DPS - 112 - Criminal - Procedure - Module
DPS - 112 - Criminal - Procedure - Module
CRIMINAL PROCEDURE
MODULE
[DPS 112]
The introduction to law module acts as a foundation course of all law subjects because it starts
off by defining law, outlining the sources of law thereby giving the trainees the basis of what is
law and the origins of law. In endeavoring to simplify the concepts of law, the module will
further elaborate the divisions of law and the sources of law. Introduction to law is an integral
part of the law as it brings in the promulgation of law or the law making process. The module
elucidates how laws are made which include the statutes and statutory instruments which are
instrumental to the contemporary policing. Maintaining law and order is an issue of knowing the
law and the issue of detecting crime is the matter of knowing law. Introduction to law will cover
a number of Acts of parliament which are so relevant to policing which includes offenses which
are so prevalent and modern.
Introduction to law will augment the intellectual capacity of all law subjects as it is the yardstick
of all aspects of law.
The students should be able to intelligently apply relevant knowledge, art, and tactics and
exercise professional judgement when carrying out investigations as is enshrined in the ZRP
Investigations Manual as well as adhering to internationally acceptable investigations practices.
This course will cover the introduction to law as applied in Zimbabwe. Emphasis will be on law
as applied in the criminal courts. By the end of the course, the students are expected to
demonstrate knowledge of the main principles and rules of law. Case law authorities will be used
to illustrate how the principles involved in the law are applied to breaches of the law. As law
enforcement officers, the students will be expected to apply these principles in practice.
Unit 4: Bail
4.1 Purpose
4.2 Principles governing the admission to bail
4.3 Police powers of granting bail
4.4 Procedure in applications
4.5 Appeals against refusal
Unit 6: Arraignment
6.1 Hearing in open court
6.2 Doubt as to the accused’s mental capacity
6.3 Legal representation
6.4 Jointer of accused
Death sentence
Imprisonment
Whipping Fine
Restitution and compensation
Criminal Procedure is that part of our law that puts/places the Criminal Law
into motion or practice. It forms part of our adjectival or procedural law,
whereas the criminal law forms part of our substantive law. Criminal
Procedure embraces the rules that cover the structure of the courts and of
the prosecution, the position of suspects and accused persons, police
powers, pre-trial procedure, detention, bail, charges, the conduct of trials,
verdicts, sentencing, appeals and reviews and the exercise of the
prerogatives of pardon and mercy. There is a clear inter-action between the
rules of criminal procedure and the rules of evidence: failure to comply with
procedural rules may render evidence inadmissible. The rules of criminal
procedure must be seen in their socio-political context.
Crime is a reality in Zimbabwe and world at large. There is need for rules,
principles mechanisms and state structures in order to detect, control and
prevent criminal behaviour. Criminal procedural rules make it possible to do
this. Substantive law – comprises private and public law and the legal
rules that determine rights and duties of individuals and the state.
Substantive criminal law -determines the prerequisites for criminal liability
for example, intention and unlawfulness and prescribes the elements of
various specific crimes. It also sets out sanctions or punishment for the
breach of its prohibitions. In order to enforce the rules of substantive
criminal law, there is the need to have certain measures in place and these
are provided for by Adjectival law which include the rules of criminal
procedure as set out in the Criminal Procedure and Evidence Act. Criminal
procedure operates in conjunction w the Common Law and the Constitution
In this system there is the situation where the state makes an accusation
against the accused. In terms of this system, the judge or presiding officer is
impartial and cannot enter the arena by getting involved in the way the
prosecution or the defence conduct their cases. The fight remains between
the prosecution and defence. The prosecution is the dominus litis and has to
lead substantial evidence to prove the allegations against the accused.
1.7
2.2.1 Pleas
Arraignment
Arraignment is the putting of charges to the accused person so that he can
plead to them. If there are more than one accused, 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 satisfied 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 S v Gwebu, S v Xaba 1968 (4) SA 783 (T).
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, is not a proper plea.
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 charge-sheet or indictment or summons. A
conviction will be set aside if the accused is arraigned on a serious charge
without being given sufficient notice to prepare his defence or seek legal
representation [S v Masilela 1990 (2) SACR 116 (T)]
Motions to quash are made only against indictments in the High Court; all
objections to a charge in a magistrate‘s court are brought by way of
exception. In terms of Section 180(4) of the Criminal Procedure and
Evidence Act; 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. But generally, objections to
a charge or indictment must be taken before the accused person has
pleaded, not afterwards, 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 acquittal David and Ors v Van Niekerk
NO and Anor 1958 (3) SA 82 (T).
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 homicide. The prosecutor (not the court) then has
a discretion whether or not to accept the lesser plea. 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 [R v Machingura 1944 SR 194].
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 plea to culpable homicide, which plea is not
accepted by the accused, then at the subsequent trial the accused will be
regarded as having admitted that he unlawfully caused the death of the
deceased person.
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 [Section 271(1) of CPEA].
This does not, however, apply to a charge of murder. In such a case, a plea
of not guilty is entered as a matter of course and the trial proceeds as if that
had been the accused person‘s plea, though any admission he may have
made with his plea is taken into account. Oral evidence must be led, and it
is not sufficient for the trial to be based solely on admissions of fact.
Magistrates court
Petty Crimes:
If the court considers that the crime merits nothing more than a fine of level
3, it may adopt the procedure set out in section 271(2)(a) of the Criminal
Procedure 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.
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.
Other crimes:
If the court considers the crime merits a more severe sentence, then the
court must follow the procedure laid down in section 271(2) (b) of the
Criminal Procedure and Evidence Act:
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
In particular, the magistrate should deal with the following aspects in his
explanation:
The magistrate must record the explanation he gives the accused, together
with any statement of acts or omissions given by the prosecutor [section
271(3) of CPEA].Having explained the charge and essential elements, the
magistrate must ask the accused 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 [Section 271(2)(b)(ii) of the Criminal Procedure
and Evidence Act.]
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.
Not guilty
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 (previously acquitted) or autrefois convict (previously
convicted). This plea gives effect to the rule, stated in section 18(6) of the
Constitution, that no one should be tried twice for the same offence (nemo
debet bis vexari pro una et eadem causa). If the plea is successful, it
effectively bars any further proceedings, so it must be adjudicated upon
before the trial commences. 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‖
(that is. in danger) at the previous trial of being convicted of the charge that
DIPLOMA IN POLICE SCIENCES [CRIMINAL PROCEDURE MODULE] Page 17
he now faces, or a substantially similar charge, that is. that he was
previously tried:
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 [R v Manasewitz 1933 AD
165, 1934 AD 95.]
Examples:
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 sheriff had sat
with the jury while they deliberated — it was held that he could
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.
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 [S v Radebe 1945 AD 590].
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.
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.
Combination of pleas
In terms of section 180 93) of CPEA, any combination of pleas may be
tendered, though a guilty plea may not be joined to any other plea.
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 Attorney-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. The Attorney-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 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.
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.
Where the judge or magistrate recuses himself from the trial.
Where, after evidence has been led, the judge or magistrate dies, retires,
resigns or is dismissed. In the case of death, 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
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 evidence orally in open court [Section
194(1) of CPEA]. 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.
When examining a State witness, the prosecutor should not put leading
questions (that is. questions 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.
Section 191 of CPEA- after each State witness has been examined by the
prosecutor, the accused or his legal practitioner is entitled to cross-examine
the witness. 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 given a fair opportunity to explain the
contradictions put to him. It is improper to let a witness‘s statement go
unchallenged in cross-examination and then argue later that the witness
should not be believed.
―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.
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. The
court is not allowed to refrain from discharging the accused on the ground
that the inadequate evidence of the accused may be supplemented by
defence evidence (that is. on the ground that the accused may convict
himself out of his own mouth or that a co-accused may incriminate him)[Sv
Kachipare 1998(2) ZLR 271(S) at 276.
The only evidence led by the State which linked the appellant 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 accordingly 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
―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.‖
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 evidence 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 circumstances arises not necessarily from the right to silence or the
right not to testify, but from an extension 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 an offence: if a prosecution
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.
Defence case
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 appear proper and that the refusal may be treated as
corroborating any other evidence given against the accused. Failure to
explain this is an irregularity justifying the setting aside of a conviction.
Defence evidence
Questioning of accused
If the accused declines to give evidence, the prosecutor and the court may
question him, and if he is legally represented his legal practitioner may
question him afterwards. Any answers he gives cannot be used in evidence
against a co-accused [S v Andeya 1981 ZLR 35 (A) at 37].
―no person who is tried for a criminal offence shall be compelled to give
evidence at the trial.‖
If, however, an accused person fails when giving evidence to mention facts
relevant to his defence, the court should not necessarily draw adverse
inferences, particularly if he is undefended and has mentioned the fact either
to the police or in his defence outline or in cross-examination of State
witnesses.
After the defence case has been closed the prosecutor is entitled to address
the court, summing up the whole case. 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.
The accused or his legal practitioner also has a right to address the court. 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. If
the accused or his legal practitioner raise 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.
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 [Sv
Ndebele 1988(2)ZLR 249(H)]. 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.
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 [S v Ndebele 1988 (2) ZLR 249
(H)]. 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 magistrate 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.
Verdict
Possible verdicts
The verdict must generally be given in open court, subject to the rules
relating to trials in camera [Sec 334(1) of CPEA]. The court may adjourn
the proceedings to consider its judgment.
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 [Sect 341 of CPEA]
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.
The first stage in the procedural process is to get the accused person to trial.
There are four lawful ways to do this: arrest and remand; summons;
warning by the court; and extradition.
3.1. Arrest
There are four essentials or bases upon which an arrest, and detention
following arrest, will be lawful:
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, and it is only police officers who are allowed to arrest under a
warrant. In limited circumstances civilians may arrest without a warrant.
But in regard to the Ninth Schedule crimes, sec 25(2)(b) of the Act
introduces complications. If the peace officer who is going to effect the
arrest has reason to believe that the crime concerned is sufficiently serious
for the Attorney-General to issue a certificate refusing bail, then:
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 sec 25(1)(b) of CPEA;
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 suspect. The circumstances, and the contents of the
report, must be such that a reasonable man in the position of the peace
Nevertheless, the courts will not lightly hold that a peace officer 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.
Private persons, that is. people who are not peace officers, may also arrest
persons without a warrant, though their power is more limited.
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.
―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.‖ [ Tsose v Minister of Justice and Ors
1951 (3) SA 10 (A), cited in Duncan v Minister of Law and Order 1984 (3)
SA 460 (T) at 464]
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. 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.
The general rule has exceptions: the period of detention may be much
longer than 48 hours:
If the period expires on a day that is not a court day (that is on a Sunday
or a public holiday) the suspect may be detained until 4 p.m. on the next
court day.
Are the police entitled to hold a suspect for the full period, even if there is no
longer a fear that he will abscond or interfere with the investigation? The
wording of the section suggests that they may do so, but there is some
authority to the effect that though they may hold a suspect does not mean
that they should.
It is not clear from the Criminal Procedure and Evidence Act how long a
suspect can be detained under such a warrant. In practice it is taken that
the period cannot exceed 96 hours.
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 the person issuing the warrant does not have to be told the
information 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 suspicion that the suspect committed a
crime. Quaere whether this is constitutional: section 13(2)(e) of the
Constitution allows a person to be deprived of his liberty ―on reasonable
In both cases, all the person issuing the warrant has to be satisfied is:
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. A warrant remains
valid until it is executed or cancelled, or until the suspect is otherwise
arrested.
All peace officers (not just police officers) have a duty to execute a warrant
of arrest. A peace officer who executes a warrant does not have to have a
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 [Sec 40 of CPEA].
Under section 86(3) of the Constitution the right to life is sacrosanct. No law
may limit it. The law cannot allow the killing of a human being in any
circumstances whatever except in execution of a death sentence lawfully
imposed by a court. However difficult it may be for police officers who have
to arrest violent criminals, that is the law and they must obey it. This new
section is unconstitutionalis
3.2 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. 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. 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 effective unless,
of course, the decision to arrest an accused is one that no reasonable person
would take [Muzonda v Minister of Home Affairs and Anor 1993 (1) ZLR 92
(S).].
DIPLOMA IN POLICE SCIENCES [CRIMINAL PROCEDURE MODULE] Page 46
Issue of summons
Contents of summons
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 (that is to stand trial on the charge).
Service of summons
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 default fine. A default fine is one that may
be remitted by the court if the accused person shows cause why it should be
remitted (for example. that he did not see the summons).
Warning to appear
The court may warn an accused person to appear in court to be charged with
a crime [section 142(1) of CPEA). In practice this seldom if ever happens
3.3 Recognizances
3.5 Remand
An arrested person, as we have seen, must be brought before a court within
48 hours (subject to extensions) if he has been arrested without a warrant,
or as soon as possible (if he has been arrested with a warrant). 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‖.
A remand may properly be sought for several reasons, of which the usual
ones are:
the need to find a convenient time for the trial to take place;
The reasons must be explained to the court by the prosecutor who seeks the
remand.
High Court
There is no limit to the period that the High Court can remand an accused
person.
Magistrates court
General rule: section 165 of CPEA- 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.
In practice 14-day remands are the norm, even though in petty cases a
shorter period may be justified.
If the accused has been arrested for any of the following crimes:
Similarly, if the accused has been arrested for a crime set out in the Ninth
Schedule to the Criminal Procedure and Evidence Act (that is a crime
involving corruption, organised crime or serious dishonesty), the judicial
Everyone has a right to a trial within a reasonable time, 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 depends 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‖, that is officially informed of an allegation
that he has committed a crime; a mere investigation is not enough [Smyth v
Ushekowunze and Anor 1997 (2) ZLR 544 (S)]. The running of the period is
not interrupted by the withdrawal of charges before plea, if the accused is
subsequently charged with the same crimes. To constitute a violation of the
right to trial within a reasonable time, the delay must be ―extraordinary‖
Fikilini v Attorney-General 1990 (1) ZLR 105 (S).
In re Mlambo 1991 (2) ZLR 339 (S) the accused person was facing serious
fraud charges, a delay of four years and seven months was enough to
trigger an inquiry into whether the accused‘s right had been violated; in
―[The Supreme Court‘s decision in S v Midzi and 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.‖
As a general rule, therefore, if the period between charge and trial exceeds
one year, the courts should enquire into a possible violation of the accused‘s
right to a speedy trial. 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 minimise the anxiety and concern of the accused while he awaits trial;
to limit the possibility that his defence will be impaired (for example.
witnesses may no longer be available for the trial).
The accused must also show that he asserted his right to a speedy trial
(where he was aware of the right; if he was not legally represented, his
failure to press for a speedy trial will not be held against him.)
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 test of reasonable suspicion for the purpose of remand is the same as
the test used for arrest without warrant. The question whether or not there
is a reasonable suspicion can be determined without a full adversary
hearing, and normally the court acts on the word of the prosecutor. But 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.
Similarly, courts occasionally warn (that is. order) people who are in court to
remain in attendance as witnesses or to attend at a future date. Again there
is no legal basis for such a warning, 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
1.1 Purpose
Where a person has been arrested and detained pending trial, it may not
always be appropriate for him to be kept in custody, depending on such
considerations as the nature of the offence. Nevertheless, even though it
may be inappropriate to keep the accused in custody until his trial, the
circumstances may be such that it would be equally inappropriate or even
unwise to release the accused from custody and rely merely on a summons
to secure his attendance. In such a situation the accused may be released
on bail.
Bail may also be granted after conviction, if the accused has been sentenced
to a term of imprisonment and intends to appeal against the conviction or
the sentence or both. Different considerations apply to an application for
bail, depending on whether the application is for bail pending trial or bail
pending appeal.
In S v Ndlovu 2001 (2) ZLR 261 (H) the court stated that grounds for
refusal of bail should be substantiated. The court should always grant bail
where possible and should lean in favour of the liberty of the subject
provided the interests of justice will not be prejudiced. The whole issue
therefore, is to strike a balance between the interests of society (that is, the
accused should stand trial and there should be no interference with the
administration of justice) and liberty of the accused (who is presumed to be
innocent). See S v Kwenda & anor HH37-10, also S v Moyo & ors
HB10-13, also Makamba v S S30-04 and also S v Jongwe 2002(2)
ZLR 209(SC)
Onus of proof
Evidence
The Public Prosecutor must not make bald assertions that a particular
ground for refusing bails exists. He must show that his assertion is well-
grounded and based on full information, S v Hussey 1991 (2) ZLR 187
(H), also Chimaiwache v S S18-13 and also section 117A (4) (b) CPEA.
The accused is not entitled for the purpose of bail, to have access to any
information, record or document relating to the offence in question, which is
DIPLOMA IN POLICE SCIENCES [CRIMINAL PROCEDURE MODULE] Page 59
contained in, or forms part of a police docket, including any information
,record or document which is held by the police, unless the Attorney General
otherwise directs, see S117A (10) CPEA, see also AG v Mapanga-nhachi
2009 (2) ZLR 150 (S).
Procedure
In S v Ncube and another 2002 (2) ZLR 524 the court held that bail
applications are sui generis with no prescribed format or procedure, and it is
the duty of the court, allowing for the circumstances of each case, to
determine the way in which each party should submit its evidence.
Judges have the power to grant bail in respect of any offence. However, this
power is subject to various restrictions, See Section 117A of CPEA and S
v Madzokere (Supra). The procedures to be followed and the documents
to be produced are laid down in the High Court of Zimbabwe (Bail
Rules), S.I. 109 of 1991.
a) Likelihood of Abscondment
An accused who has decided not to stand trial may either flee the country if
he has the capacity to do so or go to a place in the country where he
believes the authorities will not be able to find him. If there are good
grounds for believing that an accused will flee and become a fugitive from
justice, bail may be refused. For example, if, before or after his arrest,
accused escaped or attempted to escape from custody, this would clearly
show his predisposition to abscond and not to stand trial. For factors to
consider see section 117 of CPEA. See also Chiadzwa case (supra), S v
Makamba S-30-04, S v Jongwe 2002 (2) ZLR 209 (SC), also S v Biti
2002 (1) ZLR 115 (H) and also S v Kuruneri (supra).
This will obviously be strong if the state can show that there have already
been attempts to do this. This was the situation in the South African case of
Maharaj 1976 (3) SA 205 where the accused had already tried to
persuade the witness to disappear. In the Chiadzwa case (supra), there
was evidence suggesting that the accused had attempted to bribe a police
officer. See also S v Mangoma HH74-11 and also Madzokere & ors v S
S8-12.
See section 117 of the CPEA, also S v Madzokere (supra) and also S v
Dhlamini HH57-09
See section 117 (3) (e) of the CPEA, also S v Madzokere & ors
(supra) and also Madzokere & ors v S (supra).
Even if the prosecution does not oppose the granting of bail, the court still
has the duty to weigh up the personal interests of the accused against the
interests of justice and decide whether it is in the interests of justice to grant
bail, see section 117(5) CPEA. The court can also require the prosecutor
to put on record the reasons for not opposing bail, see 117 (4) of CPEA.
And where accused is charged with a crime set out in part 1 of the 3 rd
schedule to the CPEA, a magistrate cannot grant bail unless accused
adduces evidence showing that there are exceptional circumstances
justifying his release, even if the AG has personally consented to the grant
of bail, see section 117 (6) of CPEA and S v Madzokere (supra)
In S v NDHLOVU 2001 (2) ZLR 261 (H), the court stated that the attitude
of the AG is a relevant but not decisive factor. His assertion cannot be
substituted for the court‘s discretion, see Mahata v Chigumira NO HH-24-
04.
Amount of bail
Bail is usually cash but the court can order the accused to deposit property
belonging to him or the accused may also be required to find persons to
stand surety for him, see section 119(1) CPEA. Other conditions may be
imposed and these include surrendering travel documents, reporting at
police stations or other authority, or forbidding the accused from visiting
particular places. See S v Micklethwait 2003 (1) ZLR 26 (H), also
Mpofu v S Mpofu v Fani & ors HH88-13.
Once conditions are imposed, it is not permissible for the state to seek
further conditions in the absence of further violations while on bail, see S v
Tsvangirai and Ors 2003 (1) ZLR 618 (H). There is also need to treat
the accused persons equally. In fact the law must be applied evenly, see S
v Lotriet and Anor 2001 (2) ZLR 225 (H).
If the accused breaches any of the conditions of his bail the court may
declare the bail to be forfeited, S 133 (a) of CPEA. Where the accused has
failed to appear in court for trial, the prosecutor may apply for a warrant of
arrest and for the forfeiture of the accused‘s bail and any recognisances that
DIPLOMA IN POLICE SCIENCES [CRIMINAL PROCEDURE MODULE] Page 64
may have been entered into, see S119 CPEA and also S v Kuruneri
(supra). The court will usually refrain from ordering forfeiture of bail until
the accused is arrested and brought before the court and asked to explain
his default. Forfeiture is usually ordered where the default was wilful or
deliberate, see S v Sibanda 1980 ZLR 413. If the default was wilful, the
court is obliged to order forfeiture of bail.
Where a person has been convicted of any of the offences specified in the
third schedule, a magistrate may only admit a person to bail or alter his bail
conditions if the AG has given his consent, see Proviso (iii) to section 123
(1) of CPEA. Where a person has been convicted for an offence, other than
one of these specified ones, the magistrate who has convicted him has
discretion to grant bail pending appeal. The High Court also has discretion
to grant bail pending appeal to the Supreme Court where it has convicted
and sentenced the accused. An accused can chose to apply to the trial
magistrate or to the high court
Considerations
The main factors which are weighed are the interrelated factors of prospects
of success on appeal and whether the granting of bail will jeopardise the
interests of the administration of justice. The principles governing the
granting of bail after conviction are different from those governing the
granting of bail before conviction. The presumption of innocence falls away.
Where there is a lengthy sentence and there are no reasonable prospects of
success against the lengthy sentence, bail must be refused. Where the
In S v Manyange 2003 (1) ZLR 21 (H) the court held that the mere fact
that there are reasonable prospects of success on appeal or that the
applicant has a reasonably arguable case does not entitle him to bail. He
must show that in addition to his prospects of success on appeal, the
interests of justice will not be endangered if he is granted bail.
Further application
If bail has been refused, a further application can be made before the same
court based on new or different facts. S 116 (1) (c) proviso (iii). The
passage of time can be a new fact. The fact that police have had sufficient
time to strengthen their case but have not been able to strengthen it is also
Appeals
If the AG does not appeal within the seven (7) days or notifies the court that
he has decided not to pursue the appeal, the person will be released, see S
121(3) (a) of CPEA. Where a person applies for bail in the magistrates‘
court and the application is refused, he is entitled only to a single appeal to
the High Court, that is, he cannot further appeal to the supreme court if the
High Court denies him bail, see Chiyangwa v A-G and ors S-1-04 and
also A-G v Lotriet and ors 2001 (2) ZLR 168 (H). However, if he makes
his initial application at the High Court, he can further appeal to the
The principles that apply to magistrates apply to judges save for the
following;
Nature of Charges
―set forth the offence with which the accused is charged in such manner, and
with such particulars 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 committed, as may be
reasonably sufficient to inform the accused of the nature of the charge.‖
As with a civil summons, the charge must not be vague and embarrassing so
that the accused 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.
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, competent verdicts —
see sections 207 to 219 of the Criminal Procedure and Evidence Act. So a
person charged with robbery can be found guilty of assault or theft.
Essentials of Charge
Indictments and charge sheets must specify the accused‘s full name. Aliases
should not be given, since they suggest that the accused has had previous
run-ins with the police.
a) the nature of the charge, that is to say all the averments that make up
the essential elements of the crime;
b) reasonably sufficient particulars as to the time and place at which the
crime was committed
c) reasonably sufficient particulars as to any person against whom the
crime was committed; and
d) 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.
Contents of Charge
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
Remember sec 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 …‖
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 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 accused, unless it is a mandatory minimum penalty. In that
event, the penalty should be specified [S v Zvinyenge & Ors 1987 (2) ZLR
42 (S) at 46.]
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
he ―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 are:
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 sexual 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 intention. If the prosecutor is
uncertain which charge to bring, he should consider bringing alternative
charges.
In terms of s 27(1) of the Mental Health Act if it appears that a person being
held in custody pending trial is mentally disordered or defective, the
Attorney-General or the person in charge of the place of detention (which
may be a police station or a prison) must report this without delay to a
magistrate of the province in which the place of detention is situated.
The procedures to be followed in this sort of case are set out in subsections
(2), (3), (4) and (5) of s 27. In the Chief Magistrate‗s Circular No. 9 of 1984
it is suggested that in this sort of case the magistrate should request the
prosecutor, as soon as possible, to obtain copies from the police docket of
the witness statements as to accused‘s conduct at the time of the crime, and
where necessary, any further information about his or her mental condition
from relatives and associates. The case should be remanded. The circular
says that on receipt of the information if it appears that accused may be
mentally disordered, arrangements should be made through the police or
Two medical practitioners (or if only one is available the second examination
can be done by a psychiatric nurse practitioner) must state in writing their
opinion as to the mental condition of the prisoner. (See the Mental Health
Regulations RGN 792 of 1977.) Based on this opinion the magistrate must
then decide what to do with the person concerned. If such person is
considered
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
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 judicially. Where the practitioner‘s absence is not due
to the fault of the accused, it would be wrong to penalise him. 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
proceedings unless he can furnish an acceptable explanation for his failure.
Note, incidentally, that under the South African Constitution the court has a
duty to inform the accused of his right to legal representation.
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 …‖
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
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: for example 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 [section 177 of
CPEA]. The court can also mero motu order particulars 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 supply particulars of the negligence (for example
driving at excessive speed, failing to drive carefully when in the vicinity of
children, and others) and, once supplied, the prosecutor is restricted to
those particulars. When asked for such particulars, a prosecutor should not
frame them covering every conceivable way of being negligent, but simply
cover the negligence which is reasonably attributable to the accused‘s
conduct.
―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. The courts which have jurisdiction in criminal cases are
magistrates courts, the High Court, and the Supreme Court. No other court
may be given criminal jurisdiction beyond the power to impose a fine.
Territorial jurisdiction
Regional magistrates courts are established for specific regional divisions.
There are two regional divisions, the Eastern Division (centred in Harare)
and the Western Division (centred in Bulawayo). Other 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 cases they may try
cases that occur outside it, for example.:
Provincial magistrates
In most cases the maximum sentence that a provincial magistrate can
impose on a convicted person is a fine of level 10 or imprisonment for five
In cases of theft, stock theft and unlawful entry into premises, they can
impose the maximum sentence prescribed for those crimes in the Criminal
Law Code.
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. In certain cases, however senior magistrates can impose higher
sentences:
The High Court also has jurisdiction over extra-territorial crimes, where the
statute that creates the crime concerned has extra-territorial operation. It
can also exercise jurisdiction over crimes committed wholly or partly outside
Zimbabwe, in terms of s 5 of the Criminal Law Code:
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.
Appellate jurisdiction
The High Court has power to hear appeals from decisions of magistrates in
criminal cases, both in regard to conviction and sentence.
Verdict
Possible verdicts
The verdict must generally be given in open court, subject to the rules
relating to trials in camera. The court may adjourn the proceedings to
consider its judgment [section 332 of CPEA].
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 alternatives. In that event the court should find
the accused guilty of whichever charge the court considers to be the most
appropriate [R v Tshuma and Anor 1964 RLR 578 (G)]. In that event also,
the court should acquit the accused on the other alternatives.
Competent verdicts
If the law allows a person who is charged with a particular offence to be
convicted of some other offence, then a conviction of that other offence is
called a ―competent verdict‖. To illustrate: 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 competent verdict on a charge of murder.
274 Any crime- Any other crime whose essential elements are included in
the crime charged
Fourth Schedule
Other statutes also provide for competent verdicts: for example the Road
Traffic Act [Chapter 13:11] 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 attention.
Mitigation
Note that in terms of s 12(4)(a) of the Supreme Court Act and s 38(4)(a) of
the High Court Act the Supreme Court and the High Court, respectively, may
have regard in criminal appeals to all the circumstances, including events
which have occurred after the date of conviction. [See Aitken 1995 (2)
ZLR 395 (S)]
There are some pleas in mitigation where the personal testimony of accused
will assist, such as where the crime was committed because of extreme
hardship or destitution or because of a benevolent motive, such as to assist
someone else. accused should be called to testify in such circumstances, if
his or her defence lawyer believes that he or she will give convincing
testimony. One factor which may be important is the attitude of the
complainant. In Kelly HH-33-04 the court took the view that the attitude of
the complainant in a criminal case is relevant to sentence. Where the
complainant indicates that it is not his or her desire to have the accused
incarcerated, a sentencing authority ought to attach weight to the
expressions of the complainant, as such a factor has an impact on the form
of sentence imposed.
In Madembe & Anor HH-17-03 the court stated that where a judicial officer
has accepted any factor of mitigation he or she must clearly specify the
amount by which he or she has reduced the sentence on account of that
factor. In this way he or she will be able to avoid the criticism that he or she
has not sufficiently taken into account any factor or factors of mitigation,
and an the appellate court or a reviewing or scrutinizing judicial officer will
be less inclined to decree, rather subjectively, that the other judicial officer
erred. Where sentence is being assessed according to the value of the goods
involved, and a comparison is being made with sentences approved in earlier
cases, it is necessary to take into account the effect of inflation so a realistic
comparison can be made.
Undefended accused
Accused must always be afforded the opportunity to lead mitigatory
evidence and to address the court in mitigation of sentence: Million & Ors
HH-53-92. His or her address can contain both assertions of fact and an
appeal to the judge for clemency. Additionally, the judge has the duty to
ensure that the factors of mitigation are fully canvassed because accused
will often be unaware of the sort of things which are relevant when it comes
to sentence. The court must thus offer guidance to 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 accused is a juvenile: W HH-276-83.
The judge has a duty to make sure that he or she is in a position to arrive at
a proper and just sentence. In order to arrive at such a sentence, he or she
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 mitigation, then the judicial
officer should put such questions to accused as will elicit that information.
He or she should endeavour to discover the necessary information by inquiry
if accused does not volunteer this information. This applies particularly
where the unrepresented accused is unsophisticated and he or she has been
convicted of a serious crime: Mlilo HB-27-88; Mafu HB-68-90.
Defended accused
The legal representative of acused 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 or she considers to be the salient mitigatory factors in the case: Fusirayi
1981 ZLR 56 (A) at p 58. The prosecutor may either accept these facts or
dispute them. However, as regards factors such as contrition, the court is
likely to attach less weight to what a legal representative has said regarding
his or her client‗s penitence than to a personal and credible expression of
regret and repentance by accused himself.
The legal representative will often make submissions as to the appropriate
sentence in the case, drawing the court‗s attention to salient case law.
Onus of proof
In Chinyani 1969 (2) RLR 42 (A), the court stated that there were no rigid
rules governing the burden of proof or the degree of proof in relation to
evidence or statements in mitigation of sentence. It said that a high degree
of flexibility must exist in considering the variety of factors which are
relevant to sentence. It said that there need not always be proof of an
Aggravation
If the prosecutor wishes to do so, he or she 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 sentence in the case and to refer to any
relevant case law in this regard.
See also Mangena & Ors HB-22-05. These factors must be weighed against
factors such as the age and personal circumstances of the accused. The
sentencing court has a duty to enquire into the subjective elements in order
to individualise the punishment.
As regards the factor of prevalence of a particular crime it was noted in
Sibanda HB-102-06 that while the prevalence of an offence is a relevant
factor in sentencing, it is not the overriding factor. It is not the function of
the court to try to control crime by imprisoning people accused of crimes
which the legislature, in its wisdom, considers trifling. While the courts
should never be seen by the public to be trivialising serious offences, courts
are equally enjoined not to make trivial cases serious. Either scenario is as
much unjust as the other.
Death sentence
Death sentence
Imprisonment
Whipping Fine
Restitution and compensation
9.2 Importance
Core Texts
01. Criminal Law [Codification and Reform] Act Chapter 09;23, Printflow,
Harare
02. Criminal Procedure and Evidence Act, Chapter 09;07, Printflow, Harare
03. Extradition Act Chapter 09;08,Printflow, Harare
04. Feltoe G (2004) Administrative Law and Local Government Policy Legal
Resources Foundation, Harare
05. The High Court Act Chapter 07;06, Printflow, Harare
06. The Magistrates Court Act, Chapter 07;10, Printflow, Harare
07. Ally D and Makoena (2013), The basic guide to Criminal Procedure. A
right Based Approach, Oxford, New York.
08. Carels M, (2015) Criminal Procedure, Juta and Co, Claremont.
09. Geldenhuys T, Swanepoel J.P, Terblanche SS. Van Der Merwe, Luns B,
Jourbert J.J. (2015), Criminal Procedure Handbook, Juta and Company,
South Africa.
10. Hiemstra V.G (1993). Introduction to the Law of Criminal Procedure,
Butterworths, Durban South Africa.
11. Prosecutors‘ handbook (Legal Resources Foundation, 1992)
12. Rowland JR (1997) Criminal Procedure in Zimbabwe Legal Resources
Foundation, Harare
13. Samaha J, (1996) Criminal Procedure, West Publishing Co, New York.
14. Sorodrager, Coertzen and Nel (1997) Law of Procedure and Evidence
Case Book, Butterworths, Durban.
15. Supreme Court Act Chapter 07;13, Printflow, Harare
16. The Police Act Chapter 11;10, Printflow, Harare
Electronic Resources