21. PROCEDURE AFTER CLOSE OF EVIDENCE

Addresses by the parties

After the defence case has been closed the prosecutor is entitled to address the court, 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 raises a matter of law, the prosecutor may reply and he may also, with the leave of the court, reply on any matter of fact raised by the accused in his address.

Record of trial

A full and comprehensive record should be kept of the trial, and a failure to do so amounts to a gross irregularity, because without a record a review or appellate court cannot assess the correctness of the proceedings.

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.  The usual procedure for altering a magistrates court record is for the State to apply to the High Court for an amendment, serving a copy of the application on the 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.

Stopping of trial before verdict

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

In terms of section 54(1) of the Magistrates Court Act [Chapter 7:10], a magistrate must stop a trial at any stage before verdict, even if the accused has pleaded guilty, in two circumstances:

  • if it appears that the crime is from its nature only subject to the jurisdiction of a court of higher jurisdiction or is more properly dealt with by a court of higher jurisdiction (This might occur, for example, if the accused is charged with indecent assault and the evidence shows that the accused actually committed rape, or if he is charged with culpable homicide and the evidence shows that he killed intentionally);or
  • if the prosecutor requests that the trial be stopped.Note that this isn’t really a request on the part of the prosecutor;it is more a demand since the magistrate must stop the trial upon a request being made.The prosecutor might make such a request if the magistrate has refused to amend the charge against the accused and the prosecutor believes that the refusal will result in the accused being wrongly acquitted.The prosecutor should not make such a request lightly, since stopping a trial involves inconvenience to everyone concerned, particularly to an accused who is in custody.It is wrong, for example, to use the section to correct careless mistakes which should have been avoided at the outset.

In both these cases the magistrate must stop the trial, adjourn the case and remand the accused, and submit a written report to the Prosecutor-General together with the record of the proceedings.

When a trial has been stopped in terms of section 54(1), the Prosecutor-General may:

  • direct that the case be continued before the same magistrate (and if the magistrate is a junior magistrate, his or her jurisdiction is increased to four years’ imprisonment or a fine of level nine or both;or
  • direct that proceedings be started afresh before a regional magistrate.

The magistrate must inform the accused of the Prosecutor-General’s decision, and must take steps to comply with the decision, either by continuing with the trial or by issuing a warrant committing the accused to prison until brought to trial in a regional court or admitted to bail.

There is no provision in the law for trials in the High Court to be stopped in this way.

Section 200 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Reid Rowland Criminal Procedure in Zimbabwe p. 16–38.

Section 200 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 p. 526;  Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 222.

S v Ndebele 1988 (2) ZLR 249 (H);  S v Ncube 2012 (1) ZLR 422 (H);  Reid Rowland Criminal Procedure in Zimbabwe p. 16–39;  Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 222.

Reid Rowland Criminal Procedure in Zimbabwe p. 16–40.

S v Ndebele 1988 (2) ZLR 249 (H);  S v Zuze 2013 (2) ZLR 25 (H).

Reid Rowland Criminal Procedure in Zimbabwe p. 16–40;  Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 222.

Section 180(6) of the Criminal Procedure and Evidence Act [Chapter 9:07].

S v Moyo (2) 1978 RLR 469 (G) and Reid Rowland Criminal Procedure in Zimbabwe p.23-2.

Section 50(1)(b) of the Magistrates Court Act [Chapter 7:10].

Section 225 of the Criminal Procedure and Evidence Act [Chapter 9:07].

Section 226(a) & (b) of the Criminal Procedure and Evidence Act [Chapter 9:07].