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 magistrates 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 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, 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.
An accused person’s conduct may constitute more than one crime, and it is for the Prosecutor-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 inappropriate charge has been selected the High Court on review can refuse to certify the proceedings as being in accordance with real and substantial justice.
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.
Charge sheets in the magistrates court must specify the accused’s home address and occupation. 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.
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.
All charges must specify:
- the nature of the charge, that is to say all the averments that make up the essential elements of the crime;
- reasonably sufficient particulars as to the date and place at which the crime was committed;
- reasonably sufficient particulars as to any person against whom the crime was committed;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 reasonable degree of clarity, of the case he has to meet, so that he fully understands the nature of the charge he is facing.
The fact that the accused is of a particular age, gender or race is irrelevant. Equally irrelevant 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 contravention 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.
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 because, apart from giving the accused necessary information, it will also enable the magistrate to ascertain whether or not the crime was committed within his or her area of jurisdiction.
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.
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 “maliciously”, 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 cases mens rea should not be alleged.
The facts alleged in the charge must disclose a crime.
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.
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.
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.
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 property 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.
Where an accused is charged with theft of money, it is not necessary to specify the particular notes that were stolen; the amount of money is all that is needed.
Although a charge must be sufficient to inform the accused of the nature of the charge (section 146(1) of the Criminal Procedure and Evidence Act), section 146(2) provides important 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 creating the crime, or in similar words, is sufficient in any charge. This can cause problems 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 included 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.
Another problem arises if the section does not create a crime on its own: In R v Freitag 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 therefore 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 description of a crime, need not be alleged and, if alleged, need not be proved by the prosecution. 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.
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.
In terms of section 144 of the Criminal Procedure and Evidence Act, any number of charges may be joined in the same proceedings against an accused. Each charge is then numbered 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.
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. 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.
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. 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.
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. 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 (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. 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.
Section 172 of the Criminal Procedure and Evidence Act sets out various errors or deficiencies 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.
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 falsely 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 important (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 regarded 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. If the wrong date is alleged, the charge can be amended — unless to do so would prejudice the accused in his defence.
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. In such a case, if the court considers the accused would be prejudiced in his defence if the State adduced evidence 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 condition as though he had not pleaded. 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 example, 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 damage 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 deficiency causes prejudice to the accused the charge will be ruled defective unless it is amended.
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”.
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.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.
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. 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.
1. Generally, formal defects in a charge, which are clear from the face of the charge, cannot 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.
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 application was refused, then the charge will be regarded as fatally defective if the refusal resulted in prejudice to the accused’s defence.
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 unjust.
- 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, motivated 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 punishment, 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.
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 sentencing 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 example, 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 sentence him for theft and assault, nor can it convict the accused of theft and assault and then sentence him for those two crimes.
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 are:
- Assault and intentional damage to property, where the accused assaulted a person and tore the person’s clothes in the process.
- Robbery and impersonation of a police officer, where the impersonation was done in order to carry out the robbery.
- 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.
- 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.
- A charge of rape and incest arising out of the same act of sexual intercourse by a father on his young daughter.
- 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.
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 prosecutors are uncertain which charge to bring, they should consider bringing alternative charges.
The prosecutor is entitled to withdraw charges against the accused at any stage, whether before or after the accused has pleaded to them.
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).
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.
If the prosecutor withdraws charges after the accused has pleaded but before judgment, the accused is entitled to an acquittal 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 withdraw is the prosecutor’s alone and the court is not entitled to proceed with the trial after a withdrawal.
A prosecutor cannot, however, withdraw a charge after the accused has been convicted because the court, having pronounced its verdict, is functus officio in regard to verdict.
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.
R v Mlotshwa 1968 (2) RLR 172 (G) at 174-5.
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.
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.
Reid Rowland Criminal Procedure in Zimbabwe p. 10-4.
Section 139 of the Criminal Procedure and Evidence Act.
S v Tashangase 1966 (1) SA 606 (E).
Section 152 if the Criminal Procedure and Evidence Act.
Section 146 of the Criminal Procedure and Evidence Act.
R v Wantenaar 1940 SR 174.
S v Sikaruma 1984 (1) ZLR 170 (H).
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].
S v Mlotshwa 1968 (2) RLR 172 (G).
S v Zvinyenge & Ors 1987 (2) ZLR 42 (S) at 46.
S v Janyure 1988 (2) ZLR 470 (S) at 474.
Section 203 of the Criminal Procedure and Evidence Act.
Section 148 of the Criminal Procedure and Evidence Act.
Section 149 of the Criminal Procedure and Evidence Act.
R v Zondagh 1931 AD 8.
Attorney-General v Makamba 2005 (2) ZLR 54 (S) at 59F.
Paweni & Anor v Attorney-General 1984 (2) ZLR 39 (S) at 45G.
Section 144(3) of the Criminal Procedure and Evidence Act.
Paweni & Anor v Attorney-General 1984 (2) ZLR 39 (S) at 45-6; Reid Rowland Criminal Procedure in Zimbabwe p. 10-25.
Section 145 of the Criminal Procedure and Evidence Act.
Section 177 of the Criminal Procedure and Evidence Act.
Cf S v Makhado 1999 (1) ZLR 468 (H).
Section 173(a) of the Criminal Procedure and Evidence Act.
Section 173 of the Criminal Procedure and Evidence Act.
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.
Section 175 as read with 173(b) of the Criminal Procedure and Evidence Act.
S v Mutizwa 2006 (1) ZLR 78 (H) at 84H.
S v Collett (2) 1978 RLR 288 (G).
Section 202(3) of the Criminal Procedure and Evidence Act.
See the discussion in Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 215.
S v Zacharia 2002 (1) ZLR 48 (H).
These and more examples are to be found in Reid Rowland Criminal Procedure in Zimbabwe p. 10-27.
R v Frank 1968 (2) RLR 257 (A).
S v Simon 1980 ZLR 162 (G).
S v Mupatsi 2010 (2) ZLR 529 (H).
S v dos Ramos 1978 RLR 297 (A).
R v T 1940 CPD 14, cited in Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 216.
S v Mampa 1985 (4) SA 633 (C).
See for example, S v Mupatsi 2010 (2) ZLR 529 (H).
Sections 8(a) and 321 of the Criminal Procedure and Evidence Act.
Section 8(b) of the Criminal Procedure and Evidence Act.
Scott v Additional Magistrate, Pretoria, & Anor 1956 (2) SA 655 (T).
R v Ryder-Jones 1962 R & N 833 (SR).