The first stage in the procedural process is to get the accused person to trial. There are five lawful ways to do this: arrest and remand; summons; warning by the court; written notice to appear (e.g. a traffic ticket); and extradition.
Arrest is dealt with in Part V of the Criminal Procedure and Evidence Act.
There are six essentials or bases upon which an arrest, and detention following arrest, will be lawful:
- The arrest must have been properly authorised;i.e. it must be authorised by statute.
- The arrest must be reasonable (we shall come to this requirement later).
- The arresting officer must exercise physical control over the person arrested (“the suspect”);he must limit the suspect’s freedom of movement.An arrest is made by touching or confining the body of the person who is being arrested, i.e. by the arresting officer placing his hand on the suspect, usually on his shoulder, and telling him he is under arrest (An arresting officer must of course be gender sensitive in this, particularly where he is male and is arresting a female person).Touching or confining a suspect’s body is not necessary if the suspect voluntarily submits to the arresting officer’s control.Sometimes, if the suspect does not submit to arrest, it is necessary to subdue him, e.g. by handcuffing him, but any force used must be reasonable and proportionate (we shall deal with this later).
- The suspect must be informed of the reasons for the arrest.According to section 50(1)(a) of the Constitution this must be done “at the time of arrest”;in terms of section 32(5) of the , it must be done “forthwith”, i.e. within a reasonable time after arrest, and under section 41A(1) of the Act it must be done “promptly”.The constitutional provision prevails, so suspects must be given this information when they are being arrested.A suspect’s custody will be unlawful if this requirement is not complied with.The extent to which reasons must be given will depend on the circumstances of each case, though the Tenth Schedule to the Criminal Procedure and Evidence Act sets out a form of words which should “guide” peace officers as to what they should tell suspects (see section 41A(4) of the Act).
- The suspect must also be informed of his or her right to remain silent and of the consequences of remaining silent, and of their right to contact a lawyer, a medical practitioner, a relative or anyone else of their choice.If an arrested person does not succeed in contacting a lawyer or other person at the first attempt, he or she must be allowed to go on trying until contact is made.
- The suspect must be taken to the appropriate authorities as soon as possible.In the case of an arrest without warrant, that means he must be brought to a police station.Thus, where a suspect was held for 20 hours at a place five kilometres from a police station, pending investigation into a theft, the detention was held to be unlawful.
Arrest involves a deprivation of liberty, so it is essential that correct procedures are adopted when an arrest is made. If they are not, the arrest is unlawful and the arrester and his employer are liable for damages. All arrests without warrant are prima facie unlawful, and the onus is on the arrester to justify the arrest.
There are two kinds of arrest: arrest that takes place without a warrant, and arrest with a warrant. Usually police officers or peace officers effect arrests. In limited circumstances civilians may arrest without a warrant.
A peace officer is authorised by the Criminal Procedure and Evidence Act [Chapter 9:07] to arrest without warrant:
- person who commits a crime (however trivial) in his presence or whom he finds attempting to commit a crime or clearly showing an intention to commit a crime;
- person whom he has reasonable grounds for suspecting of committing or being about to commit a crime contained in the First or Ninth Schedules to the Criminal Procedure and Evidence Act. These crimes are:
- any at common law (there are no such crimes now, except those that were committed before the commencement of the Criminal Law Code);
- any statutory crime for which a punishment of more than six months’ imprisonment without the option of a fine is prescribed in the statute concerned;
- a , incitement or attempt to commit any of the above crimes, or being an accessory (after the fact) to any such crime.
- bribery and corruption under the Criminal Law Code;
- -laundering under section 63 of the Serious Offences (Confiscation of Profits) Act [Chapter 9:17];
- exporting maize or other controlled product in contravention of the Grain Marketing Act [Chapter 18:14];
- unlawfully possessing or dealing in, precious metals or precious stones;
- crimes involving dangerous drugs, except the possession of cannabis;
- fraud or forgery¾
- involving prejudice or potential prejudice to the State, unless the amount of prejudice is less than a prescribed amount;or
- committed by a group of conspirators;or
- involving prejudice or potential prejudice greater than a prescribed amount;
- forging banknotes or coins;
- committing certain exchange control crimes;
- theft of a motor vehicle;
- theft or forgery of national identity documents, passports, drivers licences, immigration permits, vehicle registration certificates or licence plates;
- stock theft involving a bovine or equine animal (i.e. cattle or horses);
- a conspiracy, incitement or attempt to commit any of the above crimes.
But in regard to the Ninth Schedule crimes, section 25(2)(b) of the Act introduces complications. If the peace officer who is going to effect the arrest has reason to believe that the crime concerned is sufficiently serious for the Prosecutor-General to issue a certificate refusing bail, then:
- the arrest may only be effected by a police officer who is an assistant inspector or above (or who is authorised by an assistant inspector), and
- if the arrest is being made as a result of an anonymous tip-off, the arresting police officer must immediately record details of the tip-off.
There is also an overlap between the First and Ninth Schedules: the crimes listed in the Ninth Schedule are statutory crimes for which a prison sentence of more than six months can be imposed, so they are all covered by the First Schedule. Hence a peace officer who cannot arrest someone under the Ninth Schedule for stock theft may be able to do so under the First Schedule.
“Reasonable grounds” for suspicion are essential for all arrests under section 25(1)(b); without such grounds an arrest is unlawful. The peace officer who effects an arrest must himself have a reasonable suspicion. It is not enough for him to rely on a report from someone else, unless the report is such as to give him reasonable grounds to suspect. The circumstances, and the contents of the report, must be such that a reasonable man in the position of the peace officer concerned would form the suspicion that a First or Ninth Schedule crime has been committed. Nor is a peace officer entitled to effect an arrest simply on orders from a superior officer. There must be some investigation into the facts before there can be a reasonable suspicion that a crime has been committed. But all that is required is a suspicion, not a certainty. The peace officer does not have to have a prima facie case for conviction; he does not have to be certain as to his facts, because otherwise he ceases to be merely suspicious and becomes certain. Suspicion “is a state of conjecture or surmise whereof proof is lacking.”
A peace officer is also authorised to arrest without warrant:
- anyone who has in his possession an implement of housebreaking and who cannot account satisfactorily for it;
- anyone who is found in possession of property reasonably suspected of being stolen and who is reasonably suspected of having committed a crime with respect to the property;
- anyone who obstructs a peace officer in the exercise of his lawful duty, or who escapes or tries to escape from lawful custody;
- anyone reasonably suspected of being a deserter from the Defence Forces;
- anyone found loitering in such circumstances as to afford reasonable grounds for believing that he has committed or is about to commit a crime;
- anyone reasonably suspected of being a prohibited immigrant;
- anyone who is liable to extradition from Zimbabwe;
- anyone who offers to sell or deliver to him any property which the peace officer believes on reasonable grounds to have been acquired by that person by means of a crime for which the person can be arrested without a warrant.
Reasonableness of arrest
Note that in all the above cases a peace officer is authorised to effect an arrest; he is not obliged to do so. He has a discretion in the matter, and should only arrest a person if he considers the arrest is necessary after taking into account such factors as the possibility of escape, the prevention of further crime and the obstruction of police enquiries (i.e. the same sort of considerations as apply to the grant or refusal of bail). The power of arrest, which is a discretionary power, must be exercised reasonably; it is not intended always, or even ordinarily, to be exercised. 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, i.e. people who are not peace officers, may also arrest persons without a warrant, though their power is more limited.
A private person is authorised to arrest:
- anyone who commits or attempts to commit a First Schedule crime in his presence.The private person may also “forthwith pursue” any such person, and anyone else may join in the pursuit.
- anyone upon reasonable suspicion that the other person has committed a First Schedule crime;
- anyone whom the private person reasonably suspects has committed a crime and is escaping from someone else who is reasonably suspected to be entitled to arrest him;
- anyone he sees fighting in a public place in order to stop the fight;
- anyone whom he finds committing a crime on (immovable) property which he (the private person) owns, occupies or controls;
In addition, if the commander or person in charge of a ship, boat or aircraft knows or reasonably suspects that someone is committing, has committed or is about to commit any crime on the ship, boat or aircraft, the commander or person in charge may arrest that person without a warrant or authorise anyone else to do so.
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.
Purpose of arrest without a warrant
The purpose of an arrest without a warrant is to bring the arrested person to trial, or to make further enquiries before deciding whether the case merits prosecution. It may also be to stop the person from committing a crime. It is not to punish him for a crime for which he has not yet been convicted:
“If the object of the arrest, though professedly to bring the accused person before the court, is really not such, but is to frighten or harass him and so induce him to act in a way desired by the arrestor, without his appearing in court, the arrest is, no doubt, unlawful.”
Requirement to supply name and address
A peace officer may call upon:
- anyone whom he has power to arrest;
- anyone reasonably suspected of having committed a crime;and
- anyone who, in his opinion, may be able to give evidence regarding the commission or suspected commission of a crime;
to furnish his full name and address. 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.
Procedure after arrest without a warrant
Holding of suspect by Police: length of period
A person who has been arrested without a warrant must be informed, at the time of the arrest, of the reasons for the arrest and must be taken to a police station or charge office as soon as possible. He must then be brought before a court as soon as possible and in any event not later than 48 hours after the arrest. His detention may not be extended except by order of a court. If he is not brought to a court within that period, he must be released immediately.
Application for warrant of arrest
Written application: A warrant of arrest may be issued by a judge, magistrate or justice of the peace (other than a justice of the peace who is a police officer).
A written application may be made by:
- the Prosecutor-General or a local public prosecutor;or
- a police officer of or above the rank of inspector;or
- a police officer in charge of a police station, if he is of or above the rank of assistant inspector.
A written application must:
- set out the crime alleged to have been committed;
- state that, from information available to the applicant, the applicant has reasonable grounds for suspicion against the suspect who is to be arrested;and
- where the application is made to a magistrate or a justice of the peace, allege that the crime was committed within the area of jurisdiction of the magistrate or justice.
Note that under the Act the person issuing the warrant does not have to be told the 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.
Oral application: A warrant may also be issued by a judge, magistrate or justice if anyone gives information on oath to him, stating that from information available to him he has reasonable grounds for suspecting that a suspect has committed a crime. Again, the person issuing the warrant does not have to form a reasonable suspicion against the suspect.
In both cases, all the person issuing the warrant has to be satisfied is:
- that the alleged crime is a crime at law;and
- that the alleged crime is of such a nature and gravity as to justify the issue of a warrant;and
- that the applicant is empowered to make the application.
Contents of warrant of arrest
A warrant of arrest states that the person named in the warrant must be apprehended and brought before a judicial officer as soon as possible on a charge of committing the crime named in the warrant.
A warrant remains valid until it is executed or cancelled, or until the suspect is otherwise arrested.
Execution of warrants of arrest
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 reasonable suspicion regarding the suspect whom he arrests. He must simply execute the warrant.
When a peace officer arrests a suspect under a warrant, he must produce the warrant if the suspect so demands, and notify the suspect of its substance (i.e. tell the suspect what it means). He must also tell the arrested suspect why he is arresting him. The arrested suspect must be brought to a police station or charge office as soon as possible, and from there must be brought as soon as possible to a judicial officer. The same 48-hour period applicable for arrests without warrant applies also to arrests made by virtue of a warrant.
A person who arrests another person under a warrant is protected against legal proceedings for wrongful arrest if:
- he arrests the wrong person, so long as he does so in good faith and on reasonable grounds believes he is arresting the person named in the warrant;
- the warrant is defective, so long as he believed, in good faith and without negligence, that the warrant was valid.
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.
If a suspect resists an attempt to arrest him and cannot be arrested without the use of force, or if he runs away when it is clear that an attempt is being made to arrest him, then according to section 42(1) of the Criminal Procedure and Evidence Act the person attempting to arrest him has the right to “use such force as is reasonably justifiable and proportionate in the circumstances” to overcome the resistance or to prevent the escape. The proviso to section 42(1), however, creates confusion. It says, in effect, that the use of force (any force) is permissible only if the following conditions are met:
- the crime for which the person is being arrested is one specified in the First Schedule to the Act, i.e. is one for which imprisonment for more than six months is prescribed as a punishment and can be imposed without the option of a fine, and
- the person trying to effect the arrest believes on reasonable grounds either:
- that the force is needed to protect himself or herself, or anyone else, from death or grievous bodily harm, or
- there is a substantial risk that the suspect will cause someone death or grievous bodily harm if the arrest is delayed, or
- the crime for which the suspect is to be arrested is in progress and involves life-threatening violence or grievous bodily harm.
According to the section, no force, however mild, can be used to effect an arrest if the above conditions are not met. This cannot have been the real intention, because what it means is that if for example a suspect is to be arrested for theft (not a life-threatening crime) and the suspect refuses to submit to the arrest, the arresting officer cannot even grab the suspect by the hand to prevent him running away. Still, that is what the section in its present form says.
The confusion is compounded by subsection (2) of section 42, which says that “for the avoidance of doubt” no use of “lethal force” may be used unless there is strict compliance with the conditions laid down in section 42(1) and set out above. Lethal force is the same as deadly force and means “violent action known to create a substantial risk of causing death or serious bodily harm”. So section 42(2) does not authorise actual killing (because of section 48 of the Constitution it cannot do so) and merely authorises force that may kill so long as the conditions set out in section 42(1) are met. But those conditions must be present before any force, not just lethal force, may be employed.
If those conditions are present the arresting officer may use force that is reasonable and proportionate. He or she must prove:
- that he or she was lawfully entitled to arrest the suspect;
- that the arrest was intended to bring the suspect to justice;
- that he or she tried to arrest the suspect;
- that the suspect resisted arrest or tried to run away;
- that the degree of force used was reasonably necessary and proportionate to effect the arrest or prevent the escape.
Reasonableness in this context requires an objective approach, though the bona fides of the person trying to effect the arrest is relevant in determining the question of reasonableness. The force must also be proportionate, and in South Africa the courts have used a proportionality test in assessing reasonableness in the context of arrest: the degree of force used must be proportional to the seriousness of the crime for which the suspect is being arrested, and to all the circumstances in which the force is used. The arrestor must not resort to an indiscriminate use of force; the use of a firearm to effect an arrest should be resorted to with great caution; and a police officer should resort to using a firearm only if there is no other way at all to capture the suspect. Indeed, because the Constitution does not permit anyone’s life to be taken away (except the lives of criminals who have been sentenced to death by a court), it may be said that police officers should not resort to using firearms at all. Any force that is used must be directed at the suspected offender who is trying to escape. Where, for example, the suspect is one of the occupants of a vehicle among whom there may be innocent people, the arresting officer may not shoot indiscriminately at the occupants (Government of RSA v Basdeo 1996 (1) SA 355 (A)).
If, however, a police officer is attacked by a suspect whom he is trying to arrest, he is entitled to defend himself with whatever means are available if he has no reasonable alternative. He is not obliged to flee from an unlawful assault in such circumstances, because that would amount to a dereliction of duty. Thus if a suspect attacks a police officer who has a firearm in his hands, the suspect has only himself to blame if the firearm is used in self-defence — though, as pointed out above, the police officer is not entitled to kill the suspect even in self-defence.
The law in South Africa regarding the use of force in effecting an arrest was summed up by the South African Constitutional Court in Ex parte Minister of Safety & Security & Ors, in re S v Walters & Anor 2002 (4) SA 613 (CC) at para 54 (p 643):
“In order to make perfectly clear what the law regarding this topic now is, I tabulate the main points:
- The purpose of arrest is to bring before court for trial persons suspected of having committed offences.
- Arrest is not the only means of achieving this purpose, nor always the best.
- Arrest may never be used to punish a suspect.
- Where arrest is called for, force may be used only where it is necessary to carry out the arrest.
- Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.
- In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstance of the offence the suspect is suspected of having committed;the force being proportional in all these circumstances.”.
These points reflect our law in Zimbabwe – or at least what was probably the real intention behind the new section 42 of the Criminal Procedure and Evidence Act.
If an arrest is unlawful, any subsequent detention of the suspect, and any subsequent remand, is also unlawful, even if the suspect is allowed bail. The unlawfulness of an arrest does not, however, affect the Prosecutor-General’s right to continue prosecuting the arrested person, unless the accused person was abducted or illegally arrested outside the country and brought into Zimbabwe to stand trial, or if the decision to prosecute is based on evidence unlawfully extracted from the accused person by torture or ill-treatment while he was in custody.
A peace officer may take the fingerprints, palm-prints, footprints and photographs of a person who has been arrested, and may examine the arrested person to ascertain if his body has any mark or characteristic. He or she is entitled to use reasonable force to take the fingerprints, palm-prints, etc. An authorised person may take a buccal sample from an arrested person, and at the request of a police officer of or above the rank of superintendent a medical officer may take an “intimate sample” from an arrested person. Furthermore, a government medical officer or a prison medical officer may take a sample of an arrested person’s blood, saliva or tissue, but this can only be done at the request of a police officer of or above the rank of superintendent.
Any fingerprints, palm-prints, etc, taken from an accused person must be destroyed if the accused is acquitted, or if his conviction is set aside on appeal or review, or if the Prosecutor-General declines to prosecute him, or if the charge against him is otherwise withdrawn.
As already noted, persons who have been arrested without warrant must be brought without delay to a police station. The police officer in charge of the station must ensure that a record is kept of all persons brought to the station or detained there, detailing their identities, when they were brought there or first detained there, the crime for which they were arrested, when they were released (if they are released) and, if they were transferred to some other place, when they were transferred, where they were transferred to and why. These records must be open to inspection by interested persons (presumably family members and lawyers).
A person who is arrested and detained must be informed, at the time of his arrest, of:
- the reason for the arrest,
- his or her right to remain silent and of the consequences of remaining silent or of speaking,
- his or her right to contact, at the expense of the State, anyone of their choice.
A form of words to guide peace officers in explaining their rights to accused persons is set out in the Tenth Schedule to the Criminal Procedure and Evidence Act.
A person who has been arrested or detained must be permitted, without delay, to contact, at the State’s expense, anyone of his or her choice, including his legal practitioner, spouse or relative. If the arrested or detained person cannot contact his first choice of person, then the police or other authorities responsible for his detention must allow him to try anyone else until he finally makes contact with someone. Also, the authority responsible for detaining a person must inform any interested party, promptly on request, of the detained person’s whereabouts and the reasons for the detention – unless there are compelling reasons for not doing so.
The right to obtain and consult, in private, with a legal practitioner of one’s choice does not mean that the accused person is entitled to immediate access to his legal practitioner; it means he must be allowed to consult the practitioner as soon as is reasonably practicable in the circumstances. Nor is his access completely unfettered: after all, he is in detention. It is doubtful if a suspect is entitled to have his legal practitioner present when he is fingerprinted, but there are good grounds for holding that he has a right to consult his practitioner before he is questioned by the Police or makes a statement to them. A statement made by an accused who has been arrested will not be admissible at his trial, even if it has been confirmed by a magistrate, if the accused was denied access to his legal practitioner before and during the confirmation proceedings. As Dumbutshena JP (as he then was) said in S v Slatter & Ors 1983 (2) ZLR 144 (H) at 166, “If an accused person wants a legal practitioner before, or during, interrogation, the police investigators must stop their investigations [sic: he meant “interrogation”] and only resume after the accused has had consultations with his legal practitioner.” And the statement will also be inadmissible if the accused person’s lawyer was denied access to the accused, even though the accused had no knowledge of the lawyer’s efforts on his behalf. For that reason, the practice of refusing to tell an accused person’s legal representative where the accused is being detained — apart from being an unconstitutional violation of the accused’s right to legal representation and a contravention of section 385(3) of the Criminal Procedure and Evidence Act — may also result in any statement being rendered inadmissible.
An arrested person, as we have seen, must be brought before a court within 48 hours. The court is usually not be in a position to try him immediately, however, so it may postpone his trial. This is called a “remand”.
The distinction between remand and bail must be kept in mind. Remand is simply a postponement of trial, and during the remand (i.e. while the accused person is awaiting trial) he may be kept in custody or allowed his freedom – that is to say, released on bail. He is on remand whether he is in custody or out on bail. In practice the distinction is blurred because when an accused person is remanded the court will simultaneously or immediately afterwards consider the question of bail, i.e. whether to order the accused to remain in custody or to allow him bail. But the issues are separate and distinct: the court has first to decide whether or not to remand the accused, and then – only if it decides he should be remanded – decide whether he should be allowed bail.
A remand may properly be sought for several reasons, of which the usual ones are:
- the Police need time to complete their investigations;
- the need to find a convenient time for the trial to take place;
- the accused person needs to arrange his defence;
- to await the Prosecutor-General’s authority to prosecute the accused, where this is necessary;
- difficulties in locating or subpoenaing witnesses.
The reasons must be explained to the court by the prosecutor who seeks the remand.
When court may/may not remand an accused
On a remand, the prosecutor normally informs the court of the facts alleged against the accused person, using a “request for remand” form prepared by the Police. The State (i.e. the prosecutor) must show that there are facts and circumstances sufficient to warrant a prudent man in suspecting that the accused person had committed or was about to commit a crime. The criterion is one of reasonable suspicion, “a practical, non-technical concept” which balances the State’s duty to control crime with the individual’s right to liberty. 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, as with an arrest, the prosecutor must provide enough information to give the remand court a reasonable suspicion that the accused person had committed or was about to commit the crime with which he is charged: the court itself must have that reasonable suspicion before it can remand the accused. Hence the court must be careful to elicit from the prosecutor the grounds on which a reasonable suspicion can be founded, and prosecutors must where possible be open and forthright with the court in disclosing those grounds. If one or more of the elements of the crime with which the accused is charged are not alleged either in the request for remand form or orally by the prosecutor, then it cannot be said that a reasonable suspicion has been established justifying placing the accused on remand.
An accused person is entitled to challenge his remand. If the State cannot show sufficient facts to justify a reasonable suspicion, or cannot show that the accused’s alleged conduct, if proved, would constitute a crime, then the court should refuse to remand the accused.
It is not proper for an accused person to be kept on remand on a minor crime when the real purpose of keeping him in custody is to investigate a much more serious crime.
The fact that an accused person was unlawfully arrested should not, on principle, prevent his being remanded if there are proper grounds for the remand, i.e. if there are facts and circumstances sufficient to give rise to a reasonable suspicion that he has committed or was about to commit a crime. In such a case, however, the remanding magistrate should be alert to the possibility that the prosecution is based on evidence that was elicited from the accused person through torture or similar unlawful treatment.
Period of remand
There is no limit to the period that the High Court can remand an accused person.
General rule: Where an accused person has been brought before a magistrate, his case cannot be remanded (postponed) for longer than 14 days at any one time unless he consents to a longer period. In practice 14-day remands are the norm, even though in petty cases a shorter period may be justified.
Exceptions to the general rule:
Section 32(3a) & (3b) of the Criminal Procedure and Evidence Act specify circumstances in which accused persons must be remanded for 21 days without bail, where they have been charged with certain crimes:
- If the accused has been arrested for any of the following crimes:
- subverting constitutional government (section 22 of the Criminal Law Code);or
- crimes relating to insurgency, banditry, sabotage or terrorism (sections 23 to 29 of the Criminal Law Code);
and the judicial officer before whom the accused is brought is satisfied that there is a reasonable suspicion that he committed the crime concerned, the judicial officer must order his further detention for 21 days [plus a further 48 hours, within which an application is made to a judge or magistrate for a warrant authorising the accused’s further detention].
- Similarly, if the accused has been arrested for a crime set out in the Ninth Schedule to the Criminal Procedure and Evidence Act (i.e. a crime involving corruption, organised crime or serious dishonesty), the judicial officer before whom the accused is brought must order his further detention for 21 days, or a shorter period specified by the Prosecutor-General, if:
- the prosecutor produces a certificate stating that the Prosecutor-General considers the crime involves significant prejudice or potential prejudice to the national economy and that the accused’s continued detention is necessary;and
- the judicial officer is satisfied that the accused’s arrest is lawful;and
- the judicial officer is satisfied that there is a reasonable suspicion that the accused committed the crime concerned.
These provisions are unconstitutional, because they deny the remanding court the power to grant bail to the accused person [we shall deal with the right to bail in a subsequent lecture].
Right to trial within a reasonable time
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”, i.e. officially informed of an allegation that he has committed a crime; a mere investigation is not enough. 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”. In one case, where 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 another a delay of seven years was enough. In S v Tau 1997 (1) ZLR 93 (H), Gillespie J said:
“[The Supreme Court’s decision in S v Midzi & Ors 1994 (2) ZLR 218 (S)] was no doubt an appropriate conclusion for a complicated case of fraud and corruption where the accused were on bail. In a different situation, however, twelve months delay might well be unreasonable and oppressive. I would venture to suggest that the scrupulous magistrate would in all cases be questioning the State very closely indeed on any application for further remand made after delays approaching a year.”
Under section 167A of the Criminal Procedure and Evidence Act [Chapter 9:07] courts are now obliged to investigate delays in cases pending before them where the delay appears unreasonable and could cause substantial prejudice to the prosecution, to the accused or his or her lawyer, to a witness or any other person concerned in the proceedings, or to the public interest. In deciding whether a delay is unreasonable, a court considers amongst other things:
- the extent of the delay and the reasons for it;
- whether anyone can be blamed for the delay;
- whether the accused has raised such objections to the delay as he might reasonably have been expected to have raised;
- the seriousness and complexity of the charges;
- prejudice the delay may have caused to the State, the accused or anyone else concerned in the proceedings;
- the adverse effect that stopping the prosecution would have on the public interest or the interests of victims.
If the delay is found to be unreasonable, the court can refuse or impose conditions on further postponements or remands, or permanently stay the prosecution, and in addition can refer the matter to the appropriate authorities for investigation and possible disciplinary action. The Prosecutor-General is entitled to appeal against an order permanently staying a prosecution.
Before the courts will enquire into a violation of the accused’s right to a speedy trial, it must be shown that the accused suffered prejudice from the delay; this is assessed in the light of the interests which the right to a speedy trial is intended to protect, namely:
- to prevent oppressive pre-trial imprisonment;
- to minimise the anxiety and concern of the accused while he awaits trial;
- to limit the possibility that his defence will be impaired (e.g. witnesses may no longer be available for the trial).
The factors which a court must take into account in deciding whether there has been an unreasonable delay in bringing an accused person to trial are set out in section 167A(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].
A summons is a formal notice to the accused person setting out the charges against him and requiring him to appear at a magistrates court at a stated time to stand trial on the charges. Note that summonses are not issued to bring accused persons to trial in the High Court.
Issuing a summons to secure the attendance of an accused person at his trial, rather than arresting him, should be preferred in those cases in which there is no reason to suppose that he will fail to appear in court, or interfere with the State evidence or commit further crimes. There is no rule of law, however, that requires the issue of a summons where it would be appropriate, or that renders an arrest unlawful if a summons would be equally effective — unless, of course, the decision to arrest an accused is one that no reasonable person would take.
A summons is prepared by a public prosecutor and lodged with the clerk of the magistrates court. The clerk then issues the summons and delivers it to the messenger of court.
A summons must:
- identify the accused person by his name, place of abode and occupation;
- set out, shortly and clearly, the nature of the crime and the time and place at which it was committed;and
- require the accused to appear at a stated time and place to answer the charge (i.e. to stand trial on the charge).
A summons may be served on the accused:
- by giving it to him personally;
- if he cannot be found, by leaving it for him at his place of business or at his usual or last-known place of abode.
A summons is served on the accused by a “prescribed officer”. There is no specific prescription of officers under the Criminal Procedure and Evidence Act, but messengers of magistrates courts would presumably be entitled to serve summonses and police officers are qualified to serve all documents under the Act (Most summonses are in fact served by police officers). In addition to service by messengers of court and police officers, the Magistrates Court (Criminal) Rules, 1966 (RGN 871 of 1966), permit summonses for crimes under certain statutes to be served by officials appointed under those statutes.
If more than one person is being charged jointly, a copy of the summons must be served on each of them.
A summons must be served on the accused at least two working days before the date of his trial. Except in the simplest of cases this may be too short a time for him to prepare his defence, as required by section 70(1)(c) of the Constitution.
If the accused does not appear in court on the date and at the time specified in the summons, proof that it was served on him may be given by:
- evidence on oath by the person who served it;
- an affidavit sworn by that person;or
- a return of service written on the summons by that person.
The last of these methods is the usual one that is used.
Where the accused has not appeared, on proof that the summons was served, the magistrate may, at the prosecutor’s request, issue a warrant for the accused’s arrest and impose a 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 (e.g. that he did not see the summons).
In the case of petty crimes, particularly road traffic violations, the accused may be handed a “ticket”, a notice to appear in court, by a peace officer. This is applicable where the peace officer believes on reasonable grounds that the crime will attract a fine of not more than level three. The notice must:
- give reasonable particulars of the crime , though it is not necessary to specify the provisions of the enactment concerned;
- set out the accused’s full names and address;
- call upon the accused to appear in court at a specified date, time and place, to answer a charge of committing the crime;
- state that instead of appearing in court, the accused may pay a deposit fine on or before a specified date;and
- contain a written certificate by the peace officer that he has handed the notice to the accused and explained it to him.
If the accused fails to pay the fine by the specified date, the notice has the effect of a summons.
The court may warn an accused person to appear in court to be charged with a crime. In practice this seldom if ever happens. The procedure is potentially useful, for example in ensuring the attendance of juveniles at their trial (instead of releasing a juvenile accused on bail, the court could simply warn him to appear for trial at a particular date and time, and release him into the custody of his parents). It suffers from the disadvantage, however, that there seems to be no penalty for failure to comply with a warning.
This is a method of bringing people from one country to stand trial in another country. It is a procedure whereby, for example, a person who has committed a crime in Zimbabwe and has fled to South Africa can be returned to Zimbabwe for trial.
Each of the four methods of securing an accused person’s attendance which have been dealt with above has advantages and drawbacks (some of which have already been mentioned):
This is by far the most drastic method in that it deprives the suspect of his liberty, at least for a time. On the other hand it may be the most appropriate method to employ, for example where the suspect is arrested while committing a crime. It has the following advantages:
- It may prevent the suspect from continuing to commit a crime or from committing further crimes.
- If the suspect is kept in custody, it is the most certain method of preventing him from absconding or interfering with the evidence – e.g. by intimidating witnesses.While the suspect is in custody his ability to abscond or interfere with evidence is severely reduced.Even if the suspect is granted bail, the court will be able to impose conditions on the grant which will ensure so far as possible that he does not abscond or interfere with witnesses.
- Again if the suspect is in custody, it removes him from society.This may be justifiable where the suspicion against him is strong and well-founded, and the crime which he is suspected of having committed is a serious one which he is likely to repeat.
- In a few cases it may protect the suspect, for example a suspected rapist who is liable to retribution from the complainant’s family.
Set against the above advantages, however, are the following drawbacks:
- It can lead to serious abuses:
- The police may be tempted to use the power of arrest and detention as a means of intimidating a suspect or punishing him or getting him to make a statement or to admit committing a crime.
- There is an implicit threat of violence in arrest and post-arrest detention, in that the suspect has reason to fear that if he does not do what the arresting police officer wants, he will be forced to comply.All too often, the police succumb to the temptation to use violence against arrested suspects, usually to force them to make incriminating statements.
- The power to use reasonable force in effecting an arrest can cause serious damage and loss to innocent people.If a suspect is injured when resisting or fleeing from an arrest, he will not be entitled to compensation if the arrest was a lawful one (e.g. if the peace officer had reasonable grounds to suspect that he had committed a First Schedule crime) and the degree of force was reasonably justifiable in the circumstances.And this will be so even if it turns out that the suspect was in fact innocent of the crime.Similarly, if a householder’s doors and windows are lawfully broken down by the police in an attempt to arrest a person in the householder’s premises, the householder will not be entitled to compensation.
- Peace officers often have to make a decision to arrest a suspect, or not to arrest him, very quickly;they cannot spend a long time debating whether or not the suspect is likely to abscond if he is not arrested.Because the decision has to be made quickly, peace officers are likely to err on the side of caution and arrest suspects knowing that when they are brought before a remand court the court will be able to decide whether they should be released or kept in custody.
- An arrest almost invariably humiliates the suspect, and the humiliation can be lasting.People tend to believe, consciously or unconsciously, that a person who has been arrested is a criminal or at least a person of doubtful character.
- An arrest is expensive to the State, if the suspect is detained after being arrested.
Bringing an accused person to court through a summons has the great advantage, from a human-rights perspective, of not infringing the person’s right to liberty. It is also relatively cheap because there is no question of keeping the person in detention. On the other hand, it does have certain disadvantages:
- If the summons is not served personally (i.e. handed to the accused person concerned) the accused may not see it and will not realise that he has to attend court.If he does not appear in court, the magistrate will be entitled to issue a warrant for his arrest without enquiring at that stage whether or not the accused’s failure to appear was blameworthy.
- Section 382(1) of the Criminal Procedure and Evidence Act states that summonses must be served at least two working days before the trial date.This may not give the accused adequate time to prepare his defence, though he can always ask the trial court for an adjournment.
- Summonses cannot be issued to compel attendance of accused persons in the High Court;the only way to compel their attendance in that court is through committal for trial under Part VII of the Criminal Procedure and Evidence Act.
This has obvious advantages:
- The problem of service, which arises in relation to summonses, does not apply because the written notice is usually given directly to the accused person by the peace officer who issues it.For example, traffic tickets are normally handed directly to the offending motorists.
- Apart from notifying the accused person that he will have to attend court, a written notice gives him the option of avoiding a court appearance by paying a deposit fine (not exceeding level three).Because most people prefer to pay the fine, the courts do not have to conduct numerous trials into petty crimes.
On the other hand, written notices have certain disadvantages:
- In present circumstances in Zimbabwe, the power to issue such notices, particularly traffic tickets, is likely to tempt peace officers to engage in corrupt practices (e.g. offering to refrain from issuing a ticket if the offender pays a bribe).
- The current Standard Scale of Fines fixes the monetary amount of level three at US $30.This limits the scope of written notices to petty crimes.
- It has been said that written notices deprive offenders of a fair trial, because in many cases they will prefer to avoid the trouble and expense of a trial by paying the deposit fine even if they believe they are not guilty.This is not a convincing objection, because the choice of paying or going to court rests with the offender.
As pointed out earlier, this has the disadvantage that there is no way of compelling attendance by a person who has been warned to appear in court. In other words, there is no sanction that can be imposed on a person who fails to appear after having been warned to do so.
See Joubert & Geldenhuys Criminal Procedure Handbook 10th ed p. 118.
Section 41 of the Criminal Procedure and Evidence Act.
Section 50(5)(c) of the Constitution and section 41A(1) of the Criminal Procedure and Evidence Act.
Section 41A(3) of the Criminal Procedure and Evidence Act.
Section 32 of the Criminal Procedure and Evidence Act.
Ezekiel v Kynoch NPD 13.4.1923, cited in Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 119.
Allan v Minister of Home Affairs 1985 (1) ZLR 339 (H).
Section 25 of the Criminal Procedure and Evidence Act.
Section 25(1)(a) & (c) of the Criminal Procedure and Evidence Act. See R v Vengayi 1955 R & N 355 (SR)
Section 25(1)(b) of the Criminal Procedure and Evidence Act.
The Code came into operation on the 1st July, 2006 (SI 152 of 2006).
Bull v Attorney-General 1986 (1) ZLR 117 (S).
cf Moll v Commissioner of Police & Ors 1983 (1) ZLR 238 (H).
Allan v Minister of Home Affairs 1985 (1) ZLR 339 (H); Minister of Home Affairs v Allan 1986 (1) ZLR 263 (S) at 269-70.
Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S) at 122B-C, cited in Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S) at 96D.
Section 25(2) of the Criminal Procedure and Evidence Act.
Section 31 of the Criminal Procedure and Evidence Act [Chapter 9:07].
Botha v Zvada & Anor 1997 (1) ZLR 415 (S) at 418G.
Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S).
Per Lord Diplock in CCSU v Minister for the Public Service  3 All ER 935 (HL) at 951a-b, cited in Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S) at 99 D.
Section 27(1) of the Criminal Procedure and Evidence Act.
Section 30 of the Criminal Procedure and Evidence Act. Note that the section does not seem to require that the private person must himself have the reasonable suspicion.
Section 27(2) of the Criminal Procedure and Evidence Act.
Section 28 of the Criminal Procedure and Evidence Act.
Section 29 of the Criminal Procedure and Evidence Act.
Section 31A of the Criminal Procedure and Evidence Act.
Section 24 of the Criminal Procedure and Evidence Act.
Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 121.
Tsose v Minister of Justice & Ors 1951 (3) SA 10 (A), cited in Duncan v Minister of Law and Order 1984 (3) SA 460 (T) at 464.
Section 26(1) of the Criminal Procedure and Evidence Act.
Section 26(2)(b) of the Criminal Procedure and Evidence Act.
Section 32 of the Criminal Procedure and Evidence Act.
Section 50(2) of the Constitution and section 32(3) of the Criminal Procedure and Evidence Act.
Section 50(3) of the Constitution.
Section 33(1) of the Criminal Procedure and Evidence Act.
Section 33 of the Criminal Procedure and Evidence Act.
Section 33(1) of the Criminal Procedure and Evidence Act.
Prinsloo & Anor v Newman 1975 (1) SA 481 (A).
Section 38 of the Criminal Procedure and Evidence Act.
Section 33(3) and (4) of the Criminal Procedure and Evidence Act.
Section 34(1) of the Criminal Procedure and Evidence Act.
Section 34(2) of the Criminal Procedure and Evidence Act.
Section 50(1)(a) of the Constitution – which applies equally to arrests with or without warrant.
Section 34(3) of the Criminal Procedure and Evidence Act.
Section 50(2) of the Constitution, which lays down the 48-hour period, does not distinguish between arrests with or without warrant.
Section 36 of the Criminal Procedure and Evidence Act.
Section 37 of the Criminal Procedure and Evidence Act.
Section 40 of the Criminal Procedure and Evidence Act.
As amended by the Criminal Procedure and Evidence Amendment Act, 2016 (Act No. 2 of 2016).
“Proportionate” has the same meaning as “proportional” and is discussed below.
Black’s Law Dictionary, 4th pocket edition.
S v Malindisa 1961 (3) SA 377 (T), where the accused shot and killed someone whom he suspected of having stolen his dagga. He could not be regarded as trying to arrest the person because there was no intention of bringing him to justice.
Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 93; Lansdown & Campbell SA Criminal Law & Procedure vol 3 p. 296.
S v Purcell-Gilpin 1971 (1) RLR 241 (A).
Matlou v Makhubedu 1978 (1) SA 946 (A): in other words, the less serious the offence the less the degree of force that may be used.
Govender v Minister of Safety & Security 2001 (4) SA 273 (SCA).
S v Martinus 1990 (2) SACR 568 (A)
Matlou v Makhubedu 1978 (1) SA 946 (A). See also R v Gege 1945 SR 134, where Tredgold J said that the power under what is now section 42(2) of the Act should be exercised only when it appears to the arrestor that, in all the circumstances, there is no reasonable alternative and when he has done everything in his power to achieve his purpose by other means.
Ntsomi v Minister of Law & Order 1990 (1) SA 512 (C).
Additional points made by the court in regard to the killing of suspects have been omitted from the above quotation, because South African law differs from our law on the subject.
S v Poli 1987 (2) ZLR 30 (H) and sec 50(8) of the Constitution.
Bull v Attorney-General & Anor 1986 (1) ZLR 117 (S) at 125D.
S v Beahan 1991 (2) ZLR 98 (S) at 111B-C. In Chinanzvavana & Anor v Attorney-General 2010 (2) ZLR 43 (H) at 57C it was suggested that the same might apply where the accused was abducted locally.
Mukoko v Attorney-General 2012 (1) ZLR 321 (S).
Jesse v Attorney-General & Ors 1994 (2) ZLR 416 (H) at 423-4.
An authorised person is defined in section 2 of the Criminal Procedure and Evidence Act as a medical officer, health professional or other person trained to take samples.
A saliva sample taken from the mouth.
Section 41(3) of the Criminal Procedure and Evidence Act.
There is no definition of “intimate sample” in the Act. It is not clear whether it covers a blood sample.
Section 41D of the Criminal Procedure and Evidence Act.
Sections 41(5) and 41D(4) of the Criminal Procedure and Evidence Act.
Section 41C of the Criminal Procedure and Evidence Act [Chapter 9:07].
Section 50(1)(a) of the Constitution says “at the time of arrest”; section 41A of the Criminal Procedure and Evidence Act says “promptly”.
Section 50 of the Constitution and section 41A of the Criminal Procedure and Evidence Act.
Section 385A of the Criminal Procedure and Evidence Act, echoing section 41A of the Act and section 50 of the Constitution.
Section 385A(3) of the Criminal Procedure and Evidence Act.
Reid Rowland Criminal Procedure in Zimbabwe p. 5-21.
S v Slatter & Ors 1983 (2) ZLR 144 (H) at 154. See also S v Woods & Ors 1993 (2) ZLR 258 (S) at 266.
Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S) at 122A-B. It is doubtful, however, that a person could properly be arrested on suspicion that he was about to commit a crime.
Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S) at 122.
Martin v Attorney-General & Anor 1993 (1) ZLR 153 (S).
Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S)
S v Chiyangwa 2005 (1) ZLR 163 (H).
R v Sambo 1964 RLR 565 (A) at 570A.
Cf Mukoko v Attorney-General 2012 (1) ZLR 321 (S).
Section 165 of the Criminal Procedure and Evidence Act.
Sections 32(3a) and 34(4)(a) of the Criminal Procedure and Evidence Act. The effect, indeed the validity, of those provisions is doubtful. They refer to a crime “referred to in paragraph 10 of the Third Schedule” to the Act, but the Third Schedule has since been amended and there is no longer a paragraph 10. Furthermore, the crimes concerned, which were set out in the Public Order and Security Act, are now contained in Chapter III of the Criminal Law Code.
Section 34(6) of the Criminal Procedure and Evidence Act.
Which, under section 34(6) of the Criminal Procedure and Evidence Act, may be extended for 48 hours to enable an application to be made to a judge or magistrate for a warrant authorizing the accused’s further detention.
Sections 32(3b) and 34(4)(b) of the Criminal Procedure and Evidence Act.
Section 69(1) of the Constitution.
Smyth v Ushekowunze & Anor 1997 (2) ZLR 544 (S); see Linington Constitutional Law of Zimbabwe p. 400.
Fikilini v Attorney-General 1990 (1) ZLR 105 (S).
In re Mlambo 1991 (2) ZLR 339 (S).
In re Masendeke 1992 (2) ZLR 5 (S).
This suggests that if the accused is not legally represented and is ignorant of the law, he should not be penalised for not objecting to a delay. This point was made in S v Tau 1997 (1) ZLR 93 (H) and S v Mavharamu 1998 (2) ZLR 341 (H). See also Woods & Ors v Minister of Justice, Legal and Parliamentary Affairs & Ors 1993 (2) ZLR 443 (S) at 445H, where Gubbay CJ said: “[P]assivity in the assertion of a constitutional right necessarily implies an awareness that there has been a breach and that a meaningful remedy is available.”
Section 167A(4) of the Criminal Procedure and Evidence Act.
Tsose v Minister of Justice 1951 (3) SA 10 (A) at 17. That may not, however, be the law any longer in South Africa: see Coetzee v National Commissioner of Police & Ors 2011 (2) SA 227 (GNP) at 243.
Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S).
Section 139 of the Criminal Procedure and Evidence Act.
Section 140(1) of the Criminal Procedure and Evidence Act.
Section 139 of the Criminal Procedure and Evidence Act.
Whether or not he cannot be found depends on the circumstances of every particular case: Minister van Polisie v Goldschagg 1981 (1) SA 37 (A).
Section 140(2) of the Criminal Procedure and Evidence Act.
Section 141(2) of the Criminal Procedure and Evidence Act.
Because, having issued a summons, the clerk of court delivers it to the messenger for service under section 140(1) of the Criminal Procedure and Evidence Act.
Section 382(4) of the Criminal Procedure and Evidence Act.
Order IIA of the rules, as read with the Second Schedule to the rules. For example, a summons for a crime under the Plant Pests and Diseases Act [Chapter 20:01] can be served by an inspector appointed under that Act.
Section 382(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].
Section 140(3) of the Criminal Procedure and Evidence Act.
Section 140(4) of the Criminal Procedure and Evidence Act. The court does not have to be satisfied that the accused was blameworthy in failing to appear; that becomes relevant at a later stage when he is brought before the court after being arrested: Minister van Polisie v Goldschagg 1981 (1) SA 37 (A).
Section 141 of the Criminal Procedure and Evidence Act.
Currently (March 2019) $60.
Section 141(5) of the Criminal Procedure and Evidence Act.
Section 142(1) of the Criminal Procedure and Evidence Act.
Minister van Polisie v Goldschagg 1981 (1) SA 37 (A).
Section 141(1) of the Criminal Procedure and Evidence Act. Level 3 is currently $60.