by lodging an application with the registrar of the High Court or
the Supreme Court, as the case may be, together with a draft notice of appeal and an ade-
quate explanation of why the appeal was not noted in time and, where leave to appeal is
required, with an application for leave.
When considering an application for an extension of time (or condonation, as it is often
called) the court will consider:
• the length of the delay;
• the reason for the delay;
• the prospects of success of the appeal.
The greater the delay, the greater must be the prospects of success, and vice versa.49

Grounds of appeal
A notice of appeal must set out “clearly and specifically” the appellant’s grounds of appeal.
It is not enough to state generally that “the conviction is wrong in law” or “the evidence
does not support the conviction”. If the appellant relies on an error of law, he should state
what that error is; if he alleges that the court made a mistake on the facts, he must say what
the mistake was. There should be no general statement such as “the trial court erred in ac-
cepting the complainant’s evidence”50; the notice must say why the court erred. There
must be a precise statement of the points on which the appellant relies.51
A notice which fails to set out the grounds of appeal clearly and specifically is a nullity and
cannot be amended (unless the State consents and the court is disposed to allow an amend-
ment52); the only remedy is to apply for an extension of time within which to note a proper
appeal.53

Magistrate’s reasons
In an appeal from the magistrates court, the trial magistrate is required to comment on and
reply to the notice of appeal — hence the need for the notice to state the grounds clearly.54
Where the appellant is legally represented, the magistrate must within five days deliver to
the clerk of court a written statement setting out the facts he found to be proved and the rea-

47
R 18(2) of the Supreme Court Rules, 2018 (SI 84/2018).
48
R 18(3) of the Supreme Court Rules, 2018 (SI 84/2018).
49
R v Humanika 1968 (2) RLR 42 (A).
50
S v Ncube 1990 (2) ZLR 303 (S) at 304.
51
S v McNab 1986 (2) ZLR 280 (S).
52
S v McNab 1986 (2) ZLR 280 (S) at 283.
53
S v Jack 1990 (2) ZLR 166 (S) and S v Ncube 1990 (2) ZLR 303 (S) at 304.
54
Rr 23, 28, 35 & 40 of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979.

213
sons for judgment and sentence and dealing with the grounds of appeal. The extent of the
reply depends on the extent to which these factors were dealt with in his original judgment.
The appellant is entitled to amend his notice of appeal in the light of the magistrate’s state-
ment.
If the appellant is not legally represented, the magistrate may (but need not) reply to the no-
tice of appeal.

Procedure where judgment not available

If a legal practitioner is asked to note an appeal where the appellant was not legally repre-
sented at the trial, he need not prepare a notice of appeal but can ask the clerk of court for a
copy of the judgment. Such a request must be made within 48 hours of the passing of sen-
tence.55

Payment for record

In appeals from a magistrates court, where the appellant is legally represented his practi-
tioner must, within five days of noting the appeal, deposit with the clerk of court the esti-
mated cost of a certified copy of the record, or give an undertaking to pay it. Failure to
comply with this requirement invalidates the appeal.56 This does not apply where the ap-
pellant is the Prosecutor-General.
In appeals from a judgment of the High Court, the appellant (other than the Prosecutor-
General) must, within 10 days after noting the appeal, make arrangements with the Regis-
trar for the preparation of the record and for paying for it.

Appeals in person
There is no general right to conduct an appeal in person. A judge of the appeal court must
certify that there are reasonable grounds for the appeal, unless in the case of an appeal to
the Supreme Court a judge has already granted leave to appeal. The reason for this, appar-
ently, is to prevent convicted prisoners clogging the courts and disrupting prison routines
with frivolous appeals.
In South Africa the requirement that appellants must seek leave to conduct appeals in per-
son has been found to be unconstitutional.57
An appellant is entitled to be present at the hearing of his appeal, if he is out of custody.58

Representation of appellant and renunciation of agency

Appellants are entitled to be represented by registered legal practitioners.59
A legal practitioner can renounce his agency for good cause at any time before the appeal is
set down for hearing or, after set-down, within three weeks after he has been notified of the
date of hearing — provided that he does so not later than one month before the hearing. If

55
O IV R 3(1) of the Magistrates Court (Criminal) Rules, 1966; S v Gahamadze 1992 (1) ZLR 180 (S).
56
Rr 22 & 34 of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, 1979
57
S v Ntuli 1996 (1) SA 1207 (CC), where it was held that the requirement violated the constitutional right to
appeal — a right that is now granted by section 70(5) of our Constitution.
58
Section 29 of the Supreme Court Act [Chapter 7:13].
59
Section 30 of the Supreme Court Act [Chapter 7:13].

214
he does so later, he must apply to a judge for leave to do so and if he fails to get leave his
renunciation is ineffective and he is obliged to appear at the hearing of the appeal.60
Renunciation is effected by filing a notice with the Registrar and causing copies to be
served on the appellant and the other parties to the appeal.
When a legal practitioner renounces agency, he should tell the appellant that appellants do
not have a right of audience and that he must obtain leave of the court to appear.61

Set-down
Appeals by Prosecutor-General
Appeals are set down for hearing on at least:
• seven days’ notice to both sides, where the appeal is on a point of law or against sen-
tence and leave to appeal is not required;
• five days’ notice where the appeal is against sentence and leave to appeal is required.
The Prosecutor-General must file heads of argument within four days before the hearing.

Appeals by convicted persons

The Registrar will set these appeals down for hearing on six weeks’ notice to both sides,
unless they agree to a shorter period.

Heads of argument
These are documents in which the parties set out the main points of their arguments, with a
list of the authorities cited in support of each point. Their purpose is to give the court and
the opposing party an opportunity to prepare for the hearing.
Parties who are legally represented must file heads of argument within 15 days after being
required to do so by the Registrar of the appeal court.
Failure by a convicted person’s practitioner to file heads of argument within the prescribed
time-limit is fatal: the appeal is regarded as having been abandoned and is deemed to have
been dismissed.62

Court’s powers on appeal

Concession by Prosecutor-General
Where the appellant is appealing from a magistrates court against conviction only or against
conviction and sentence, the Prosecutor-General may at any time before the hearing give
notice to the Registrar of the appeal court that he does not support the conviction. Then a
judge of the High Court may quash the conviction in chambers without hearing argument
from the parties.63

60
R 12A of the Rules of the Supreme Court, 1964, and r 6A of the Supreme Court (Magistrates Court) (Crim-
inal Appeals) Rules, 1979.
61
S v Martin 1988 (2) ZLR 1 (S).
62
R 25 of the Rules of the Supreme Court, 1964, and rr 25 & 37 of the Supreme Court (Magistrates Court)
(Criminal Appeals) Rules, 1979.
63
Section 35 of the High Court Act [Chapter 7:06].

215
Hearing of evidence
The Supreme Court and the High Court on appeal may hear evidence from any witness, or
order the production of any document or exhibit. The court may also remit the case to the
trial court for the hearing of further evidence.
The court will exercise this power sparingly, only in exceptional circumstances where a
grave miscarriage of justice might otherwise result. This is particularly so where the evi-
dence is contentious.64 Normally an appeal court will remit the matter to the lower court
for evidence to be heard rather than hearing the evidence itself.
Where a party to an appeal wants the court to hear further evidence or remit the matter for
further evidence, the party must inform the court of the nature of the evidence and explain
why it was not led at the trial. There must be a reasonable explanation why it was not led at
the trial. Also, the appeal court must be satisfied that the evidence would presumably be
accepted as true and that if accepted there is a reasonable probability (not just possibility)
that the result of the trial would have been different.65

Quashing of conviction
The appeal court will allow an appeal and set aside a conviction for any of the following
reasons:
• the judgment was unreasonable or unjustified having regard to the evidence;
• a wrong decision was made on a point of law;
• for any other reason, there was a (substantial) miscarriage of justice.66
In an appeal on fact alone, the court will apply the following principles:
• where there has been no misdirection by the trial court, the appeal court will reverse a
finding only if it is convinced (not merely doubtful) that the finding was wrong;
• the appeal court will be reluctant to upset findings based on demeanour and credibility
of witnesses, since the trial court is in a better position to assess those factors;
• if the trial court misdirected itself and the misdirection seriously affected its assessment
of the appellant’s credibility, the appeal court will ignore the trial court’s findings on
credibility and assess the appellant’s evidence as it appears on the record;
• sometimes the appeal court is in as good a position as the trial court to draw inferences,
where they are drawn from admitted facts;
• an appeal court should not try to find reasons adverse to the conclusions of the trial
court. Simply because something was not mentioned in the trial court’s judgment does
not mean it was not considered.

Alteration of conviction
An appeal court may alter the appellant’s conviction to a charge of which he could have
been found guilty on the indictment, and may alter the sentence accordingly. It is not prop-

64
S v Mavingere 1988 (2) ZLR 318 (S).
65
Leopard Rock Hotel Co (Pvt) Ltd & Anor v Wallenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S).
66
Section 12(1) of the Supreme Court Act [Chapter 7:13] and section 38(1) of the High Court Act [Chapter
7:06].

216
er to alter the verdict to guilty of a more serious crime where the trial court’s findings of
fact, credibility etc must be overturned.67
If the appeal is against sentence only, the appeal court will not interfere with the convic-
tion68, though it could exercise its review powers in respect of the conviction.

Alteration of sentence
If in an appeal against sentence the appeal court thinks a different sentence should be
passed, it must quash the trial court’s sentence and pass the sentence it thinks ought to be
passed, and may take into account events that took place after the trial.69 The sentence may
be more or less severe than the trial court’s.
An appeal court does not, however, have a general discretion to ameliorate the sentences of
trial courts. Sentence is pre-eminently a matter for the discretion of the trial court. A sen-
tence will be altered only if the trial court has not exercised its discretion judicially, i.e. in a
proper and reasonable manner, e.g.:
• where the sentence is vitiated by an irregularity (e.g. if a magistrate imposes a sentence
beyond his jurisdiction);
• where there has been a misdirection (e.g. where the trial court took into account irrele-
vant factors); or
• where the sentence is so severe that no reasonable court could have imposed it, i.e.
where it “induces a sense of shock” or is “startlingly inappropriate” or “manifestly ex-
cessive”.

Statement of appropriate sentence

Instead of altering the sentence, an appeal court may simply declare what sentence the trial
court should have imposed. It may do this, e.g., where it thinks the sentence passed was too
lenient but that it would be unjust to increase it since the appellant has already been re-
leased from prison.

Statement of appropriate verdict or quashing of acquittal

Where the Prosecutor-General has appealed on a point of law or against an acquittal, the
appeal court may declare the verdict and sentence which it considers the trial court should
have given, without however altering that verdict and sentence, or it may reverse the acquit-
tal and impose whatever sentence it thinks the trial court should have imposed.70

Restitution, compensation, etc.

An appeal court may deal with awards and orders of restitution or forfeiture ancillary to
conviction.

67
S v Morgan & Ors 1993 (2) SACR 134 (A) at 160-2.
68
R v Chimbwanda & Ors 1968 (2) RLR 290 (A).
69
Section 12(4) of the Supreme Court Act [Chapter 7:13] and section 38(4) of the High Court Act [Chapter
7:06].
70
Section 13(2) of the Supreme Court Act [Chapter 7:13] and section 38A of the High Court Act [Chapter
7:06].

217
Remittal for trial de novo
If there has been an irregularity in the proceedings, an appeal court may remit the case to be
retried before a different judge or magistrate. This would be appropriate where it would not
be practicable to reconstitute the original trial court, or where the original judge or magis-
trate would be unlikely to approach the matter with an open mind.

Dismissal of appeal
If an appeal court does not consider that an appeal should be allowed on any of the grounds
set out above, it must dismiss the appeal.71
Even if there has been an irregularity or misdirection on the part of the trial court, an appeal
will not be allowed unless the appeal court considers that a substantial miscarriage of jus-
tice has actually occurred.72 So for example, if the trial court has misconstrued the evi-
dence of a witness but, apart from that evidence, there is proof of the appellant’s guilt be-
yond reasonable doubt, then the appeal will be dismissed.
An appeal will also be dismissed for want of prosecution if the appellant’s heads of argu-
ment are not received within the prescribed period; or if (in the case of an appeal from the
High Court) no arrangements have been made for the preparation of the record; or if there
is no appearance or written arguments on behalf of the appellant.

Execution of Sentence Pending Appeal

The execution of:
• a sentence of a fine or imprisonment or community service imposed by a magistrates
court; or
• any sentence imposed by the High Court
is not suspended by the noting of an appeal, unless bail is granted or, in the case of commu-
nity service, unless the magistrate has suspended the operation of the sentence.73
But a death sentence must not be carried out until after the time within which an appeal
may be noted or, if an appeal is noted, until it has been determined.
If, pending appeal, the accused is kept in custody as an unconvicted prisoner, the period
spent in custody does not count as part of the sentence unless the appeal court orders oth-
erwise.74

71
Section 12(1) of the Supreme Court Act [Chapter 7:13] and section 38(1) of the High Court Act [Chapter
7:06].
72
Section 12(2) of the Supreme Court Act [Chapter 7:13] and section 38(2) of the High Court Act [Chapter
7:06].
73
Section 46 of the High Court Act [Chapter 7:06] and section 63 of the Magistrates Court Act [Chapter
7:10].
74
Section 20 of the Supreme Court Act [Chapter 7:13] and section 42 of the High Court Act [Chapter 7:06].

218