Search of persons and premises

Section 57 of the Constitution provides that every person has the right to privacy which includes the right not to have:

• their homes, premises or property entered without their permission;
• their person, home, premises or property searched.

These rights are not absolute as they are not listed under section 86(3) as rights that may not be limited by law. Therefore they may be limited by a law which complies with the provisions of s 86(2) of the Constitution.

 

The police have power under s 49 CPEA to search for and seize articles which are, or are on reasonable grounds believed to be, concerned in the commission of a crime; or which the police reasonably believe may afford evidence of the commission of a crime; or which are intended to be used in the commission of a crime or which the Police reasonably believe are intended to be so used.

A search may be done with or without warrant.

§   Search with warrant

For a search warrant to be valid it must satisfy the requirements set out in s 50(1) CPEA. A search warrant can be issued either by a judicial officer or by a justice of the peace. The premises or persons to be searched must be precisely described and the items to be searched for must be specifically stated. The warrant may only be issued if the person issuing it is satisfied that there are reasonable grounds for carrying out the search in that there is a reasonable basis for believing that the search will lead to the seizure of items used to commit a crime or provide evidence of the commission of a crime.

 

In the case of Elliott v Commissioner of Police 1986 (1) ZLR 228 (H) it was held that the search warrant was invalid because it was far too general and vague. It failed to identify any specific offence in connection with which the search was being carried out. No particular documents were identified as the documents to be searched for and no attempt was made to link these documents with a particular offence. The Court ordered the return of all the documents seized.

 

In Capital Radio (Pvt) Ltd v Minister of Information & Ors (2) 2000 (2) ZLR 265 (H), it (was held that the warrant issued by the magistrate was invalid as it contained two serious flaws. Firstly, the warrant purported to be applicable throughout the country, whereas a magistrate only has jurisdiction to issue a warrant in respect of his area of jurisdiction. Secondly, the warrant was far too broad and vague and was lacking in specific detail. The warrant did not specify the premises to be searched, nor did it state what the reason for the search was. Further, the courts must ensure that the power of search and seizure is not abused. The police cannot be allowed to exercise uncontrolled powers of search and seizure. Search warrants will be interpreted with reasonable strictness and, in cases of doubt, they will be interpreted so as to protect the liberty and privacy of the subject.

 

A search warrant can also be issued by a magistrate in terms of s 26 of the Serious Offences (Confiscation of Profits) Act to search for "tainted property", which includes property used in connection with serious offences and the proceeds of serious offences committed inside and outside Zimbabwe. The magistrate must be satisfied that there are reasonable grounds for issuing the warrant. The magistrate does not have to be told at the time that he issues the warrant what specific offence may have been committed. The police must, however, inform the magistrate of this detail within forty-eight hours of the application for a warrant. Although the kind of property to be seized must be specified in the warrant, the police nonetheless may seize property which they believe on reasonable grounds to be -

• tainted property in relation to the offence even if it is not specified in the warrant;
• tainted property in relation to another offence; and
• anything believed on reasonable grounds to be able to afford evidence of the commission of ‘a criminal offence.

§   Search without warrant

The circumstances in which the police can lawfully carry out searches without warrant are set out in s 51 CPEA.

 

Before the police may lawfully search without warrant and seize items during that search two conditions must be satisfied, namely -

• the police officer seizing the items must believe on reasonable grounds that a warrant would be issued to him by the appropriate authority if he applied for one; and
• he must believe, on reasonable grounds, that delay in obtaining a warrant would prevent the seizure.

 

See Chizano v Commissioner of Police HH-392-88; Associated Newspapers of Zimbabwe (Pvt) Ltd v Madzingo NO & Anor HH-157-03.

 

The police also have powers to search without warrant under s 28 of the Serious Offences (Confiscation of Profits) Act [Chapter 9:17]. They may go onto land or into premises and search for and seize "tainted property" without warrant if they believe on reasonable grounds that this course is necessary to prevent the destruction or loss of the property and the circumstances are so serious and urgent as to require an immediate search.

 

§   Seizure of articles without warrant

In Chinjayani v Minister of Home Affairs & Ors 2010 (1) ZLR 280 (H) the court pointed out that the seizure of an article without a warrant in terms of s 51(1)(b) CPEA must satisfy the two requirements of subparas (i) and (ii). The officer effecting the seizure must on reasonable grounds believe that a warrant would be issued to him in terms of s 50(1()(a) if he applied for one; and that the delay in obtaining a warrant would prevent the seizure. Even if the officer has reasonable grounds for believing that a warrant would be issued, he must also, if the seizure is to be lawful, explain the effect of the delay in seizing the article while awaiting the issuance of a warrant of seizure. If the issue of the effect of delay is unexplained, the seizure cannot stand. If the seizure is to take place by virtue of a warrant, the warrant must, in terms of s 50(1) of the Act, be issued before the article is seized. The police officer must in those circumstances ascertain from the warrant the extent of the authority it gives him. A warrant does not have retrospective effect; the issue of a warrant after the article has been seized cannot legitimize the seizure.

 

In Chigwada v Commissioner-General, ZRP & Ors HH-69-11 the applicants were the registered owners of a particular vehicle. The vehicle was the subject of an investigation into an alleged fraud committed by the seller on two other parties before. It was seized by the police as exhibit evidence in terms of section 49 CPEA and placed in police custody. At the time of seizure the vehicle was at a garage undergoing repairs. The applicants sought the release of the vehicle contended that there was no legal basis for the police to interfere with their possession and ownership of the vehicle. The court held that the applicants failed to discharge the onus of proving that the police acted outside the law.

 

In Gonese & Anor v Commissioner of Police & Ors HH-54-12 the court decided that X who had been acquitted and no appeal was pending was entitled to the articles seized to be used as exhibits at his trial.

 

—           Constitutional provisions on rights of arrested or detained persons

Section 50(1) of the Constitution provides that a person arrested or detained must:

 

• be informed at the time of arrest of the reason for the arrest;
• be permitted, without delay—

• at the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and
• at their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice;

            and must be informed of this right promptly;

• be treated humanely and with respect for their inherent dignity;
• be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and
• must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.

 

Section 50(4) provides that a person who is arrested or detained for an alleged offence has the right—

• to remain silent;
• to be informed promptly of their right to remain silent and of the consequences of remaining silent and of not remaining silent;
• not to be compelled to make any confession or admission; and
• at the first court appearance after being arrested, to be charged or to be informed of the reason why their detention should continue, or to be released.

 

Section 50(5) provides that a person who is detained, including a sentenced prisoner, has the right—

• to be informed promptly of the reason for their being detained;
• at their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;
• to communicate with, and be visited by a spouse or partner, a relative, the person’s chosen religious counselor, the person’schosen legal practitioner, the person’s chosen medical practitioner and subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of the person’s choice;
• to conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment;
• to challenge the lawfulness of their detention in person before a court and, if the detention is unlawful, to be released promptly

—           Clients held in custody by police

§   Lawful arrest

Defence lawyers must know what constitutes a lawful arrest so that they can take appropriate action where their clients have been unlawfully arrested and detained.

 

In cases of arrest without warrant, a person can only be lawfully arrested in connection with a criminal offence if the offence is committed in the presence of the arresting officer or if the arresting officer has a reasonable suspicion that the person has committed or is about to commit a criminal offence. Where an arrest warrant has been obtained, however, by one police officer, it can be lawfully executed by another officer, even though the second officer may not himself know the basis upon which the warrant was issued and thus cannot say that he reasonably suspected that the person he was arresting had committed an offence.

 

The circumstances in which a person may lawfully be arrested by a peace officer without warrant are set out in s 25 CPEA. They include cases where the person arrested has committed or has attempted to commit a crime in the presence of the peace officer arresting him and where the peace officer has reasonable grounds for suspecting that the person has committed any of the offences contained in the First Schedule. The offences in the First Schedule are statutory offences where the maximum prescribed punishment is imprisonment for more than six months without the option of a fine.

 

If the person making an arrest without warrant does not have a reasonable suspicion that a crime has or is about to be committed, the arrest is illegal and the lawyer representing the arrested person can apply to the High Court for the immediate release of that person. See s 13(2)(e) of the Constitution of Zimbabwe. The arresting officer and the Ministry of Home Affairs should be cited as the respondents.

 

Reasonable suspicion is not the same as proof beyond reasonable doubt. What is required is that the person making the arrest must have information on the basis of which a reasonable person would hold a suspicion that the person to be arrested had committed or was about to commit the criminal offence: Purcell-Gilpin 1971 (1) RLR 241; Miller 1973 (2) RLR 387; Moll v Commissioner of Police & Ors 1973 (1) ZLR 234 (H); Allan v Minister of Home Affairs 1985 (1) ZLR 339 (H); Bull v Attorney-General & Anor 1986 (1) ZLR 117 (S); Gwenyure v Minister of Home Affairs HH-702-87; Attorney-General v Blumears 1991 (1) ZLR 118 (S); Feldman v Minister of Home Affairs S-210-92; Gous v Minister of Home Affairs & Ors 1992 (2) ZLR 142 (H); Muzabazi v Jambawu & Ors 1992 (2) ZLR 314 (H).

Even if there was reasonable suspicion, the police have the discretion whether or not to arrest. If, in the circumstances, the arrest was not justified the arrest will still be unlawful and the arrested person will be entitled to claim delictual damages. The exercise of this discretion to arrest may be interfered with when exercised grossly unreasonably. In Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S) it was held, that although the police officer was authorised to arrest the appellant, he had a discretion as to whether to do so or not; the power of arrest is not intended always, or even ordinarily, to be exercised. Further, the principles applicable to administrative law applied: that the court would have to find that the exercise of the discretion 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. Some of the considerations to be taken into account in determining whether an arrest is open to challenge are the possibility of escape, the prevention of further crime and the obstruction of police enquiries. On none of these grounds could the exercise of the discretion be justified in Muzonda’s case. In Paradza v Minister of Justice & Ors S-46-03 the Supreme Court held that there had been an abuse of discretion which was unconstitutional on the basis that it violated ss 13 and 18 of the constitution- right to liberty and to protection of the law. See also Botha v Zvada & Anor 1997 (1) ZLR 415 (S); Nyatanga v Mlambo NO & Ors 2003 (1) ZLR 508 (H).

 

The onus is upon the person making the arrest to prove that the arrest was lawfully justified: Stambolie v Commissioner of Police 1989 (3) ZLR 287 (S).

 

Arrest warrants are issued in terms of s 33 CPEA. The person applying for the warrant of arrest must state that from the information available to him, he has reasonable grounds for suspecting that the person he wishes to arrest has committed a certain specified offence. A person who has been arrested by virtue of a warrant is entitled to be shown the warrant (s 34(2) CPEA); this means that the person’s lawyer is entitled to see it too.

 

§   Unlawful detention of child with parent

In Chiramba & Ors v Minister of Home Affairs & Ors 2008 (2) ZLR 269 (H) the police had detained a child together with the parent and had held the parent and child for some two weeks. The court held that the detention of the child was illegal. The court pointed out that Zimbabwe was also a signatory to the Convention on the Rights of the Child and accordingly it must be seen, through the acts of its public officials, to be protective of the rights of the child. Article 16 of the Convention provided that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. Neither the Criminal Procedure and Evidence Act nor the Childrens Act provided for a child in a situation like this; they dealt with young persons suspected of having committed criminal offences. The Prisons Act made provision in s 58 for dealing with the unweaned child of a female prisoner. Section 84(1) of the Children's Act did not expressly address the plight of a baby taken by police who have arrested its mother but the prohibition against detention of minors is implied in this section. The conduct of the respondents in this case did not in any way uphold this international obligation to protect and promote the rights of the child. To subject a two year old to the rigours of detention simply on the grounds that its mother may have committed some criminal offence is totally unconscionable and immoral, made worse by the denial of basic rights to the mother.

§   Maximum period of custody

Criminal defence lawyers must know the maximum periods that the police can hold their clients after they have arrested them. They must note that there are special provisions for prolonged detention of persons who are charged with offences in the Third and Ninth Schedules to CPEA.

The maximum period for which a person can be held after arrest or detention before that person must be brought before a court of law is now provided for in section 50(2) of the Constitution of Zimbabwe. The relevant provisions are as follows:

50(2) Any person who is arrested or detained—

(a) for the purpose of bringing him or her before a court; or

(b) for an alleged offence;

and who is not released must be brought before a court as soon as possible and in anyevent not later than forty-eight hours after the arrest took place or the detention began,

as the case may be, whether or not the period ends on a Saturday, Sunday or public

holiday.

(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention hasearlier been extended by a competent court.

 

This provision applies to both arrests and detention with warrant and arrests and detention without warrants.

 

These constitutional provisions are now incorporated into the CPEA as a result the the Criminal Procedure and Evidence Amendment Act, Act     of 2016. The new provisions follow verbatim the constitutional provisions:

 

Section 32 (3) of the Act now reads:

“Any person who is arrested or detained—

a) For the purpose of bringing him or her before a court, or

b) For an alleged offence;

and who is not released must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on Sunday or a public holiday.”

 

 

In Chiramba & Ors v Minister of Home Affairs & Ors 2008 (2) ZLR 269 (H) the applicants, all activists in the main opposition party, were detained by the police. For some two weeks the applicants were kept incommunicado. They had no access to their lawyers for nearly two weeks. They were not informed of the reason for their arrest, and enquiries by their lawyers were met with denials that the applicants were in police custody at all. The applicants sought orders (a) declaring their arrest and continued detention unlawful; (b) requiring the respondents and all those acting through them or on their behalf to permit applicants access to medical treatment at medical centres of their choices; and (c) directing the respondents produce the applicants before a High Court judge in chambers within two hours of the order being made or, alternatively, to take the applicants for a remand hearing at the magistrates court by a stated time, failing which the respondents should forthwith release all the applicants from custody.

 

The court held that Zimbabwe is a signatory to the International Covenant on Civil and Political Rights. As a state party to this treaty, Zimbabwe is bound by the obligations flowing from the treaty, which deals, inter alia, with the rights of persons who have been arrested and detained on criminal charges. The treaty places two types of obligations on states: firstly, the duty to respect and ensure human rights and, secondly, the duty to guarantee that those same rights are respected. The first set of obligations is both positive and negative in nature; on the one hand the state must refrain (whether by act or omission) from violating human rights; and on the other the state must ensure that, through the adoption of whatever means necessary, such rights can be actively enjoyed. Section 13(3) of the Constitution guarantees the rights of persons who have been detained, and s 32(2) CPEA requires that a person who has been arrested must be brought before a judge or magistrate within 48 hours. The respondents had denied the applicants the protection of the law. Their conduct in doing so should be deprecated.

·  Arrest with warrant

Where the person is arrested on the basis of an arrest warrant, he must be brought as soon as possible to a police station or a charge office unless the warrant specifically authorises that he be taken to some other place: s 34(3) CPEA

 

Thereafter he must be brought as soon as possible before a judicial officer upon the charge mentioned in the warrant: s 34(3) CPEA.

·  Arrest without warrant

Where a person is arrested without warrant he must be taken as soon as possible to a police station or a charge office and if he is not released, he may not be detained for more than forty-eight hours. However, the detention can be extended beyond this period if a judge, magistrate or justice of the peace issues a warrant for further detention: s 32(2) CPEA. The CPEA does not specify the duration of such a warrant.

 

In Makwakwa 1997 (2) ZLR 298 (H) the court observed that the Constitution requires that an arrested person be brought before a court without undue delay. This is the guiding principle in determining what power the police may have to detain a person before his first appearance in court. The fact, though, that the person arrested may be detained does not mean that he should be detained. Just as the exercise of the power to arrest is open to challenge, so the decision whether or not to hold him for the maximum period permissible under the Act or whether to permit his further detention without bringing him before a magistrate is likewise open to scrutiny. Delay in bringing a detained person before a magistrate will only be countenanced where that delay is excusable on some objective ground. The ground might relate to physical difficulties in presenting the person in a court, or it might relate to a legitimate, genuine and justifiable decision to use to the fullest extent the discretionary powers vested in the police by the law.

 

In the case of Nyamhoko & Ors v OC ZRP Manicaland Province & Ors HH-37-06 the applicants were arrested by the police on allegations of committing offences under the Public Order and Security Act. They were maltreated while in custody and denied access to their legal practitioners. State counsel who tried to intercede were threatened by the police and had to flee the district. The applicants sought a declaratur that their detention, which had been for more than 48 hours, was unlawful, as well as an order for the return of property taken from them. No warrant for further detention was shown to the court. The court held that where an applicant has been held beyond the 48 hour period, it is competent to declare the whole detention period illegal. Even assuming in favour of the respondents that somewhere in their offices warrants for further detention lay unattended, the facts before the court required that the detention be declared illegal.

 

The provision for obtaining a warrant for further detention is open to abuse as the police can obtain this warrant without even having to appear personally before a magistrate and without taking the prisoner before the magistrate by applying to a justice of the peace who is a police officer, or obtaining authorization for further detention from a magistrate. On occasions it has apparently been used as a device for keeping the prisoner incommunicado for extended periods without access to his lawyer or relatives and without access to the courts to apply for bail. If the police are using these provisions in an abusive fashion, an urgent application can be made to the High Court for a court order to oblige the police to take the arrested person before a court so that the case can be properly remanded and an application for bail can be made. Although the provisions are not entirely clear on this point, it was surely not envisaged that the 96 hour upper limit for bringing a person arrested without warrant before a court can be completely circumvented by relying upon the provisions relating to further detention. The police officer who has denied access and the Ministry of Home Affairs can be cited as respondents in this action.

§   Special provisions for offences in Third and Ninth Schedules

 

Defence counsel should be aware of the fact that there are special provisions for prolonged detention of persons who are charged with offences in the Third and Ninth Schedules of CPEA. These apply both to persons arrested with warrant and those arrested without warrant.

 

If the charge is for an offence specified in paragraph 10 of the Third Schedule (i.e. certain offences under the Public Order and Security Act) and the judicial officer is satisfied that there is a reasonable suspicion that he has committed the offence, he must order the continued detention of that person for a period of 21 days: s 34(4)(a) CPEA (with warrant) and s 32(3a) CPEA (without warrant). These two sections are not easy to interpret, since the Third Schedule was replaced in 2006 and the new Schedule has no paragraph 10; furthermore, the offences under POSA have since been repealed and re-enacted in CLCA.

 

If the charge is for any offence in the Ninth Schedule, the Prosecutor-General may produce a certificate that the offence in question involves significant national interest of Zimbabwe and further detention for a period up to 21 days is necessary because of the complexity of the case, and/or the difficulty of obtaining evidence in relation to the offence, and/or the likelihood of X concealing or destroying evidence relating to the offence. Where such a certificate is produced and the judicial officer is satisfied that there is a reasonable suspicion that X committed the offence, he must order the continued detention of X for a period of 21 days or the lesser period specified in the Prosecutor-General’s certificate: s 34(4)(b) CPEA (with warrant) and s 32(3a) and (3b) (without warrant). However, with arrest without warrant there are certain requirements in addition to the Prosecutor-General’s certificate. The arresting officer must be an officer of or above the rank of assistant inspector at the time of the arrest and, where the arrest was disclosed through an anonymous complaint, a copy of the recorded complaint must be laid before the judicial officer.

 

No court may admit to bail any person detained for 21 days under the provisions above: 34(5) CPEA and s 32(3c) CPEA.

 

Where X is detained for 21 days under these provisions, the arresting officer must make periodic reports at intervals of not more than 48 hours to the Prosecutor-General on the progress of the investigations. If the Prosecutor-General believes on the basis of such a report that X’s detention is no longer justified, he may order the immediate and unconditional release of the person: 34(5) and 32(3c) CPEA.

 

Within 48 hours of the expiry of the 21 day detention period the detaining authority may obtain an order or warrant for further detention of such person pending the outcome of their criminal investigations. However, X will still have the right to apply for bail: s 34(6) and s 32(3d) CPEA.

 

§   Helping police with inquiries

 

Sometimes the police will say that the person in their custody has not been arrested but is simply "helping the police with their inquiries." In fact this person may often be a criminal suspect and the police will be using the subterfuge that he is "assisting them in their inquiries" in order to allow them to hold and interrogate this person beyond the maximum periods laid down. There is no provision made for this procedure in the Criminal Procedure and Evidence Act. There is only s 26 which allows the police to arrest a person without warrant and to hold him for up to twelve hours if the suspect refuses to furnish the police with his name and address or gives a name and address which appears on reasonable grounds to be false.

§   Locating client

 

Lawyers may be engaged to represent persons who are in police custody and who have not yet been brought to court. In order for lawyers to protect the interests of persons in custody, it is imperative that access to their clients is obtained as soon as possible.

 

Usually there will be no difficulty in finding out where the client is being held. He may have telephoned from a particular police station and asked the lawyer to come to the station where he is being held.

 

Where a relative or spouse of the arrested person engages a lawyer to represent the arrested person, this person may have been told to which police station the arrested person was being taken or he may have asked from which police station the arresting detail came. He may have information at which police station the arrested person is being held. If the arrested person is being held at a large city police station, the client should be asked if he or she knows the name of the investigating officer, his section and the number of his office. The client may be able to find out this information for the lawyer. This information is helpful to the lawyer and saves time and thus will reduce the fees charged.

 

There are, however, situations where the person engaging the lawyer on behalf of the arrested person has no idea where the arrested person is being held. Often arrests take place in the early hours of the morning. The family may be upset and have no clear knowledge of where the person has been taken. If the person engaging the lawyer was present at the place where X was picked up, the first thing to find out is whether members of the arresting detail were in police uniform or in plain clothes. If they were in plain clothes it is likely that it was a C.I.D. or C.I.O. arrest. The lawyer should also find out if it is known for what sort of crime the person arrested was picked up.

 

If it is known that the arrest was made by the uniformed branch of the police, these sorts of procedures should be followed to try to locate the arrested person. In smaller centres it is usually a fairly straightforward matter to locate the client as there will be only a limited number of police stations where he could be held. The main police station in that area is the logical starting point for inquiries. Even if the prisoner has been transferred from the small centre to one of the larger centres for questioning, the local station will know where he has been taken and will usually give the lawyer this information.

 

In larger centres ascertaining at which police a client is being held may sometimes be more problematical. The best starting point is to check with the Controller or Member-in-Charge at the Central Police Station in order to find out whether your client is being held at that station. Many of the people arrested are taken to the Central Police Station first, especially if they are arrested for more serious crimes. If the client is not there, the Controller or Member in Charge should be asked if he has or is able to find out any information as to where the client is being held. If this proves unsuccessful and the exact place where the client was arrested is known, a check should be made at the police station closest to where the arrest took place. If this does not produce positive results then Police Headquarters should be contacted to obtain information. It should be borne in mind that where an arrested person is being held in police custody, his name and details are recorded in the custody or detention book.

 

Where the persons effecting the arrest were in plain clothes the arrest was probably made by the C.I.D. or the C.I.O. If you know the nature of the crime for which the arrested person was arrested this will help to indicate which unit would have made the arrest. If it is fraud or a currency contravention, it is likely to be C.I.D. fraud squad. If it is a security related matter it may have been the C.I.O. or the Law and Order Section of the C.I.D. If it is a homicide case the case will be in the hands of the homicide squad. Both the C.I.D. and the C.I.O. will usually have sections at the main police station and inquiries may be made to the persons in charge of these sections.

 

In the past, in some security cases, the police or the CIO have deliberately moved persons in custody around various remote police stations in order to make it difficult for legal practitioners to locate their clients. If this happens the best thing to do is to contact Police Headquarters or the CIO Headquarters and insist that whereabouts of your client be revealed. If this fails, you may have to seek a High Court order to force the authorities to reveal where your client is being held in custody. The Minister of Home Affairs should be cited as respondent in such an action.

 

Where the CIO have their own sections at police posts, the CIO usually do not reveal details of their arrests to the ordinary police and thus inquiries to the ordinary police will prove fruitless. Direct inquiries to the CIO itself will have to be made.

 

It should be borne in mind that it is not only police officers who have powers of arrest. The other persons who have powers of arrest are listed in the Criminal Procedure and Evidence (Designation of Peace Officers) Notice of 1990 (SI 130 of 1990). For example, immigration officers and, in certain circumstances, officers and inspectors in the Department of Parks and Wildlife have powers of arrest.

§   Ascertaining the charge

 

Having located the client, the client should be visited at the police station or other place of detention as soon as possible. On arrival at the police station the first thing to do is to find out who is the investigating officer and to find out from him what offence the police suspect the client of having committed. If the investigating officer is unavailable, the lawyer should speak to the member-in-charge about this. If the arrest was done on the basis of an arrest warrant, the lawyer should ask to see the arrest warrant as this will specify the charge. If the arrest was without warrant, in terms of s 32(5) CPEA the police must inform the person arrested forthwith of the cause of his arrest. The lawyer must ask the police why the client was arrested without warrant.

 

It is important that the lawyer finds out as much as possible about the charge and the basis thereof from the police so that when he interviews his client he can discuss the State case with him and compare the client's version with the State case, as far as it is known.

 

Note that section 50(1)(a) of the Constitution provides that your client must have been informed at the time of his or her arrest of the reason for the arrest. Section 70(1)(c) of the Constitution also provides that a person accused of a criminal offence has the right to be informed informed promptly of the charge, in sufficient detail to enable the person to answer it.  In terms of section 70(2) this information must be given in a language the person understands and if the person cannot read or write, the document containing the information must be explained in such a way that the person understands it.

 

§   Access to client

 

Having found out from the police why the client was arrested, the next stage is to obtain access to the client. The client has a right to access to his lawyer and the lawyer has a right to access to his client:  Slatter & Ors 1983 (2) ZLR 144 (H).

 

Should the police or other detaining agency refuse to allow the legal practitioner to speak to his client, an urgent application should be made to the High Court compelling the police or other agency to allow access by the lawyer to his client. Section 13(3) of the Constitution lays down that an arrested person must be permitted to see his lawyer without delay.

 

Sometimes, where the lawyer attempts to gain access to his client over a weekend, the police will say that access cannot be allowed until the investigating officer or a more senior officer gives his permission and that that officer is not presently on duty and it will only be possible to contact him on Monday. It is legally impermissible to deny access on these grounds. This should be pointed out to the police and the lawyer should insist that he be able to interview his client without delay.

 

If the police insist on knowing the name of the person who instructed you to seek access to the prisoner and refuse to allow you access to the prisoner unless this information is revealed, you must be in a position to deal with this situation. You must ask the person instructing you whether he is prepared to have his name and address revealed to the police.  It would seem, however, that the police actually do not have the right to demand revelation of the name of the person who has instructed you. 

§   Presence of legal practitioner when warned and cautioned statement recorded

 

If the client has decided to make a warned and cautioned statement and has instructed his legal practitioner to be present when he makes this statement, the legal practitioner is legally entitled to be present when this statement is being recorded.

§   Interviewing client

 

The main purpose of the interview of the client at the stage when he is still being held by the police will usually be to find out whether the police have reasonable grounds for holding the client in custody and, if they do, to ensure that the client is not held beyond the maximum period allowed by law for holding a person without bringing him before a court of law. The lawyer will also need to obtain relevant details to enable him to make a bail application when the client is brought before a court for remand. This will apply especially where the client is likely to be charged with a serious crime and where it is likely that remand in custody will be sought by the State (i.e. it will oppose bail.).

 

The lawyer has a right to interview his client in private without any police officer or prison officer present. The police cannot insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.

 

During this interview the lawyer must find out all relevant information including:

• the client's response to the allegations levelled against him;
• the names of the officers who arrested him and that of the investigating officer;
• what the arresting detail said to him at the time of the arrest;
• what questioning, if any, the client has been subjected to since he was arrested and by whom the questioning was done;
• whether he has made any sort of statement and, if he has, what sort of a statement it was and what its contents were (i.e. was it made orally or was it a handwritten statement; was it a warned and cautioned statement which was typed and read over to him before he signed it; has the statement been confirmed before a magistrate? etc.)
• if a statement has been made, whether it was made freely and voluntarily (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.) If a medical practitioner has already given medical treatment to his client, the lawyer should ask the police for a copy of the medical report.

 

When interviewing a client, whether or not he or she is in custody, the lawyer must be careful not to concoct a defence for the client.  The lawyer must find out what the client’s story is — that is to say, what the client alleges are the facts of the case — and the lawyer may suggest possible defences for the client which are supportable on the basis of those facts.  But it is most unethical for a lawyer to invent defences for a client that go beyond the facts disclosed by the client.

 

Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to allow him to see this recorded statement and he should request that he be provided with a copy of this statement.

§   Taking items to client

 

The considerate lawyer will take to his client who is in custody some items to make his time in custody more comfortable, if these items can be made available by the client's spouse or relatives. The lawyer can take his client some food, some clothing such as a jersey or a track suit and some blankets. Any liquid refreshments that he takes his client such as orange juice must be in plastic containers as no glass containers are allowed to be given to prisoners. The reason for this is to prevent glass containers being used as weapons or to commit suicide. The client is entitled to receive such items whilst he is in police custody and in custody at the prison on remand. Although relatives can also take these items to the prisoner, it is often easier for the lawyer to ensure that they reach his client. The police and the remand prison authorities will allow the prisoner to receive such items.

§   Advice on statements to police

 

Where the client has not yet made a statement to the police, the lawyer, having listened to what his client has to say, will have to decide on what advice to give his client about making a statement. In general terms the client should not be rushed into making a statement before careful consideration has been given to the matter.

 

The defence lawyer will obviously advise the client to make a statement in circumstances where a statement will be beneficial to his client's interests. An innocent person will clearly proclaim his innocence at the outset and the failure not to so proclaim it will look suspicious. Adverse inferences may be drawn from such failure at a later juncture. If it seems clear to the lawyer that his client is innocent and that his innocence can be very easily established by, for instance, checking an alibi, it is sensible that the client makes a statement as soon as possible so that the client's story can be investigated and the matter can be cleared up and the client can obtain his release.

 

It may appear that the client has a defence to the charge and it will obviously assist in establishing the defence in court if the client makes a statement to the police at an early stage, setting out the details of this defence.

 

If the client wishes to confess his guilt and the lawyer is satisfied, on the basis of his instructions, that the client is guilty of the crime charged and that it is to his advantage to make such a confession, the lawyer will advise him to make a statement to that effect.

 

The lawyer will often advise the client to allow the lawyer to draft the statement based on the client's instructions so that the statement is carefully worded and sets out the client's case clearly and in logical sequence and includes only relevant detail. The lawyer would then inform the police that he is preparing a statement which his client will sign and hand over to the police. The client should also be told that should the police seek to obtain a statement from him, he should inform them that his lawyer is compiling a statement for him and that it will be submitted in due course.

 

The client may wish his lawyer to be present when his statement is recorded so that he can act as a witness to this process or the lawyer may advise him that it would be advisable that he, the lawyer, be present when the statement is recorded. In these circumstances, the lawyer is legally entitled to be present when the statement is recorded. Before leaving the police station the lawyer should inform the appropriate police authority of his client's instructions and insist that he is to be summoned before any such statement is recorded. As quickly as possible the lawyer should also confirm in writing that he has been instructed to be present at the recording of the statement and that he must be informed when the statement is to be recorded so that he can be present. A letter to this effect should be addressed to the officer in charge of the investigations or to the member-in-charge of the police station.

 

After the police have been so notified it would be improper conduct for them to record a statement in the absence of the lawyer.

 

In some cases it may be better for the client not to make any statement at all to the police. This would be the case where, for instance, from the information to hand it seems that the police have no evidence of the commission of the alleged crime against the client and that they are hoping to construct their case around incriminating statements from X.

§   Maltreatment of client by police

 

If, when the lawyer interviews his client in custody, he discovers that his client has been subjected to physical mistreatment in order to force him to confess, he should complain immediately about this to the Member in Charge of the police station and demand that his client be medically examined as soon as possible. If a medical examination is refused, the lawyer should either take the matter up with Police Headquarters or make an urgent application to the High Court for an order obliging the police to have the prisoner medically examined. It is particularly important that the client be medically examined as soon as possible where he has already made an incriminatory statement as a result of the alleged mistreatment.

 

There may be instances where, on information received, the lawyer believes that his client who is in custody is being physically maltreated but his access to his client is being obstructed by the authorities. Here the lawyer will have to make an urgent application to the High Court to order that he be allowed immediate access to his client in order to check upon his physical condition.

 

The civil court will award substantial damages where a person has been tortured whilst in police custody. In Karimazondo & Anor v Minister of Home Affairs 2001 (2) ZLR 363 (H) a police officer and his wife were arrested on allegations of murder. The wife was tortured while in custody and suffered long-lasting physical and psychological effects, full details of which were disclosed in medical reports. The court held that the circumstances of the case were exceedingly grave and warranted a substantial award of damages. The actions of the police were in flagrant and reckless disregard of the rights of the persons concerned. The fact of the detention in itself created a hardship. The brutality and callousness with which the assaults were perpetrated on the woman instilled in any right thinking person a sense of horror and shock. The unlawful and inhumane treatment to which P1 was subjected to was totally unnecessary, vindictive and malicious. The court made an award which in money terms expressed its disapproval of the seriousness, brutality and humiliating effect of such treatment. The decline in the value of money in recent years was also taken into account.

 

In Reza & Anor HH-02-04 the court strongly condemned the practice of torture by police officers. The two police officers had tortured a criminal suspect by beating him on the soles of his feet. The officers were convicted of assault with intent to do grievous bodily harm. The court stated that the torture inflicted by the police officers called for severe censure in terms of punishment.

 

In Mukoko v Attorney-General S-12-11 the court also ruled that s 15(1) of the constitution prohibits absolutely torture or inhuman or degrading punishment or treatment. If a person is subjected to torture and inhuman and degrading treatment before being charged and prosecuted that person is not ipso facto entitled to stay of prosecution. The prosecution is lawful if it is based on evidence not obtained in violation of s 15(1) but the prosecution is not lawful if it is based solely on evidence obtained in violation of s 15(1). Note that section 53 of the 2013 Constitution provides that no person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment.

§   Release from police custody on police bail

 

One way to try to secure the immediate release of a client without having to wait for him to be brought to court is to seek to persuade the police to grant police bail. The police have the power to admit a person to bail without going through the courts in circumstances.

·  Who may grant police bail?

Only an assistant inspector or a person of higher rank or a policeman of any rank who is in charge of a police station may grant such bail.

·  When can police bail be granted?

In terms of s 132 CPEA police bail may be granted at times when a judicial officer is not available (e.g. in the evening or on a Sunday or a holiday). Such bail may only be granted for an offence which is not one of those specified in the Fifth Schedule.

 

The offences for which bail may not be granted by the police are:

•  
• Rape or aggravated indecent assault;
•  
• Assault in which a dangerous injury is inflicted;
• Malicious damage to property committed in aggravating circumstances;
• Unlawful entry into premises committed in aggravating circumstances;
• Theft, making off without payment, receiving stolen property, fraud or forgery if the amount or value involved exceeds $500 000
• Any offence under any enactment relating to unlawful possession or dealing in precious metal or precious stones;
• Contravening ss 20, 21, 22, 23, 24, 25, 26, 27 or 29 of the CLCA;
• Any conspiracy, incitement or attempt to commit any of the above offences.

·  Amount of police bail

Bail may be granted in an amount which the officer granting it fixes.

 

The police may, in certain circumstances, be prepared to release the client under an assurance from his lawyer that the client will appear in court as specified by the police.

 

It is very helpful for the lawyer to take steps before going to see his client which will facilitate the release of his client from custody. If possible he should obtain from the spouse or relatives of the client the client's passport and national identity card and should take these with him when he goes to see his client in police custody. The identity card will verify the client's identity if the police are still doubtful that the client has given the correct identity particulars to them. By taking the client's passport, the lawyer is in a position to tender the surrender of the client's passport to try to facilitate his release. If the client's spouse or relatives are prepared to hand over cash for bail the lawyer should take this cash with him when he negotiates with the police for release of his client on bail. It is also useful for the lawyer to ascertain if there are any persons of substance who are prepared to stand surety for his client. If there is such an available surety this may help to persuade the police to release the client. If the police refuse to release the client, the lawyer, when he applies for bail in court, should obviously know how much his client can raise for bail, either himself or through friends and relatives. When possible, he should have willing sureties available.

 

As regards juveniles (i.e. persons under the age of eighteen years) there is a special provision in s 135 CPEA. Where the juvenile has committed a crime other than treason, murder or rape and the police would have the power to grant police bail to him, the police may instead:

• release him without bail and warn him to appear in court at a specified time and place;
• release him to the care of a person in whose custody he is and warn the custodian to make sure that the juvenile is to court at a specified time and place;
• place him in a place of safety as defined in s 2 of the Children’s Act, pending his appearance in court or until he is otherwise dealt with by the law.

(A judge or magistrate also has these powers)

 

Where the police have arrested a person on the basis of an arrest warrant, he can still be released on police bail if the crime involved is one in respect of which police bail may be granted under s 132 CPEA. In terms of s 33(3) CPEA, an arrest warrant remains in effect until it is cancelled by the person who issued it or until it is executed. Thus after the warrant has been executed by arrest of the person named, the police have the normal powers to grant bail in such cases. Where, however, a warrant of arrest has been issued in order to bring a person before the court because he has failed to obey a summons or because he has breached bail conditions, then only the court which issued the warrant can revoke the warrant.

 

Where the client is facing grave charges and the case against him appears to be strong and thus the police had reasonable grounds for arresting the client and holding him for the period specified by law, it is poor strategy for the lawyer to adopt an aggressive approach to the police in an effort to try to secure his client's release from custody. Threats to take legal action against the police in these circumstances will hardly be helpful. The police will resist such efforts to force them to release the client and the behaviour of the lawyer will simply alienate and antagonise the police. The client's interests are far better served by seeking to engender a co-operative climate so that the lawyer can obtain full details of the case against his client so that he can prepare the defence case on the basis of full information.

§   Illegal detention

 

Section 50(7) of the Constitution provides that if there are reasonable grounds to believe that a person is being detained illegally or if it is not possible to ascertain the whereabouts of a detained person, any person may approach the High Court for an order—

• of habeas corpus, that is to say an order requiring the detained person to be released, or to be brought before the court for the lawfulness of the detention to be justified, or requiring the whereabouts of the detained person to be disclosed; or
• declaring the detention to be illegal and ordering the detained person’s prompt release;
• and the High Court may make whatever order is appropriate in the circumstances.

 

Section 50(8) provides that an arrest or detention which contravenes this section 50, or in which the conditions set out in this section are not met, is illegal.

 

Section 50(9) provides that a person who has been illegally arrested or detained is entitled to compensation from the person responsible for the arrest or detention, but a law may protect the following persons from liability under this section—

• a judicial officer acting in a judicial capacity reasonably and in good faith;
• any other public officer acting reasonably and in good faith and without culpable ignorance or negligence.

§   Remedy for unlawful arrest and detention

 

In Minister of Home Affairs & Anor v Bangajena 2000 (1) ZLR 306 (S) the Supreme Court stated that the deprivation of personal liberty is an odious interference and has always been regarded as a serious injury. The courts have properly taken the stance that deprivation of liberty through unlawful arrest and imprisonment is a very serious infraction of fundamental rights. Damages for this delict should therefore be exemplary and punitive to deter would-be offenders.

 

In Chituku v Minister of Home Affairs & Ors HH-6-04 the court stated that treatment of an arrested, detained or convicted person that affronts the dignity of that person or exceeds the limits of civilised standards of decency and involves the unnecessary infliction of suffering or pain is inhuman and degrading. If the High Court is satisfied that the actions complained of violate the rights of the plaintiff as granted under the Constitution, it can grant suitable relief to redress the injury. This is part of the inherent jurisdiction that the court enjoys. The plaintiff is not restricted to bringing an application under s 24 of the Constitution. The right to dignity is recognised in the Roman-Dutch law as an independent right that can be protected by the actio injuriarum, the actio injuriarum being wide enough to encompass any action that violates the corpus or dignitas of the plaintiff. Inhuman and degrading treatment affronts the dignity or self-respect of an individual and could found a claim. It seems that in an application under s 24 of the Constitution, the Supreme Court has the power to award damages.

 

—           Remands

§   Generally

 

A remand is requested by the State when it is not ready to bring a case to trial because police investigations are still taking place. The State will ask that X be remanded either in custody or out of custody. The magistrate may not order the postponement of a trial for a period in excess of fourteen days at a time without X's consent: s 165 CPEA. At the end of the fourteen-day period X can be remanded again for further periods of fourteen days until the State is ready to start the trial.

 

In terms of s 13(2)(e) of the Constitution, deprivation of a person's liberty on the grounds of the commission of a criminal offence is permissible only if there is a reasonable suspicion that he committed that crime. In terms of s 18(2) of the Constitution a person charged with a criminal offence is entitled to have his case tried within a reasonable time. This applies whether or not he is held in custody.

 

Where a legal practitioner goes to the courts to represent a person who is coming up for remand, he should check the records and visit the cells to make sure that his client has in fact been brought from the police station or remand prison to court on that day.

§   Reasonable suspicion

 

Where at the initial or subsequent remand the State is seeking the remand in custody of X, the court may only grant this application provided that there is a reasonable suspicion that X committed the crime with which he is being charged. In the case of Attorney-General v Blumears & Anor 1991(1) ZLR 118 (S) the following principles were laid down by the Supreme Court:

 

The State must allege facts that constitute a crime and justify a reasonable suspicion that the accused committed the crime. The accused's lawyer may submit that the State has not alleged such facts or may lead cogent evidence which obliges the magistrate to reject those facts. The remand procedure is an important protective process to ensure the finding of a reasonable suspicion by someone independent of the police and prosecution. The hearsay rule and cross-examination of witnesses do not apply. Statements can be made from the bar by legal counsel. Although the onus is on the State, it does not have to show guilt beyond reasonable doubt or on a balance of probabilities. The court cannot reject State allegations simply because they seem to be of doubtful validity.

 

In Blumears the appeal court said that the prosecutor must be as open and forthright as possible when advising the remand court of the facts relied on. It can be very difficult for the prosecutor to decide what to reveal and what to conceal in sensitive investigations which X might interfere with, but he should never conceal facts simply to hinder the defence and must ensure that he alleges enough to implicate X.

 

In Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (S), it was held that in order to justify the applicant’s deprivation of freedom on the grounds of reasonable suspicion that he had committed an offence, it was not necessary to establish his guilt beyond a reasonable doubt or even on the balance of probabilities. The test was the same as that for arrest without a warrant. There had to be sufficient information to warrant a prudent person in suspecting that the applicant was legally responsible for the alleged offence.

 

In Williams & Anor v Msipha NO &Ors 2010 (2) ZLR 552 (S) the Supreme Court dealt with the requirements for remand. It pointed out that under s 13(2)(e) a person may only be deprived of his or her liberty where there is a reasonable suspicion of that person having committed a criminal offence. The judicial officer must, therefore make a finding that the facts on which the charge laid is based provide ground for a reasonable suspicion that he or she has committed that offence. Where the accused challenges the legality of the charge on the ground that the offence itself was not committed, the onus is on the State to first show that, if proved at the trial. The facts on which the charge is basedwould constitute the offence charged. Only then would the question arise whether the facts provide grounds for a reasonable suspicion that the accused committed the offence. The magistrate was required to take into account the essential elements of the offence and the offence and the conduct which, if proved at the trial, would constitute the offence charged. He was required to apply the knowledge of the statute to the conduct actually committed by the accused and decide whether it constituted the prescribed conduct.

 

If the defence lawyer alleges that there is no case against his client and therefore that there is no basis for remanding him, the court may only remand X if it is satisfied that there are reasonable grounds for the remand. The remand magistrate should obtain information from the prosecutor justifying the existence of a reasonable suspicion on the initial remand, and the prosecutor must satisfy the court that there is still a reasonable suspicion against him at all subsequent remands.

 

—           Adequate time and facilities to prepare a defence

 

Section 70(1)(b) of the Constitution provides that a person accused of a crime has the right to be given adequate time and facilities to prepare a defence. This provision obviously encompasses the right for the client’s defence lawyer to be given adequate time to prepare the defence and to request a postponement of the case where more time is reasonably required to prepare the defence.

 

—           Unreasonable delay in bringing for trial

 

Section 69(1) of the Constitution provides that everyone accused of a criminal offence is entitled to a fair hearing within a reasonable time before an independent and impartial court. (Section 18(2) in previous Constitution.)

 

Section 50(6) of the Constitution provides that a person who is detained pending trial for an alleged offence and is not tried within a reasonable time must be released from detention, either unconditionally or on reasonable conditions to ensure that after being released they—

• attend trial;
• do not interfere with the evidence to be given at the trial; and
• do not commit any other offence before the trial begins.

 

(These provisions were found in s 13(4) of the previous constitution.)

 

Section 160(2) CPEA provides that if X is not brought to trial after the expiry of six months from the date of his committal for trial, his case shall be “dismissed”. This provision is meant to protect accused persons from being unreasonably kept under committal for trial for longer than six months when the trial has failed to take place during that period, as well as to ensure that the Prosecutor-General ensures that trials of accused persons committed for trial are expeditiously conducted.” In Mukuze & Anor v A-G (2) HH-17-05 the court decided that the six-month period mentioned in s 160 could be interrupted (a) if X is through circumstances beyond the control of the Prosecutor General not available to stand trial or (b) if the Prosecutor-General has in terms of s 108 ordered a further examination to be taken.

 

It is the responsibility of the magistrate hearing applications for initial and further remands to ensure that the Constitutional provisions are observed. In terms of s 69(1) of the Constitution every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.

 

It is the duty of the remand court to decline to grant requests from the State for further remands when unreasonably long periods of time have elapsed since X was first charged. It must ensure that the State proceeds to trial within a reasonable time: Bull v Minister of Home Affairs 1986 (1) ZLR 202 (S). The responsibility of the court to prevent unreasonable delays is a continuing one. At each further remand the progress of the investigations should be checked. If at the last remand the State has asked for further time so that the police can locate a missing witness or carry out some further investigations and the State is now applying for a further remand on the basis of the same reason advanced previously, the court should obviously check that the police have been vigorously attempting to deal with these matters.

 

Even where X is out of custody pending trial, the State is nonetheless obliged to ensure that the case is brought for trial within a reasonable time. Where X is in custody it is obviously even more important that the case be brought for trial within a reasonable time. The responsibility of the court to prevent unreasonable delays is a continuing one. At each further remand the progress of the investigations should be checked. If at the last remand the State has asked for further time so that the police can locate a missing witness or carry out some further investigations and the State is now applying for a further remand on the basis of the same reason advanced previously, the court should obviously check that the police have been vigorously attempting to deal with these matters.

 

Not only at the first remand but at each subsequent remand the remanding magistrate must note in the record why X is being remanded.

 

The court has the primary responsibility for the protection of the right of the unrepresented accused to a speedy trial because an unrepresented accused who is unfamiliar with the criminal process will be likely to be unaware of his rights to be tried within a reasonable period. The court before whom the unrepresented accused is brought must take the initiative to ensure that the constitutional right of X to a speedy trial is not violated. It should not wait for X to raise a complaint of a violation of his constitutional right and to ask the court to deny any further remands. The court should probe the reasons for any apparently undue delays and, where no satisfactory explanations are forthcoming, it should take appropriate action. At very least, it would be expected that the court would inform X of his rights. But the informing of such an accused of his rights should not be seen as been a sufficient safeguarding of X’s rights. Even after being given such information, he may still be ignorant about what remedies he has and how he should go about raising this issue. The undefended accused may still lack the ability to assert those rights. He may be inarticulate, nervous and overawed when he appears in court. If he is in custody, he may be worried about the consequences of raising complaints about undue delays in bringing the case to trial. The court has the power to require explanations for the delays from the prosecutor which X is not. See Tao HH-182-96; Msindo HH-63-97; Chakwinya 1997 (1) ZLR 109 (H).

 

The remand court therefore should not go on granting requests for further remands when an unreasonably long period of time has elapsed since X was first charged. It should seek to ensure that the State proceeds to trial within a reasonable period of time. Bull v Minister of Home Affairs 1986 (1) ZLR 202 (S).

 

In Dube & Anor 1989 (3) ZLR 245 (S) the court said that for justice to be seen to be done, the machinery of justice, as it grinds through police stations, the Prosecutor-General’s Department and the courts of justice, must move expeditiously. In this case, where the accused spent over 4 years out of prison awaiting trial and the hearing of their appeals, it was held not to be in the interests of justice to send them to prison.

 

In Ruzario 1990 (1) ZLR 359 (S) X a police officer had been convicted of culpable homicide and sentenced to four months imprisonment with labour for killing three persons while driving negligently and under the influence of alcohol. There had been a delay of 4 years in bringing the case for trial. The appeal court declined to interfere with the prison sentence. Once it was apparent that the State was dragging its feet he ought to have taken appropriate steps to have asserted his right to have the matter dealt with within a reasonable period of time. He had not done so. In any event it was evident  from the magistrate’s judgment that he took into account the four year delay in his assessment of punishment and were it not for that feature, would have ordered the appellant to serve a far longer period of imprisonment. The appeal was dismissed.

 

In the case of Chakwinya 1997 (1) ZLR 109 (H) the court held that every person, deserving or otherwise, was entitled to the protection of s 18 of the Constitution, which includes the right to a fair trial within a reasonable time. The delay in this case had been extreme and the reason for it was inexcusable. The prejudice to the accused was such that had he been convicted and sentenced when he should have been, he would more than likely have been released by now. To impose the sentence that would normally be expected would be unconscionably prejudicial. It further held that it would be most inappropriate to hold against an unrepresented accused a failure to take assiduous steps to enforce his freedom. The accused was an unemployed communal land dweller who had never been advised of his rights. He was at the mercy of the system, and the system failed him. Elementary administrative checks would have revealed the accused’s plight.

 

In Kundishora 1990 (2) ZLR 245 (S) X was sentenced a prison term for fraud He appealed. The trial took place 3½ years after the discovery of the offence and the appeal was heard 10 months later. Dismissing the appeal against conviction and sentence, the court held that the delay in this matter should not be regarded as a mitigating factor in sentence because X did nothing to assert his right to be tried within a reasonable period and part of the delay was due to the appellant putting up a thoroughly dishonest defence, which had no prospects of success.

 

In Sibanda HH-78-94, there was a delay of almost 7 years before bringing X to trial: his lawyer asked the magistrate for a permanent stay of prosecution; this was refused; he asked for the decision to be reviewed by a Judge of the High Court before the trial proceeded on the grounds:

• that the magistrate had no jurisdiction to decide the issue; or
• that he should have found that X’s constitutional rights had been violated.

 

It was held that the High Court will only review criminal proceedings before they are completed in exceptional circumstances, which must be set out. The matter was therefore not properly before it. A magistrates court can decide on an application for a stay of prosecution itself unless either party asks it to refer the matter to the Supreme Court or if it considers the request for referral frivolous or vexatious. As it had not been asked to refer this case, its decision was competent. The lawyer could have asked the magistrates court to grant a stay of prosecution or alternatively to refer the matter to the Supreme Court. It was still open to him at the resumed hearing in the magistrates court to request that the matter be referred; as the case involved such a long delay, it could hardly be said to be frivolous or vexatious - the court would be obliged to refer it.

 

In Matapo & Ors 2010 (2) ZLR 120 (H) the applicants, having been arrested in May 2007, were committed for trial in June 2008. The matter was not set down for trial in spite of requests by the defence for various documents. In August 2008 an application relating to the constitutionality of the charges was heard; it was dismissed in November 2008 and the Supreme Court, to which the issue was then referred, rejected the constitutional application in December 2009. In March 2010 the applicants were notified of a trial date in June 2010. They brought an application for the dismissal of the case against them, arguing that, in terms of s 160(2) CPEA, they were entitled to have the case dismissed as they had not been brought to trial within 6 months of the date of committal. It was argued that the only time they had not been available for trial was while the constitutional issue was pending. The Attorney-General argued that the calculation of the period within which the accused should have been brought to trial should take into account the times the High Court was on vacation. It was also contended that the six months that entitle a dismissal of the case must run uninterrupted.

The court held that the prerogative of setting down a criminal matter for trial is that of the Attorney-General. The only time an accused person may be granted an earlier date is upon application before the court. Section 160(2) does not provide for the reckoning of the six months period, so the meaning given in the Interpretation Act must be relied on, that is, a “calendar month”. “Calendar month” has two meanings, the second of which is the space of time from any date in any month to the corresponding date in the next. That was the appropriate meaning in the context of s 160(2).

 

The only way the period could be interrupted would be if the accused were unavailable for trial. When an accused person is committed for trial he automatically becomes available for trial. The only time he is not available for trial would be for example, if he is too ill or, as here, when the trial process is interrupted by some other process like an application for referral of a constitutional issue to the Supreme Court. When the applicants were committed for trial in June 2008, the six month period within which they should have been brought to trial immediately commenced to run.

Although between that date and the date the constitutional application was first heard the matter could not be tried because the defence had not been furnished with certain documents, that period should be counted as part of the six months within which the applicants should have been tried. Further, the fact that the High Court was on vacation on two occasions did not constitute a circumstance beyond the control of the Attorney-General. This was so because it could not be said the applicants were not available to stand trial.

See also 1996 Vol. 8 No. 1 Legal Forum 35 and Kumusana S-110-89; Makoni S-9-90; Dube & Anor 1989 (3) ZLR 245 (S); Ruzario 1990 (1) ZLR 359 (S); Kundishora 1990 (2) ZLR 30 (S); Mlambo S-221-91.

 

§   Accused in custody

If X is in custody he can apply for the release from custody on the ground that an unreasonably long period has elapsed in bringing the case for trial. Section 50(6) of the Constitution specifically lays down that if a person who is being held in custody is not brought for trial within a reasonable period of time, he must be released from custody conditionally or unconditionally but may still be brought to trial later. (Section 13(3) in the previous Constitution.) The onus is on the defence to establish that the accused person is entitled to be released because of unreasonable delay: In re Hativagone & Anor S-67-04

 

X may also ask that, in addition to the release of his client, the State should either proceed to trial within a short space of time or that the charges against his client be withdrawn

 

In Fikilini v Attorney-General 1990 (1) ZLR 105 (S) it was laid down that in determining whether a person's detention pending trial had become unlawful because of failure to bring him to trial within a reasonable time the court should take account of:

• whether in all the circumstances the length of his detention has been unreasonably long. The nature of the charge and the investigation process required to investigate that charge should be examined. Is the charge a complex one which demands lengthy and painstaking investigation or is it simple and straightforward and could have been disposed of speedily if the police had been efficient? Does the case require the gathering of evidence in other countries? Are there some vital witnesses which the State is still trying to locate?
• the reasons which the State has advanced for the delay. The State should obviously be required to advance reasons for the delays which have occurred in bringing the matter to trial. A proper reason, such as difficulties in locating a vital witness will justify an appropriate delay. But if it turns out that the State is improperly delaying bringing the case to trial in order, for instance, to hamper the defence, this will weigh heavily against the State.
• whether the accused asserted his right to have the case brought to trial within a reasonable time. If he has asserted his right this is evidence that he is being deprived of this right; but if he has not done so this may be indicative that his right is not being breached. [But the undefended accused may fail to assert this right because he does not know that he has this right. Tau 1997 (1) ZLR 93 (H)]
• the prejudice which may be occasioned to X by the delay. Will the preparation of the defence be impaired by the delay? Will it cause oppressive pre-trial incarceration? Will it lead to disproportionate anxiety and mental suffering?

§   Accused out of custody

If X is out of custody, the defence lawyer can ask that a trial date within the near future be set, failing which the charge should be withdrawn.

As mentioned above s 160(2) CPEA provides that if X is not brought to trial after the expiry of six months from the date of his committal for trial in the High Court, his case shall be “dismissed”. In Mukuze & Anor v A-G (2) HH-17-05 the court decided that the six-month period mentioned in s 160 could be interrupted if X is through circumstances beyond the control of the Attorney General not available to stand trial.

In re Hativagone & Anor S-67-04 the appellants were arrested on criminal charges in 1998 and placed on remand. They denied the charges. In 1999 the charges were withdrawn before plea. Four years later, the accused were summoned to appear to answer the charges. The Attorney-General had deferred the prosecution of the applicants until the trial of the accomplice who was to be the principal witness against them was complete. This person had been prosecuted, but the proceedings were set aside and had to be restarted. The applicants brought an application for a permanent stay of proceedings, arguing that their right under s 18(2) of the Constitution to a fair trial within a reasonable time had been violated. The court held that in order for the application to succeed, it was necessary to consider:

• the length of delay and whether it was presumptively prejudicial;
• the reasons for the delay;
• whether the applicants had asserted their right to a speedy trial; and
• the prejudice to the applicants.

In considering the length of the delay, the fact that the charge had been withdrawn before plea did not assist the State, as the withdrawal was not unconditional. The overall delay was presumptively prejudicial. However, the reasons given for the delay were reasonable in the circumstances and to a large extent the Attorney-General was not to blame for the delay. The applicants had failed to discharge the onus on them to show that they had asserted their right to a speedy trial. Although the applicants were prejudiced by the fact that potential defence witnesses were not available, having either died or emigrated, nonetheless, because the Attorney-General’s explanation was reasonable and because the applicants had failed to assert their rights, the application failed.

 

In Watson S-17-06 the applicant, while driving his vehicle, had negligently caused the death of a pedestrian. He was initially placed on remand on a charge of culpable homicide, but later placed off remand. Eleven years later, he was summoned to appear on the same charge. It was held there was an inordinate delay by the State in bringing the applicant to trial. The explanation for the delay was neither adequate nor reasonable. The delay was, by any standards, unreasonably long and could not be supported by any court of law. The applicant’s rights under s 18(2) of the Constitution to a fair hearing within a reasonable time had been infringed. Anyone arrested or detained on a criminal charge should be promptly brought before a competent court of law, which will then exercise its judicial power over him, and such trial should be held within a reasonable time. This is to ensure that the accused does not suffer unduly prolonged uncertainty and that evidence is not lost in the process. The inordinate delay caused irretrievable prejudice to the applicant and a permanent stay of proceedings was granted.

 

Similarly in In re Masendeke 1992 (2) ZLR 5 (S) there had been seven years’ delay in a case involving a policeman who was on two simple charges of taking bribes. The magistrate referred the case to the Supreme Court under s 24(2) of the Constitution. There was no justification for such a protracted delay and it was not suggested that the accused was to blame for the delay. The Supreme Court ordered a permanent stay of proceedings.

 

In Tau 1997 (1) ZLR 93 (H) it was suggested that if X has been on remand for a period approaching a year, the court should question the State very closely indeed if it applies for a further remand.

 

See also Ruzario 1990 (1) ZLR 359 (S) and Kundishora 1990 (2) ZLR 30 (S).

 

Where X alleges that there has been an undue delay in bringing his case for trial the onus is on him to prove that there has been such an undue delay. Fikilini v Attorney-General 1990 (1) ZLR 105 (S) and that he has asserted his right to a speedy trial. In re Hativagone & Anor S-67-04

 

Where the defence alleges that there has been an undue delay in bringing his case for trial, the onus is on it to prove that there has been such an undue delay: Fikilini v Attorney-General 1990 (1) ZLR 105 (S) and that he has asserted his right to a speedy trial. In re Hativagone & Anor S-67-04

 

In re Hativagone & Anor S-67-04 The appellants were arrested on criminal charges in 1998 and placed on remand. They denied the charges. In 1999 the charges were withdrawn before plea. Four years later, the accused were summoned to appear to answer the charges. The Attorney-General had deferred the prosecution of the applicants until the trial of the accomplice who was to be the principal witness against them was complete. This person had been prosecuted, but the proceedings were set aside and had to be restarted. The applicants brought an application for a permanent stay of proceedings, arguing that their right under s 18(2) of the Constitution to a fair trial within a reasonable time had been violated. The court held that in order for the application to succeed, it was necessary to consider

• the length of delay and whether it was presumptively prejudicial;
• the reasons for the delay;
• whether the applicants had asserted their right to a speedy trial; and
• the prejudice to the applicants.

In considering the length of the delay, the fact that the charge had been withdrawn before plea did not assist the State, as the withdrawal was not unconditional. The overall delay was presumptively prejudicial. However, the reasons given for the delay were reasonable in the circumstances and to a large extent the Attorney-General was not to blame for the delay. The applicants had failed to discharge the onus on them to show that they had asserted their right to a speedy trial. Although the applicants were prejudiced by the fact that potential defence witnesses were not available, having either died or emigrated, nonetheless, because the Attorney-General’s explanation was reasonable and because the applicants had failed to assert their rights, the application must fail.

 

In Watson S-17-06 the applicant, while driving his vehicle, had negligently caused the death of a pedestrian. He was initially placed on remand on a charge of culpable homicide, but later placed off remand. Eleven years later, he was summoned to appear on the same charge. Held: there was an inordinate delay by the State in bringing the applicant to trial. The explanation for the delay was neither adequate nor reasonable. The delay was, by any standards, unreasonably long and could not be supported by any court of law. The applicant’s rights under s 18(2) of the Constitution to a fair hearing within a reasonable time had been infringed. Anyone arrested or detained on a criminal charge should be promptly brought before a competent court of law, which will then exercise its judicial power over him, and such trial should be held within a reasonable time. This is to ensure that the accused does not suffer unduly prolonged uncertainty and that evidence is not lost in the process. The inordinate delay caused irretrievable prejudice to the applicant and a permanent stay of proceedings would be granted.

 

See also Ruzario 1990 (1) ZLR 359 (S) and Kundishora 1990 (2) ZLR 30 (S).

Section 160(2) CPEA now provides that that if X is not brought to trial after the expiry of six months from the date of his committal for trial, his case must “dismissed”. It was decided in Mukuze & Anor v A-G (2) HH-17-05 that the “dismissal” of the case does not amount to an acquittal, nor does it relate to prescription. It relates to the committal and the effects or consequences or implications thereof. The subsection is meant to protect accused persons from being unreasonably kept under committal for trial for longer than six months when the trial has failed to take place during that period, as well as to ensure that the Attorney-General ensures that trials of accused persons committed for trial are expeditiously conducted.

In the case of Mukuze & Anor v A-G HH-2-05 the court decided that the six-month period mentioned in s 160 could be interrupted (a) if X is through circumstances beyond the control of the Attorney General not available to stand trial or (b) if the Attorney-General has in terms of s 108 ordered a further examination to be taken.

 

—           Postponement of cases

 

Instructions have been given to magistrates that they should hear in open court all applications for postponement of cases before they have commenced. (The same applies to postponement or adjournment of cases after they have commenced.) The prosecutor or X’s legal representative must explain to the court why a postponement or further remand is being sought. The court must be satisfied that the reason provided is a genuine one and that the postponement is necessary. The reasons for the postponements must be recorded. Where there is doubt about the genuineness of the reason for the requested postponement, the matter can be stood down and, if necessary, the matter can be referred to the Senior Public Prosecutor or to the senior prosecutor at the station.

 

This procedure is designed to ensure that there is a written record of who applied for the postponement and why. Disputes can arise months later between the defence and prosecution as to who was to blame for the delay in finalising the case. These disputes can be easily resolved by checking the records of the case. This will ensure that X will not escape proper punishment where the defence and not the State was responsible for the prolonged delay in finalising the case.

 

Defence lawyers should also take written notes about what is said when cases are postponed because sometimes court records are inadequate or missing.

 

When cases are postponed witnesses in attendance can be brought into court and warned by the court to come back on the new trial date so as to avoid having to serve fresh subpoenas on them.

 

Postponed cases are supposed to be given priority over all other cases set down for that date. The more often the case has been postponed, the greater the priority which it must be accorded. (This is mostly based on the Chief-Magistrate's Circular No.17 of 1990 and the Attorney-General's Circular No.5 of 1991).

 

Unfortunately it not infrequently happens that pro deo cases are assigned to defence lawyers only a very short time before the cases are due to be heard. It is the duty of the lawyer assigned such a case to ensure that he has adequate time to prepare the case by way of interviewing his client and witnesses and drafting a defence outline. If he is left with inadequate time to prepare properly, he is duty bound to apply for a postponement of the case so that he can have an adequate amount of time for preparation. Even if his own dilatoriness is the reason why he has been left with inadequate time for preparation, he is obliged to apply for a postponement and to explain honestly to the court why it is that he is unable to proceed with the case. It is improper and completely unfair to his client for the lawyer to go ahead with the case when he is inadequately prepared. Another situation which arises is where a senior partner in a law firm hands a criminal case over to a professional assistant at the last moment — perhaps because the senior has double dated himself — and instructs the assistant to go and appear in the case. The professional assistant must apply for a postponement where he does not have enough time to prepare to argue the case even though this may be against his instructions from his senior. The client must not be prejudiced by the disorganisation of the senior. It should be noted that in terms of s 18(3) of the Constitution it is provided that every person charged with a criminal offence shall be given adequate time and facilities for the preparation of his defence.

 

In S v Chimhau HH-58-16 the judge pointed out that once an indictment in a criminal matter has been lodged with the Registrar of the High Court, the case concerned is deemed to be pending before the court for hearing or determination by the court. The accused, once indicted for trial, will be in the hands of the court awaiting trial. Neither the State nor defence counsel has authority to discharge or liberate the accused. If the State is unable to proceed due to the unavailability of its witnesses, its counsel should not just apply for the matter to be struck off from the court roll, even if defence counsel agrees with such a course. An explanation should be given as to why the matter should not proceed

—           Bail Pending Trial

Reid-Rowland Chapter 6

§   General provisions

Section 50(1)(d) of the Constitution provides that a person arrested or detained must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention. (Emphasis added).

§   Entitlement to bail [s 117]

Section 117(1) CPEA establishes a general entitlement to bail unless the court finds that it is in the interests of justice that the accused be detained in custody pending trial. The provision reads as follows:

 

“Subject to this section and section 32, a person who is in custody in respect of an offence is entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.”

 

Application for bail [s 117A]

 

Subject to the proviso to section 116, an accused person may at any time apply verbally or in writing to the judge or magistrate before whom he or she is appearing to be admitted to bail immediately or may make such application in writing to a judge or magistrate.

 

A written application for bail must be made in such form as may be prescribed in rules of court.

 

Every written bail application must be disposed of without undue delay.

 

The court can postpone the bail application.

§   Evidence to be considered on bail application [s 117A]

In bail proceedings the court may receive—

• evidence on oath, including hearsay evidence;
• affidavits and written reports which may be tendered by the prosecutor, the accused or his or her legal representative;
• written statements made by the prosecutor, the accused or his or her legal representative;
• statements not on oath made by the accused.

 

In A-G v Mpanga-Nhachi 2009 (2) ZLR 150 (S) the court pointed out that bail proceedings are different from proceedings in a criminal trial. In bail proceedings the court has a wide range of information, including hearsay evidence, as the basis on which to determine whether or not to grant bail to the accused. In terms of s 117A (4) CPEA, the court may consider evidence on oath, including hearsay evidence; affidavits and written reports which may be tendered by the prosecution or the defence; written statements made by the prosecutor, the accused or his legal representative; and statements not on oath made by the accused. The court may require the prosecutor or the accused to adduce evidence. If the court does not do so, the prosecutor is not obliged to produce any report he is relying on. In any event, under s 117A (10), assuming the report is part of the police docket, unless the Prosecutor-General directed otherwise, the defence is not entitled to have access to the report in the bail proceedings although they would be entitled to it for the purposes of his trial.

 

In Ncube 2001 (2) ZLR 556 (S) the court said that in considering a bail application, a judicial officer must bear in mind the presumption of innocence, and should grant bail where possible. The accused must be allowed to call witnesses to show that the allegations against him are unfounded. Failure by the court to allow him to call such evidence is a serious misdirection, one which would allow the Supreme Court to interfere with a decision of a judge of the High Court to refuse bail.

 

In the South African case of Adams en Andere 1993 (1) SACR 611 (C), the court said that the evidence in a bail application is admissible against X in his subsequent trial.

 

The court may require the prosecutor to place on record the reasons for not opposing bail. The court may also require the prosecutor or the accused to adduce evidence.

 

In bail proceedings the accused is compelled to inform the court whether—

• the accused has previously been convicted of any offence; and
• there are any charges pending against him or her and whether he or she has been released on bail in respect of those charges.

 

If the legal representative submits this information on behalf of X, X will be required by the court to declare whether he or she confirms this information.

 

For the purposes of bail proceedings, an accused may not have access to any information, record or document relating to the offence in question, which is contained in, or forms part of, a police docket, including any information, record or document which is held by any police officer charged with the investigation in question, unless the Prosecutor-General otherwise directs.

 

In Ncube & Anor 2002 (2) ZLR 524 (H) the judge pointed out that bail applications are sui generis: there is no prescribed format or procedure. It is the duty of the presiding officer, with due allowance for the circumstances of each case, to determine the way in which each party must submit its evidence. In a majority of cases ex parte statements are made from the Bar by both the defence and by the public prosecutor who intimates what the police objections are. There are no formalities; no evidence is led, no affidavits are placed before the court and the record is so meagre that there may be little or nothing to place before the superior courts if the matter is taken on appeal.

 

In bail applications both sides may make submissions from the Bar or lead evidence. Evidence should be led in support of any fact which is in dispute.

 

In the South African case of Maki & Ors (1) 1994 (2) SACR 630 (E) the court said that the procedure for hearing and adjudicating on bail applications should be flexible and adaptable. The laying down of rigid rules as to what evidence is admissible in a given situation should be avoided, except that both oral evidence and affidavits should be admissible and, in appropriate cases, other material such as ex parte statements.

§   Court to be apprised of charge when bail application is made

In Mukoko 2009 (1) ZLR 93 (HH) the court pointed out that where there is no legal justification, the court is enjoined not to place the accused on remand. Where the court finds that there is legal justification to place the accused on remand, the next issue is whether he should be remanded in custody or not. It is during this process that the issue of bail arises. It is important that this process takes place, as it is during this process that the court, having been informed of the allegations against the accused, will be better positioned to consider the various factors in adjudicating on the question of bail pending trial. To grant bail without first ascertaining whether there is legal justification for the accused to be placed on remand would be incompetent. The phrase "after a person has appeared in court on a charge" must be construed to mean "after the initial process of a criminal trial", which is the initial appearance in court before a judicial officer and the presentation to the legal officer of legal justification for the person's arrest and detention.

 

Presumption of innocence

 

In our law persons are presumed innocent until their guilt has been proven. When a person applies for bail he or she has not yet been tried and the allegations against him or her have not yet been proven. Pre-trial incarceration cuts across the presumption of innocence as a person is being incarcerated before trial despite the fact that he or she may be found not guilty when he or she is tried. Wherever the interests of justice will not be prejudiced by pre-trial release, the courts should lean in favour of liberty and grant release on bail with or without additional conditions. This is particularly so if the offence with which the accused is being tried is not likely to attract a prison sentence. Pre-trial incarceration of petty offenders means that they end up being punished to a disproportionate extent. If they are found guilty and fined, they will already have spent time in custody; if they receive short prison sentences, they may already have spent longer in prison waiting for their trial than the period of the prison sentence imposed. For petty offences, therefore, there must be very cogent reasons for refusal of bail.

 

The right to liberty is one of the most fundamental human rights and should not be lightly interfered with. The court should lean in favour of protecting liberty unless the State establishes the necessity to deprive X of his or her liberty pending the trial.

 

In Biti 2002 (1) ZLR 115 (H) it was stated that the court should always grant bail where possible and should lean in favour of the liberty of the applicant provided that the interests of justice will not be prejudiced. The approach is one of striking a balance between the interest of society (i.e. the applicant should stand trial and there should be no interference with the administration of justice) and the liberty of an accused (who, pending the outcome of his or her trial, is presumed to be innocent). In Ncube 2001 (2) ZLR 556 (S) the court said that in considering a bail application, a judicial officer must bear in mind the presumption of innocence, and should grant bail where possible.

 

Power of magistrate to admit to bail

 

A person can apply for bail in terms of section 117A or for the alterations of his or her bail conditions.

 

Power of judges to grant bail	Power of magistrates to grant bail
May grant bail at any time after the accused has appeared in court on a charge and before sentence is imposed.	May grant bail if the accused is in custody within the magistrate’s area of jurisdiction at any time after he or she has appeared in court on a charge and before sentence is imposed.   But the magistrate may not admit to bail for offences in the Third Schedule, provided with the personal consent of the Prosecutor-General a magistrate may grant bail or alter bail conditions in respect of any offence.    However, with the personal consent of the, may grant bail to a person or alter a person’s conditions of bail in respect of any offence.
A judge or a magistrate within whose area of jurisdiction a person is in custody may grant bail if the case of the person is adjourned in terms of section 55(1) of the Magistrates Court Act or in respect of whom an order has been made in terms of section 351(4).

 

§   Restrictions on granting bail

The power of magistrates to grant bail or alter bail conditions is severely restricted. In terms of s 116(b) CPEA, where X has been charged with any of the offences specified in the Third Schedule, magistrates may only grant bail if the Prosecutor-General personally has consented to X’s admission to bail. Section 117(6) contains further restrictions on the granting of bail by magistrates.

 

If X is charged with an offence contained in Part I of the Third Schedule, then even if the Prosecutor-General has consented to X’s admission to bail the court must order X to be detained in custody unless X has adduced evidence which satisfies the magistrate that exceptional circumstances exist which in the interests of justice permit his release (s 117(6)(a) CPEA).

 

If X is charged with an offence contained in Part II of the Third Schedule, then even if the Prosecutor-General has consented to X’s admission to bail the court must order X to be detained in custody unless X has adduced evidence which satisfies the magistrate that the interests of justice permit his release (s 117(6)(b) CPEA).

 

Third Schedule Offences

Part 1

Part II

murder where it was committed in certain specified circumstances such as where it was premeditated or where the victim was a law-enforcement officer; rape or aggravated indecent assault where it was committed in certain specified circumstances such as multiple rape of a victim; robbery where it was committed in certain specified circumstances such as where firearms were used; assault or indecent assault of a child under 16 involving the infliction of grievous bodily harm; kidnapping or unlawful detention involving the infliction of grievous bodily harm ; contravening the following sections of CLCA:20 (treason); 21 (concealing treason); 22 (subverting constitutional government); 23 (insurgency, banditry, sabotage or terrorism);24 (recruiting or training insurgents, bandits, saboteurs or terrorists); 25 (training as insurgent, bandit, saboteur or terrorist);26 (supplying weapons to insurgents, bandits, saboteurs or terrorists);27 (possessing weapons for insurgency, banditry, sabotage or terrorism) or 29 (harbouring, concealing or failing to report insurgent, bandit, saboteur or terrorist); An offence in Part II of the Third Schedule where the accused has previously been convicted of any offence specified in the Third Schedule or has allegedly committed such offence whilst on bail in respect of an offence in the Third Schedule.

murder in circumstances other than those specified in Part I; attempted murder involving the infliction of grievous bodily harm; malicious damage to property involving arson or conspiracy, incitement or attempt to commit this offence; theft of a motor vehicle or conspiracy, incitement or attempt to commit this offence; any offence relating to dealing in or smuggling of ammunition, firearms, explosives or armaments or the possession of an automatic or semi-automatic firearm, explosives or armaments or conspiracy, incitement or attempt to commit this offence; any offence where the Prosecutor-General has notified the magistrate of his intention to indict the case direct to the High Court.

 

Certificate in respect of offence in Third Schedule

 

Where X has applied for bail in respect of an offence in the Third Schedule the Prosecutor-General or the Minister responsible for the administration of the Public Order and Security Act [Chapter 11:17], in respect of offence referred to in paragraph 6 of Part I of the Third Schedule may issue a certificate stating that it is intended to charge the person with the offence. Such a certificate is admissible in any proceedings on its production by any person as prima facie evidence of its contents.

 

Extradited persons [s 116(5)]

 

Bail must be refused by a magistrate or judge if the accused has been extradited from another country to Zimbabwe and if the Minister who administers the Extradition Act has given an undertaking to the government of that other country that X will not be admitted to bail while in Zimbabwe. A certificate from the Minister, which states that he has given that undertaking, must be produced. If the Minister has given the undertaking that X will only be admitted to bail on certain conditions, then the court may grant bail on those conditions. The court may impose further conditions which are not inconsistent with the conditions specified by the Minister.

§   A Ministerial certificate is admissible in any proceedings on its production by any person as prima facie evidence of its contents

 

Burden of proof in bail proceedings [s 115C(2)]

 

Previously there was some controversy as about the issue of onus of proof in bail cases.

 

There are a number of earlier Zimbabwean cases in which the Supreme Court it is laid down that after the State has led sufficient evidence to show that there is a real likelihood that the administration of justice will be prejudiced if the accused is admitted to bail, the onus lies on the person applying for bail to show on a balance of probabilities that his admission to bail would not prejudice the interests of justice: Chiadzwa 1988 (2) ZLR 19 (S); Hussey 1991 (2) ZLR 187 (S).

 

However, in Kuruneri HH-111-04 the judge commented on the issue of bail in bail cases. It held that there is no statutory authority for placing an onus upon an applicant for bail, and that prior rulings to that effect were based on South African cases. These are based on a statute which is materially different from the Zimbabwean legislation. In arriving at the decision, the learned Judge held that section 13(4) of the [pre-2003] Constitution requires that any person who is arrested or detained should be tried within a reasonable time, failing which he or she should be released from custody.  In other words, the discretionary power of a magistrate to deny bail may not be exercised in violation of the accused’s constitutional right to be brought to trial within a reasonable time or be freed from custody. The notion of the accused having an onus to discharge to enable him or her to be admitted to bail is not part of our law as legislated. The constitutional presumption of innocence in bail application operates fully and at the general level. It is because of the presumption of innocence that the courts are expected, and indeed required, to lean in favour of the liberty of the accused. If the State’s fears of that the accused will abscond or interfere with witnesses and the applicant’s assurances to the contrary are equally balanced, then the presumption of innocence would require the court to lean in favour of the liberty of the accused person and grant bail. Part IX CPEA was amended in 2006, however, and the current provisions (particularly s 117(1), quoted above) are more in line with the views expressed in Kuruneri’s case than in those earlier cases.

 

In Mwonzora & Ors HH-72-11 the court stated that in an application for bail pending trial, the initial onus is on the State to prove the necessity of keeping the applicants in custody. It is not necessary for the applicants to prove that they are to be released on bail. The notion of the accused having an onus to discharge to enable him or her to be admitted to bail is not part of our law as legislated. Having cleared this legal debris, then the place of the constitutional presumption of innocence in bail application becomes clearer. The presumption operates fully and at the general level. It is because of the presumption of innocence that the courts are expected, and indeed required, to lean in favour of the liberty of the accused. In its request for remand (Form 242) the State puts across its reasons for opposing the granting of bail. In his or her application for bail, the applicant addresses the concerns of the State and makes any other averments which tend to favour his admission to bail. The State then responds. Finally, the judge or magistrate assesses all this information with a view to ‘strike a balance between the interests of the prosecutor in obtaining justice for the State, as one party in the accusatorial process, interests of the accused in obtaining justice for himself. If the finding is that, to use the words of Gubbay CJ in Aitken’s case, ‘the case against the applicant is neither obviously strong nor obviously weak’, that the State’s fears of abscondment or interference with witnesses and the applicant’s assurances to the contrary are equally balanced, then the presumption of innocence would require the court to lean in favour of the liberty of the accused person and grant bail.

 

Section 50(1)(d) of the Constitution provides that a person arrested or detained must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention. This provision would seem to entail that the onus is on the State to establish that there are compelling reasons why bail should not be granted and the accused should remain in custody pending trial.

However, clause 28 the Criminal Procedure and Evidence Amendment Act (Act 2 of 2016) has introduced a new section 115C to the Act which purports to there were several decisions which laid down that in bail cases that the onus was on the prosecution to cast the onus on the accused in respect of Third Schedule offences. The new provisions are summarised below: 

 

Where an accused who is in custody in respect of an offence applies to be admitted to bail to the court that has convicted the accused—

 

 

Offence	Burden of proof
Offence not in Third Schedule	On prosecution to show, on a balance of probabilities, that there are compelling reasons justifying the accused’s continued detention
Offence in Part 1 of Third Schedule	Even if the Prosecutor-General has consented to bail, the burden of proof is on accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge or magistrate that exceptional circumstances exist which in the interests of justice permit his or her release
Offence in Part 11 of the Third Schedule	On the accused to show on a balance of probabilities that exceptional circumstances exist which in the interests of justice permit his or her release on bail.

 

 

 

Further applications for bail

 

After a judge or magistrate determines a bail application, a further bail application may only be made to the judge or magistrate who determined the previous application or to any other judge or magistrate if such application is based on facts which were not placed before the judge or magistrate who determined the previous application and which have arisen or been discovered after that determination, but a magistrate may not, without the personal consent of the Prosecutor-General, admit a person to bail or alter a person’s conditions of bail in respect of an offence specified in the Third Schedule.

 

Grounds for refusal of bail [s 117]

 

The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established—

• where there is a likelihood that X, if he or she were released on bail, will—

• endanger the safety of the public or any particular person or will commit an First Schedule offence; or
• not stand his or her trial or appear to receive sentence; or
• attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
• undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system;

 or

• where in exceptional circumstances there is the likelihood that the release of X will disturb the public order or undermine public peace or security.

Section 117 provides detailed guidelines to courts on how to go about deciding whether it is or is not in the interests of justice to grant bail.

 

It provides that it would be in the interests of justice to refuse bail if one or more of the certain grounds are present and sets out the factors that the court should take into account in deciding whether these grounds are present.  The table below sets out the specified grounds and the factors that are to be taken into account in respect of each of these grounds.

 

 

Ground	Factors
Likelihood that if X is released he will endanger the safety of the public or a particular person or will commit a First Schedule offence.	In deciding whether this ground has been established, the court must, where applicable, take into account these factors: the degree of violence towards others implicit in the charge; any threat of violence which X may have made to any person; the resentment X is alleged to harbour against any person; any disposition of X to commit First Schedule offences, as evident from X’s past conduct; any evidence that X previously committed a First Schedule offence whilst out on bail; any other factor which in the opinion of the court should be taken into account.
Likelihood if X is released he will attempt to intimidate witnesses or conceal or destroy evidence.	In deciding whether this ground has been established the court  must take into account these factors: X’s ties to the place of trial; whether X has assets and where they are located; X’s means of travel and possession of or access to travel documents; the nature and gravity of the offence or the nature and gravity of the likely penalty therefor; the strength of the case for the prosecution and the corresponding incentive of the accused to flee; the efficacy of the amount or nature of the bail and enforceability of any bail conditions; any other factor which in the opinion of the court should be taken into account.

 

 

Ground	Factors
Likelihood that X will attempt to influence or intimidate witnesses or to conceal or destroy evidence.	In considering whether this ground has been established, the court must take into account— whether X is familiar with any witness or the evidence; whether any witness has made a statement; whether the investigation is completed; X’s relationship with any witness and the extent to which the witness may be influenced by the accused; the efficacy of the amount or nature of the bail and enforceability of any bail conditions; the ease with which any evidence can be concealed or destroyed; any other factor which in the opinion of the court should be taken into account.
Likelihood that if X is released he will undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system	In considering whether this ground has been established, the court must take into account— whether X supplied false information at arrest or during bail proceedings; whether X is in custody on another charge or is released on licence in terms of the Prisons Act; any previous failure by X to comply with bail conditions; any other factor which in the opinion of the court should be taken into account.
Where in exceptional circumstances there is a likelihood that X’s release  will disturb the public order or undermine public peace or security	In considering whether this ground has been established, the court, where applicable, must take into account—   whether the nature of the offence and the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community where the offence was committed; whether the shock or outrage of the community where the offence was committed might lead to public disorder if X is released; whether the safety of X might be jeopardised by his or her release; whether the sense of peace and security among members of the public will be undermined or jeopardised by X’s release; whether X’s release will undermine or jeopardise the public confidence in the criminal justice system; any other factor which in the opinion of the court should be taken into account.

 

 

Weighing the competing interests

 

In considering these questions the court must decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice X is likely to suffer if X were to be detained in custody, taking into account, where applicable, the following factors, namely—

• the period for which the accused has already been in custody since his or her arrest;
• the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;
• the reason for any delay in the disposal or conclusion of the trial and any fault on the part of X with regard to such delay;
• any impediment in the preparation of X’s defence or any delay in obtaining legal representation which may be brought about by X’s detention;
• X’s state of health;

any other factor which the court thinks should be taken into account.

 

In Ndhlovu 2001 (2) ZLR 261 (H) the court stated that in bail applications, the court has to strike a balance between the interests of society (which are that the accused should stand trial and that there should be no interference with the administration of justice) and the liberty of the accused (who is presumed to be innocent). Grounds for refusal of bail should be reasonably substantiated. The court should always grant bail where possible and should lean in favour of the liberty of the subject, provided the interests of justice will not be prejudiced.

 

In Mwonzora & Ors HH-72-11 it was held that the court should strike a balance between the interests of society and the liberty of the accused. This includes that the accused should stand trial and that there be no interference with witnesses. Bail must therefore be granted provided the interests of justice will not be prejudiced. If the state’s fears that the accused will abscond or interfere with witnesses and the applicants’ assurances to the contrary are equally balanced, the presumption of innocence would require the court to lean in favour of the liberty of the person and granted bail. In striking a balance between the liberty of the subject and the proper administration of justice, the imposition of conditions can be decisive. Where bail can be granted subject to safeguarding conditions, the court should, if possible, lean in favour of doing so. When a judicial officer decides on an application, he or she must at least refer to that legal principle upon which the decision is based in addition to the facts upon which the legal principle is applied. The lack of these basic features in the ruling constitutes a misdirection.

 

It would seem that by granting an entitlement to bail unless the interests of justice require that bail not be granted, the legislature has placed the onus on the State to establish that there are clear grounds justifying the refusal of bail. In the South African case of Maki & Ors (1) 1994 (2) SACR 630 (E) the court stated that the onus is on the State to show, on a balance of probabilities, that the applicant’s further detention is necessary for the proper administration of justice.

 

§   Grounds for refusal of bail

The fundamental principle governing the court’s approach to bail applications is to uphold the interests of justice. The court must take into account the factors set out in s 117 CPEA and try to strike a balance between the protection of the liberty of the individual and the administration of justice. In our law persons are presumed innocent until their guilt has been proved. When a person applies for bail he has not yet been tried and the allegations against him have not yet been proved. Therefore, pre-trial incarceration cuts across the presumption of innocence as a person is being incarcerated before trial despite the fact that he may be found not guilty when he is tried. Whenever the interests of justice will not be prejudiced by pre-trial release the courts should lean in favour of liberty and grant release on bail with or without additional conditions. This is particularly so if the offence with which X is being tried is not likely to attract a prison sentence. Pre-trial incarceration of petty offenders means that they end up being punished to a disproportionate extent. If they are found guilty and fined, they have already spent time in custody; if they receive short prison sentences, they may already have spent longer in prison waiting for their trial than the prison sentence imposed for their crime. For petty offences, therefore, there must be very cogent reasons for the refusal of bail.

§   Well-founded grounds for State opposition to bail

It was made quite clear in Hussey 1991 (2) ZLR 187 (S) that where the State seeks to rely on one or more of these grounds when opposing bail, it is insufficient for the State merely to make bald assertions that the particular grounds applied. Its assertions must be well-grounded. It must produce cogent reasons why the particular ground in question applies and these reasons must be supported by proper information. In Malumjwa HB-34-03 it was held that in bail applications the court has to strike a balance between the interest of society (that the applicant should stand trial and there should be no interference with the administration of justice) and the liberty of an accused person (who pending the outcome of his trial is presumed to be innocent). The likelihood of a lengthy prison term being imposed (i.e. the seriousness of the offence) is a factor to be taken into account in assessing the risk of absconding. Where is has been shown that the accused has interfered with evidence, the court is justified in denying him bail. The court should, however, not refuse bail on the bare assertion of the State; there must be enough reason for such a conclusion. In other words, grounds for refusal of bail should be reasonably substantiated.

 

In Madzokere & Ors 2011 (2) ZLR 1 (H) the court pointed out that the release of an accused person on bail is aimed at enabling him to attend trial from out of custody. It does not mean that he has no case to answer. On the other hand, the detention of an accused in custody is to secure his attendance to stand trial, if there are genuine grounds for believing that the factors mentioned in s 117(2) CPEA have been established against him. That is why the seriousness of the charge the accused is facing is not on its own enough to deny an accused person bail. The court must therefore endeavour to strike a balance between the interests of justice and the accused's liberty. Section 117(1) leans in favour of the liberty of the accused person, where it states that the accused "shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody." The intention of the legislature was to make s 117 consistent with the presumption of the accused's innocence until proved guilty. That proof or lack of it can only be established at the accused's trial.

§   Likelihood of absconding

An accused who has decided not to stand trial may either flee the country if he has the capacity to do so or try to go to a place inside the country where he believes the authorities will be unable to find him. The problems of bringing to justice a person who has fled the country are obviously greater than if he hides himself within Zimbabwe.

 

If there are good grounds for believing that X will take flight and become a fugitive from justice if he is granted bail then bail must be refused: Hussey 1991 (2) ZLR 187 (S). If, before or after his arrest, X escaped or tried to escape from custody, this would clearly show his predisposition to abscond and not to stand trial: Chiadzwa 1988 (2) ZLR 19 (S). In Jongwe 2002 (2) ZLR 209 (S) it was held that when assessing the risk of an applicant for bail absconding before trial, the court will be guided by the character of the charges and the penalties which in all probability would be imposed if convicted; the strength of the State case; the accused’s ability to flee to a foreign country and the absence of extradition facilities; the past response to being released on bail; and the assurance given that it is intended to stand trial. The most critical factors are the nature of the charges and the severity of the punishment likely to be imposed upon conviction and also the apparent strengths and weaknesses of the State case.

 

In deciding whether flight is likely and in the absence of such concrete evidence of a predisposition to abscond, account must be taken of a number of factors which common experience have shown influence a person either to stand trial or to take flight.

 

These factors are the gravity of the charge and the likely sentence for that crime, the capacity of and opportunities for X to flee and whether he has contacts abroad who will offer him sanctuary or whether X has substantial assets abroad. Other factors which are relevant are the property holdings of X and his status in society. It may be that he would lose so much if he absconded that flight is unlikely.

 

There is need for the court to assess the strength of State case. Where allegations in police papers raise a prima facie case, there is need for accused to rebut allegations and show that he should be granted bail. In Makamba S-30-04 the appellant was refused bail in the High Court on various charges under the exchange control legislation. Among other grounds of appeal, it was argued that the judge a quo should not have relied on the mere allegations made by the investigating officer. The strength of the State case had not been assessed by the judge a quo, though it should have been. However, the allegations made in the affidavit of the investigating officer were fairly detailed and raised at least a prima facie case against the appellant. In such circumstances an applicant would be expected, in attempting to discharge the onus upon him, either to deny the allegations; or to place before the court such information as would tend to establish his innocence; or to show that even if he were to be convicted the likely penalties were not such as to present a temptation for him to abscond; or to show that the interests of justice would not be prejudiced by his release on bail

 

The case of Chiadzwa 1988 (2) ZLR 19 (S) examines the combination of factors which make international flight likely. Where a person is facing a serious charge which will lead to lengthy incarceration on conviction and the evidence against him is very strong and conviction probable, and that person has the capacity to leave the country and has someone outside the country who will support him, there will be a substantial risk of external flight. In these circumstances the person may be quite prepared to abandon substantial assets in Zimbabwe to avoid the prospect of spending years in prison. With less serious charges, in respect of which the evidence is weak, it would be unlikely that a wealthy person will flee the country leaving behind substantial assets, especially if that person has no external assets and few acquaintances outside the country who could assist him to re-establish himself. See also Aitken & Anor v Attorney-General 1992 (1) ZLR 249 (S) and Aitken (2) 1992 (2) ZLR 463 (S).

 

In considering whether flight is likely the courts take into account whether a person has a fixed abode and whether he has a job. In these days of high unemployment favourable consideration should be given to employment in the informal sector. With the drastic shortages of accommodation in urban areas, the fact that a person does not have permanent accommodation should not necessarily be held against him. The attachment of regular reporting conditions will usually ensure that a person who only has temporary accommodation can be located when necessary.

 

If the State opposes bail on the ground that X is of no fixed abode and will therefore probably not attend court when his case is to be tried, but X asserts that he lives at a particular address, then the State should indicate in specific terms the basis for its belief that X does not live at that place: Gwatiringa HH-128-88.

 

In Mambo 1992 (1) ZLR 245 (H), X had been refused bail on the grounds that he was very likely to abscond. On appeal, it was held that bail should be granted as, on the probabilities, it was unlikely that X would abscond. He was aware for some time that he was under investigation for the alleged fraud in question and had not absconded; he had travelled to South Africa and when he was informed that the Zimbabwean police were looking for him, he had returned to the country and surrendered himself to the police. The fact that X is facing a very serious charge and that the sums involved in the alleged fraud are considerable is not a sufficient basis for refusing bail.

 

In Biti 2002(2) ZLR 209 (S) the court decided that where evidence is given that there is a strong case for the prosecution, that a heavy sentence is likely, increasing the risk of the accused absconding, and that other perpetrators of the crime are still at large, the onus then falls on the accused to show that the interests of justice will not be prejudiced, namely, that it is likely that he will stand his trial and not otherwise interfere with the administration of justice or commit an offence.

 

In Jongwe 2002 (2) ZLR 209 (S), Chidyausiku CJ indicated that when assessing the risk of an applicant for bail absconding before trial, the court will be guided by

• the character of the charges and the penalties which in all probability would be imposed if convicted;
• the strength of the State case;
• the accused’s ability to flee to a foreign country and the absence of extradition facilities;
• the past response to being released on bail; and
• the assurance given that it is intended to stand trial.

 

He pointed out that the most critical factors are the nature of the charges and the severity of the punishment likely to be imposed upon conviction and also the apparent strengths and weaknesses of the State case.

 

In Ndhlovu 2001 (2) ZLR 261 (H) the court said that in deciding whether there is a risk of X absconding, the court should consider such factors as the seriousness of the offence, the likely sentence and the incentive to abscond, X’s mobility and access to cross-border travel, and the strength of the prosecution case. It may be desirable for X to disclose his defence and not merely make a bald statement that he is not guilty of the offence. Such a defence is of great, and often of decisive, importance in the exercise of the court’s discretion. X’s personal circumstances, such as financial position and business interests, are of little value in assessing the risk of absconding. They may, in some cases, be used to facilitate absconding. The fact that X surrendered to the police should normally be a factor in his favour, though if he surrendered under a false name with the intention of deceiving the police, it would not count in his favour.

 

Often the attaching of conditions to the granting of bail, such as reporting to a designated police station at particular hours, may be enough to minimise any danger of X absconding.

§   Likelihood of commission of further offences

The public must be protected against further criminal activities of a person pending trial. This is especially so in respect of dangerous criminals who may commit grave crimes whilst out on bail. However, the majority of persons facing trial are unlikely to commit further crimes if released prior to trial. The impending trial will usually act as a restraint as it will be realised that they will face serious penalties if they engage in further criminal conduct before their trial.

 

If the State maintains that further criminal conduct is likely, it must point to some facts that suggest there is such a danger and that this cannot be averted by the imposition of stringent bail conditions. It is permissible for the State to produce a list of X’s previous convictions: Fourie 1973 (1) SA 100 (D).

 

If he has a string of previous convictions there is a substantial chance that he might commit further crimes whilst on bail. In the case of Attorney-General v Phiri 1987 (2) ZLR 33 (H) the evidence of the propensity to commit further crimes whilst at liberty was particularly strong. In addition to a bad criminal record, there was evidence that X had committed further similar crimes to the crimes for which he was yet to be tried. Such previous conduct whilst on bail showed a disregard for the law and a contempt for the administration of justice. Bail was understandably refused.

 

However, in the case of Demba HH-133-89 the High Court said that if after a person has been granted bail for one offence, he is then suspected of having committed another similar crime some time before the current offence, this does not necessarily mean that he will be more likely to commit yet another offence whilst at liberty such that he should now be refused bail. See also Patel 1970 (3) SA 565 (W).

 

In Madzokere & Ors S-8-12 the Supreme Court stated that the purpose of the exercise of the discretionary power vested in the court considering a bail application under s 117 CPEA is to secure the interest of the public in the administration of justice by ensuring that a person charged with a criminal offence upon a reasonable suspicion of having committed it will appear on the appointed day to stand trial.  It is for that purpose that the section provides, in effect, that upon sufficient evidence being available to justify it, a finding that an accused person is likely not to stand trial when released on bail is a relevant and sufficient ground for ordering continued detention of him or her pending trial. Section 117 is also based on the principle that, regard being had to the presumption of innocence which is a fundamental right guaranteed under the Constitution to an accused person awaiting trial, he must be released on bail on appropriate conditions if the same object of ensuring his appearance at the trial can be achieved.

 

The question for determination is whether, on the facts available and regard being had to the presumption of innocence to which the accused is entitled, the court would be justified in finding that there is a likelihood that the accused would not stand trial if released on bail, even with stringent measures to ensure close monitoring by the police. Only if such a finding is justified by the available evidence can it be said that the likelihood of the accused not standing trial if released on bail is a relevant and sufficient ground for depriving him of his liberty pending trial. The court said that the following factors are a useful guide in deciding whether an accused person would abscond if released on bail:

• the nature of the charge and the severity of the punishment likely to be imposed on the accused upon conviction
• the apparent strength or weakness of the State case
• the accused’s ability to reach another country and the absence of extradition facilities from that country
• the accused’s previous behaviour when previously released on bail; and
• the credibility of the accused’s own assurance of his intention and motivation to remain and stand trial.

§   Likelihood of tampering with evidence or interfering with administration of justice

The argument that there is a likelihood of interference with evidence will obviously be strong if the State can show that there have already been attempts to do this. This was the situation in Maharaj 1976 (3) SA 205 (D) where X had already tried to persuade a State witness to disappear; in Chiadzwa 1988 (2) ZLR 19 (S) where there was evidence suggesting X had attempted to bribe a police officer and had composed a plan whilst in prison to discredit witnesses against him; and in Maratera S-93-91 where there was evidence that there had been an interference with the course of justice. See also Bennett 1976 (3) SA 652 (C).

 

What if there is no such clear evidence of a preparedness to interfere with the evidence? In the South African case of Hlongwa 1979 (4) SA 112 the court stated that it may, in appropriate circumstances, rely on the investigating officer’s assertion that X was likely to tamper with evidence if he or she were to be released even if this assertion is unsupported by any direct evidence. On the other hand, in the case of Hussey 1991 (2) ZLR 187 (S) the Supreme Court seems to have laid down that more is required than simply bald assertions by the State that X was likely to interfere with witnesses who may be called by the State. The assertion must be well grounded and the State is obliged to place cogent reasons before the court, supported by information to justify the assertion.

 

If X lives or works with the State witnesses there will be a greater likelihood of interference with witnesses.

 

In Shambira HB-04-10 the applicant was a member of the Zimbabwe National Army.  He was facing two charges firstly, that he wrote a threatening letter to a magistrate who was presiding over a case involving his colleagues who faced charges of attempted murder and discharging a fire arm in public. The second charge was that he attempted to kidnap complainant’s daughter when she was at school. The applicant applied for bail pending trial on the basis that he would not abscond nor endanger the safety of the public. The application was opposed on grounds of abscondment, public safety, and interference with State witnesses.

 

As regards the threat of endangering public safety that it is trite that where possible a suspect should not be deprived of his liberty unless his release will and not “may” interfere with the due process of law and crime control. In the present case applicant has positively shown his desire to interfere with both due process and crime control. The applicant has threatened a Magistrate with death and also attempted to kidnap his daughter. This is a serious threat to public safety.  A person who threatens another with death is a potential danger to society in general and to the individual in particular. The applicant’s position is exacerbated by the fact that the threat was directed at the officer who is charged with dispensing justice. This type of conduct runs contrary to the independence of the judiciary, in that a judiciary officer’s oath of office to dispense justice without fear of favour is highly compromised. A judiciary officer’s exercise of a judicial function should never be interfered with, by anybody at all. What the applicant did is unlawful and goes to demonstrate that he is a danger to the proper administration of justice. In view of his determination to frustrate the administration of justice, he is not a person who should be liberated pending trial. Any person who unlawfully interferes with the Police, prison officers, public prosecutors, judiciary officers or any other officer charged with the proper administration of justice should be deprived of his liberty pending trial. Indeed there is reason to apprehend that if he is released he will interfere with the magistrate, the child and all other officers whom he perceives as a stumbling block in the release of his colleagues. Therefore bail was denied.

 

In Madzokere & Ors 2011 (2) ZLR 1 (H) that if it is alleged that release on bail would undermine or jeopardise the objectives or proper functioning of the criminal justice system (including the bail system), the applicant must be proved to have done things which can affect the proper functioning of the criminal justice system or to be likely to do so. If an applicant is likely to interfere with witnesses or evidence, he may be denied bail on this ground, but only if that interference cannot be restrained by imposition of bail conditions deterring him from doing so.

§   Likelihood that accused will disturb the public order or security

In Madzokere & Ors 2011 (2) ZLR 1 (H) the court stated for this ground to apply there must be clear evidence establishing the applicant's propensity to disturb public order, and undermine peace and security. What would establish a strong propensity is evidence that the applicant has previous convictions for public violence and is facing several similar cases. The words "in exceptional circumstances" clearly indicate that the legislature was conscious of the remote possibility of this ground ever being ordinarily applicable, so whenever this ground is advanced it should be carefully considered to ascertain whether that likelihood is present.

§   Fear for safety of accused

In Mwonzora & Ors HH-72-11 the court held that fears for the safety of the accused because of the unlawful actions of the mob outside the courtroom, threatening to kill the accused, are not a ground to refuse to grant bail.

§   Juveniles

In K (A Juvenile) 2010 (2) ZLR 35 (H) a 17 year old juvenile, was indicted for trial before the High Court on two counts of murder. It was alleged, and not in dispute, that he shot both of his parents. He applied for bail pending trial, before he was asked to plead to the charges. The grounds for the application at this stage were that the applicant needed to be examined by a psychiatrist before the trial. The applicant alleged that he was suffering from a mental disability at the time he gunned down his parents. The issue for trial was whether or not he had the necessary mens rea at the time he fired the fatal shots. The State produced a report by a doctor who examined the applicant and found that he is suicidal and a danger to himself and others.

 

The court held that this ordinarily would not be the best time for a bail application, as whatever bail the accused might be granted at this stage would be affected by his plea of not guilty, a plea which was unavoidable in terms of s 271 CPEA. In terms of s 169 of the Act, any bail granted before the accused tenders his plea will lapse when he pleads to the indictment and a fresh application would have to be made. However, in casu there was a need for the applicant to apply for bail before pleading to the two charges, but the application should have been preceded by an application for postponement.

 

The fact that the shooting was not in dispute and that the applicant's mental state was in issue called for a careful consideration of whether or not the applicant was a danger to those he would stay with if he were released on bail. There was good reason for fearing that the applicant was not only a danger to himself but also to members of his family and to the public. In terms of s 117(2)(a)(i) of the Act, a reason for refusing bail would include the fact that the applicant was a danger to the safety of the public or a particular person. It was too risky to release the applicant into society when he had not been properly examined, and or treated, for the condition which triggered the events of the fateful day.

 

However, it was not only undesirable for a juvenile to be kept in a remand prison, but such a course was contrary to the provisions of s 84 (1) Children's Act, which stipulates that a young person shall not before conviction be detained in a prison or police cell or lock-up unless his detention is necessary and no suitable remand home is conveniently available for his detention. There being such a home available, the applicant would be detained there.

§   State not opposing bail

Even if the prosecution does not oppose the granting of bail, the court still has “the duty to weigh up the personal interests of the accused against the interests of justice” and decide whether it is in the interests of justice to grant bail. [s 117(5) CPEA] The court can require the prosecutor to put on record the reasons for not opposing bail. [s 117A(4) CPEA]  And where X is charged with a crime set out in Part I of the Third Schedule CPEA, a magistrate cannot grant bail unless X adduces evidence showing that there are exceptional circumstances justifying his release, even if the Prosecutor-Generalhas personally consented to the grant of bail.

§   Whether opposition by State to bail is decisive factor

In Ndhlovu 2001 (2) ZLR 261 (H) the court stated that the attitude of the Attorney-General is a relevant but not a decisive factor. His opinion commands respect because of his experience and the responsibility of his office, unless it is evident that he is no better informed than the court. However, his assertion cannot be substituted for the court’s discretion.

 

The attitude of the police or prosecutor is not a decisive factor in the grant or refusal of bail. It was held to merely be a relevant consideration in Mahata v Chigumira NO & Anor HH-24-04. Accordingly, bail cannot merely be refused on the grounds that the state is opposed to it.

§   Invalid reasons for refusing bail

The seriousness of the offence is not in itself a reason to refuse bail: Kanoda & Ors HH-200-90-90; Hussey 1991 (2) ZLR 187 (S). The fact that the charge is a serious one and is prevalent, and would attract a lengthy prison term if X is found guilty, is only a factor to be considered together with other factors in deciding whether X should be kept in custody until his trial. Hussey 1991 (2) ZLR 187 (S).

 

It is not proper to refuse bail merely because a date has been set for trial, except in exceptional cases as, for instance, where the date of trial is a few days away and the release of X on bail would create transport or accommodation problems for him: Chiadzwa 1988 (2) ZLR 19 (S).

 

Fears for the safety of the accused because of the unlawful actions of a mob outside the court room, threatening to kill the accused, are not normally grounds to refuse to grant bail, particularly once the accused is removed from the area:  Bhebhe & Ors 2002 (1) ZLR 137 (H).  On the other hand, the court is enjoined by s 117(2)(b) as read with s 117(3)(e)(iii) CPEA to consider X’s safety when deciding whether exceptional circumstances exist for refusing him bail.

—            Magistrate functus officio after granting bail

 

In Khumalo & Anor v Mukondiwa-Mazhandu NO & Anor HB-68-12 applicants were granted bail by the first respondent. The prosecutor was not opposed to the granting of the bail. For some reason the first respondent wanted the prosecutor to check with the police. This was done and the prosecutor indicated that the police were not opposed to the granting of bail.  The first respondent granted the application, but in spite of the applicants’ relatives having paid the bail money, the applicants were not released. It emerged that the first respondent had directed the prison staff at the courts not to release the applicants. She had done this, she said, because the police were alleging that she had been bribed by the applicants’ relatives. It was this approach by the police that caused her to revoke the bail that she had granted earlier on.

 

The court held that when the first respondent granted bail, the magistrate then became functus officio. There was no legal basis for denying the applicants their liberty. If the police or the applicants’ relatives alleged that she had been bribed, that was not a legal ground to recall the matter and alter the decision that she had already taken. She should have dealt with the allegations of bribery levelled against her without denying the applicants their liberty. Magistrates should not have informal discussions elsewhere on issues that took place in court.

§   Jointly charged accused

Where two or more persons have been jointly charged in one case, for the purposes of considering whether bail should be granted each case must be considered there is still an obligation to consider each individual case separately as well as treating the person as part of a group: Mutambara & Ors v Minister of Home Affairs 1989 (3) ZLR 96 (H).

§   Amount of bail

If bail is to be granted an excessive amount of bail must not be demanded: s 120 CPEA. If bail is set beyond the capacity of X to raise the amount, he will end up in custody and the granting of bail will have been a futile gesture; in effect a person is denied bail if bail is set well beyond his means to pay. In respect of persons with little or no financial means, bail can be set at a low level or a person can be released on his or her own recognizances, with or without further conditions, or he can be released subject to sureties being found, provided that there is a reasonable prospect of his or her finding such sureties. The magistrate must therefore investigate X’s means and whether X has relations or other persons who would be prepared to pay the bail or stand surety for him or her.

§   Deposit of property or recognizance in respect of property

Instead of or in addition to cash bail the court can order X to deposit property belonging to him or enter into a recognizance in respect of property belonging to him.  Thus in Aitken(2) S-168-92 the court ordered that, in addition to cash bail, X enter into a recognizance in a certain amount against the security of a house registered in his name: s 131 and s 118 (1) CPEA.

§   Sureties

The accused may also be required to find persons to stand surety for him.  The sureties will be required to enter into recognizances to pay a certain amount of money in the event of X defaulting and not standing trial: s 119 (1) CPEA.  The court should property explain to sureties that if X defaults on his bail conditions, they will have to pay over the amount agreed to in the recognizance and they will lose this amount. 

§   Conditions of bail

Conditions may be added —

• requiring X to surrender all his travel documents;
• specifying that he report to the police or other authority at a specified place and at specified times;
• forbidding him from going to particular places (in land acquisition cases a person contesting the acquisition of his farm cannot be ordered not to go back to his farm; he can only be evicted after being convicted of failing to vacate a farm that has been lawfully acquired

• prohibiting him from communicating with prosecution witnesses;

• imposing other conditions as to his conduct, such as that he places himself under the care and supervision of a particular organisation. s 118(3) CPEA.

 

In imposing conditions, a magistrate must carefully consider the surrounding circumstances in order to give a reasonable ruling. In Prior HH-163-02, The appellant was charged with failing to vacate her farm, in respect of which an acquisition order had been made under s 8 of the Land Acquisition Act [Chapter 20:10]. She was granted bail, one of the conditions of which being that she should not return to the farm other than to collect her possessions. She appealed in respect of that condition. Held: it was not reasonable to order that she should not return to her home. She was contesting the acquisition, and until that issue had been determined, she was entitled to exercise her rights of ownership. The section provided for eviction only after conviction; the bail condition effectively amounted to eviction before conviction. The condition would be altered to require her to reside at her home.

 

Once conditions are imposed, it is not permissible for the State to seek further conditions to those already imposed in the absence of further violations while on bail. In Tsvangirai & Ors 2003 (1) ZLR 618 (H) the accused were on trial on charges of treason. They had been granted bail, and had not breached any of the conditions. The State applied to have further conditions added. It alleged that the accused had indulged in activities which occurred after the grant of bail and which were unlawful and bordered on treason.  No charges were being brought in respect of those alleged activities. It was held that the grant of bail is a consequence of the arrest and remand of an accused person on a specific charge. The nature of the offence charged and other relevant considerations are factors to be taken into account in determining the grant or refusal of bail and, where such bail is granted, the conditions to be attached to the recognizance. Any conditions attached to a recognizance must have some bearing to the offence of which the accused is charged, in particular the need to secure his attendance; to ensure that he does not interfere with the evidence and to ensure that he does not commit further offences whilst awaiting trial. The conditions added to the recognizance cannot refer to some other allegation that the accused person may possibly face in future and in respect of which he has not been charged. What the State wanted was to prevent the accused from conducting themselves unlawfully.  It could not do so through conditions added to bail.

 

In another linked application, the court expressed the view that conditions should be imposed where these can dispense with State fears adequately. In Tsvangirai 2003 (1) ZLR 650 (H) the applicant, along with 2 others, was on trial on charges of treason. They had been granted bail, and had not breached any of the conditions. The State unsuccessfully applied to have further conditions added. That application was dismissed on the grounds that bail conditions cannot refer to some other allegation that the accused person may possibly face in future and in respect of which he has not been charged. The applicant was then arrested on a further charge of treason, based on statements he was alleged to have made, urging a mass stay-away as a means of removing the government from power. The State conceded that it had no reason to fear that the applicant would not stand trial or interfere with the evidence, but expressed apprehension that, if granted bail, the applicant was likely to commit or influence his supporters to commit similar crimes; that the applicant has a propensity to commit such crimes when out of custody. The court held that the fact that the applicant was facing other charges previously preferred against him and for which he had not been convicted was not by itself a reason for denying him bail. However, the State’s fears that he might commit similar crimes were not totally unfounded, but could be catered for by the imposition of appropriate conditions, something the court was empowered to do.  Bail was granted on that basis.

§   Equal treatment of accused

In Lotriet & Anor 2001 (2) ZLR 225 (H) the applicants were granted bail by a magistrate but the Attorney-General’s appeal against the grant of bail was upheld by the High Court, so they remained in custody. In a further application to the High Court it was revealed that an accomplice had been granted bail. The court granted their application on the basis of two fundamental principles: the right of the individual to liberty and the need for justice to be seen to be administered evenly. The judge commented that it was “vital that in the administration of justice there does not appear any form of discrimination, particularly in a matter where the liberty of a person is involved.”

§   Cancellation and forfeiture of bail

If X breaches any of the conditions of his bail the judicial officer who admitted him to bail or the judicial officer before whom X is brought may declare the bail to be forfeited: s 133(a) CPEA.

 

Where X has failed to appear in court for trial (his name having been called three times both inside and outside the courtroom), the prosecutor may apply for a warrant of apprehension and for the forfeiture of X’s bail and any recognizances that have been entered into: s 119 CPEA.

 

The court will usually refrain from ordering forfeiture of bail until X is arrested and brought before the court and asked to explain his default. The correct procedure is merely to issue a warrant for the apprehension of X. The court should only order forfeiture when, after hearing X's explanation, it is satisfied that the default was wilful or deliberate: Sibanda (1) 1980 ZLR 413 (GD). X’s lawyer can appear at this hearing to explain why his client failed to appear in court for trial and to try to persuade the court not to order forfeiture of bail but instead to extend the previous bail and to set a new trial date. However, if the default of X was wilful the court is obliged to order forfeiture of bail: Knight NO v Van Tonder & Ors 1962 R & N 405 (SR).

 

It is impermissible for the court to order both forfeiture of bail and the imposition of a fine for failure to appear in court. This amounts to punishing X twice for the same offence: Sibanda (1) 1980 ZLR 413 (GD).

§   Alteration of bail conditions

In Musariri HB-41-95 X had suggested that certain bail conditions which the State accepted, including undertaking to remain at his house except for necessary visits to the court or to doctors. Four weeks later he sought a variation of the conditions saying that he was being subjected to virtual house arrest. Variation was refused.

 

In Bilal v Attorney-General HH-105-11 the applicant was charged with a serious fraud involving US$1 million. He applied for alteration of his bail conditions on humanitarian grounds in order to visit his wife in South Africa who was seriously ill with cancer and had heart problems which required a transplant. However, the supporting documentation relating to the wife’s condition were not authenticated as required by the rule 3 of the High Court (Authentication of Documents) Rules, 1971 and were inadmissible were just bald or naked assertions which could not be accepted..

 

The respondent opposed the application on two main planks, viz that the humanitarian reasons proffered have no basis at law as they do not in any way save the interests of justice and that the applicant, if allowed to leave the Court’s jurisdiction, would never be seen again since he was a peregrinus.

 

The court held that in terms of s 126 (1) CPEA conditions of a recognizance can only be altered or added to if necessary or advisable in the interests of justice. In the present case the alteration of or addition to the bail conditions being sought is premised solely on humanitarian grounds. The question therefore is whether the grounds advanced are in the interests of justice. Humanitarian grounds such as the ones given in the instant case do not fall within the ambit of the phrase “in the interests of justice”. Such moral or humanitarian considerations have no place in our bail jurisprudence for every accused person denied bail has a moral or humanitarian crisis consequent to him.

 

Regarding the issue of flight risk, the appeal strikes at the heart of the due administration of justice. Releasing the applicants solely on their promise to return for trial is untenable. It means that local law enforcement agents would not be able to apprehend them if they decide to default. The court would have to rely on the magnanimity of the South African Law enforcement agents to arrest them. The South African Police Service’s magnanimity would depend on the complex extradition procedures in their country. Indeed the extradition of the alleged principal was an arduous process. It would delay the due administration of justice unnecessarily. The court cannot simply agree to abdicate its jurisdiction in favour of foreign processes over which it does not have any control or influence. The application for the alteration of bail conditions dismissed.

§   Bail during trial

Bail generally comes to an end, unless expressly stipulated, once X pleads at the commencement of the trial. The court can, however, extend the bail for the period of the trial or grant fresh bail on new conditions.

§   Further applications for bail

Even if bail has been refused by a court, a further application for bail can be made at subsequent remand proceedings if this application is based on new or different facts from the previous application: s 116 (1)(c) proviso (ii).

 

The passage of time since the last application for bail can be a new fact arising after the last application. See Murambiwa S-62-92 and Aitken (2) 1992 (2) ZLR 463 (S). The fact that the police have had sufficient time since the last application to investigate the case but have not been able to strengthen their case will be a factor which must be considered in the further application for bail. See Murambiwa and Aitken (2). In Stouyannides 1992 (2) ZLR 126 (S) the court pointed out that where a considerable period of time has elapsed, the Attorney-General acts at his peril if he fails to put before the court specific facts strengthening the case over the period of time which has elapsed. This was confirmed Barros & Ors 2002 (2) ZLR 17 (H) where the judge held that a postponement of a trial is a change in circumstances entitling a court to reconsider the question of bail. Whether bail should in fact be granted will depend on the circumstances of the case in question, the length of the postponement and the nature of the charges.

 

If X previously had no money for bail but now has raised some, his lawyer can inform the court of this and request that bail now be granted.

 

 

§   Appeal against decision on bail by magistrate

 

Where a person applies for bail in the magistrates’ court and the application is refused he or she is only entitled to a single appeal against this decision to the High Court. Section 121(8) CPEA had removed the right of the person concerned who had appealed to a judge of the High Court against the bail decision of a magistrate to take the judge’s decision, subject to leave, on appeal to a judge of the Supreme Court.

 

Appeals against decisions regarding bail [s 121]

Where a magistrate has admitted or refused to admit a person to bail—

• the Prosecutor-General or the public prosecutor, within forty-eight hours of the decision; or
• the person concerned, at any time;

may appeal to a judge of the High Court against the admission to or refusal to bail or the amount fixed as bail or any conditions imposed in connection with bail.

 

Where a judge or magistrate has admitted a person to bail, and an appeal is noted by the Prosecutor-General or public prosecutor, the decision to admit to bail remains in force unless, on the application of the Prosecutor-General or public prosecutor, the judge or magistrate is satisfied that there is a reasonable possibility that the interests of justice may be defeated by the release of the accused on bail before the decision on appeal, in which event the judge or magistrate may suspend his or her decision to admit the person to bail and order the continued detention of the person for a specified period or until the appeal is determined, whichever is the shorter period.

An appeal by the person admitted to bail or refused admission to bail will not suspend the decision appealed against.

A judge who hears an appeal in terms of this section may make such order relating to bail or any condition in connection therewith as he or she considers should have been made by the judge or magistrate whose decision is the subject of the appeal.

This section will apply in regard to a private prosecution as if references to the Prosecutor-General were references to the private party instituting the prosecution.

In Chiyangwa v AG & Ors S-1-04 it was held that there is only one appeal against the grant or refusal of bail by a judge or magistrate, no matter which party appeals. If a magistrate refuses bail and a judge of the High Court grants bail on appeal by the accused, that is the end of the matter. The Prosecutor-General has no right of appeal to the Supreme Court. See also AG v Lotriet & Ors 2001 (2) ZLR 168 (H)

 

However, an exception arises in respect of currency offences, as in the case of Attorney-General v Fundira S-33-04. In that case, the respondent, who was charged with currency offences, had been granted bail in the High Court. The Attorney-General immediately announced his intention of appealing and applied for leave to appeal. The judge refused leave, and within two days the Attorney-General applied to the Supreme Court for leave to appeal. The respondent argued that as the Attorney-General had not noted an appeal within 7 days (now 48 hours), there was no appeal before the court and the respondent should be released. It was held no appeal lies to the Supreme Court from an order of a High Court judge sitting as an appeal judge in a bail application. However, there is an exception in respect of persons charged with currency offences: applications for bail in respect of those offences can commence in the magistrate’s court, then proceed to the High Court and thereafter to the Supreme Court. No party is relieved of the requirement to obtain leave to appeal in a bail application, where the appeal is against the decision of a judge of the High Court. The Attorney-General’s application, within 7 days, for leave to appeal constituted compliance with s 121 CPEA. It cannot have been the intention of the legislature to require the Attorney-General to file the notice of appeal at a time when it was legally not possible to file such a notice of appeal, by reason of awaiting the outcome of his application for leave to appeal.

 

In A-G v Mabusa 2011 (2) ZLR 522 (H) the court pointed out that the discretion of the AG in terms of s 121 CPEA to veto the granting of bail by a magistrate must be exercised judiciously and must not be abused as this will bring the administration of justice into disrepute. The prosecutor must not invoke this provision without applying his or her mind properly to the matter. The discretion must only be used where there is merit in the appeal and where it shown that there was a misdirection by the magistrate or the discretion by the trial court to grant bail was exercised injudiciously.   

 

Where bail has been granted by a magistrate, and the state appeals, the High Court cannot substitute its own discretion for that of the magistrate in the absence of misdirection or irregularity: A-G v Ruturi HH-26-03. When there is an appeal against a decision to admit a person to bail, that decision should not be set aside unless there are compelling reasons to do so.  The period for the Prosecutor-General to note an appeal against the granting of bail by a magistrate, is 7 days which includes Saturdays, Sundays and public holidays. See Dhlamini & Anor v Ministers of Home Affairs & Ors 2010 (2) ZLR 25 (H).

—           Bail pending appeal and review

Reid-Rowland 6-17 – 6-20

 

The main factors to weigh in the balance are the interrelated factors of the prospects on appeal and whether the granting of bail will jeopardise the interests of the administration of justice.

 

In Kilpin 1978 RLR 282 (A), the appeal court pointed out that the principles governing the granting of bail after conviction were different to those governing the granting of bail before conviction. Where the person has not yet been convicted he or she is still presumed innocent and the courts will lean in favour of granting him or her liberty before he or she is tried. On the other hand, where he or she has already been convicted, the presumption of innocence falls away. There are certain cases where bail pending appeal should not be granted such as where the person has been convicted of an offence which almost invariably attracts a lengthy prison term and there are no reasonable prospects of an appeal against the lengthy prison term succeeding to a material degree. The trial magistrate had thus been wrong to automatically extend bail granted before trial to the post-trial stage where the person had pleaded guilty to such an offence.

 

Where the evidence of guilt is overwhelming there are no reasonable prospects of a successful appeal against conviction, but if there is room for a difference of opinion regarding conviction there would be a reasonable prospect on appeal.

 

However in Williams 1980 ZLR 466 (A), the appeal court said that even after conviction the court should lean in favour of liberty if this would not endanger the interests of the administration of justice. The prospects of success on appeal must be balanced against the interests of the administration of justice. The less chance of success on appeal the greater the chance there was of the convicted person absconding. But it was putting it too highly to say that bail should only be granted where there was a reasonable prospect of the appeal succeeding. On the other hand, in serious cases even where there was a reasonable prospect of success on appeal, bail should sometimes be refused, notwithstanding that there is little danger of the convicted person absconding. See also Benatar 1985 (2) ZLR 205 (H).

 

In deciding whether the administration of justice will be prejudiced if bail is granted the court should take into account the seriousness of the offence, the seriousness of the penalty imposed, whether the appeal is against conviction or only against sentence and the prospects of success on appeal. With a serious offence which normally attracts a substantial prison sentence there will be a pronounced risk that the convicted person will flee from justice if released, especially if he or she has no reasonable chance of successfully appealing against conviction. There will be a very great risk of flight if X is only appealing against sentence and the most he or she can hope for is that the prison sentence will be subject to some minor adjustment. Even where there is a reasonable prospect of success on appeal against such a conviction, the convicted person may not be inclined to take the chance of the appeal succeeding, but may take flight instead if he or she is released pending appeal. With less serious offences not attracting drastic penalties the position will be radically different.

 

In assessing the prospects of success on appeal, the magistrate is obviously placed in a somewhat difficult position as, to a certain extent, he or she is being asked to come to a decision on the reliability of his or her conviction and/or sentence. He or she must try to assess this as objectively as possible.

 

In Gardner HH-60-08 the court held there are two primary considerations in an application for bail pending appeal, namely; the risk of absconding and the prospects of success on appeal.  Other factors to bear in mind in such applications are the right of the individual to liberty and the potential length of the delay before the appeal can be heard. There are two conflicting interests that the procedure of bail seeks to reconcile. These are the right of the applicant to his liberty and the interests of the due administration of justice. Hence the basic purpose from society’s point of view of the procedure known as “bail” is to strike a balance between two conflicting interests- liberty of the accused, and the requirement of the State that he stand trial to be judged and that the administration of justice be safeguarded from interference or frustration. This proposition is amply supported by authority. 

 

The right of the applicant to his liberty is easy to define and understand. In applications for bail pending trial, the right of the individual to his liberty is reinforced by the presumption of innocence and the State bears the onus of proving that the interests of justice will be prejudiced by granting the applicant bail. In applications for bail pending appeal because the presumption of innocence will have ceased to operate in favour of the liberty of the applicant upon conviction, the onus shifts and rests with the applicant to show that the interests of justice will not be prejudiced by his or her admission to bail.

 

The concept of the interests of justice and the due integrity of the due administration of justice that is sought to be protected in bail procedures easy to repeat and pay lip service to (following the authorities), but difficult to define and apply. Not a single aspect or feature can be pointed at and discerned in each case.

 

The securing of the attendance of the applicant at the hearing of the appeal is one aspect of the due administration of justice. Thus, where there is a real risk that the applicant will abscond and not stand trial, the interests of justice would have been prejudiced by granting bail to such an accused. This is easy to envision. Again where evidence will be tempered with, and investigation frustrated by an accused because he is out of custody, the interests of justice would have been prejudiced by the granting of bail to the accused. Not so obvious are instances where the integrity of the administration of justice will fall into disrepute if bail is granted to an accused person. This brings into play the elusive concept of justice as understood by society. Where the granting of bail will result in uproar from society for one reason or another, the court should be slow to grant bail in an effort to safeguard the interests of justice and the integrity of the justice delivery system as perceived by the public which the court seeks to serve. Thus for instance, a serial rapist or murderer who is unlikely to abscond may not be granted bail immediately upon his arrest for to do so may affront the public’s notion of justice and the purpose of the justice delivery system. On the other hand, to deny bail to an accused who is later exonerated on appeal will equally bring the administration of justice into disrepute.

 

In Kwenda & Anor HH-37-10 the court said that the distinction between considerations that should weigh with the court in an application for bail pending appeal and an application for bail pending trial is well settled. There is an essential difference between bail pending trial and bail pending appeal. In either case bail is a matter for the discretion of the court, but bail pending trial will not normally be refused unless there are positive reasons for refusal, such as the danger of the accused absconding or of interference with witnesses. But bail pending appeal involves a new and important factor; the applicant has been found guilty and sentenced to imprisonment. Bail is not a right. An applicant for bail asks the court to exercise its discretion in his favour and it is for him to satisfy the court that there are grounds for so doing. In the case of bail pending appeal the position is not, even as a matter of practice, that bail will be granted in the absence of positive grounds for refusal, the proper approach is that in the absence of positive grounds for granting bail it will be refused. This is not to say that an applicant for bail pending appeal has any heavy onus to discharge; if justice is not endangered, the court favours liberty, more particularly where there is a reasonable prospect of success. But it is nevertheless important not to lose sight of the fact that the exercise of the court's discretion involves balancing the considerations of the liberty of the individual and the proper administration of justice, and that where the applicant has been tried and sentenced it is for him to tip the balance in his favour. It is not the consideration of any particular factor that should weigh with the court in considering such an application. Rather, the question to be answered at the end of the inquiry is whether the applicants have shown that the court’s discretion should be exercised in their favour, taking all the factors into account.

The exercise of discretion by the presiding officer is protected in the absence of a misdirection that vitiates the proceedings. Not every misdirection will entitle an appeal court to interfere with the decision of the trial court. Only an improper or unreasonable exercise of discretion will be considered as a misdirection that calls for the appeal court to exercise fresh discretion in the matter. It is not adequate that the present court might have imposed a different sentence in the matter. The court’s attention must be drawn to a misdirection by the sentencing court. It was not.

Indeed the opinion of the Attorney- General commands the respect of this court as it is invariably well put and founded. It is invariably based on established legal principles that underpin the criminal law of this country and is based on detailed research that the court does not have time to carry out on its own. It is invariably balanced and where necessary, draws the attention of the court to authorities that may be adverse to the final position adopted by the respondent. It is invariably reliable as a statement of the position at law of the issue in dispute.

 

In Chimbwa HH-62-08 the applicant was convicted of theft. He was sentenced to 36 months imprisonment with 12 months suspended on conditions of good behaviour and restitution. The applicant appealed against both conviction and sentence. He then applied for bail pending appeal. The application was opposed.

The applicant argued that the respondent did not prove its case against him beyond reasonable doubt and thus, he had prospects of success on appeal against the conviction.

 

In dismissing the application the court held that the applicant did not discharge the onus on him to show that he is entitled to bail pending appeal. The evidence on record is cogent enough to ground a conviction, thereby diminishing the prospects of the applicant succeeding on appeal. It is trite that one of the factors that a court has to take into account in considering an application for bail pending appeal is the prospect of the appeal being upheld. The other factors are the likelihood of the applicant absconding, the delays that are likely to ensue before the appeal is heard and the right of the applicant to his liberty pending determination of the appeal. In arguing the prospects of success in an application for bail pending appeal, it is not enough for an applicant to raise individual features of the State case that may be unsatisfactory. He must prove that the totality of the evidence led against him at trial does not justify the subsequent conviction bearing in mind always that the burden resting on the State in criminal matters is proof beyond a reasonable doubt and not proof beyond any shadow of doubt. Although the state relied on the testimony of a single witness, it is trite that the testimony of one witness in our law is sufficient to ground a conviction.

 

The procedure of bail is meant to strike a balance between the liberty of an individual and the due administration of justice. However, after conviction, the liberty of the individual loses some of its weight and the due administration of justice becomes the stronger factor. It is further trite that once an applicant has been convicted and sentenced, he is not as of right entitled to his liberty as the presumption of innocence ceases to operate in his favour upon conviction. The onus then falls on him to show the court that he is entitled to his liberty pending the determination of the appeal. It is not enough for a convicted applicant to show that he will not abscond if granted bail pending appeal. He must prove that the interests of justice and the integrity of the justice delivery system will not be prejudiced if he is released on bail pending appeal.

 

In Kaseke HH-120-11 the applicant was convicted of fraud by a regional court and was sentenced to an effective term of one year in prison. He applied for bail pending appeal. The court refused his application holding that there were no prospects of a successful appeal and there was a risk of the applicant absconding as he had already felt the rigours of imprisonment. Even if in the present case the hearing of the appeal was likely to be delayed, the applicant will not suffer any prejudice at all by continuing to serve sentence. In fact this will be to his advantage. The interests of justice demand that persons properly convicted and sentenced must quickly serve their punishment. The sentence seems on the lenient side in view of the prejudice caused.

 

In Maseko HB-65-08 the applicant sought bail pending appeal. She was convicted of possession of dagga She pleaded guilty, was convicted and sentenced to 20 months imprisonment. She was 41 years of age and a widow looking after two minor children. The main reasons for her application are that she is a widow looking after two minor children and HIV positive and therefore ill. 

 

The court took judicial notice of the fact that HIV is now medically better managed due to the advancement in medical development in society and properly managed her life can actually be prolonged. Therefore the fact that she is HIV positive is not per se a good reason for her to be granted bail. While this factor is no doubt important, that alone without more is not enough. This factor should be combined with other factors which are mitigatory. The court observed that while the court sympathized with her plight as a widow looking after her children the she cannot transgress the law and expect sympathy. Her recent and relevant previous conviction could not be ignored in determining this application. This is a factor that militates against her. Her application for bail pending appeal was dismissed.

 

In S v Pfumbidzayi HH-726-15 the court said that where bail after conviction is sought, the onus is on the applicant to show why justice requires that he should be granted bail. The proper approach is not that bail will be granted in the absence of positive grounds for refusal but that in the absence of positive grounds for granting bail it will be refused. First and foremost, the applicant must show that there is a reasonable prospect of success on appeal. Even where there is a reasonable prospect of success, bail may be refused in serious cases, notwithstanding that there is little danger of the applicant absconding. The court must balance the liberty of the individual and the proper administration of justice and where the applicant has already been tried and sentenced it is for him to tip the balance in his favour.  It is also necessary to balance the likelihood of the applicant absconding as against the prospects of success, these two factors being             interconnected because the less likelihood are the prospects of success the more inducement there is to abscond. Where the prospect of success on appeal is weak, the length of the sentence imposed is a factor that weighs against the granting of bail. Conversely, where the likely delay before the appeal can be heard is considerable, the right to liberty favours the granting of bail.

 

It is not a requirement that “exceptional circumstances” should exist to justify release on bail. What are required are positive grounds to show that bail must be granted. 

 

—            

 

—           Police Bail

 

See Section 2 “Release from police custody”.

 

—           Statements by accused to police

§   Importance to police

 

The police must obtain evidence of the commission of the alleged crime in order to secure a conviction in court. Not infrequently the sole or primary evidence which is produced in court is an incriminatory statement made by X to the police. The police tend to rely heavily on obtaining such statements. It is relevant here to note that in terms of s 273 CPEA a person may be convicted on the basis of his confession alone, provided that the offence confessed to has been proved by other competent evidence to have actually have been committed.

§   Advice on making statement

 

The defence lawyer may be brought into a case at an early stage and obtain access to his client who is in the custody of the police before the client has made a statement to the police. The client may, for instance, have insisted that he consult with his lawyer before he is prepared to make a statement.

 

After hearing the client's story, the lawyer will be able to advise his client about the making of a statement to the police. The nature of the advice will depend on the instructions he is given. In some instances he will advise his client to make a statement; in some he will advise him not to make a statement; in some he will advise him to allow him (the lawyer) to draw up the statement based on his client's instructions. The factors affecting the advice in this regard are dealt with earlier under "Arrests -Advice on statements to police".

§   Presence of lawyer when statement being made

 

If his client instructs his legal practitioner to be present when the police record a warned and cautioned statement, the legal practitioner is entitled to be present to protect his client's interests when the police record the statement.

§   Access after statement made

 

The lawyer often is only brought into the case or only manages to obtain access to his client after his client has already made a statement to the police.

 

The denial of access of a person to his lawyer is a violation of that person's constitutional rights. If the person asks for his lawyer before or during police interrogation, the police are supposed to stop the interrogation and only resume after X has had consultations with his lawyer: Slatter & Ors 1983 (2) ZLR 144 (H).

 

In the process of taking instructions from a client who has made a statement to the police, the lawyer must find out these details from his client pertaining to the statement which he has made to the police:

• the circumstances surrounding the making of the statement: was he forced to make the statement or were any incentives offered to him to make it? The legal practitioner must not, however, put questions in such a way as to suggest that he must allege that he was illegally pressurised by the police into making the statement;
• whether he asked to consult with his lawyer before making the statement and whether he had been denied access to his lawyer until after he made a statement;
• what sort of a statement it was: was it an oral statement or a written one; in what language did he give the statement; did he write out the statement himself; was he warned and cautioned before making the statement; was the statement typed and was his signature witnessed? (It is important to find out whether X understands the language in which the statement was recorded. For instance if the statement was recorded in Shona or English when X only speaks and reads Sindebele then X could not possibly have ensured that the recorded statement reflected what he had said.)
• what did he say in the statement?
• was he taken before a magistrate to have the statement confirmed and, if he was, what did he say in reply to the magistrate's questions?

 

If the client is literate he should be allowed to read over the statement. If he is not, the statement should be read to him. Especially with the unsophisticated client, care must be taken to find out whether the client accepts that he made the entire statement to the police. Enquiries must be made to ascertain whether the client is in fact alleging that he was forced to sign a statement which was concocted in its entirety by the police or that he made some of the statement consisted of portions added on by the police about which he had made no statement.

 

If the client says he was forced to make the statement or was unduly influenced to make it, full details must be extracted as to what pressures were brought to bear upon him to make the statement. If the client alleges that he was subjected to physical maltreatment to extract a statement from him, the lawyer should ask his client to show him any signs of such maltreatment on his body and, if it seems that there is substance in these allegations, the lawyer should insist that the police immediately allow his client to be physically examined. If the police refuse to allow this, then the lawyer can apply to court for a court order requiring that such a medical examination be carried out.

§   Unconfirmed statement

 

Where the client maintains that he did not make the statement voluntarily and the statement has not yet been confirmed before a magistrate, the client should be told that he must insist on having his lawyer present at any such confirmation proceedings. If the client is brought before a magistrate to confirm a statement and his lawyer has not been informed of these proceedings, the client should tell the magistrate that he has a lawyer and has instructed him to represent him at these proceedings. The lawyer should also inform the police that he has been instructed to appear for his client if his client is taken before a magistrate in order to have his statement confirmed and that he should be notified before any such proceedings take place.

 

If the client does not have enough money to engage the lawyer to represent him at the confirmation proceedings, the lawyer should tell his client to give full details to the magistrate of the circumstances surrounding the making of the statement and the pressure which was exerted upon him to make it.

 

Where the State seeks to introduce an unconfirmed statement in evidence at X's trial and this statement is challenged on the basis of duress or undue influence, the onus will be on the State to prove beyond reasonable doubt that the statement was made freely and voluntarily: Slatter & Ors 1983 (2) ZLR 144 (H); Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (S)

§   Confirmed statement

 

In terms of s 113 CPEA, X may be brought before a magistrate for the purposes of having a statement made by him confirmed. Statements include confessions. Also encompassed are statements made to the police while X is pointing out things or making indications and statements made on the way to the location where indications are to be made.

 

The confirmation procedure was introduced to try to cut down on the numbers of “trials within trials” consequent upon challenges in court by X to the admissibility of their confessions. The purpose of the confirmation proceedings is to give X the chance to object to the manner in which a statement was extracted from him. If he did not make the statement voluntarily or made it because of undue influence, he is supposed to tell the magistrate about this at the confirmation proceedings and then the statement will not be confirmed.

 

Once a statement has been properly confirmed, it becomes far more difficult to challenge the admissibility of that statement. This is because the onus is then placed on the defence to prove, on a balance of probabilities, that despite its confirmation the statement was not made by X or that it was not made freely and voluntarily and without undue influence: s 256(2) CPEA.

 

On the other hand, if the police have not had the statement confirmed or the magistrate refuses to confirm it because X has alleged that it was not made freely and voluntarily, the onus will then rest on the State to prove beyond reasonable doubt that the statement was made freely and voluntarily and without undue influence.

 

The correct procedure at confirmation proceedings, where X is not legally represented, is as follows:

• The prosecutor produces the statement by handing it to the magistrate and informing the magistrate of when, where and to whom it was made.
• The statement is then read over to X and he is informed of when, where and to whom he made the statement.
• The magistrate will then ask X whether he admits making the statement and making it freely and voluntarily and without being subject to undue influence. The magistrate must explain that if X admits these things or refuses to answer these questions the statement will be confirmed and that it can then be used in evidence against him at his trial on mere production of the statement by the prosecution;
• If X admits that he freely made the statement or refuses to answer the questions, the statement will be confirmed and can be admitted in evidence at his trial on mere production.
• If X denies he made the statement or alleges that it was not freely made, the magistrate will ask him to give sufficient facts to back up his denial or his allegation of duress or undue influence and, where it is reasonably possible for him to do so, to identify those who applied the undue pressure on him. The magistrate must also tell X that if he fails to mention any facts salient to his allegations concerning the making of the statement, adverse inferences may be drawn from this failure when the admissibility of his statement is being dealt with at his trial.
• If X alleges that he has been subjected to physical ill-treatment to extract a confession, the magistrate must note and record any signs of injury on the body of X. The magistrate has power to order an immediate medical examination of X. This power should usually be invoked in these circumstances in order that any evidence of ill-treatment can be detected by a medical expert.
• The magistrate also has the power to order such other investigations as he considers to be necessary or desirable in the circumstances.
• If X gives replies in which he implies that some inducement has been offered to him to make the statement (such as that he would be released if he did so), the magistrate must clarify what X means. He should refuse to confirm the statement if it emerges that X is saying that undue influence was brought to bear upon him.
• The magistrate should also look for factors which indicate that undue pressure has been applied, such as that an appreciable amount of time has elapsed between the recording and signing of a confession and the bringing of X to have his statement confirmed. If X has alleged he was tortured to extract a confession and confirmation has been sought a long time after the statement was made, this delay may suggest that this time lapse was to allow signs of injury to disappear.
• If X indicates that parts of his statement were not freely and voluntarily made, the magistrate should decline to confirm the whole statement. It is not proper to confirm some parts and to decline to confirm the parts which X has said were not freely and voluntarily made: Munukwa & Ors 1982 (1) ZLR 30 (S).
• During confirmation proceedings the magistrate should ensure that the investigating officer and his colleagues remain outside the courtroom and are kept far enough away so as not to be able to overhear what is going on inside the courtroom.
• After the confirmation proceedings X — if he is not granted bail — should be remanded to a prison rather than returned to the custody of the police: Munukwa & Ors 1982 (1) ZLR 30 (S).

 

If these procedures are not strictly adhered to the confirmation proceedings will be invalid. In Slatter & Ors 1983 (2) ZLR 144 (H) it was laid down that denying X access to his lawyer violates the constitutional rights of X and constitutes undue influence upon him. If X is denied access to his lawyer before or during the confirmation proceedings, the confirmation proceedings will be rendered invalid and the onus would revert to the State to prove that the statements were made freely and voluntarily. This would even apply where relatives of a person in police custody had instructed the lawyer without X being aware of this and the lawyer is prevented from seeing the person concerned subsequently.

 

In many cases the defence lawyer will only be brought in at a stage when his client has already made an incriminatory statement to the police and the statement has already been confirmed before a magistrate. It may still, however, be possible to challenge the admissibility of the incriminatory statement at the trial. If the defence can establish that the confirmation proceedings were improperly conducted, the proceedings will be ruled to be invalid and the statement will be treated as if it had not been confirmed. Where the defence challenges the validity of the confirmation proceedings, as opposed to challenging the admissibility of the confirmed statement, the State bears the onus of proving beyond a reasonable doubt that the proceedings were properly conducted.

 

Even if the confirmation proceedings were properly conducted, the admissibility of the statement can still be challenged either on the basis that the original statement was not made freely and voluntarily without undue influence or on the basis that the statement was not made at all by X and the statement is not true. The onus lies on the defence to prove, on a balance of probability, the inadmissibility of a confirmed statement. In determining the admissibility of a statement the court may draw adverse inferences from X's failure to mention facts at the confirmation proceedings which in the circumstances he could reasonably have been expected to have mentioned: s 115 CPEA. Any failure of X to tell the magistrate about the undue pressure applied to him to force him to make the statement would therefore have to be explained. The reason for X's failure may have been that he was threatened with further violence by the police when he was returned to their custody if he did not tell the magistrate that he had made the statement freely and voluntarily.

 

§     Statements not made freely and voluntarily

 

A confession or a statement made by X is admissible in terms of s 256 (1) CPEA if it is “freely and voluntarily made by X without his or her having been unduly influenced thereto”.

 

The statement will not have been made freely and voluntarily and without undue influence if X made the statement because he or she:

• was tortured, beaten up or physically maltreated in some other way, such as by being deprived of sleep or food and drink for long periods in order to force him or her to confess;
• was threatened with death or with torture or physical brutality unless he or she made the statement;
• was told that dire consequences would occur to members of his or her family unless he or she made the statement;
• was offered some benefit or advantage if he or she confessed to the crime, such as that he or she would be released from custody as soon as he or she confessed or that if he or she confessed he or she would receive only a light sentence such as a fine;
• had been kept in solitary confinement for a long period and no one had been allowed to visit him or her and he or she confessed simply because he or she could no longer bear this isolation;
• he or she had been denied access to his or her lawyer after requesting access to him or her and had been pressured into making a statement in the absence of his or her lawyer;
• had been subjected to such intensive, hostile and prolonged questioning that his or her freedom of volition had been overborne as a result of this psychological pressure.

 

See Ananias 1963 RN 938 (SR); Hlupe 1964 RLR 333 (GD); Murambiwa 1952 SR 271 (SR); Michael & Anor 1962 R&N 374; Dube 1965 RLR 177 (RA); Hackwell 1965 RLR 1 (RA); Edward 1966 (2) SA 359 (R); Mfungelwa 1967 RLR 308; Schaube-Kuffler 1969 (1) RLR 78 (A); Attorney-General v Slatter & Ors 1984 (1) ZLR 306 (S); Mthombeni S-80-90; Nkomo & Anor 1989 (2) ZLR 117 (S); Jana S-172-88; Ndlovu 1988 (2) ZLR 465 (S).

 

The reason why such evidence is not admissible is that the contents of a statement made in these circumstances will be highly unreliable.

 

See Mukoko v AG S-11-12.

 

In Woods & Ors 1993 (2) ZLR 258 (S) the court ruled that the wilful denial of proper access to a legal practitioner may render inadmissible any statements made before a person has consulted with his or her lawyer. If accused are denied access to their lawyers confirmation proceedings are vitiated.

 

—           Discovery of mental unfitness before trial  

 

If, as a result of his interviews with his client, the defence lawyer considers that X is not mentally fit to stand trial, he should liaise with the prosecutor in the case so that the mental condition of X can be brought to the attention of a magistrate and an order can be made for a psychiatric investigation into the mental competence of X to take place. He should do the same if X appears sane when he is interviewed but the facts of the case suggest that X may have been mentally disordered when the alleged crime was committed.

 

Where X is mentally unfit to stand trial he must be dealt with under s 27 Mental Health Act.

 

In terms of s 27(1) of the Mental Health Act, if it appears that a person being held in custody pending trial is mentally disordered or defective, the prosecutor or the person in charge of the place of detention (which may be a police station or a prison) must report this fact, without delay, to a magistrate of the province in which the place of detention is situated.

 

The procedures to be followed in this sort of case are set out in subsections (2), (3), (4) and (5) of s 26.

 

The Chief Magistrate's Circular No 9 of 1984 suggests that in this sort of case the magistrate should request the prosecutor, as soon as possible, to obtain from the police docket copies of the witness statements as to X's conduct at the time of the crime, and, where necessary, any further information about his mental condition from relatives and associates. The case should be remanded. The circular says that on receipt of the information, if it appears that X may be mentally disordered, arrangements should be made through the police or prisons for the requisite medical examination to be made as required by the Mental Health Act.

           

Section 26 actually requires that, within twenty-four hours of receipt of a report, the magistrate must direct that the medical examination take place.

 

Two medical practitioners (or one, if two are not available) must state in writing their opinion as to the mental condition of the prisoner. Based on this opinion the magistrate must then decide what to do with X. If such person is considered to be unfit to stand trial because he is mentally disordered or defective he will be committed to a mental institution until he has recovered. After recovery he can then be put on trial: s 30 Mental Health Act.

 

Often persons who are mentally unfit to stand trial may also have been mentally disordered or defective when they committed the crime. It is, therefore, useful if the doctors also consider whether X is likely to have been mentally disordered or defective at the time that the offence was perpetrated. This may save having to have a further medical investigation after X has recovered and is put on trial. If the doctors say that X was mentally disordered or defective at the time of the offence, there is little point in putting him on trial after his recovery unless there is some doubt about the opinion of the doctors. If he were to be tried, a special verdict would be returned under s 28 of the Mental Health Act. He would then have to be sent to a mental institution even though he has already been in a mental institution and he has recovered from his mental condition.

 

As regards the procedure for dealing with an accused person who displays signs of being mentally disordered after the trial commences, see later under "Trial - Mental Unfitness of X to Stand Trial".

 

 

Ø    Section 3 – Jurisdiction Of Courts

 

 

—           Place of trial

§   Magistrates courts

 

An ordinary, senior or provincial magistrate may normally only try offences committed within his province and a regional magistrate may only try cases within his regional division. This basic rule is, however, subject to numerous exceptions and qualifications. A case may be tried by a court which has jurisdiction to try cases in a particular province or regional division

• if any act or omission or event which is an element of the offence takes place in that province or regional division;
• if the offence was commenced or completed in that province or regional division;
• if the offence was committed within five kilometres of the boundary of that province or regional division;
• if the offence was committed on any vehicle, including a train, during a journey which passed through that province or regional division or within five kilometres thereof;
• in cases of theft or receiving or obtaining property unlawfully, if X has or has had any of the property in his possession in that province or division.

 

In addition,

• persons charged with incitement or as accessories (after the fact) may be tried by any court having jurisdiction to try the principal offenders;
• in respect of statutory offences which the legislature has provided may be tried extra-territorially, a court in a province or regional division may try the case even though no part of the offence was committed within the province or regional division;
• in cases where offences have been committed in several jurisdictions, these may be tried in any of such jurisdictions;
• provided X consents to it, the Attorney-General may cause X to be tried for the offence in the court of any province;
• when a court has remanded a person in custody for trial before another court, the prisoner must be transmitted forthwith to the prison of the province where he or she is to be tried.

s 56(2) & (7) MCA

§   High Court

The High Court can try cases committed in any part of the country.

 

—           Crimes triable

§   By magistrates

 

No magistrate may try treason or murder cases: s 49(1) MCA. Magistrates courts may try any other crime.

 

However, only a regional court can try rape cases, unless the Prosecutor-General remits the case for trial to a magistrates court other than a regional court or it is a summary trial in respect of a person under 18 and the Prosecutor-General has authorised the trial: s 49(2) MCA.

§   By High Court

The High Court can try any type of criminal cases, including crimes which may attract the death sentence, including murder and treason.

 

—           Penalties imposable

§   By magistrates

·  Ordinary jurisdiction

In terms of s 50 MCA, in summary trials and on remittal from the Prosecutor-General the maximum sentences which may be imposed by the different grades of magistrates are as follows:

 

 

Regional	Provincial	Senior	Ordinary
In summary trial or on remittal from Attorney – General 10 yrs or level 12	In summary trial or on remittal from AG   5 yrs or level 10	In summary trial or on remittal from AG   4 yrs or level 9	In summary trial, 2 yrs or level 7   On remittal from Prosecutor-General, 4 yrs or level 9

 

In terms of s 50 MCA, in summary trials and on remittal from the Prosecutor-General the maximum sentences which may be imposed by the different grades of magistrates are as follows:

 

Grade of magistrate	Maximum sentencing jurisdiction
Regional	10 yrs or fine up to level 12, whether on summary trial or remittal by AG
Provincial	5 yrs or fine up to level 10, whether on summary trial or remittal by AG
Senior	4 yrs or fine up to level 9, whether on summary trial or remittal by AG
Ordinary	On summary trial 2 yrs or fine up to level 7 On remittal by AG under increased jurisdiction given in s 50, 4 yrs or fine up to level 9

 

In all cases where imprisonment may be imposed, it may be imposed with or without labour.

 

A magistrate  may impose upon a person convicted of an offence a punishment of both a fine and imprisonment.

 

 Subject to s 353 CPEA, a magistrate has the jurisdiction to impose corporal punishment in terms of that section, not exceeding six cuts, upon a male convicted person who has not attained the age of eighteen years.

 

Where any enactment provides that for any offence there may be imposed any forfeiture or confiscation,

the court before which such offence is prosecuted may impose such forfeiture or confiscation in addition to any

other penalty.

 

 

51 Special jurisdiction as to punishment

(1) Notwithstanding section fifty, the jurisdiction of a court of magistrate, other than a regional magistrate, in

respect of punishment for—

(a) public violence; or

(b) malicious injury to property; or

(c) an attempt to commit either offence referred to in paragraph (a) or (b);

whether on summary trial or remittal by the Prosecutor-General, shall be—

(i) imprisonment for a period not exceeding seven years;

(ii) a fine not exceeding level eleven.

[ (2) Notwithstanding section fifty, the jurisdiction of a court of a regional magistrate in respect of punishment

for—

(a) public violence, malicious damage to property or an attempt to commit either offence; or

(b) robbery or attempted robbery, if the court finds in terms of section 126(3) of the Criminal Law Code that

aggravating circumstances were present;

whether on summary trial or remittal by the Attorney-General, shall be—

(i) imprisonment for a period not exceeding twelve years;

(ii) a fine not exceeding level thirteen.

 

(3) Notwithstanding section fifty, every magistrate shall have special jurisdiction to impose the penalties prescribed in sections 113 (“Theft”), 114 (“Stock theft”) and 131 (“Unlawful entry into premises”) of the Criminal

Law Code.

 (4) Notwithstanding section fifty, the jurisdiction of—

(a) a regional magistrate in respect of punishment for a sexual offence, whether on summary trial or remittal

of the case for trial or sentence by the Attorney-General, shall be—

(i) imprisonment for a period not exceeding twenty years;

 (ii) a fine not exceeding level fourteen;

or both such fine and such imprisonment;

(b) a regional magistrate in respect of the offence prescribed or any offender referred to in section 78 (“Deliberate infection of another with a sexually-transmitted disease”) or 79 (“Deliberate transmission of

HIV”) of the Criminal Law Code, the penalties prescribed in those provisions;

(c) a magistrate, other than a regional magistrate, in respect of punishment for a contravention of Chapter

VII of the Criminal Law Code (“Offences Relating to Dangerous Drugs”), whether on summary trial or

remittal of the case for trial or sentence by the Attorney-General, shall be—

(i) imprisonment for a period not exceeding ten years;

(ii) a fine not exceeding level twelve;

or both such fine and such imprisonment;

(d) a regional magistrate in respect of punishment for a contravention of Chapter VII of the Criminal Law

Code (“Crimes Relating to Dangerous Drugs”), whether on summary trial or remittal of the case for trial

or sentence by the Attorney-General, shall be—

(i) imprisonment for a period not exceeding fifteen years;

(ii) a fine not exceeding level thirteen;

or both such fine and such imprisonment:

Provided that nothing in this subsection shall be construed as authorising any magistrate to impose for any

such offence or contravention a punishment greater than that prescribed by the Criminal Law Code for such

offence or contravention.

 (5) For the purposes of paragraph (a) of subsection (4)—

“sexual offence” means—

(a) a contravention of section 65 (“Rape”), 66 (“Aggravated indecent assault”), 67 (“Indecent

assault”), 70 (“Sexual intercourse or performing indecent acts with a young person”), 73 (“Sodomy”),

74 (“Bestiality”), 75 (“Sexual intercourse within a prohibited degree of relationship”) or

76 (“Complicity in sexual crimes”) of the Criminal Law Code; or

(b) an attempt to commit an offence referred to in paragraph (a).

·  Increased jurisdiction

 

Under s 51 MCA these jurisdictional limits are increased in certain circumstances.

 

 

Grade of magistrate	Offences	Maximum sentencing jurisdiction
Regional magistrate	Public violence, malicious damage to property or attempt to commit these crimes or robbery or attempted robbery in aggravating circumstances (aggravating that X or his accomplice had firearm or dangerous weapon, that X killed a person or inflicted or threatened to inflict grievous bodily harm)	12 yrs or fine up to level 13
Regional magistrate whether on summary trial or remittal from AG	Sexual offences (rape, aggravated indecent assault, sexual intercourse of performing indecent acts with young person, bestiality, sexual intercourse within the prohibited degree of relationship or complicity in sexual crimes)	Jurisdiction to impose the penalties prescribed for these offences in CL Code.
Regional magistrate whether on summary trial or remittal from AG	Deliberate infection of another with sexually-transmitted disease or deliberate transmission of HIV	Jurisdiction to impose penalties prescribed for these offences on CLRA
Ordinary, senior & provincial magistrate whether on summary trial or remittal from AG	Dangerous drug offences in Chapter VII of CLCA	10 yrs or fine up to level 12
Ordinary, senior & provincial magistrates whether on summary trials & remittal from AG.	Public violence, malicious damage to property or attempts to commit these crimes.	7 yrs or to fine up to level 11
Ordinary, senior, provincial and regional magistrates	Theft, stock theft and unlawful entry into premises	20 yrs or fine up to level 14

 

In various other statutes magistrates are given increased sentencing jurisdiction.

 

§   By High Court

 

The High Court can impose any competent penalty, including life imprisonment and the death sentence.

 

—           Crimes committed outside Zimbabwe

 

Section 5 of CLCA provides that a court can try any crime either in terms of CLCA or any other enactment if the crime or an essential element of the crime was committed:

• wholly inside Zimbabwe;
• partly outside Zimbabwe if the conduct that completed the crime took place inside Zimbabwe;
• wholly or partly outside Zimbabwe if the crime is a crime against the public security in Zimbabwe or against the safety of the State of Zimbabwe or the crime has produced or was intended to produce a harmful effect in Zimbabwe or the accused realized there was a real risk that it might produce such an effect (There are numerous offences in CLCA of this nature).

 

Section 5(2) provides that any other enactment providing for extra-territorial effect will continue to apply. For instance, there are various offences under the Exchange Control Act [Chapter 22:05] which can be committed extra-territorially.

 

For the position under the common law see Mharapara 1985 (2) ZLR 211 (S) and Kapurira S-110-92

 

—           Illegally bringing accused into jurisdiction

 

This a complex issue. If this issue arises in a case in the magistrates court, the magistrate should refer to case of Beahan 1991 (2) ZLR 98 (S) where this matter is dealt with. If X has been kidnapped from the foreign State, thereby violating the sovereignty of that State, jurisdiction will not be assured.  But the court will have jurisdiction if X is surrendered by the foreign State in contravention of the municipal law of the State of refuge. 

 

In Chinanzvavana & Ors v AG 2010 (2) ZLR 43 (H) the applicants had been arrested and detained. They alleged that they has been unlawfully deprived of their liberty, had been subjected to inhuman and degrading treatment in custody and had been kidnapped by state security agents inside the country, which kidnapping had been condoned by the police. The court ruled that under the constitution everyone is entitled to protection of the law. Where the accused are brought before the court after illegal arrest and detention the court must consider whether it should decline jurisdiction. The cases dealing with situations where the accused have been kidnapped outside the country and brought before the court provided some guidance in this regard