2. JURISDICTION OF THE COURTS

“Jurisdiction” in these notes means the power of a court try criminal cases, that is to say the court’s power to inquire into and determine whether or not a person is guilty of a crime and to impose punishment on him if he is found to be guilty.

The courts which have jurisdiction in criminal cases are magistrates courts, the High Court, the Supreme Court and the Constitutional Court.  No other court or tribunal may be given criminal jurisdiction beyond what may be necessary to enforce discipline in disciplined forces such as the Defence Forces and the Police Service.

Magistrates courts

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

Territorial jurisdiction

Regional magistrates courts are established for specific regional divisions.  There are three regional divisions, the Eastern Division (centred in Harare), the Central Division, and the Western Division (centred in Bulawayo).  Provincial magistrates courts are established for specific provinces, and magisterial provinces follow the boundaries of the administrative provinces.

All magistrates courts have criminal jurisdiction within the regional division or province for which they are established, and in certain circumstances they may try cases that occur outside it, e.g.:

  • If a person does something outside Zimbabwe which is a crime under a statute which has extra-territorial effect, any magistrates court can try that crime even if no element of the crime took place within the court’s division or province.
  • If any element of a crime is committed within a division or province, the court of that division or province can try the crime even if the rest of the crime was committed elsewhere.
  • If a crime is committed within five kilometres from the boundary of a division or province, or on a vehicle or train which is passing through a division or province or within five kilometres of a division or province, the court of that division or province may try the crime.
  • A person charged with theft or receiving property knowing it to be stolen, or obtaining property by means of a crime, can be tried by any court within whose division or province he has had possession of any of the property.
  • A person charged with incitement (i.e. with being an accomplice) or with being an accessory after the fact to a crime (the old term for what is now an accessory) may be tried by any court which can try the person who committed the crime concerned.
  • If it is uncertain in which of several jurisdictions a crime has been committed, the offender may be tried in any of them.
  • With the accused person’s consent, the Prosecutor-General may direct that a trial should be held in any division or province.

Crimes that may be tried in a magistrates court

Magistrates courts do not have power to try all crimes:

  1. No magistrate can try the crimes of murder, treason or any other crime for which the death penalty may be imposed.Note that magistrates can try attempted murder.
  2. Only regional magistrates may try the crime of rape, unless:
  • the Prosecutor-General has remitted the case for trial or sentence to a magistrate who is not a regional magistrate;or
  • the accused is a juvenile under the age of 18 and the Prosecutor-General has authorised the trial to be held before a magistrate who is not a regional magistrate.

Magistrates other than regional magistrates can however try cases of attempted rape.

Magistrates’ jurisdiction as to punishment

The extent of a magistrate’s jurisdiction as to punishment varies according to the grade of the magistrate concerned.

Regional magistrates:

In most cases the maximum sentence that a regional magistrate can impose on a convicted person is a fine of level 12 or imprisonment for ten years, or both.

That is the ordinary jurisdiction of regional magistrates.  In certain cases they can impose higher sentences:

  • In cases of public violence, malicious damage to property or aggravated robbery, their jurisdiction is increased to a maximum of a fine of level 13 or 12 years’ imprisonment, or both.
  • 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 (Codification and Reform) Act [Chapter 9:23] (the “Criminal Law Code”).
  • For a sexual crime (rape, indecent assault, an unnatural crime, etc), they can impose a fine of up to level 14 or up to 20 years’ imprisonment, or both.
  • For the crime of deliberately infecting someone with a sexually transmitted disease (other than HIV) they can impose a fine of “up to or exceeding” level 14 or up to five years’ imprisonment, or both.
  • For the crime of deliberately infecting someone with HIV, they can impose up to 20 years’ imprisonment.
  • For crimes relating to dangerous drugs specified in Chapter VII of the Criminal Law Code, they can impose a fine up to level 13 or up to 15 years’ imprisonment.

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 years, or both.  That is the ordinary jurisdiction of provincial magistrates.  In certain cases they can impose higher sentences:

  • In cases of public violence or malicious damage to property, the jurisdiction is increased to a maximum of a fine of level 11 or seven years’ imprisonment, or both.
  • 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.
  • For crimes relating to dangerous drugs specified in Chapter VII of the Criminal Law Code, they can impose a fine up to level 12 or up to 10 years’ imprisonment.

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:

  • In cases of public violence or malicious damage to property, the jurisdiction is increased to a maximum of a fine of level 11 or seven years’ imprisonment, or both.
  • 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.
  • For crimes relating to dangerous drugs specified in Chapter VII of the Criminal Law Code, they can impose a fine up to level 12 or up to 10 years’ imprisonment.

Ordinary magistrates

In most cases, the maximum sentence that a magistrate, other than a regional, provincial or senior magistrate, can impose on a convicted person varies according to whether the Prosecutor-General has remitted the case to him or whether the convicted person was tried summarily.  In remitted cases the maximum sentence is a fine of level 9 or imprisonment for four years, or both;  on summary trial, the maximum sentence is a fine of level 7 or imprisonment for two years, or both.  In certain cases, ordinary magistrates can impose higher sentences:

  • In cases of public violence or malicious damage to property, the jurisdiction is increased to a maximum of a fine of level 11 or seven years’ imprisonment, or both.
  • 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.
  • For crimes relating to dangerous drugs specified in Chapter VII of the Criminal Law Code, they can impose a fine up to level 12 or up to 10 years’ imprisonment.

All magistrates are permitted by section 50(6) of the Magistrates Court Act [Chapter 7:10] to impose up to six cuts on convicted juveniles.  This, however, is unconstitutional in that the judicial corporal punishment of juveniles is a cruel and inhuman punishment and therefore unconstitutional, according to the Constitutional Court in the case of S v Chokuramba CCZ 10/2019.

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

The High Court

Original jurisdiction

The High Court sits permanently in Harare, Bulawayo and Masvingo, and Judges of the High Court go on circuit three times a year to Mutare, Gweru and Hwange.  Permanent High Courts are planned for Mutare and Gweru.

The High Court has full criminal jurisdiction over all persons and criminal matters in Zimbabwe.  That means that, wherever it is sitting, it can try all crimes throughout Zimbabwe, and may impose any lawful punishment on convicted persons.  So the High Court sitting in Harare, for example, can try persons for crimes committed in Bulawayo — though in practice crimes committed in the western half of the country are tried by the High Court in Bulawayo.

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 section 5 of the Criminal Law Code:

  • if the conduct which completed the crime took place in Zimbabwe;
  • if the crime is against public security in Zimbabwe or the safety of the State in Zimbabwe;  or
  • if the crime has produced, or was intended to produce, a harmful effect in Zimbabwe, or was committed with the realisation that there was a real risk or possibility that it might produce such an effect.

Although, as we have seen, magistrates courts have jurisdiction to try crimes under a statute which has extra-territorial operation, they cannot try crimes in terms of section 5 of the Criminal Law Code, i.e. crimes that are not expressly extra-territorial but which are committed outside Zimbabwe or were intended to have a harmful effect in Zimbabwe.

Review jurisdiction

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

Appellate jurisdiction

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

The Supreme Court

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

The Constitutional Court

The Constitutional Court is the highest court in all constitutional matters, and only decides constitutional matters and issues connected with decisions on constitutional matters.  It only deals with criminal cases, therefore, to the extent that they involve constitutional issues.

Until 2020 the judges of the Supreme Court constitute the Constitutional Court.

See Reid Rowland Criminal Procedure in Zimbabwe p. 1-7.

Section 193 of the Constitution.

Section 7(1) of the Magistrates Court Act [Chapter 7:10] as amended by the Judicial Service Act [Chapter 7:18].

Section 56(6) of the Magistrates Court Act [Chapter 7:10].

Section 56(3) of the Magistrates Court Act [Chapter 7:10].

Section 56(2)(a) & (b) of the Magistrates Court Act [Chapter 7:10].

Section 56(4) of the Magistrates Court Act [Chapter 7:10].

Section 56(5) of the Magistrates Court Act [Chapter 7:10].  An accessory after the fact is now known merely as an accessory (i.e. a person who assists an actual perpetrator after the crime has been committed):  see section 206 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].  The reference to a person charged with incitement seems to be erroneous, since if the crime which has been incited is committed, the inciter is guilty of that crime, not incitement.

Section 56(8) of the Magistrates Court Act [Chapter 7:10].

Section 56(9) of the Magistrates Court Act [Chapter 7:10].

Section 49(1) of the Magistrates Court Act [Chapter 7:10].  Under section 48 of the Constitution the death penalty can be imposed only for murder committed in aggravating circumstances.  Hence statutory provisions which allow that penalty to be imposed for other crimes are unconstitutional.  The provisions concerned are:  section 20 of the Criminal Law Code (which purportedly allows the death penalty to be imposed for treason);  section 23 of the Code (which allows it to be imposed for insurgency, banditry, sabotage or terrorism);  section 4 of the Genocide Act [Chapter 9:20] (which allows it to be imposed for genocide);  and section 3 of the Geneva Conventions Act [Chapter 11:06] (which allows it to be imposed for committing a grave breach of one of the Geneva Conventions).

See S v M 1980 (1) SA 881 (O).  Attempts to commit treason constitute the substantive crime of treason.

Section 49(2) of the Magistrates Court Act [Chapter 7:10].

S v M 1980 (1) SA 881 (O).

Section 50(4) of the Magistrates Court Act [Chapter 7:10].  Level 12 is currently $3 000.

Section 51(2) of the Magistrates Court Act [Chapter 7:10].  Level 13 is currently $5 000.

Section 51(3) of the Magistrates Court Act [Chapter 7:10].  The maximum sentence for theft is a fine of level 14 or twice the value of the stolen property, or 25 years’ imprisonment, or both (section 113 of the Code);  for stock theft it is a mandatory minimum nine to 25 years’ imprisonment, where cattle or horses were stolen, or the same sentence as for theft where other animals were stolen (section 114 of the Code);  and for unlawful entry into premises, it is a fine of level 13 (or twice the value of any property stolen) or 15 years’ imprisonment, or both, where the crime was committed in aggravating circumstances, and a fine of level 10 (or twice the value of any stolen property) or 10 years’ imprisonment, or both, in other cases (section 131 of the Code).

Section 51(4) of the Magistrates Court Act [Chapter 7:10].  Level 14 is currently $10 000.

Whatever that means!

Section 51(4)(b) of the Magistrates Court Act [Chapter 7:10], as read with section 78 of the Criminal Law Code.

Section 51(4)(b) of the Magistrates Court Act [Chapter 7:10] as read with section 79 of the Criminal Law Code.

Section 51(4)(d) of the Magistrates Court Act [Chapter 7:10].

Section 50(3) of the Magistrates Court Act [Chapter 7:10].

Section 51(1) of the Magistrates Court Act [Chapter 7:10].

Section 51(3) of the Magistrates Court Act [Chapter 7:10].  For the sentences that may be imposed for these offences, see footnote 17 above.

Section 51(4)(c) of the Magistrates Court Act [Chapter 7:10].

Section 50(2) of the Magistrates Court Act [Chapter 7:10].

Section 51(1) of the Magistrates Court Act [Chapter 7:10].

Section 51(3) of the Magistrates Court Act [Chapter 7:10].  For the sentences that may be imposed for these offences, see footnote 17 above.

Section 51(4)(c) of the Magistrates Court Act [Chapter 7:10].

Section 50(4) of the Magistrates Court Act [Chapter 7:10].

Section 51(1) of the Magistrates Court Act [Chapter 7:10].

Section 51(3) of the Magistrates Court Act [Chapter 7:10].  For the sentences that may be imposed for these offences, see footnote 17 above.

Section 51(4)(c) of the Magistrates Court Act [Chapter 7:10].

That is to say, judges travel to those centres to try cases.

Section 23 of the High Court Act [Chapter 7:06].

Section 5(1)(c)(ii) of the Criminal Law Code;  see also S v Mharapara 1985 (2) ZLR 211 (S).

See Bennett v Parliament of Zimbabwe 2005 (1) ZLR 155 (H) and Bennett v Mnangagwa NO & Ors 2006 (1) ZLR 218 (S).  Parliament can now impose only a fine for contempt (sec 148(2) of the Constitution).

Section 60 of the Magistrates Court Act [Chapter 7:10].

Section 9(1) of the Supreme Court Act [Chapter 7:13].

Section 167(1) of the Constitution.  The phrase “constitutional matter” is defined in sectin 332 of the Constitution as a matter [i.e. a case] in which there is an issue involving the interpretation, protection or enforcement of the Constitution.

Para 18(2) of the Sixth Schedule to the Constitution.