Deputy Chairman, Law Development Commission, Zimbabwe. Email : [email protected].

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CHAPTER 9:07
CRIMINAL PROCEDURE AND EVIDENCE ACT
Order-in-Council, 1898 (ss. 55 and 56); Ords. 4/1899, 10/1908, 13/1912; Acts 8/1924, 19/1926, 4/1927,
18/1927, 5/1932, 7/1933, 1/1934, 19/1936 (ss. 3, 4, 5 and 6), 37/1938 (ss. 24 and 25), 19/1942 (ss. 3 and 4),
22/1942 (s. 12), 25/1948 (s. 24), 52/1949, 27/1950, 14/1952, 56/1953 (s. 4), 6/1955, 9/1955 (Federal s. 126),
17/1957 (Federal s. 25), 4/1958 (s. 10), 24/1958, 72/1959, 10/1960, 53/1960 (ss. 55, 56 and 57), 24/1962 (s. 2),
32/1962, 43/1962 (s. 2), 18/1963 (s. 24), 21/1963, 12/1964 (ss. 14, 15 and 16), 22/1964 (s. 54), 69/1964,
18/1965, 44/1966 (s. 20), 58/1966, 11/1968 (s. 17), 12/1969, 22/1972 (s. 91), 24/1972 (ss. 3, 4 and 5),
11/1973 (s. 14), 32/1973, 42/1973 (s. 13), 61/1973 (s. 2), 37/1975, 48/1976 (s. 82), 50/1976, 38/1977 (s. 7),
31/1978, 41/1978 (s. 5), 17/1979 (s. 8), 15/1981 (s. 66), 29/1981 (s. 59), 15/1982 (s. 3), 3/1983, 31/1983 (s. 7),
15/1985. (s. 13), 25/1985 (s. 13), 32/1985, 17/1986, 24/1989, 4/1990, 27/1990, 1/1992, 2/1992, 22/1992 (s. 3),
15/1994, 20/1994, 8/1997, 9/1997 (s. 10), 8/1998, 25/1998 (s. 52), 9/1999 (s. 82), 14/1999 (s. 29), 6/2000
(s. 151), 8/2001 (s. 26), 22/2001 (s. 4), 23/2001 (s. 49), 1/2002 (s. 44), 14/2002 (s. 14), 14/2004,
23/2004 (s. 282); 6/2005 (s. 7), 9/2006; R.G.N.s 153/1963, 801/1963, 91/1964, 214/1964, 295/1964, 386/1964,
217/1970 as read with Act 29/1970 (s. 16), 313/1970, 1092/1970, 1116/1970, 416/1972, 327/1977 (s. 3);
S.I.s 589/1979 (s. 3).
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1. Short title.
2. Interpretation.
3. Proceedings to which Act applies.
4. Neither acquittal nor conviction a bar to civil action for damages.
PART II
PROSECUTION AT PUBLIC INSTANCE
A. Attorney-General
5. Criminal proceedings in name of State.
6. Delegation of functions of Attorney-General.
7. Director of Public Prosecutions.
8. Presiding officer may appoint prosecutor in certain cases.
9. Attorney-General’s power of stopping prosecutions.
9A. Prosecutions for contempt of court proceedings.
10. Power of ordering liberation of persons committed for further examination, sentence or trial.
B. Local public prosecutor
11. Functions of local public prosecutor.
PART III
PRIVATE PROSECUTIONS
12. Interpretation in Part III.
13. Private prosecution on refusal of Attorney-General to prosecute.
14. What other persons entitled to prosecute.
15. Private prosecutor may apply to court for warrant.
16. Certificate of Attorney-General that he declines to prosecute.
17. Recognizances to be entered into by private prosecutor.
18. Failure of private prosecutor to appear on appointed day.
19. Mode of conducting private prosecutions.
20. Competency of Attorney-General to take up and conduct prosecution at public instance.
21. Deposit of money by private prosecutor.
22. Costs of private prosecution.
PART IV
PRESCRIPTION OF OFFENCES
23. Prescription of offences.
PART V
ARRESTS
A. Without warrant
24. Arrest and verbal order to arrest.
25. Arrest without warrant by peace officer or other officer.
26. Power of peace officer to call for name and address of certain persons.
27. Arrest by private person for certain offences committed in his presence.
28. Arrest by private person in case of affray.
29. Owners of property may arrest in certain cases.
30. Arrest by private person for certain offences on reasonable suspicion.
31. Arrest of persons offering stolen property for sale.
31A. Arrest by persons in charge of ship, boat or aircraft
32. Procedure after arrest without warrant.
B. With warrant
33. Warrant of arrest by judge, magistrate or justice.
34. Execution of warrant.
35. Telegram, radio message or entry in Police Gazette to be authority for execution of warrant.
36. Arresting wrong person.
37. Irregular warrant or process.
38. Tenor of warrant.
C. General
39. Assistance by private persons called on by officers of the law.
40. Breaking open of doors after failure in obtaining admission for purpose of arrest or search.
41. Arrest—how made, and search thereon of person arrested.
42. Resisting arrest.
43. Power to retake on escape.
44. [Repealed].
45. Saving of other powers of arrest.
46. Saving of civil rights.
PART VI
SEARCHWARRANTS, SEIZURE, DETENTION AND DISPOSAL OF PROPERTY CONNECTEDWITHOFFENCES AND CUSTODY
OFWOMEN UNLAWFULLY
DETAINED FOR IMMORAL PURPOSES
47. Interpretation in Part VI.
48. Savings as to certain powers conferred by other enactments.
49. State may seize certain articles.
50. Article to be seized under warrant.
51. Search and seizure without warrant.
52. Seizure of article on arrest or detention of person carrying same.
53. Search by occupier of land.
54. Entering of premises for purposes of obtaining evidence.
55. Resistance against entry or search.
56. Award of damages for false information on oath.
57. Search to be conducted in decent and orderly manner.
58. Disposal by police officer of article after seizure.
59. Disposal of article where no criminal proceedings are instituted, where it is not required for
criminal proceedings
or where accused admits his guilt.
60. Article to be transferred to court for purposes of trial.
61. Disposal of article after commencement of criminal proceedings.
62. Forfeiture of article to State.
62A. Forfeiture of unlawful consideration in cases of bribery
63. Disposal of article concerned in offence committed outside Zimbabwe.
64. Women detained for immoral purposes.
PART VII
COMMITTAL FOR TRIAL IN THE HIGH COURT OFACCUSED PERSONS
65. Accused to be committed for trial by magistrates before High Court.
66. Summary committal for trial of accused person.
67. Information provided by accused or failure of accused to mention fact relevant to his or her
defence may be
used as evidence against accused.
68. - 111. [Repealed]
PART VIII
CONFIRMATION OF EXTRA-CURIALSTATEMENTS
112. Interpretation in Part VIII.
113. Confirmation or investigation of statement.
113A. Parents or guardian of juvenile may be summoned to confirmation proceedings.
113B . Accused must be in his or her sound and sober senses.
113C . Subpoenaing of witnesses.
113D. Arrest and punishment for failure to obey subpoena or to remain in attendance.
113E . When tender of witness’ expenses not necessary.
113F. Witness refusing to be examined or to produce evidence may be committed.
114. [Repealed.]
115. Failure to mention fact relevant to allegation may be used as evidence.
115A. Venfication of witnesses’ depositions in certain circumstances.
115B. Proof of evidence and statements given or made at confirmation or verification proceedings and
furnishing
of copies thereof to accused.
PART IX
BAIL
116. Power to admit to bail.
117. Entitlement to bail.
118. Conditions of recognizance.
117A. Application for bail, bail proceedings and record thereof.
119. Recognizance to be forfeited on failure of accused to appear at trial.
120. Excessive bail not to be required.
121. Appeals against decisions regarding bail.
122. [Repealed].
123. Power to admit to bail pending appeal or review.
124. [Repealed].
125. Insufficiency of sureties.
126. Alteration of recognizances or committal of person on bail to prison.
127. Person on bail may be arrested without warrant if about to abscond or interfere with witness.
128. Release of sureties and death of surety.
129. Rendering in court.
130. Sureties not discharged until sentence or discharge of accused.
131. Deposit instead of recognizance.
132. Admission to bail by police.
133. Provision in case of default in conditions of recognizance.
134. Remission of bail.
135. Release of juvenile offenders without bail.
PART X
INDICTMENTS, SUMMONSES AND CHARGES
A. Indictments in High Court
136. Charge in High Court to be laid in indictment.
137. When case is pending.
138. High Court may try case wherever offence committed.
B. Summonses and charges in magistrates courts
139. Lodging of charges in magistrates court.
140. Summons in magistrates court.
141. Written notice to secure attendance of accused in magistrates court.
142. Warning to appear in magistrates court.
143. Charges in remitted cases.
C. General for all courts
144. Joinder of counts.
145. Where doubtful what offence has been committed.
146. Essentials of indictment, summons or charge.
147. Sufficient to allege dates between which thefts took place.
148. Indictment may charge general deficiency.
149. Not necessary to specify particular coin or bank-note stolen.
150. Indictments for giving false evidence; and making of conflicting statements on oath in judicial
proceedings.
151. Rules applicable to particular indictments.
152. Companies, firms and partnerships may be named in indictments by name, style or title.
153. Means or instrument by which act is done need not be stated.
154. In indictment for murder or culpable homicide charge as to fact sufficient.
155. In indictment for forgery and other cases copy of instrument not necessary.
156. Certain particulars not required in case of offence relating to insolvency.
157. Allegation of intent to defraud sufficient without alleging whom it is intended to defraud.
158. Persons implicated in same offence may be charged together.
159. Joint trial of persons charged with different offences.
PART XI
PROCEDURE BEFORE COMMENCEMENT OFTRIAL
A. In High Court
160. Bringing of accused persons to trial before High Court.
161. Change of place of trial.
162. When removed prisoner to be tried.
B. In magistrates court
163. Accused in magistrates court to be brought for trial at once.
164. Persons brought before wrong court.
C. General for all courts
165. Trial of pending case may be postponed.
166. Adjournment of trial.
167. Accused may be admitted to bail on postponement or adjournment of trial.
168. Accused to plead to indictment, summons or charge.
169. Termination of bail on plea to indictment in High Court.
170. Objections to indictment, how and when to be made.
171. Exceptions.
172. Certain omissions or imperfections not to invalidate indictment.
173. Averments as to time of commission of offence.
174. Proceedings where indictment alleges offence committed on impossible day.
175. Proceedings if defence is an alibi.
176. Indictments relating to blasphemous, seditious, obscene or defamatory matters.
177. Court may order delivery of particulars.
178. Application to quash indictment.
179. Notice of application to quash indictment and certain pleas to be given.
180. Pleas.
181. Person committed or remitted for sentence.
182. Accused refusing to plead.
183. Truth of defamatory matter to be specially pleaded and to be proved by accused.
184. Statement of accused sufficient plea of former conviction or acquittal.
185. Trial on plea to jurisdiction.
186. Issues raised by plea to be tried.
187. Lack of jurisdiction or title to prosecute not to be raised after conviction.
188. Outline of State and defence cases.
189. Statement made or withholding of relevant fact by accused may be used as evidence against him.
PART XII
PROCEDURE AFTER COMMENCEMENT OF TRIAL
A. In all courts
190. Separate trials.
191. Legal representation.
192. Trial of mentally disordered or defective persons.
193. Detention of persons who are deaf or mute or both.
194. Presence of accused.
195. Concealment of identity of juvenile on trial.
196. Concealment of identity of complainant and witnesses in certain cases.
197. Identity of juvenile witnesses not to be revealed.
198. Conduct of trial.
199. Refusal of accused giving evidence or being questioned to answer question without just cause
may be used
as evidence against him.
200. Summing up.
201. Validity of verdict.
202. Certain discrepancies between indictment and evidence may be corrected.
203. Defect in indictment, summons or charge may be cured by evidence.
204. Verdict to be of same effect as if indictment had been originally correct.
B. In cases remitted to magistrates court
205. [Repealed]
206. [Repealed]
C. Verdicts possible on particular indictments, summonses and charges
207. Conviction for part of crime charged
208. – 224. [Repealed]
PART XIII
PROCEDURE INRESPECT OFCASES ADJOURNEDUNDER SECTION 54 OFMAGISTRATES COURT ACT [CHAPTER 7:10]
225. Powers of Attorney-General.
226. Duties of magistrate.
227. Powers of judge in respect of case transferred to High Court for sentence.
228. Sentence by judge.
PART XIV
WITNESSES AND EVIDENCE IN CRIMINAL PROCEEDINGS
A. Securing attendance of witnesses
229. Process for securing attendance of witnesses.
230. Service of subpoenas.
231. Duty of witness to remain in attendance.
232. Subpoenaing of witnesses or examination of persons in attendance by court.
233. Powers of court in case of default of witness in attending or giving evidence.
234. Requiring witness to enter into recognizance.
235. Absconding witnesses.
236. Committal of witness who refuses to enter into recognizance.
237. Arrest and punishment for failure to obey subpoena or to remain in attendance.
238. Service of subpoena to secure attendance of witness residing outside jurisdiction of court.
239. Payment of expenses of persons attending court.
B. Evidence on commission
240. Taking evidence on commission.
241. Parties may examine witness.
242. Return of commission.
243. Adjournment of inquiry or trial.
C. Competency of witnesses
244. No person to be excluded from giving evidence except under this Act.
245. Court to decide questions of competency of witnesses.
246. Incompetency from mental disorder or defect and intoxication.
247. Evidence for prosecution by husband or wife of accused.
248. Evidence of accused and husband or wife on behalf of accused.
D. Oaths and affirmations
249. Oaths.
250. Affirmations in lieu of oaths.
251. When unsworn or unaffirmed testimony admissible.
E. Admissibility of evidence
252. Inadmissibility of irrelevant evidence.
253. Hearsay evidence.
254. Admissibility of dying declarations.
255. Admissibility in criminal cases evidence of absent witnesses in certain circumstances.
256. Admissibility of confessions and statements by accused.
257. Failure of accused to mention certain facts to police may be treated as evidence.
258. Admissibility of facts discovered by means of inadmissible confession.
259. Confession not admissible against other persons.
260. Evidence of character—when admissible.
261. Evidence of genuineness of disputed writings.
262. Certified copy of record of criminal proceedings sufficient without production of record.
263. Issue estoppel.
264. [Repealed.]
265. Appointment to public office.
266. Proof of signature of public officer not necessary.
266A.Admissibility of evidence obtained from certain foreign countries.
F. Evidence of accomplices
267. Accomplices as witnesses for prosecution.
268. Evidence of accomplice cannot be used against him.
G. Sufficiency of evidence
269. Sufficiency of one witness in criminal cases, except perjury and treason.
270. Conviction on single evidence of accomplice, provided the offence is proved aliunde.
271. Procedure on plea of guilty.
272. Procedure where there is doubt in relation to plea of guilty.
273. Conviction on confession.
274. Sufficiency of proof of appointment to public office.
H. Documentary evidence
275. Certified copies or extracts of documents admissible.
276. Production of official documents.
277. Copies of official documents sufficient.
278. Admissibility of affidavits in certain circumstances.
279. Admissibility of photographs, plans and reports.
280. [Repealed.]
281. Admissibility of documents transmitted to or made or possessed by accused.
282. Admissibility of certain trade or business records.
283. Weight to be attached to statements admissible under section 281 or 282.
284. Endorsements on negotiable instruments.
I. Special provisions as to bankers books
285. Interpretation in sections 286, 287, 288 and 289.
286. Entries in bankers books and bankers documents admissible in evidence in certain cases.
287. Examined copies admissible after due notice.
288. Bank not compelled to produce any books unless ordered by court.
289. Sections 286, 287 and 288 not to apply to proceedings to which bank is party.
J. Privileges of witnesses
290. Privileges of accused persons when giving evidence.
291. Privilege arising out of marital state.
292. No witness compellable to answer question which witness’ husband or wife might decline.
293. Witness not excused from answering question by reason that answer would establish civil claim
against him.
294. Privilege of professional advisers.
295. Privilege from disclosure of facts on grounds of public policy.
296. Privilege arising out of State security.
297. Witness excused from answering questions answers to which would expose him to penalties or
degrade his
character.
K. Special rules of evidence in particular criminal cases
298. Evidence on charge of treason.
299. Evidence on charge of perjury or subornation.
300. Evidence on charge of bigamy.
301. Proof of marriage.
302. Evidence of relationship on charge of incest.
302A . Testing of persons accused of sexual offences for HIV infection
303. Evidence on charge of infanticide or concealment of birth.
304. Evidence as to counterfeit coin.
305. Evidence on charge of receiving.
306. Evidence of previous conviction on charge of receiving.
307. Evidence of counterfeit coin.
308. Evidence on trial for defamation.
309. Evidence on charge of theft against employee or agent.
310. Evidence on charge relating to seals and stamps.
L. Miscellaneous matters relating to evidence in criminal proceedings
311. Impounding documents.
312. Cutting counterfeit coin.
313. Unstamped instruments admissible in criminal cases.
314. Admissions of fact.
315. Presumption that accused possessed particular qualification or acted in particular capacity.
316. Impeachment and support of witness’ credibility.
317. Cases not provided for by this Part.
318. English laws applicable.
319. Saving as to special provisions in any other enactment.
PART XIVA
PROTECTION OF VULNERABLEWITNESSES
319A. Interpretation in Part XIVA.
319B. Measures to protect vulnerable witnesses.
319C. Factors to be considered in deciding whether or not to protect vulnerable witnesses.
319D. Court to give parties opportunity to make representations.
319E. Court may rescind measure taken to protect vulnerable witness.
319F. Persons who may be appointed as intermediaries or support persons.
319G. Functions of intermediary or support person.
319H. Weight to be given to evidence of witness for whom intermediary or support person appointed.
PART XV
DISCHARGE OFACCUSED PERSONS
320. Dismissal of charge in default of prosecution.
321. Liberation of accused persons.
322. Further proceedings against accused discharged for want of prosecution or whose recognizance
has expired.
PART XVI
PREVIOUS CONVICTIONS, FINGER-PRINTS, ETC.
323. Previous conviction not to be charged in indictment.
324. Previous conviction not to be proved, except in certain circumstances.
325. Tendering admission of previous conviction after accused has pleaded guilty or been found
guilty.
326. Notice that proof of former conviction will be offered.
327. Mode of proof of previous conviction.
328. Taking of fingerprints, palm prints and footprints after conviction.
329. Finger-print and other records to be prima facie evidence of previous conviction.
PART XVII
JUDGMENT ON CRIMINAL TRIAL
330. Withdrawing charges.
331. Arrest of judgment.
332. Decision may be reserved.
333. Sentence in High Court.
334. Provisions applicable to sentences in all courts.
335. Consideration of other offences admitted by accused.
PART XVIII
PUNISHMENTS
335A. Interpretation in Part XVIII.
336. Nature of punishments.
A. Sentence of death
337. Sentence of death for murder.
338. Persons upon whom death sentence may not be passed.
339. Sentence of death.
340. Copy of evidence to be transmitted to President.
341. Examination of woman convicted of certain offences.
342. Manner of carrying out death sentences.
B. Imprisonment and fine
343. Cumulative or concurrent sentences.
344. Discretion of court as to amount and nature of punishment.
344A.Imprisonment for life.
345. Periodical imprisonment.
346. Extended imprisonment.
346A [Repealed]
347. Imprisonment or community service in default of payment of fine.
348. Recovery of fine.
348A.Effect of part-payment of fine or part-performance of community service.
349. Court may enforce payment of fine from moneys on accused or salary or wages of accused.
350. Levy of fine and costs on conviction of defamation.
350A. Community service orders.
350B. Performance of community service.
350C. Breach of community service order.
350D. Amendment or revocation of community service order.
C. Special provisions relating to punishment of juveniles
351. Manner of dealing with convicted juveniles.
352. Period of retention or supervision.
353. Corporal punishment of male juveniles.
D. Recognizances
354. Recognizances to keep the peace and be of good behaviour.
355. Recognizances to appear for judgment.
E.General and miscellaneous provisions as to punishments
356. Payment by accused persons of fines which may be imposed for minor offences in lieu of
appearance in
court.
357. Adjudication of minor cases in absence of accused.
358. Powers of courts as to postponement or suspension of sentences.
359. Magistrates court not to impose sentences of less than four days.
360. [Repealed.]
PART XIX
COMPENSATION AND RESTITUTION
361. Interpretation in Part XIX.
362. Compensation for loss of or damage to property.
363. Compensation for personal injury.
364. Compensation to innocent purchaser of property.
365. Restitution of unlawfully obtained property.
366. Cases where award or order not to be made.
367. Maximum amount of award or order.
368. Application for award or order.
369. Evidence in connection with awards and orders.
370. Court may require security de restituendo.
371. Liability under awards and orders to be joint and several.
372. Enforcement of awards and orders.
373. Payment of award out of moneys taken from or held on behalf of convicted person.
374. Person granted award or order debarred from further civil remedy.
375. Part XIX not to derogate from other laws relating to compensation or restitution.
PART XX
PARDON AND COMMUTATION
376. Saving of President’s prerogative of mercy.
377. President may commute sentence.
378. Exercise of prerogative of mercy in respect of offenders under sentence of imprisonment.
379. Reference of case by Minister for appeal or opinion.
PART XXI
GENERAL
380. Force of process.
381. Institution of fresh proceedings when conviction set aside on appeal.
382. How documents to be served.
383. Mode of proving service of process.
384. Transmission of summonses and writs by telegraph.
385. Prosecutions of corporations and members of associations.
386. Provisions as to offences under two or more laws.
387. Estimating age of person.
388. Binding over of persons to keep the peace.
389. Regulations.
SCHEDULES
First Schedule: Specified Offences in Relation to Powers of Arrest.
Second Schedule: Offences in Connection With Which Things May be Seized and Confiscated in
terms of Section
62.
Third Schedule: Offences in Respect of Which Power to Admit Persons to Bail is Excluded or
Qualified.
Fourth Schedule: [Repealed]
Fifth Schedule: Offences in Connection With Which Bail May Not be Granted in Terms of Section
132 (1).
Sixth Schedule: Offences for Which Sentence of Periodical Imprisonment May be Imposed.
Seventh Schedule: Extended Imprisonment Offences.
Eighth Schedule: Offences the Commission Whereof Disqualifies Offender From Being Dealt With as
First
Offender in Terms of Part XVIII.
Ninth Schedule: Offences involving Corruption, Organised Crime or Harm to the National Economy.
AN ACT to consolidate and amend the law relating to procedure and evidence in criminal
cases, and
to make provision for other matters incidental to such procedure and evidence.
[Date of commencement: 1st June, 1927.]
PART I
PRELIMINARY
1 Short title
This Act may be cited as the Criminal Procedure and Evidence Act [Chapter 9:07].
2 Interpretation
In this Act—
“company” means a company incorporated or registered under any enactment generally governing
companies
or under any special enactment or under letters patent or Royal Charter;
“court” or “the court”, in relation to any matter dealt with under a particular provision of this Act,
means the
judicial authority which under this Act or any other enactment has jurisdiction in respect of that
matter;
“day” or “day-time”, when used in contra-distinction to “night” or “night-time”, means the space of
time between
sunrise and sunset;
“judge” means a judge of the High Court;
“justice” means a justice of the peace appointed or exercising functions as such under any enactment;
“legal representative” means—
(a) in relation to a person who is represented by a legal practitioner, that legal practitioner;
(b) in relation to an accused person under the age of sixteen who is assisted by his natural or legal
guardian, that guardian;
(c) in relation to an accused person whom a court has in terms of section one hundred and ninetyone
permitted to be assisted by another person, that other person;
“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to
whom the
President may, from time to time, assign the administration of this Act;
“money” includes all coined money, whether current in Zimbabwe or not, and all bank-notes, bank-
drafts,
cheques, orders or warrants or any other authorities whatever for the payment of money;
“night” or “night-time”, when used in contra-distinction to “day” or “day-time”, means the space of
time between
sunset and sunrise;
“offence” means an act or omission punishable by law;
“peace officer” includes—
(a) any magistrate or justice;
(b) the Sheriff or any deputy sheriff;
(c) any police officer;
(d) any prison officer;
(e) any immigration officer;
(f) any inspector of mines;
(g) any—
(i) chief, within his area; and
(ii) headman, within his chief’s area; and
(iii) village head, within the area of his village; and
(iv) chief’s messenger or headman’s messenger, within the chief's area;
as defined in the Traditional Leaders Act [Chapter 29:17];
[Paragraph amended by section 52 of Act 25 of 1998.]
(h) any other person designated by the Minister by a statutory instrument;
“person” and “owner” and other like terms, when used with reference to property or acts, include
corporations
of all kinds, and any other association of persons capable of owning or holding property or doing
acts and they also, when relating to property, include any department of the State;
“premises” includes, in addition to any land, building or structure, any vehicle, conveyance, ship or
boat;
“property” includes everything animate or inanimate, corporeal or incorporeal, capable of being the
subject
of ownership;
“public prosecutor” includes any person delegated generally or specially by the Attorney-General
under this
Act;
“sexual offence” means—
(a) for the purpose of section 278, any of the following offences or an attempt to commit any of the
following offences—
(i) rape;
(ii) aggravated indecent assault;
(iii) sexual intercourse or performing an indecent act with a young person;
(iv) sodomy;
(v) sexual intercourse within a prohibited degree of relationship;
(vi) deliberate infection of another with a sexually transmitted disease;
(vii) deliberate transmission of HIV;
(viii) coercing or inducing a person for the purpose of engaging in sexual conduct;
(b) for the purpose of section 302A, any of the following offences or an attempt to commit any of
the following offences—
(i) rape;
(ii) aggravated indecent assault;
(iii) sexual intercourse or performing an indecent act with a young person, involving any
penetration of any part of his or her or another person’s body that involves a risk of
transmission of HIV;
(iv) deliberate transmission of HIV;
[Definition inserted by section 2 of Act 9 of 2006.]
“statutory capital offence” means an offence where any enactment requires that the person convicted
of such
offence shall be sentenced to death;
“suitably qualified nurse” means a State certified nurse, paediatric nurse, State certified traumatology
nurse
or general registered nurse registered as such in terms of the Health Professions Act [Chapter 27:19]
(No.6 of 2000);
[Definition inserted by section 2 of Act 9 of 2006.]
“valuable security” includes any document which is the property of any person and which is the
evidence of
the ownership of any property or of the right to recover or receive any property.
3 Proceedings to which Act applies
This Act shall apply to all criminal proceedings in the High Court and the Supreme Court and in
magistrates
courts in respect of any offence.
4 Neither acquittal nor conviction a bar to civil action for damages
Neither a conviction nor an acquittal following on any prosecution shall be a bar to a civil action for
damages
at the instance of any person who may have suffered any injury from the commission of any alleged
offence.
PART II
PROSECUTION AT PUBLIC INSTANCE
A. Attorney-General
5 Criminal proceedings in name of State
Any criminal proceedings purporting to be instituted in the name of the State shall for all purposes be
deemed
to be instituted in the name of Zimbabwe.
6 Delegation of functions of Attorney-General
(1) The Attorney-General may, when he deems it expedient, appoint any legal practitioner entitled to
practise
in Zimbabwe to exercise all or any of the rights and powers or perform all or any of the functions
conferred upon
him by subsection (5) of section 76 of the Constitution, this Act or any other enactment, whether or
not they relate
to criminal proceedings.
(2) A legal practitioner appointed in terms of subsection (1) may, subject to any conditions which the
Attorney-
General may impose—
(a) sign any certificate, authority or other document required or authorized by an enactment referred to
in
that subsection; and
(b) appoint a legal practitioner entitled to practise in Zimbabwe to exercise the rights and powers or
perform
the functions delegated to him in terms of subsection (1) and the provisions of this subsection shall
apply,
mutatis mutandis, in respect of that appointment.
7 Director of Public Prosecutions
There shall be a Director of Public Prosecutions whose office shall be a public office and shall form
part of
the Public Service.
8 Presiding officer may appoint prosecutor in certain cases
If for any reason the person appointed in terms of section six to conduct a prosecution is unable to act
or if no
person has been so appointed, the officer presiding over the court or examination shall, by writing
under his hand,
designate some fit and proper person for that occasion to prosecute or, as the case may be, to appear.
[Section amended by section 32 of Act 9 of 2006.]
9 Attorney-General’s power of stopping prosecutions
The Attorney-General may, at any time before conviction, stop any prosecution commenced by him or
by any
other person charged with the prosecution of criminal cases but, if the accused has already pleaded to
any charge,
he shall be entitled to a verdict of acquittal in respect of that charge.
9A Prosecutions for contempt of court proceedings
(1) A court or tribunal may, on its own motion, institute proceedings for contempt of court against any
person
who is alleged to have impaired its dignity, reputation or authority in the presence of the court or
tribunal.
(2) No court, tribunal or person, other than the Attorney-General or someone acting on the express
authority
of the Attorney-General, shall institute or continue any proceedings for contempt of court against
anyone who is
alleged to have impaired the dignity, reputation or authority of a court or tribunal in circumstances
other than
those referred to in subsection (1).
(3) Nothing in this section shall affect the institution of proceedings for contempt of court against any
person
for the purpose of enforcing any order of a court or tribunal.
[Section inserted by section 14 of Act 14 of 2002.]
10 Power of ordering liberation of persons committed for further examination,
sentence or trial
The Attorney-General may order the liberation of any person committed to prison for further
examination,
sentence or trial and for that liberation a document setting forth that the Attorney-General sees no
grounds for
prosecuting such person and signed by him shall be a sufficient warrant.
B. Local public prosecutor
11 Functions of local public prosecutor
(1) All public prosecutors attached to a magistrates court are, as representatives of the Attorney-
General and
subject to his instructions, charged with the duty of prosecuting in that magistrates court, in the name
and on
behalf of Zimbabwe, all offences which, under any enactment governing magistrates courts or any
other enactment,
that magistrates court has jurisdiction to try.
(2) Criminal proceedings instituted in a magistrates court by any local public prosecutor may be
continued by
any other public prosecutor.
(3) When there is lodged with or made before a local public prosecutor a sworn declaration in writing
by any
person disclosing that any other person has committed an offence chargeable in the magistrates court
to which
such public prosecutor is attached, he shall determine whether there are good grounds for prosecution
or not:
Provided that—
(i) he may refer to the Attorney-General the question whether he shall prosecute or not;
(ii) any other person may be specially authorized by the Attorney-General to prosecute in the matter.
PART III
PRIVATE PROSECUTIONS
12 Interpretation in Part III
In this Part—
“private party” means a person authorized by section thirteen or fourteen to prosecute any offence.
13 Private prosecution on refusal of Attorney-General to prosecute
In all cases where the Attorney-General declines to prosecute for an alleged offence, any private party,
who
can show some substantial and peculiar interest in the issue of the trial arising out of some injury
which he individually
has suffered by the commission of the offence, may prosecute, in any court competent to try the
offence,
the person alleged to have committed it.
14 What other persons entitled to prosecute
The following shall possess the right of prosecution—
(a) a husband, in respect of offences committed against his wife;
(b) the legal guardians or curators of minors or mentally disordered or defective persons, in respect of
offences committed against their wards;
(c) the wife or children or, where there is no wife or child, any of the next-of-kin of any deceased
person, in
respect of any offence by which the death of such person is alleged to have been caused;
(d) public bodies and persons on whom the right is specially conferred by statute, in respect of
particular
offences.
15 Private prosecutor may apply to court for warrant
Where, by virtue of the right of prosecution given to private parties by section thirteen or fourteen,
any private
party desires to prosecute for any offence any person for whose liberation from prison any warrant has
been
issued by the Attorney-General, such private party may apply to the High Court or, in case such court
is not then
sitting, to any judge, for a warrant for the further detention or, if he is on bail, for the detention of such
person,
and such court or judge shall make such order as to it or him seems right under the circumstances.
16 Certificate of Attorney-General that he declines to prosecute
(1) Except as is provided by subsection (2), it shall not be competent for any private party to obtain
the process
of any court for summoning any party to answer any charge, unless such private party produces to the
officer
authorized by law to issue such process a certificate signed by the Attorney-General that he has seen
the statements
or affidavits on which the charge is based and declines to prosecute at the public instance, and in every
case
in which the Attorney-General declines to prosecute he shall, at the request of the party intending to
prosecute,
grant the certificate required.
(2) When the right of prosecution referred to in this Part is possessed under any statute by any public
body or
person in respect of particular offences, subsection (1) shall not apply.
17 Recognizances to be entered into by private prosecutor
No private party, other than a public body or person described in paragraph (d) of section fourteen,
shall take
any proceedings under the right conferred upon him by this Part until he—
(a) has, if the prosecution is in the High Court, deposited a sum equivalent to level nine of the
standard
scale of the Criminal Law Code or entered into a recognizance in that amount with two sufficient
sureties
for each half of that amount, to be approved by such court, as security that he will prosecute the
charge against the accused to a conclusion without delay; and
[Paragraph amended by section 28 of Act 9 of 2006.]
(b) has in any prosecution given security in such amount and in such manner as the court may direct
that he
will pay the accused such costs incurred by him in respect of his defence to the charge as the court
before
which the case is tried may order him to pay.
18 Failure of private prosecutor to appear on appointed day
(1) If the prosecutor, being a private party, does not appear on the day appointed for appearance, the
charge or
complaint shall be dismissed unless the court sees reason to believe that such party was prevented
from being
present by circumstances beyond his control, in which case it may adjourn the hearing of the case.
(2) In the case of any dismissal in terms of subsection (1), the accused shall not be again liable to
prosecution
on the same charge by any private party, but no such dismissal shall prevent the Attorney-General, or
a public
prosecutor on the instructions of the Attorney-General, from afterwards taking up the case.
19 Mode of conducting private prosecutions
A private prosecution shall, subject to this Act, be proceeded with in the same manner as if it were
being conducted
at the public instance, except that all costs and expenses of the prosecution shall be paid by the party
prosecuting, subject to any order that the court may make when the prosecution is finally concluded.
20 Competency of Attorney-General to take up and conduct prosecution at public
instance
In the case of a prosecution at the instance of a private party, the Attorney-General or the local public
prosecutor
may apply by motion to any court before which the prosecution is pending to stop all further
proceedings in
the case, in order that prosecution for the offence may be instituted or continued at the public instance
and such
court shall, in every such case, make an order in terms of the motion.
21 Deposit of money by private prosecutor
In the case of a criminal prosecution at the instance of a private party, the registrar or clerk of the court
shall,
for the service of any criminal summons or subpoena or execution of any warrant of arrest or other
criminal
process, demand and receive the prescribed fee.
22 Costs of private prosecution
(1) Where a person prosecuted at the instance of a private party is acquitted, the court in which the
prosecution
was brought may order the party that instituted the prosecution to pay to the party prosecuted the
whole or
any part of the expenses, including the costs both before and after committal, which may have been
occasioned to
him by the prosecution.
(2) Where the court, upon hearing the charge or complaint on a private prosecution, pronounces the
same unfounded
and vexatious, it shall award to the accused on his request such costs as it may think fit.
(3) Where a person prosecuted at the instance of a private party is convicted, the court may order the
convicted
person to pay the costs and expenses of the private prosecution in addition to any sum awarded in
terms of
Part XIX:
Provided that if the private prosecution was instituted after a certificate by the Attorney-General that
he declined
to prosecute the court may order the costs to be paid by the State.
(4) Any costs awarded in terms of this section shall be taxed according to the scale applicable in civil
cases
in the court concerned unless a special scale of costs for private prosecutions has been prescribed in
rules of court.
PART IV
PRESCRIPTION OF OFFENCES
23 Prescription of offences
(1) The right of prosecution for murder shall not be barred by any lapse of time.
(2) The right of prosecution for any offence other than murder, whether at the public instance or at the
instance
of a private party, shall, unless some other period is expressly provided by law, be barred by the lapse
of
twenty years from the time when the offence was committed.
PART V
ARRESTS
A. Without warrant
24 Arrest and verbal order to arrest
(1) It shall be lawful for any judge, magistrate or justice, who has knowledge of any offence by seeing
it
committed, himself to arrest the offender or by a verbal order to authorize others so to do.
(2) The persons authorized in terms of subsection (1) are empowered and required to follow the
offender if
he flees, and to execute the order on him out of the presence of the judge, magistrate or justice.
25 Arrest without warrant by peace officer or other officer
(1) Any peace officer and any other officer empowered by law to execute criminal warrants is hereby
authorized,
subject to the general or specific directions of a superior officer or person placed in authority over
him, to
arrest without warrant—
(a) any person who commits any offence in his presence;
(b) any person whom he or she has reasonable grounds to suspect of having committed any of the
offences
mentioned in the First Schedule or the Ninth Schedule:
Provided that if, in the case of an offence mentioned in the Ninth Schedule, the peace officer or
other officer concerned has reason to believe that the offence is sufficiently serious to justify the issue
by the Attorney-General of a certificate referred to in subsection (3b) of section thirty-two, the officer
concerned shall not effect an arrest in terms of this paragraph
(i) unless he or she is a police officer who is of or above the rank of assistant inspector, or is given
leave by such an officer to effect the arrest; and
(ii) where the alleged offence is disclosed by an anonymous complainant, unless the officer concerned
immediately (and in any case no later than the end of the day on which the complaint is
received) records in writing the particulars, time and date of such complaint and the manner in
which it was made;
[Paragraph (b) substituted by section 2 of Act 14 of 2004.]
(c) any person whom he finds attempting to commit an offence, or clearly manifesting an intention so
to do.
(2) Any peace officer may, without any order or warrant, arrest—
(a) any person having in his possession any implement of housebreaking and not being able to account
satisfactorily for such possession;
(b) any person in whose possession anything is found which it is reasonably suspected is stolen
property or
property dishonestly obtained, and who is reasonably suspected of having committed an offence with
respect
to such thing;
(c) any person who obstructs a police officer or other peace officer while in the execution of his duly
or
who has escaped or attempts to escape from lawful custody;
(d) any person reasonably suspected of being a deserter from the Defence Forces of Zimbabwe;
(e) any person who has been concerned in, or against whom a reasonable complaint has been made or
credible information has been received, or a reasonable suspicion exists of his having been concerned
in,
any act committed at any place outside Zimbabwe, which if committed in Zimbabwe would have been
punishable as an offence, and for which he is, in terms of any enactment relating to extradition or
fugitive
offenders or otherwise, liable to be arrested or detained in custody in Zimbabwe;
(f) any person being or loitering in any place under such circumstances as to afford reasonable
grounds for
believing that he has committed or is about to commit an offence;
(g) any person reasonably suspected of committing or of having committed an offence under any
enactment
governing the making, supply, use, possession or conveyance of intoxicating liquor, habit-forming
drugs, traditional beer or harmful liquids or the possession or disposal of arms or ammunition;
(h) any person reasonably suspected of being a prohibited immigrant in Zimbabwe, for the purpose of
any
enactment regulating entry into or residence in Zimbabwe;
(i) any person found in any gambling-house or at any gambling-table, the keeping or visiting whereof
is in
contravention of any enactment for the prevention or suppression of gambling or games of chance;
(j) any person reasonably suspected of being or having been in unlawful possession of stock or
produce, as
defined in any enactment for preventing the theft of stock or produce.
(3) Whenever it is provided in any enactment that the arrest of any person may be made by a police
officer or
other official without warrant, subject to conditions or to the existence of circumstances in that
enactment set out,
an arrest by any peace officer, without warrant or order, may be made of such person, subject to those
conditions
or the existence of those circumstances.
26 Power of peace officer to call for name and address of certain persons
(1) A peace officer may call upon—
(a) any person whom he has power to arrest; and
(b) any person reasonably suspected of having committed any offence; and
(c) any person who may in his opinion be able to give evidence in regard to the commission or
suspected
commission of any offence;
to furnish such peace officer with his full name and address.
(2) If a person on demand in terms of subsection (1)—
(a) fails to furnish his full name and address, the peace officer making the demand may forthwith
arrest
him; or
(b) furnishes to the peace officer a name or address which the peace officer, upon reasonable grounds,
suspects to be false, such person may be arrested and detained for a period not exceeding twelve hours
until the name and address so furnished have been verified.
(3) Any person who, when called upon under this section to furnish his name and address, fails to do
so, or
furnishes a false or incorrect name and address, shall be guilty of an offence and liable to a fine not
exceeding
level four or to imprisonment for a period not exceeding three months or to both such fine and such
imprisonment.
[Subsection amended by section 4 of Act 22 of 2001.]
27 Arrest by private person for certain offences committed in his presence
(1) Any private person in whose presence anyone commits or attempts to commit an offence
mentioned in the
First Schedule, or who has knowledge that any such offence has been recently committed, is
authorized to arrest
without warrant or forthwith to pursue the offender, and any other private person to whom the purpose
of the
pursuit has been made known is authorized to join and assist therein.
(2) Any private person is authorized to arrest without warrant any other person whom he believes on
reasonable
grounds to have committed an offence and to be escaping from, and to be freshly pursued by, one
whom such
private person believes on reasonable grounds to have authority to arrest the escaping person for that
offence.
(3) When it is provided by any enactment with respect to an offence that the offender may be arrested
without
warrant by any private person particularly specified, any such specified person may arrest the offender
without
warrant.
28 Arrest by private person in case of affray
Any private person is authorized to arrest without warrant any person whom he sees engaged in an
affray in
order to prevent such person from continuing the affray, and to deliver him over to a police officer to
be dealt with
according to law.
29 Owners of property may arrest in certain cases
The owner, lawful occupier or person in charge of any property on or in respect of which any person
is found
committing an offence, or any person authorized by such owner, lawful occupier or person in charge,
may arrest
without warrant the person so found.
30 Arrest by private person for certain offences on reasonable suspicion
Any private person may without warrant arrest any other person upon reasonable suspicion that such
other
person has committed any offence specified in the First Schedule.
31 Arrest of persons offering stolen property for sale
Where anyone may without warrant arrest another for committing an offence, he may also arrest
without warrant
any person who offers to sell, pawn or deliver to him any property which on reasonable grounds he
believes
to have been acquired by such person by means of any such offence.
31A Arrest by persons in charge of ship, boat or aircraft
(1) The commander or person in charge of any ship, boat or aircraft may without warrant arrest any
person
whom he knows or on reasonable grounds believes to have committed, to be committing or to be
about to commit
an offence aboard the ship, boat or aircraft.
(2) A commander or person in charge of any ship, boat or aircraft may authorise any member of the
crew of
the ship, boat or aircraft or any passenger aboard the ship, boat or aircraft to assist him in arresting any
person in
terms of subsection (1), and the member of the crew or the passenger so authorised shall have the
same power to
effect the arrest as the commander or person in charge of the ship, boat or aircraft.
[Section inserted by Act No. 23 of 2004]
32 Procedure after arrest without warrant
(1) For the purposes of this section—
“court day” means any day except a Sunday or a public holiday.
(2) Subject to subsections (3a) (3b) and (3c), a person arrested without warrant shall as soon as
possible be
brought to a police station or charge office and, if not released by reason that no charge is to be
brought against
him, may be detained for a period not exceeding forty-eight hours unless he is brought before a judge
or magistrate
upon a charge of any offence and his further detention is ordered by that judge or magistrate or a
warrant for
his further detention is obtained in terms of section thirty-three.
[Subsection substituted by section 44 of Act No. 1 of 2002 and amended by section 3 of Act No. 14 of 2004.]
(3) If the period referred to in subsection (2) expires—
(a) on a day which is not a court day or on any court day after four o’clock in the afternoon, the said
period
shall be deemed to expire at four o’clock in the afternoon of the court day next succeeding that day; or
(b) on any court day before four o’clock in the afternoon, the said period shall be deemed to expire at
four
o’clock in the afternoon of that court day:
Provided that this subsection shall not in any case be construed as extending the period referred to in
subsection
(1) beyond a period of ninety-six hours.
(3a) Where the person arrested without warrant is charged with any offence referred to in paragraph
10 of the
Third Schedule and the judge or magistrate before whom the person is brought in terms of this section
is satisfied
that there is a reasonable suspicion that the person committed the offence, the judge or magistrate shall
order that
person’s further detention or issue a warrant for his or her further detention for a period of twenty-one
days.
[Subsections (3a) to (3d) inserted by section 3 of Act 14 of 2004.]
(3b) Where the person arrested without warrant is charged with any offence referred to in the Ninth
Schedule
and there is produced to the judge or magistrate before whom the person is brought in terms of this
section—
(a) a certificate issued by or on behalf of the Attorney-General stating that, in the Attorney-General’s
opinion
(i) the offence in question involves significant prejudice or significant potential prejudice to the
economy or other national interest of Zimbabwe; and
(ii) the further detention of the person arrested for a period of up to twenty-one days is necessary for
any one or more of the following reasons
A. the complexity of the case; or
B. the difficulty of obtaining evidence relating to the offence in question; or
C. the likelihood that the person arrested will conceal or destroy the evidence relating to the
offence in question or interfere with the investigation of the offence or both;
and
(b) the following, where the arrest is made in the circumstances referred to in paragraph (b) of
subsection
(1) of section twenty-five—
(i) proof that the arresting officer was an officer of or above the rank of assistant inspector at the
time of the arrest, or that the arresting officer made the arrest with the prior leave of such an officer;
and
(ii) where the alleged offence was disclosed through an anonymous complaint, a copy of the
complaint
as recorded in accordance with subparagraph (ii) of the proviso to paragraph (b) of subsection
(1) of section twenty-five;
the judge or the magistrate shall, if satisfied that there is a reasonable suspicion that the person
committed the
offence, order that person's detention or issue a warrant for his or her further detention for a period of
twenty-one
days or the lesser period specified in the certificate.
[Subsections (3a) to (3d) inserted by section 3 of Act 14 of 2004.]
(3c) A person referred to in subsection (3a) or (3b) shall, unless the charge or charges against him or
her are
earlier withdrawn, remain in detention for twenty-one days or the lesser period specified in a
certificate mentioned
in subsection (3b), as the case may be, from the date when an order or warrant for the person’s further
detention
was issued in terms of the relevant subsection, and no court shall admit such person to bail during that
period.
Provided that the arresting officer or other officer in authority over him or her shall, at intervals of not
more
than forty-eight hours beginning on the date when the order or warrant for the person’s further
detention is issued,
make a report to the Attorney-General on the progress of the investigations into the charge or charges
against the
person in detention, and if the Attorney-General is satisfied on the basis of any such report that the
person’s
detention is no longer justified, the Attorney-General may order the immediate and unconditional
release of the
detained person.
[Subsections (3a) to (3d) inserted by section 3 of Act 14 of 2004. Proviso inserted by Act No. 23 of 2004 and amended by section 28 of Act 9
of 2006.]
(3d) A person referred to in subsection (3a) or (3b) may continue to be detained after the expiry of the
period
referred to in subsection (3c) pending the outcome of the investigations into the charge or charges
against him or
her if (without prejudice to the person's right to apply for bail) an order or warrant for that person's
further detention
is obtained from a judge or magistrate in terms of section thirty-three within forty-eight hours of the
expiry of
the period referred to in subsection (3c).
[Subsections (3a) to (3d) inserted by section 3 of Act 14 of 2004.]
(4) ….
[Subsection repealed by section 3 of Act 14 of 2004.]]
(5) When an arrest is made without warrant, the person arrested shall be informed forthwith by the
person arresting
him of the cause of the arrest.
B. With warrant
33 Warrant of arrest by judge, magistrate or justice
(1) Any judge, magistrate or justice may issue a warrant for the arrest of any person or for the further
detention
of a person arrested without a warrant on written application subscribed by—
(a) the Attorney-General; or
(b) the local public prosecutor; or
(c) a police officer who is of or above the rank of inspector; or
(d) a police officer in charge of a police station who is of or above the rank of assistant inspector;
setting forth the offence alleged to have been committed, and that, from information available to him,
he has
reasonable grounds of suspicion against that person, or upon the information to the like effect of any
person made
on oath before the judge, magistrate or justice issuing the warrant:
Provided that it shall not be lawful for a magistrate or justice to issue any such warrant except when
the offence
charged has been committed within his area of jurisdiction or except when the person against whom
the
warrant is issued was, at the time when it was issued, known, or suspected on reasonable grounds, to
be within the
area of jurisdiction of the magistrate or justice.
(2) Any warrant referred to in subsection (1) may be issued on any day of the week, including Sunday.
(3) Subject to subsection (4), a warrant issued for the arrest of a person shall remain in force until it is
cancelled
by the person who issued it or until it is executed.
(4) Where a warrant is issued for the arrest of a person and such person is detained by virtue of an
arrest
without warrant, the warrant shall be deemed to have been cancelled and the provisions of this Act
relating to the
arrest of a person without warrant shall apply in respect of such person.
34 Execution of warrants
(1) Every peace officer is authorized and required to obey and execute any warrant issued in terms of
section
thirty-three.
(2) A peace officer or other person arresting any person by virtue of a warrant under this Act shall,
upon demand
of the person arrested, produce the warrant to him and notify him of the substance thereof.
(3) A person arrested by virtue of a warrant under this Act shall as soon as possible be brought to a
police
station or charge office, unless any other place is specially mentioned in the warrant as the place to
which such
person shall be brought, and he shall thereafter be brought as soon as possible before a judicial officer
upon a
charge of the offence mentioned in the warrant.
(4) If a person arrested by virtue of a warrant is charged with any offence referred to in
(a) paragraph 10 of the Third Schedule, and the judicial officer before whom the person is brought in
terms
of this section is satisfied that there is a reasonable suspicion that the person committed the offence,
the
judicial officer shall order that person’s continued detention for a period of twenty-one days; or
(b) the Ninth Schedule and there is produced to the judicial officer before whom the person is brought
in
terms of this section a certificate issued by or on behalf of the Attorney-General in the same terms as
those specified in subsection (3b) of section thirty-two, the judicial officer shall, if satisfied that there
is
a reasonable suspicion that the person committed the offence, order that person’s continued detention
for a period of twenty-one days or the lesser period specified in the Attorney-General’s certificate.
[Subsections (4), (5) and (6) inserted by section 4 of Act 14 of 2004.]
(5) A person referred to in subsection (4) shall, unless the charge or charges against him or her are
earlier
withdrawn, remain in detention for twenty-one days or the lesser period specified in a certificate
mentioned in
paragraph (b) of subsection (4), as the case may be, from the date when an order for the person’s
further detention
was issued in terms of that section, and no court shall admit such person to bail during that period.
Provided that the arresting officer or other officer in authority over him or her shall, at intervals of not
more
than forty-eight hours beginning on the date when the order for the person’s further detention is
issued, make a
report to the Attorney-General on the progress of the investigations into the charge or charges against
the person
in detention, and if the Attorney-General is satisfied on the basis of any such report that the person’s
detention is
no longer justified, the Attorney-General may order the immediate and unconditional release of the
detained
person.
[Subsections (4), (5) and (6) inserted by section 4 of Act 14 of 2004. Proviso inserted by Act No. 23 of 2004 and amended by section 28 of Act
9 of 2006.]
(6) A person referred to in subsection (4) may continue to be detained after the expiry of the period
referred
to in subsection (5) pending the outcome of investigations into the charge or charges against him or
her if (without
prejudice to the person's right to apply for bail) an order or warrant for that person's further detention
is obtained
from a judge or magistrate within forty-eight hours of the expiry of the period referred to in subsection
(5).
[Subsections (4), (5) and (6) inserted by section 4 of Act 14 of 2004.]
35 Telegram, radio message or entry in Police Gazette to be authority for execution of
warrant
(1) A telegram from any officer of any court or from any peace officer or a message or signal
transmitted over
the police radio network or an entry in the Police Gazette, stating that a warrant has been issued for
the arrest or
further detention of any person accused of any offence, shall be sufficient authority to any peace
officer for the
arrest and detention or further detention, as the case may be, of that person until a sufficient time, not
exceeding
fourteen days, has elapsed to allow the transmission of the warrant or writ to the place where that
person has been
arrested or detained, unless the discharge of that person is previously ordered by a judge:
Provided that any judge may, upon cause shown, order the further detention of the accused person for
a period
to be stated in such order, but not exceeding twenty-eight days from the date of the arrest of such
person.
(2) Nothing in subsection (1) shall be construed as derogating from the provisions of this Act or of any
other
enactment whereby a person so arrested may be admitted to bail.
36 Arresting wrong person
(1) Any person duly authorized to execute a warrant of arrest who thereupon arrests a person,
believing in
good faith and on reasonable and probable grounds that he is the person named in the warrant, shall be
protected
from responsibility to the same extent and subject to the same provisions as if the person arrested had
been the
person named in the warrant.
(2) Any person called on to assist the person making such arrest and believing that the person in
whose arrest
he is called on to assist is the person for whose arrest the warrant was issued, and every officer in
charge of a
prison who is required to receive and detain such person, shall be protected to the same extent and
subject to the
same provisions as if the arrested person had been the person named in the warrant.
37 Irregular warrant or process
Any person acting under a warrant or process which is bad in law, on account of a defect in substance
or in
form apparent on the face of it, shall, if he in good faith and without culpable ignorance and
negligence believes
that the warrant or process is good in law, be protected from responsibility to the same extent and
subject to the
same provisions as if the warrant or process were good in law, and ignorance of the law shall in such
case be an
excuse:
Provided that it shall be a question of law whether the facts of which there is evidence may or may not
constitute
culpable ignorance or negligence in his so believing the warrant or process to be good in law.
38 Tenor of warrant
Any warrant issued under this Act shall be to apprehend the person described therein and to bring him
before
a judicial officer as soon as possible upon a charge of an offence mentioned in the warrant.
C. General
39 Assistance by private persons called on by officers of the law
(1) Every male inhabitant of Zimbabwe between the ages of sixteen and sixty is, when called upon by
any
police officer, authorized and required to assist that police officer in making any arrest which by law
that police
officer is authorized to make of any person charged with or suspected of the commission of any
offence, or to
assist that police officer in retaining the custody of any person so arrested.
(2) Any inhabitant of Zimbabwe who, without sufficient excuse, refuses or fails to assist when called
upon to
do so shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for
a period not
exceeding three months or to both such fine and such imprisonment.
Subsection amended by section 4 of Act 22 of 2001.]
40 Breaking open of doors after failure in obtaining admission for purpose of arrest or
search
It shall be lawful for any peace officer or private person, who by law is authorized to arrest any person
known
or suspected to have committed any offence, to break open for that purpose the doors and windows of,
and to
enter and search, any premises in which the person whose arrest is required is known or suspected to
be:
Provided that such officer or private person aforesaid shall not act under this section—
(a) if directions, whether general or specific, to the contrary have been given to him by a superior
officer or
other person placed in authority over him;
(b) unless he has previously failed to obtain admission after having audibly demanded admission and
notified
the purpose for which he seeks to enter such premises.
41 Arrest—how made, and search thereon of person arrested
(1) In making an arrest, the peace officer or other person authorized to arrest shall actually touch or
confine
the body of the person to be arrested, unless there is a submission to the custody by word or action.
(2) A peace officer or other person arresting any person under this Part may search that person, and
shall
place in safe custody all articles, other than necessary wearing apparel, found on him.
(3) Any peace officer may take or cause to be taken the finger-prints, palm-prints, footprints and
photographs
of any person arrested upon any charge, and the medical officer of any prison or any medical officer
of the Ministry
responsible for health or any peace officer may take or cause to be taken such steps, including any
blood test,
as he may think necessary in order to ascertain whether or not the body of any such person bears any
mark, characteristic
or distinguishing feature or shows any condition or appearance:
Provided that a blood test shall only be made by a medical officer at the request in writing of a police
officer
of or above the rank of superintendent and in order to ascertain some fact which is material to the
investigation of
the charge upon which such person has been arrested.
(4) When it is desired to search or examine the body of a woman in terms of this section, such search
or examination,
unless made by a medical officer, shall be made only by a woman and shall be conducted with strict
regard to decency and, if there is no woman available for such search or examination who is a police
officer or a
prison officer, the search or examination may be made by any woman specially named for the purpose
by a peace
officer.
(5) Any finger-prints, palm-prints, footprints or photographs and the records of any steps taken under
this
section shall be destroyed if the person concerned is found not guilty at his trial or his conviction is set
aside by a
superior court or the Attorney-General declines to prosecute him in terms of paragraph (a) of
subsection (1) of
section one hundred and one or the charge against him is withdrawn.
42 Resisting arrest
(1) If any person who is authorized or required under this Act or any other enactment to arrest or assist
in a rresting
another person attempts to make the arrest and the person whose arrest is attempted—
(a) resists the attempt and cannot be arrested without the use of force; or
(b) flees when it is clear that an attempt to arrest him is being made or resists the attempt and flees;
the person attempting the arrest may, in order to effect the arrest, use such force as is reasonably
justifiable in the
circumstances of the case to overcome the resistance or to prevent the person concerned from
escaping.
(2) Where a person whose arrest is attempted is killed as a result of the use of reasonably justifiable
force in
terms of subsection (1) the killing shall be lawful if the person was to have been arrested on the
ground that he
was committing or had committed, or was suspected on reasonable grounds of committing or having
committed
an offence referred to in the First Schedule.
43 Power to retake on escape
If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was
rescued
may immediately pursue and arrest him or cause him to be pursued and arrested in any place in
Zimbabwe.
44 …..
[Section repealed by Act No. 23 of 2004.]
45 Saving of other powers of arrest
Nothing in this Part shall be construed as taking away or diminishing any authority specially conferred
by any
other enactment to arrest, detain or put any restraint on any person.
46 Saving of civil rights
Nothing in this Part shall be construed as taking away or diminishing any civil right or liability of any
person
in respect of a wrongful or malicious arrest.
PART VI
SEARCHWARRANTS, SEIZURE, DETENTION AND DISPOSAL OF PROPERTY CONNECTEDWITHOFFENCES AND CUSTODY
OFWOMEN UNLAWFULLY
DETAINED FOR IMMORAL PURPOSES
47 Interpretation in Part VI
In this Part—
“article” includes any document or substance.
48 Savings as to certain powers conferred by other enactments
This Part shall not derogate from any power conferred by any other enactment to enter any premises,
to
search any person, container or premises, to seize any article, to declare any article forfeited or to
dispose of any
article.
49 State may seize certain articles
The State may, in accordance this Part, seize any article—
(a) which is concerned in or is on reasonable grounds believed to be concerned in, the commission or
suspected commission of an offence, whether within Zimbabwe or elsewhere; or
(b) which it is on reasonable grounds believed may afford evidence of the commission or suspected
commission
of an offence, whether within Zimbabwe or elsewhere; or
(c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the
commission of an offence.
50 Article to be seized under warrant
(1) Subject to sections fifty-one, fifty-two and fifty-three, an article referred to in section forty-nine
shall be
seized only by virtue of a warrant issued—
(a) by a magistrate or justice, if it appears to the magistrate or justice from information on oath that
there are
reasonable grounds for believing that any such article is in the possession or under the control of any
person, or upon or in any premises or area, within his area of jurisdiction; or
[Paragraph amended by section 44 of Act 1 of 2002.]
(b) by a judge or magistrate presiding at criminal proceedings, if it appears to the judge or magistrate
that
any such article in the possession or under the control of any person or upon or in any premises is
required
in evidence in the proceedings.
(2) A warrant issued in terms of subsection (1) shall require a police officer to seize the article in
question
and shall to that end authorize such police officer, where necessary—
(a) to search any person identified in the warrant; or
(b) to enter and search any premises identified in the warrant, or any premises within an area
identified in
the warrant, and to search any person found upon or in those premises.
[Paragraph amended by section 44 of Act No. 1 of 2002.]
(3) A warrant—
(a) may be issued on any day and shall be of force until it is executed or it is cancelled by the person
who
issued it or, if that person is not available, by a person with like authority; and
(b) shall be executed by day, unless the person issuing the warrant in writing authorizes the execution
thereof by night.
(4) A police officer executing a warrant in terms of this section shall, after such execution, upon
demand of
any person whose rights in respect of any search or article seized under the warrant have been
affected, hand to
him a copy of the warrant.
51 Search and seizure without warrant
(1) A police officer may, without warrant, search any person or container or premises for the purposes
of
seizing any article referred to in section forty-nine and additionally, or alternatively, seize any such
article—
(a) if the person concerned consents to the search for and additionally, or alternatively, the seizure of
the
article in question or if a person who may consent to the search of the container or premises consents
to
such search and additionally, or alternatively, the seizure of the article in question; or
(b) if he on reasonable grounds believes that—
(i) a warrant would be issued to him in terms of paragraph (a) of subsection (1) of section fifty if he
applied for one; and
(ii) the delay in obtaining a warrant would prevent the seizure or defeat the object of the search, as
the case may be.
(2) Where a police officer has reason to suspect that an offence has been committed by any person on
board a
boat on inland waters, it shall be lawful for him to stop, go on board and search such boat without
warrant and to
seize any thing which he has reasonable grounds for believing will afford evidence as to the
commission of an
offence under any law.
(3) Any person who, when called upon in terms of subsection (2) to stop a boat under his control, fails
to
comply immediately with such request shall be guilty of an offence and liable to a fine not exceeding
level four or
to imprisonment for a period not exceeding three months or to both such fine and such imprisonment.
[Subsection amended by section 4 of Act 22 of 2001.]
52 Seizure of article on arrest or detention of person carrying same
(1) On the arrest and search of any person, the person making the arrest may—
(a) if he is a peace officer, seize any article referred to in section forty-nine which is in the possession
or
under the control of the person arrested and, where such peace officer is not a police officer, shall
forthwith deliver any such article to a police officer; or
(b) if he is not a peace officer, seize any article referred to in section forty-nine which is in the
possession or
under the control of the person arrested and shall forthwith deliver any such article to a police officer.
(2) Any police officer may stop and interrogate any person who is found at any time between sunset
and sunrise
carrying or transporting any goods or articles of any description and if—
(a) such person does not account satisfactorily for the possession of the goods or articles so being
carried or
transported; or
(b) there are reasonable grounds for suspecting that such goods or articles have been criminally
procured;
such officer may convey such goods or articles and the person so carrying or transporting the same to
any prison
or police station, and detain such person in custody until the next sitting of the magistrates court which
shall
inquire into the circumstances and make such order or give such direction as to it seems fit and proper.
53 Search by occupier of land
Any person who is lawfully in charge or occupation of any land and who reasonably suspects that—
(a) stolen stock or produce, as defined in any law relating to the theft of stock or produce, is upon or in
any
premises on that land; or
(b) any article has been placed upon or in any premises on that land or is in the possession or under the
control of any person upon such premises in contravention of any law relating to harmful liquids,
dependence-
producing drugs, arms and ammunition or explosives;
may at any time, if a police officer is not readily available, enter the premises for the purpose of
searching the
premises and any person thereupon or therein and, if any such stock, produce or article is found, he
shall take
possession thereof and forthwith deliver it to a police officer.
54 Entering of premises for purposes of obtaining evidence
(1) Where a police officer in the investigation of an offence or alleged offence reasonably suspects
that a person
who may furnish information with reference to any such offence is upon or in any premises, he may,
without
warrant, enter the premises for the purpose of interrogating such person and obtaining a statement
from him:
Provided that a police officer shall not enter any dwelling in terms of this section without the consent
of the
occupier thereof.
(2) Where a police officer of such class as the Minister may designate considers on reasonable
grounds that it
is necessary for the purpose of investigating or detecting an offence to examine any books, documents
or other
records, he may, without warrant—
(a) enter any premises for the purpose of examining such books, documents or other records; and
(b) require from any person thereupon or therein the production then and there of such books,
documents or
other records which are or have been upon or in the premises or in the custody or under the control of
any person by whom the premises are occupied or used;
and may examine and make extracts from and copies of all such books, documents and other records:
Provided that a police officer shall not enter any dwelling in terms of this subsection without the
consent of
the occupier thereof.
55 Resistance against entry or search
(1) A police officer who may lawfully search any person or premises or who may enter any premises
in terms
of section fifty-four may use such force as may reasonably be necessary to overcome any resistance
against such
search or entry, including the breaking of any door or window of the premises:
Provided that the police officer shall first audibly demand admission to the premises and notify the
purpose
for which he seeks to enter the premises.
(2) The proviso to subsection (1) shall not apply where the police officer concerned is on reasonable
grounds
of the opinion that any article which is the subject of the search may be destroyed or disposed of if the
provisions
of that proviso are first complied with.
56 Award of damages for false information on oath
Where any person falsely gives information on oath for the purposes of subsection (1) of section fifty
and a
warrant is issued and executed on such information, and such person is in consequence of such false
information
convicted of perjury or any statutory offence involving the making of a false statement on oath, the
court convicting
such person may, upon the application of any person who has suffered any damage in consequence of
the
unlawful entry, search or seizure, as the case may be, or upon the application of the prosecutor acting
on the
instructions of that person, award compensation in respect of such damage and the provisions of
section three
hundred and sixty-two shall apply, mutatis mutandis, to the award.
57 Search to be conducted in decent and orderly manner
A search of any person or premises in terms of this Part shall be conducted with strict regard to
decency and
order, and the provisions of subsection (4) of section forty-one shall apply, mutatis mutandis, to the
searching of
any woman.
58 Disposal by police officer of article after seizure
A police officer who seizes any article referred to in section forty-nine or to whom any such article is
delivered
in terms of this Part or to whom an article seized in terms of any other enactment is delivered to be
dealt with
in terms of this Part—
(a) may, if the article is perishable, with due regard to the interests of the persons concerned, dispose
of the
article in such manner as the circumstances may require; or
(b) may, if the article is stolen property or property suspected to be stolen, with the consent of the
person
from whom it was seized, deliver the article to the person from whom, in the opinion of such police
officer,
such article was stolen, and shall warn such person to hold such article available for production at
any resultant criminal proceedings, if required to do so; or
(c) shall, if the article is not disposed of or delivered in terms of paragraph (a) or (b), give it a
distinctive
identification mark and retain it in police custody or make such other arrangements with regard to the
custody thereof as the circumstances may require.
59 Disposal of article where no criminal proceedings are instituted, where it is not
required for
criminal proceedings or where accused admits his guilt
(1) Subject to subsection (2), if in connection with any article referred to in paragraph (c) of section
fiftyeight—(
a) no criminal proceedings are instituted; or
(b) it appears that such article is not required at the trial for purposes of evidence or for purposes of an
order
of court; or
(c) criminal proceedings are instituted and the accused admits his guilt in accordance with section
three
hundred and fifty-six;
the article shall—
(i) if the person from whom it was seized may lawfully possess the article, be returned to that
person; or
(ii) if the person from whom it was seized may not lawfully possess the article, be delivered to the
person who may lawfully possess it; or
(iii) if no person may lawfully possess the article or if the police officer concerned does not know of
any person who may lawfully possess the article, be forfeited to the State.
(2) If the person who may lawfully possess the article in question is known and has not applied for the
return
or delivery of the article, notice shall be sent by registered post to his last known address that he may
take possession
of the article, and if such person fails to take possession of the article within three months from the
date of
such notice being sent, the article shall be forfeited to the State.
(3) Where an article has been forfeited to the State in terms of paragraph (iii) of subsection (1) or
subsection
(2), a magistrate within whose area of jurisdiction the article was, in terms of paragraph (c) of section
fifty-eight,
retained in police custody may at any time within a period of three years from the date of the original
seizure by a
police officer or delivery to a police officer, as the case may be, of the article, upon the application of
any person
who claims that any right referred to in paragraph (a) or (b) is vested in him, inquire into and
determine such right
and, if the magistrate finds that the article—
(a) is the property of the applicant, he shall—
(i) set aside the forfeiture and direct that the article be returned to such person; or
(ii) if the State has disposed of the article, direct that the applicant be paid adequate compensation
by the State;
(b) was sold to the accused in pursuance of a contract under which he becomes the owner of the article
upon payment of a stipulated price, whether by instalments or otherwise, and under which the seller
becomes
entitled to the return of the article upon default of payment of the stipulated price or any part
thereof, he shall—
(i) direct that the article be sold by public auction and that the said seller be paid out of the proceeds
of the sale an amount equal to the value of his rights under the contract to the article, but not
exceeding
the proceeds of the sale; or
(ii) if the State has disposed of the article, direct that the said seller be paid adequate compensation
by the State.
(4) If a determination by a magistrate of an application in terms of subsection (3) is adverse to the
applicant,
he may appeal therefrom as if it were a conviction by the court making the determination.
(5) When determining any rights in terms of subsection (3), the magistrate may hear such evidence,
whether
by affidavit or orally, as he may think fit.
60 Article to be transferred to court for purposes of trial
(1) If criminal proceedings are instituted in connection with any article referred to in paragraph (c) of
section
fifty-eight and the article is required at a trial or for the purposes of evidence or of any order of court,
the police
officer concerned shall, subject to subsection (2), deliver the article to the registrar or clerk of the
court where
such criminal proceedings are instituted.
[Subsection amended by section 28 of Act 9 of 2006.]
(2) If it is, by reason of the nature, bulk or value of the article in question, impracticable or undesirable
that
the article be delivered to the registrar or clerk of the court in terms of subsection (1), the registrar or
clerk, as the
case may be, may require the police officer concerned to retain the article in police custody or in such
other
custody as may be determined in terms of paragraph (c) of section fifty-eight.
(3) The registrar or clerk, as the case may be, of the court shall place any article received in terms of
subsection
(1) in safe custody, which may include the deposit of money in an official banking account if such
money is
not required at the trial for the purposes of evidence.
[Subsection amended by section 28 of Act 9 of 2006.]
(4) Where the trial in question is to be conducted in a court other than the court to which the article
was delivered
in terms of subsection (1), the registrar or clerk, as the case may be, of the court shall—
(a) transfer any article received in terms of that subsection, other than money deposited in a banking
account
in terms of subsection (3), to the registrar or clerk, as the case may be, of the court in which the
trial is to be conducted, and that registrar or clerk shall place such article in safe custody; or
(b) in the case of any article retained in police custody or in some other custody in terms of subsection
(2) or
any money deposited in a banking account in terms of subsection (3), advise the registrar or clerk of
the
court in which the trial is to be conducted accordingly.
61 Disposal of article after commencement of criminal proceedings
(1) Subject to this Act and except as otherwise provided in any other enactment under which any
matter shall
or may be forfeited, the judge or magistrate presiding at criminal proceedings may, at the conclusion
of the proceedings,
unless the article is further required as an exhibit at a trial, make an order that any article referred to in
section sixty or produced in evidence—
(a) if the person from whose possession it was obtained may lawfully possess such article, be returned
to
that person; or
(b) if the person from whose possession it was obtained is not entitled to the article or may not
lawfully
possess the article, be returned to any other person entitled thereto, if such person may lawfully
possess
the article; or
(c) if no person is entitled to the article or if the person who is entitled thereto cannot be traced or is
unknown,
be forfeited to the State.
(2) The court may, for the purpose of making any order in terms of subsection (1), hear such
additional evidence,
whether by affidavit or orally, as it may think fit.
(3) If the judge or magistrate concerned does not, at the conclusion of the relevant proceedings, make
an order
in terms of subsection (1), the registrar or clerk of the court may hand the article to the person who, in
terms of
paragraph (a) or (b) of subsection (1), is entitled to the article and, if he is in any doubt as to who is
entitled to the
article, shall refer the matter to a judge or magistrate, as the case may be, who may make any order
referred to in
subsection (1) and for that purpose may hear such additional evidence, whether by affidavit or orally,
as he may
think fit:
Provided that, if within a period of three months after the conclusion of the trial the article has not
been
handed to any person and no order has been made in respect thereof or is pending in respect thereof,
the article
shall be forfeited to the State.
(4) Any order made in terms of subsection (1) or (3) may be suspended pending any appeal or review.
(5) Where the court makes an order in terms of paragraph (a) or (b) of subsection (1) or subsection
(3), the
provisions of subsection (2) of section fifty-nine shall apply, mutatis mutandis, in respect of the person
in whose
favour the order is made.
(6) If circumstances so require or if the criminal proceedings in question cannot for any reason be
disposed
of, the judge or magistrate concerned may make any order referred to in paragraph (a) or (b) of
subsection (1) at
any stage of the proceedings.
62 Forfeiture of article to State
(1) A court convicting any person of any offence may, without notice to any other person, declare
forfeited to
the State—
(a) any weapon, instrument or other article by means whereof the offence in question was committed
or
which was used in the commission of such offence; or
(b) if the conviction is in respect of an offence specified in the Second Schedule, any vehicle,
container or
other article which was used for the purpose of or in connection with the commission of the offence in
question or, in the case of a conviction relating to the theft of any goods, for the conveyance or
removal
of the stolen property;
and which was seized in terms of this Part:
Provided that such forfeiture shall not affect any right referred to in paragraph (a) or (b) of subsection
(4) if it
is proved that the person who claims such right did not know that the weapon, instrument, vehicle,
container or
other article was being used or would be used for the purpose of or in connection with the commission
of the
offence in question or, as the case may be, for the conveyance or removal of the stolen property in
question, or
that he could not prevent such use, and that he may lawfully possess such weapon, instrument,
vehicle, container
or other article, as the case may be.
(2) A court convicting any person or which finds an accused not guilty of any offence shall declare
forfeited
to the State any article seized under this Part which is forged or counterfeit or which cannot lawfully
be possessed
by any person.
(3) Any article declared forfeited in terms of subsection (1) shall be kept for a period of three months
with effect
from the date of declaration of forfeiture or, if an application is within that period received from any
person
for the determination of any right referred to in paragraph (a) or (b) of subsection (4), until a final
decision in
respect of any such application has been given.
(4) Any judge or magistrate of the court in question may at any time within a period of three years
from the
date of declaration of forfeiture of an article in terms of subsection (1), upon the application of any
person, other
than the accused, who claims that any right referred to in paragraph (a) or (b) is vested in him, inquire
into and
determine any such right and, if the court finds that facts referred to in the proviso to subsection (1)
are proved
and that the article—
(a) is the property of the applicant, the court shall—
(i) set aside the declaration of forfeiture and direct that the article be returned to such person; or
(ii) if the State has disposed of the article, direct that the applicant be compensated by the State to
the extent to which the State has been enriched by such disposal;
(b) was sold to the accused in pursuance of a contract under which he becomes the owner of the article
upon the payment of a stipulated price, whether by instalments or otherwise, and under which the
seller
becomes entitled to the return of the article upon default of payment of the stipulated price or any part
thereof, the court shall—
(i) direct that the article be sold by public auction and that the said seller be paid out of the proceeds
of the sale an amount equal to the value of his right under the contract of the article, but not exceeding
the proceeds of the sale; or
(ii) if the State has disposed of the article in question, direct that the said seller be compensated by
the State by an amount equal to the value of his rights under the contract to the article, but not
exceeding the extent to which the State has been enriched by such disposal.
(5) If a determination by the court of an application in terms of subsection (4) is adverse to the
applicant, he
may appeal therefrom as if it were a conviction by the court making the determination, and such
appeal may be
heard either separately or jointly with an appeal against the conviction as a result whereof the
declaration of
forfeiture was made or against a sentence imposed as a result of such conviction.
(6) When determining any rights in terms of subsection (4), the record of the criminal proceedings in
which
the declaration of forfeiture was made shall form part of the relevant proceedings, and the court
making the determination
may hear additional evidence, whether by affidavit or orally, as it may think fit.
62A Forfeiture of unlawful consideration in cases of bribery
(1) In this section, “agent” and “principal” shall have the meaning given to those terms by section 169
of the
Criminal Law Code.
(2) Where a court has convicted a person of bribery and does not exercise its powers in terms of
section 62 to
declare any consideration unlawfully obtained by the convicted person to be forfeited to the State, the
court may,
in addition to passing sentence give summary judgment in favour of
(a) the convicted person’s principal, where the convicted person was an agent when the crime was
committed;
or
(b) in any other case, the State;
for an amount equal to the value of the consideration unlawfully received by the convicted person,
together with
interest, calculated from the date on which the convicted person received the consideration, at the
highest rate
permissible in terms of the Moneylending and Rates of Interest Act [Chapter 14:14].
(3) A judgment given by a court in terms of subsection (1) shall have the same effect and may be
executed in
the same manner as if the judgment had been given in a civil action instituted in the court:
Provided that, in the case of a judgment given by the court of a regional magistrate, a copy of the
judgment,
certified by the clerk of such court, shall be forwarded to the court of the provincial magistrate for the
province in
which the trial took place and thereupon shall be recorded and have the same effect as a civil
judgment of the
court of such magistrate.
[Section inserted by section 282 of Act 23 of 2004]
63 Disposal of article concerned in offence committed outside Zimbabwe
(1) Where an article in connection with which—
(a) an offence was committed or is on reasonable grounds suspected to have been committed in a
country or
territory outside Zimbabwe; or
(b) there are reasonable grounds for believing that it will afford evidence as to the commission in a
country
or territory outside Zimbabwe of any offence or that it was used for the purpose of or in connection
with
the commission of any such offence;
has been seized, the magistrate within whose area of jurisdiction the article was seized may, on
application and if
satisfied that such offence is punishable in that country or territory by death or by imprisonment for a
period of
twelve months or more or by a fine of level six or more, order such article to be delivered to a member
of a police
force established in such country or territory who may thereupon remove it from Zimbabwe.
[Subsection amended by section 4 of Act 22 of 2001.]
(2) When the article so removed from Zimbabwe is returned to the magistrate or the magistrate refuses
to order
that the article be delivered as aforesaid, the article shall be returned to the person from whose
possession it
was taken, unless the magistrate is authorized or required by law to dispose of it otherwise.
64 Women detained for immoral purposes
(1) If it appears to a magistrate on complaint made on oath by a parent, husband, relative or guardian
of a
woman or girl, or any other person who, in the opinion of the magistrate, is acting in good faith in the
interests of
a woman or girl, that there are reasonable grounds for suspecting that such woman or girl is
unlawfully detained
for immoral purposes by any person in any place within the magistrate’s jurisdiction, he may issue a
warrant
directed to a peace officer and authorizing him to search for such woman or girl, and when found to
take her to
and detain her in a place of safety until she can be brought before a magistrate, and the magistrate
before whom
she is brought may cause her to be delivered up to her parents, husband, relatives or guardians, or
otherwise deal
with her as the circumstances may permit and require.
(2) The magistrate issuing the warrant may by warrant direct any person accused of so unlawfully
detaining
the woman or girl to be arrested and brought before him or some other magistrate having jurisdiction.
(3) A woman or girl shall be deemed to be unlawfully detained for immoral purposes if she—
(a) being under the age of sixteen years, is detained for those purposes, whether against her will or
not; or
(b) being of or over the age of sixteen years and under the age of eighteen years, is for those purposes
detained against her will or against the will of her father or mother or any other person who has the
lawful
care or charge of her; or
(c) being of or above the age of eighteen years, is for those purposes detained against her will;
and a woman or girl shall be deemed to be detained for immoral purposes if she is detained by any
person in order
that she may be unlawfully carnally known by any man, whether a particular man or not.
(4) A peace officer authorized by warrant under this section to search for a woman or girl may enter, if
need
be, by force any house or other place specified in the warrant, and may remove the woman or girl
therefrom.
(5) A warrant under this section shall be executed by the police officer mentioned in it, who shall,
unless the
magistrate otherwise directs, be accompanied by the parent, husband, relative, guardian or other
person by whom
the complaint is made, if such person so desires.
PART VII
COMMITTAL FOR TRIAL IN THE HIGH COURT OFACCUSED PERSONS
[Part VII substituted by section 3 of Act 9 of 2006.]
65 Accused to be committed for trial by magistrates before High Court
No person shall be tried in the High Court for any offence unless he or she has been previously
committed for
trial by a magistrate for or in respect of the offence charged in the indictment:
Provided that—
(i) in any case in which the Attorney-General has declined to prosecute, the High Court or any judge
thereof may, upon the application of any such private party as is described in sections 13 and 14, order
any person to be committed for trial;
(ii) an accused person, other than an accused person committed for trial under section 66, shall be
deemed
to have been committed for trial for or in respect of the offence charged in the indictment if the
evidence
taken before the committing magistrate contains an allegation of any fact or facts upon which the
accused
might have been committed upon the charge named in the indictment, although the committing
magistrate may, when committing the accused upon such evidence, have committed him or her for
some
offence other than that charged in the indictment or for some other offence not known to the law;
(iii) an accused person who is in actual custody when brought to trial, or who appears to take his or
her trial
in pursuance of any recognizance entered into before any magistrate, shall be deemed to have been
duly
committed for trial upon the charge stated in the indictment unless he or she proves the contrary;
(iv) nothing in this section shall be construed as affecting the power of a judge to sentence a person
whose
case has been transferred to that court on the direction of the Attorney-General in terms of section
225;
(v) no irregularity or defect in—
(a) any proceedings referred to in section 66; or
(b) any other matter relating to the bringing of an accused person before the High Court;
shall affect the validity of the trial, but the court may, on the application of the prosecutor or the
accused,
adjourn the trial to some future day.
[Section substituted by section 3 of Act 9 of 2006.]
66 Summary committal for trial of accused person
(1) If the Attorney-General is of the opinion that any person is under reasonable suspicion of having
committed
an offence for which the person may be tried in the High Court, the Attorney-General shall cause
written
notice to be served on—
(a) a magistrate for the province within which the person concerned resides or for the time being is
present;
or
(b) any magistrate before whom the trial of the offence could be held in respect of the offence
concerned;
informing the magistrate of his or her decision to indict the person concerned for trial before the High
Court and
of the offence for which the person is to be tried.
(2) On receipt of a notice in terms of subsection (1), the magistrate shall cause the person concerned to
be
brought before him or her and, notwithstanding any other provision of this Act, shall forthwith commit
the person
for trial before the High Court and grant a warrant to commit him or her to prison, there to be detained
till brought
to trial before the High Court for the offence specified in the warrant or till admitted to bail or
liberated in the
course of law.
(3) For the purpose of bringing a person before a magistrate to be committed for trial in terms of
subsection
(2)—
(a) the clerk of the magistrates court concerned shall issue a summons at the request of a public
prosecutor
requiring the person to appear before the magistrate at a specified date, time and place and stating the
nature of the offence in respect of which he or she is to be indicted for trial; or
(b) the magistrate may issue a warrant for the person’s arrest.
(4) Section 140 shall apply, with any changes that may be necessary, to a summons issued in terms of
subsection
(3)(a) as if it had been issued in terms of that section.
(5) Part V shall apply, with any changes that may be necessary, to a warrant issued in terms of
subsection
(3)(b) as if it had been issued in terms of section 33(1).
(6) Where an accused has been committed for trial in terms of subsection (2) there shall be served
upon him
or her in addition to the indictment and notice of trial—
(a) a document containing a list of witnesses it is proposed to call at the trial and a summary of the
evidence
which each witness will give, sufficient to inform the accused of all the material facts upon which the
State relies; and
(b) a notice requesting the accused—
(i) to give an outline of his or her defence, if any, to the charge; and
(ii) to supply the names of any witnesses he or she proposes to call in his or her defence together
with a summary of the evidence which each witness will give, sufficient to inform the Attorney-
General of all the material facts on which he or she relies in his or her defence;
and informing the accused of the provisions of section 67(2).
(7) The Attorney-General shall lodge with the registrar of the High Court a copy of the document and
notice
referred to in subsection (6).
(8) Where the accused is to be represented at his or her trial by a legal practitioner, the legal
practitioner
shall, at least three days, Saturdays, Sundays and public holidays excluded, before the date for trial
determined by
the Attorney-General in terms of section 160(1)—
(a) send to the Attorney-General; and
(b) lodge with the registrar of the High Court; a document containing the information referred to
subsection
(6)(b).
(9) Where the accused is not to be represented at his or her trial by a legal practitioner, the Attorney-
General
may—(
a) serve on the accused a notice directing him or her to appear before a specified magistrate to provide
the
information referred to in subsection (6)(b), and
(b) send to the magistrate specified in terms of paragraph (a) a copy of—
(i) the document and notice referred to in subsection (6); and
(ii) the notice served in terms of paragraph (a).
(10) The magistrate shall cause an accused on whom a. notice in terms of subsection (9) is served to
appear
before him or her and—
(a) ask the accused if he or she understands the facts set out in the document referred to in subsection
(6)(a)
and, if necessary, explain those facts, and
(b) inform him or her of the provisions of section 67(2), and
(c) request the accused to supply the information referred to in subsection (6)(b);
and the proceedings shall be recorded.
(11) The magistrate shall transmit a certified copy of the record made in terms of subsection (10) to
the registrar
of the High Court.
(12) The registrar shall transmit—
(a) the document and notice lodged with him or her in terms of subsection (7); and
(b) the document lodged with him or her or in terms of subsection (8)(b) or a certified copy of the
record
transmitted in terms of subsection (11), as the case may be;
to the judge who is to preside at the trial.
[Section substituted by section 3 of Act 9 of 2006.]
67 Information provided by accused or failure of accused to mention fact relevant to
his or her
defence may be used as evidence against accused
(1) A document purporting to be a copy of a document referred to in section 66(8) or a certified copy
of a record
made in terms of subsection (10) of that section shall be received in evidence before the court upon its
mere
production by the prosecutor without further proof, unless it is shown that the information given by
the accused
was not in fact duly given:
Provided that, except in so far as it amounts to an admission of any allegation made by the State, any
information
provided by the accused shall not be taken into account for the purpose of deciding whether the
accused
should be found not guilty in terms of section 198(3).
(2) If an accused has failed to mention any fact relevant to his or her defence as requested in the notice
in
terms of section 66(6)(b), being a fact which, in the circumstances existing at the time, he or she could
reasonably
have been expected to have mentioned, the court, in determining whether there is any evidence that
the accused
committed or whether the accused is guilty of the offence charged or any other offence of which he or
she may be
convicted on that charge, may draw such inferences from the failure as appear proper and the failure
may, on the
basis of such inferences, be treated as evidence corroborating any other evidence given against the
accused.
(3) In deciding, in terms of subsection (2), whether in the circumstances existing at the time the
accused
could reasonably have been expected to mention any fact, the court may have regard to the document
referred to
in section 66(6)(a).
[Section substituted by section 3 of Act 9 of 2006.]
68 – 111 ….
[Sections 68 – 11 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII.]
PART VIII
CONFIRMATION OF EXTRA-CURIALSTATEMENTS
112 Interpretation in Part VIII
In this Part—
“confirmation proceedings” means confirmation proceedings in terms of section 113;
“expert witness” means any person whose professional, scientific or technical training gives authority
to evidence
given in his or her professional, scientific or technical capacity;
“statement” means any statement, including a confession, that is written or made orally and
subsequently reduced
to writing;
“verification proceedings” means verification proceedings in terms of section 115A.
[Section substituted by section 4 of Act 9 of 2006.]
113 Confirmation or investigation of statement
(1) Where an accused has been brought before a magistrate, the prosecutor may apply to the
magistrate for
the confirmation of any statement alleged to have been made by the accused, whether in writing or
orally, and
reduced to writing.
(2) In an application in terms of subsection (1)—
(a) the prosecutor shall produce the statement referred to in subsection (1) by handing it to the
magistrate
and shall inform the magistrate of the details of when, where and to whom it was made; and
(b) the statement produced in terms of paragraph (a) shall be read over to the accused and the accused
shall
be informed of the details provided in accordance with that paragraph; and
(c) the magistrate shall ask the accused whether—
(i) he made the statement; and
(ii) he did so freely and voluntarily without his having been unduly influenced thereto;
and shall explain to him the provisions of subsection (3) and of subsection (2) of section two hundred
and fifty-six.
(3) If the accused—
(a) refuses to answer any question put in terms of subsection (2); or
(b) admits that—
(i) he made the statement; and
(ii) the statement was made freely and voluntarily without his having been unduly influenced
thereto;
the magistrate shall confirm the statement by endorsing upon it the word “confirmed” and his
signature and the
place and date of confirmation.
(4) If the accused alleges that—
(a) he did not make the statement; or
(b) the statement was not made freely and voluntarily without his having been unduly influenced
thereto;
the magistrate shall request him to give particulars sufficient to inform the State of the facts upon
which he relies
for his allegation and, as far as is reasonably possible, to identify those involved in the allegation and
shall inform
him of the provisions of section one hundred and fifteen.
(5) The magistrate may require a person who makes an allegation referred to in subsection (4) to be
medically
examined and may make such other investigation as he considers necessary or desirable in the
circumstances.
(6) ….
(7) …
[Subsections 6 and 7 repealed by section 5 of Act 9 of 2006.]
113A Parents or guardian of juvenile may be summoned to confirmation proceedings
(1) If confirmation proceedings are held in respect of a person under the age of eighteen years, the
magistrate
conducting the proceedings may, at any time during those proceedings, direct any persons to warn the
parent or
guardian of the person orally to attend the proceedings and to remain in attendance at them, or to serve
a warning
in writing upon the parent or guardian:
Provided that no magistrate shall give a direction in terms of this subsection in respect of the parent or
guardian
of a person who is married or, in the opinion of the magistrate, is tacitly emancipated.
(2) If a parent or guardian who has been warned under subsection (1) fails to attend on the date and at
the
time appointed, or to remain in attendance during the confirmation proceedings on t hat day and on
any day to
which the proceedings may be adjourned, the magistrate presiding at the proceedings may issue a
warrant for the
apprehension of that parent or guardian and may also order him or her to pay a fine not exceeding
level three or,
in default of payment, to be imprisoned for a period not exceeding one month.
(3) The magistrate may, on cause shown, remit any penalty imposed under subsection (2).
[Section inserted by section 6 of Act 9 of 2006.]
113B Accused must be in his or her sound and sober senses
(1) Before commencing confirmation proceedings and at all times during the course thereof, the
magistrate
shall satisfy himself or herself that the accused is in his or her sound and sober senses, and if the
magistrate is,
before commencing or at any time during the course of the proceedings, satisfied that the accused is
not in his or
her sound and sober senses, the magistrate shall record that fact and order the accused to be kept in
custody in
such place for such period and under such conditions as to observation as the magistrate may think fit.
(2) An order in terms of subsection (1) shall expire at the termination of fourteen days from the date of
its issue,
but may, from time to time, be renewed by the magistrate for a period not exceeding fourteen days.
(3) If at the expiry of the period of the order or of any renewal thereof or before such expiry the
accused is
found to be in his or her sound and sober senses, the accused shall again be brought before the
magistrate who
shall commence or, as the case may be, continue the confirmation proceedings.
[Section inserted by section 6 of Act 9 of 2006.]
113C Subpoenaing of witnesses
(1) A public prosecutor who has initiated confirmation proceedings, or an accused in respect of whom
those
proceedings are being or are to be held, or the latter’s legal representative, may compel the attendance
of any
person at those proceedings to give evidence or to produce any book or document, by means of a
subpoena, issued
in the manner prescribed by the rules of court, at the instance of the public prosecutor or accused, as
the case may
be, by the clerk of the magistrate in which the proceedings are being or are to be held.
(2) If a magistrate conducting confirmation proceedings believes that any person may be able to give
evidence
or to produce any book or document which is relevant to the subject of the examination, he or she may
direct the clerk of the magistrate court to issue, in the manner mentioned in subsection (1), a subpoena
requiring
such person to appear before him or her at a time mentioned therein, to give evidence or to produce
any book or
document.
(3) Any such subpoena shall be served in the manner prescribed by the rules of court, upon the person
to
whom it is addressed.
(4) A magistrate conducting confirmation proceedings may call as a witness any person in attendance,
although
not subpoenaed as a witness, or may recall and re-examine any person already examined as a witness.
(5) Every person subpoenaed to attend confirmation proceedings shall obey the subpoena and remain
in attendance
throughout the proceedings, unless excused by the magistrate conducting the proceedings.
[Section inserted by section 6 of Act 9 of 2006.]
113D Arrest and punishment for failure to obey subpoena or to remain in attendance
(1) If any person subpoenaed to attend confirmation proceedings without reasonable cause fails to
obey the
subpoena, and it appears from the return or from evidence given under oath that the subpoena was
served upon the
person to whom it is directed, or if any person who has attended it in obedience to a subpoena fails to
remain in
attendance, the magistrate conducting the proceedings may issue a warrant directing that such person
be arrested
and brought at a time and place stated in the warrant, or as soon thereafter as possible, before him or
her or any
other magistrate.
(2) When the person in question has been arrested under the said warrant, he or she may be detained
thereunder
before the magistrate who issued it or in any prison or lock-up or other place of detention or in the
custody
of the person who is in charge of him or her, with a view to securing the person’s presence as a
witness at the
confirmation proceedings, or such magistrate may release him or her on a recognizance, with or
without sureties,
for his or her appearance to give evidence as required and for his or her appearance at the inquiry
mentioned in
subsection (3).
(3) The magistrate may in a summary manner inquire into the said person’s failure to obey the
subpoena or to
remain in attendance, and unless it is proved that the said person had a reasonable excuse for such
failure, the
magistrate may sentence him or her to a fine not exceeding level three or to imprisonment for a period
not exceeding
one month or to both such fine and such imprisonment.
(4) Any person sentenced by a magistrate to a fine or imprisonment in terms of subsection (3) shall
have the
same right of appeal as if he or she had been convicted and sentenced by a magistrates court in a
criminal trial.
(5) If a person who has entered into a recognizance for his or her appearance to give evidence at
confirmation
proceedings or for his or her appearance at an inquiry referred to in subsection (3) fails so to appear,
he or she
may, apart from the estreatment of his or her recognizance, be dealt with as if he or she had failed to
obey a
subpoena to attend confirmation proceedings.
[Section inserted by section 6 of Act 9 of 2006.]
113E When tender of witness’ expenses not necessary
No prepayment or tender of expenses shall be necessary in the case of a person who is required to give
evidence
at confirmation proceedings and who is also within five kilometres of the premises in which such
proceedings
are being held.
[Section inserted by section 6 of Act 9 of 2006.]
113F Witness refusing to be examined or to produce evidence may be committed
(1) Whenever any person appearing, either in obedience to a subpoena or by virtue of a warrant, or
being
present and being verbally required by the magistrate to give evidence at confirmation proceedings,
refuses to be
sworn or, having been sworn, refuses to answer such questions as are put to him or her, or refuses or
fails to
produce any document or thing which he or she is required to produce, without in any such case
offering any just
excuse for such refusal or failure, the magistrate may adjourn the proceedings for any period not
exceeding eight
clear days, and may in the meantime by warrant commit the person so refusing to prison unless he or
she sooner
consents to do what is required of him or her.
(2) If a person referred to in subsection (1), upon being brought up upon the adjourned hearing, again
refuses
to, do what is so required of him or her, the magistrate may, if he or she sees fit, again adjourn the
proceedings,
and by order commit him or her for a like period and so again from time to time until such person
consents to do
what is required of him or her.
(3) An appeal shall lie from any order of committal in terms of subsection (1) or (2) to the Supreme
Court,
which may make such order on the appeal as to it seems just.
(4) Nothing in this section shall prevent the magistrate from confirming the accused’s statement in the
meantime
according to any other sufficient evidence taken by him or her.
(5) No person shall be bound to produce at confirmation proceedings any document or thing not
specified or
otherwise sufficiently described in the subpoena unless he or she actually has it with him or her.
[Section inserted by section 6 of Act 9 of 2006.]
114 ….
[Section repealed by section 7 of Act 9 of 2006.]
115 Failure to mention fact relevant to allegation may be used as evidence
If an accused alleges during the course of any criminal proceedings that a statement allegedly made by
him
which is tendered by the State in evidence was not made by him or was not made freely and
voluntarily without
his having been unduly influenced thereto and it is proved by the State that—
(a) the same statement was produced in terms of subsection (2) of section one hundred and thirteen;
and
(b) the accused, when requested to do so in terms of subsection (4) of that section, failed to mention
any
fact, being a fact which, in the circumstances existing at the time, he could reasonably have been
expected
to have mentioned;
the magistrate or the court, as the case may be, in determining whether the statement was made by the
accused or
is admissible, may draw such inferences from the failure as appear proper and the failure may, on the
basis of such
inferences, be treated as evidence corroborating any other evidence given against the accused.
115A Verification of witnesses’ depositions in certain circumstances
(1) Where, at any time before an accused is brought to trial for an offence, a witness has made a
deposition
giving material information relating to the offence, and it appears to the prosecutor that—
(a) the witness is dangerously ill; or
(b) the evidence of the witness is given in his or her capacity as an expert witness, and that the nature
of the
witness’s professional commitments is such as to render it difficult to secure his or her attendance at
the
trial on any given day, or
(c) for any other reason it may not be possible to secure the attendance of such witness at the trial;
the prosecutor may, if so authorised by the Attorney-General, make an urgent ex parte application to a
magistrate
in chambers for an order to verify the deposition in terms of this section.
(2) An application in terms of subsection (1) shall be accompanied by—
(a) the deposition referred to in subsection (1); and
(b) a statement of the reasons why it appears to the prosecutor that it is necessary for the deposition to
be
verified in terms of this section.
(3) If the magistrate grants leave in terms of subsection (1), the magistrate shall, by written order
delivered by
hand to the accused or his or her legal representative, if any—
(a) summon the accused and his or her legal representative, if any, to attend a conference to be held in
private at the time and place (being a magistrates court or any other place selected by the magistrate
for
the purpose) specified in the order for the purpose of verifying the witness’s deposition in the presence
of the magistrate, the prosecutor, the witness and any police officer concerned with the investigation
of
the alleged offence:
Provided that—
(i) the accused or his or her legal representative, if any, shall have not less than three days’ notice
(including Saturdays, Sundays and public holidays) of the time and place of the conference, and
(ii) the magistrate may, upon the written request of the accused or his or her legal representative, and
after consultation with the prosecutor, postpone or bring forward the date of the conference,
and
(b) inform the accused that, in the event of failure by him or her to comply with the order, the
provisions of
section 255 may apply to his or her case.
(4) At a conference convened in terms of this section—
(a) the prosecutor shall cause the deposition of the witness to be read over or made available to the
accused,
and thereupon the accused shall be entitled, personally or by his or her legal representative, if any, to
cross-examine the witness, and in such case the prosecutor may re-examine the witness; and
(b) the magistrate may put any question he or she sees fit to the prosecutor, the accused or his or her
legal
representative, or the witness.
(5) During a conference convened in terms of this section the magistrate shall make or cause to be
made a record
of—
(a) the time and place of the conference, the names of all those who attended at the conference and the
capacities in which they so attended; and
(b) the examination or re-examination of the witness, if any.
(6) At the conclusion of a conference convened in terms of this section—
(a) the magistrate, if he or she is satisfied that the deposition which is the subject of the verification
proceedings—
(i) was made by a witness referred to in subsection (1)(a), (b) or (c) and
(ii) may properly be admitted in criminal proceedings for the prosecution of the offence to which it
relates as prima facie proof of the evidence deposed to in therein;
shall verify the deposition by endorsing upon it the word “verified” and his or her signature and the
place and date of verification;
and
(b) the magistrate and the prosecutor shall sign the record referred to in subsection (5) and, if the
accused
and his or her legal representative, if any, attended at the conference, the magistrate shall invite the
accused
or the legal representative to sign it:
Provided that if the accused or his or her legal representative refuses to sign the record, the magistrate
shall note that fact in the record, and the reasons for the refusal, if any are given.
(7) If the accused or his or her legal representative fails to attend a conference convened in terms of
this section
after having been given an opportunity to do so under subsection (3), then subsection (4)(b) and
subsections
(5) and (6) shall apply, with any changes that may be necessary, as if the accused or his or her legal
representat ive
were in attendance.
[Section inserted by section 8 of Act 9 of 2006.]
115B Proof of evidence and statements given or made at confirmation or verification
proceedings
and furnishing of copies thereof to accused
(1) Subject to subsection (2), in any proceedings in any court—
(a) a document, purporting to be the longhand record of the evidence given by a witness or of a
statement or
evidence made or given by the accused at confirmation or verification proceedings and purporting to
have been taken down by the magistrate holding such proceedings; or
(b) a document which—
(i) purports to be a transcription of the original record of the evidence given by a witness or of a
statement or evidence made or given by the accused at confirmation or verification proceedings
and taken down in shorthand writing or by mechanical means; and
(ii) purports to have been certified as correct under the hand of the person who transcribes such
record;
shall, upon its mere production by any person, be prima facie evidence of such statement or evidence,
as the case
may be, and, if the same was made or given as aforesaid through an interpreter or interpreters, of the
correctness
of the interpretation.
(2) Notwithstanding subsection (1), the terms of—
(a) any statement produced in confirmation proceedings shall not be proved except by the production
of the
statement as confirmed by the magistrate in terms of section 113(3) or, where the statement is not so
confirmed, by calling as a witness the person to whom the statement was made;
(b) any deposition which was the subject of verification proceedings shall not be proved except by the
production of the deposition as verified by the magistrate in terms of section 115B(6)(a) or, where the
deposition is not so verified, by calling as a witness the person who made the deposition, unless the
court, in its discretion (where the witness cannot be found after diligent search, or cannot be
compelled
to attend the court), allows the deposition to be read as evidence at the trial, subject to the conditions
mentioned in section 255.
[The reference to “section 115B(6)(a)” in paragraph (b) is incorrect. It should read “section 115A(6)(a)”. – Law Reviser.]
(3) If the accused is indicted for trial before the High Court, a copy of any of the following documents
as
may relate to his or her case shall be served upon the accused together with the other documents
served upon him
or her in terms of section 66—
(a) a statement confirmed in terms of section 113(3); and
(b) a deposition verified in terms of section 115B(6)(a) and
The reference to “section 115B(6)(a)” in paragraph (b) is incorrect. It should read “section 115A(6)(a)”. – Law Reviser.]
(c) a record referred to in subsection (1).
[Section inserted by section 8 of Act 9 of 2006]
PART IX
BAIL
116 Power to admit to bail
Subject to this section and sections 32 and 34, a person may, upon an application made in terms of
section
117A, be admitted to bail or have his or her conditions of bail altered—
(a) in respect of any offence, by a judge at any time after he or she has appeared in court on a charge
and
before sentence is imposed;
(b) in respect of any offence, except an offence specified in the Third Schedule, by a magistrate within
whose area of jurisdiction the accused is in custody at any time after he or she has appeared in court
on a
charge and before sentence is imposed:
Provided that, with the personal consent of the Attorney-General, a magistrate may admit a person
to bail or alter a person’s conditions of bail in respect of any offence;
(c) if he or she is a person whose case is adjourned in terms of section 55(1) of the Magistrates Court
Act
[Chapter 7:10] or in respect of whom an order has been made in terms of section 351(4), by a judge or
by any magistrate within whose area of jurisdiction he or she is in custody:
Provided that—
(i) the Attorney-General, in the case of any application to a judge, in terms of section 117A, or the
local public prosecutor, in the case of any application to a magistrate in terms of section 117A,
shall be given reasonable notice of any such application;
(ii) where an application in terms of section 117A is determined by a judge or magistrate, a further
application in terms of section 117A may only be made, whether to the judge or magistrate who
has 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;
(iii) a magistrate shall not, without the personal consent of the Attorney-General, admit a person to
bail or alter a person’s conditions of bail in respect of an offence specified in the Third Schedule.
[Section substitute by section 9 of Act 9 of 2006.]
117 Entitlement to bail
(1) Subject to this section and section 32, a person who is in custody in respect of an offence 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.
(2) 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—
(a) where there is a likelihood that the accused, if he or she were released on bail, will—
(i) endanger the safety of the public or any particular person or will commit an offence referred to
in the First Schedule; or
(ii) not stand his or her trial or appear to receive sentence; or
(iii) attempt to influence or intimidate witnesses or to conceal or destroy evidence; or
(iv) undermine or jeopardise the objectives or proper functioning of the criminal justice system,
including the bail system;
or
(b) where in exceptional circumstances there is the likelihood that the release of the accused will
disturb the
public order or undermine public peace or security.
(3) In considering whether the ground referred to in—
(a) subsection (2)(a)(i) has been established, the court shall, where applicable, take into account the
following
factors, namely—
(i) the degree of violence towards others implicit in the charge against the accused;
(ii) any threat of violence which the accused may have made to any person;
(iii) the resentment the accused is alleged to harbour against any person;
(iv) any disposition of the accused to commit offences referred to in the First Schedule, as evident
from his or her past conduct;
(v) any evidence that the accused previously committed an offence referred to in the First Schedule
while released on bail;
(vi) any other factor which in the opinion of the court should be taken into account;
(b) subsection (2)(a)(ii) has been established, the court shall take into account—
(i) the ties of the accused to the place of trial;
(ii) the existence and location of assets held by the accused;
(iii) the accused’s means of travel and his or her possession of or access to travel documents;
(iv) the nature and gravity of the offence or the nature and gravity of the likely penalty therefor;
(v) the strength of the case for the prosecution and the corresponding incentive of the accused to
flee;
(vi) the efficacy of the amount or nature of the bail and enforceability of any bail conditions;
(vii) any other factor which in the opinion of the court should be taken into account;
(c) subsection (2)(a)(iii) has been established, the court shall take into account—
(i) whether the accused is familiar with any witness or the evidence;
(ii) whether any witness has made a statement;
(iii) whether the investigation is completed;
(iv) the accused’s relationship with any witness and the extent to which the witness may be influenced
by the accused;
(v) the efficacy of the amount or nature of the bail and enforceability of any bail conditions;
(vi) the ease with which any evidence can be concealed or destroyed;
(vii) any other factor which in the opinion of the court should be taken into account;
(d) subsection (2)(a)(iv) has been established, the court shall take into account—
(i) whether the accused supplied false information at arrest or during bail proceedings;
(ii) whether the accused is in custody on another charge or is released on licence in terms of the
Prisons Act [Chapter 7:11];
(iii) any previous failure by the accused to comply with bail conditions;
(iv) any other factor which in the opinion of the court should be taken into account;
(e) subsection (2)(b) has been established, the court shall, where applicable, take into account the
following
factors, namely—
(i) 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;
(ii) whether the shock or outrage of the community where the offence was committed might lead to
public disorder if the accused is released;
(iii) whether the safety of the accused might be jeopardised by his or her release;
(iv) whether the sense of peace and security among members of the public will be undermined or
jeopardised by the release of the accused;
(v) whether the release of the accused will undermine or jeopardise the public confidence in the
criminal justice system;
(vi) any other factor which in the opinion of the court should be taken into account.
(4) In considering any question in subsection (2) the court shall 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 he
or she is
likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the
following
factors, namely—
(a) the period for which the accused has already been in custody since his or her arrest;
(b) the probable period of detention until the disposal or conclusion of the trial if the accused is not
released
on bail;
(c) the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the
accused
with regard to such delay;
(d) any impediment in the preparation of the accused’s defence or any delay in obtaining legal
representation
which may be brought about by the detention of the accused;
(e) the state of health of the accused;
(f) any other factor which in the opinion of the court should be taken into account.
(5) Notwithstanding the fact that the prosecution does not oppose the granting of bail, the court has the
duty
to weigh up the personal interests of the accused against the interests of justice as contemplated in
subsection (4).
(6) Notwithstanding any provision of this Act, where an accused is charged with an offence referred to
in—
(a) Part I of the Third Schedule, the judge or (subject to proviso (iii) to section 116) the magistrate
hearing
the matter shall order that the accused be detained in custody until he or she is dealt with in
accordance
with the law, unless the 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;
(b) Part II of the Third Schedule, the judge or (subject to proviso (iii) to section 116) the magistrate
hearing
the matter shall order that the accused be detained in custody until he or she is dealt with in
accordance
with the law, unless the accused, having been given a reasonable opportunity to do so, adduces
evidence
which satisfies the judge or magistrate that the interests of justice permit his or her release.
(7) Where a person has applied for bail in respect of an offence referred to in the Third Schedule—
(a) the Attorney-General; or
(b) 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.
(8) If the Minister responsible for the administration of the Extradition Act [Chapter 9:08], certifies in
writing
that a person who has applied for bail has been extradited to Zimbabwe from a foreign country and
that the
Minister has given an undertaking to the government or other responsible authority of that country—
(a) that the accused person will not be admitted to bail while he or she is in Zimbabwe, the judge or
magistrate
hearing the matter shall not admit the accused person to bail;
(b) that the accused person will not be admitted to bail while he or she is in Zimbabwe except on
certain
conditions which the Minister shall specify in his or her certificate, the judge or magistrate hearing the
matter shall not admit the accused person to bail except on those conditions:
Provided that the judge or magistrate may fix further conditions, not inconsistent with the conditions
specified by the Minister on the grant of bail to the accused person.
(9) A document purporting to be a certificate issued by a Minister or the Attorney-General in terms of
subsection
(7) or (8) shall be admissible in any proceedings on its production by any person as prima facie
evidence
of its contents.
[Section substituted by section 9 of Act 9 of 2006.]
117A Application for bail, bail proceedings and record thereof
(1) 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.
(2) Every written application for bail shall be made in such form as may be prescribed in rules of
court.
(3) Every application in terms of subsection (2) shall be disposed of without undue delay.
(4) In bail proceedings the court may—
(a) postpone such proceedings;
(b) subject to subsection (5), receive—
(i) evidence on oath, including hearsay evidence;
(ii) affidavits and written reports which may be tendered by the prosecutor, the accused or his or her
legal representative;
(iii) written statements made by the prosecutor, the accused or his or her legal representative;
(iv) statements not on oath made by the accused;
(c) require the prosecutor or the accused to adduce evidence;
(d) require the prosecutor to place on record the reasons for not opposing bail.
(5) In bail proceedings the accused is compelled to inform the court whether—
(a) the accused has previously been convicted of any offence; and
(b) there are any charges pending against him or her and whether he or she has been released on bail
in
respect of those charges.
(6) Where the legal representative of an accused submits the information referred to in subsection (5)
the accused
shall be required by the court to declare whether he or she confirms such information.
(7) The record of the bail proceedings excluding the information referred to in subsection (5), shall
form part
of the record of the trial of the accused following upon such bail proceedings:
Provided that if the accused elects to testify during the course of the bail proceedings the court must
inform
him or her that anything he or she says may be used against him or her at his or her trial and such
evidence becomes
admissible in any subsequent proceedings.
(8) Any accused who wilfully—
(a) fails or refuses to comply with subsection (5); or
(b) furnishes the court with false information required in terms of subsection (5);
shall be guilty of an offence and liable to fine not exceeding level seven or to imprisonment for a
period not
exceeding two years or both.
(9) The court may make the release of an accused subject to conditions which, in the court’s opinion,
are in
the interests of justice.
(10) Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes
of bail
proceedings, 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 Attorney-General otherwise
directs:
Provided that this subsection shall not be construed as denying an accused access to any information,
record
or document to which he or she may be entitled for the purposes of his or her trial.
[Section inserted by section 9 of Act 9 of 2006.]
118 Conditions of recognizance
(1) Where a judge or magistrate has granted an application referred to in subsection (1) of section
117A, a
recognizance shall, before the accused is admitted to bail, be taken from him or from him and one or
more sureties
according to the conditions fixed by the judge or magistrate, as the case may be.
[Section amended by section 10 of Act 9 of 2006.]
(2) The conditions of the recognizance shall be that the prisoner—
(a) …
[Paragraph repealed by section 10 of Act 9 of 2006.]
(b) in the case of a prisoner who has been committed for trial or sentence, shall—
(i) appear and undergo any further examination which the magistrate or the Attorney-General may
consider desirable; and
(ii) answer to any indictment that may be presented or charge that may be made against him in any
competent court for the offence with which he is charged at any time; and
(iii) attend during the hearing of the case and to receive sentence; and
(iv) accept service of any summons to undergo further examination and of any such indictment or
charge, notice of trial and summons thereon and any other notice under this Act at some certain
and convenient place within Zimbabwe chosen by him and stated therein;
(c) in the case of a prisoner whose case has been adjourned in terms of subsection (2) of section 54 of
the
Magistrates Court Act [Chapter 7:10], shall appear in any competent court at any time to receive
sentence
in that case and that he will accept service of any notice in respect thereof at some certain and
convenient place within Zimbabwe chosen by him and stated therein;
(d) in the case of a prisoner whose case has been adjourned in terms of subsection (1) of section 55 of
the
Magistrates Court Act [Chapter 7:10] or in respect of whom an order has been made in terms of
subsection
(5) of section three hundred and fifty-eight, shall appear in the High Court or a magistrates court, as
the case may be, on the date and at the place to be notified to him by the registrar of the High Court or
the clerk of the magistrates court, as the case may be, to show cause why the sentence postponed or
suspended
should not be imposed or brought into operation and that he will accept service of any notice in
respect thereof at some certain and convenient place within Zimbabwe chosen by him and stated
therein;
(e) in the case of a prisoner, other than a prisoner mentioned in paragraph (c), admitted to bail when a
criminal case before a magistrate is adjourned or postponed and the prisoner is remanded, shall appear
at
a time and place to be specified in writing and as often as may be necessary thereafter until final
judgment
in his case has been given to answer the charge of the offence alleged against him or the charge of
any other offence which may appear to the Attorney-General or the local public prosecutor to have
been
committed by the accused.
(3) The judge or magistrate referred to in subsection (1) may require to be added to the recognizance
any
condition which he may think necessary or advisable in the interests of justice as to—
(a) the surrender by the accused of his passport; or
(b) the times and place at which, and the persons to whom, the accused shall personally present
himself; or
(c) the places where the accused is forbidden to go; or
(d) the prohibition against communication by the accused with witnesses for the prosecution; or
(e) any other matter relating to the accused’s conduct.
(4) The recognizance taken in respect of a prisoner mentioned in paragraph (b) of subsection (2) shall
continue
in force notwithstanding that for any reason, when the trial takes place, no verdict is then given, unless
the
indictment or charge is withdrawn.
119 Recognizance to be forfeited on failure of accused to appear at trial
(1) If upon the day appointed for the hearing of a case it appears by the return of the proper officer or
by
other sufficient proof that a copy of the indictment and notice of trial or, in case of a remittal to a
magistrates
court, the summons or charge or, where the case has been adjourned in terms of subsection (2) of
section 54 or
subsection (1) of section 55 of the Magistrates Court Act [Chapter 7:10] or an order has been made in
terms of
subsection (5) of section three hundred and fifty-eight, the notice prescribed in the rules of court has
been duly
served and the accused does not appear after he has been called by name three times in or near the
court premises,
the prosecutor may apply to the court for a warrant for the arrest of the accused and may also move
the court that
the accused and his sureties, if any, be called upon their recognizance and, in default of his
appearance, that the
same may be then and there declared forfeited.
(2) Any declaration of forfeiture in terms of subsection (1) shall have the effect of a judgment on the
recognizance
for the amounts therein named against the accused and his sureties respectively.
120 Excessive bail not to be required
(1) The amount of bail to be taken in any case shall be in the discretion of the judge or magistrate to
whom
the application to be admitted to bail is made:
Provided that no person shall be required to give excessive bail.
(2) Notwithstanding the proviso to subsection (1), if it is established that there is a possibility that the
accused,
if released on bail, will not stand his or her trial or appear to receive sentence, and that possibility,
though
short of a likelihood, is not too remote, a court shall not release the accused on bail unless it satisfies
itself that the
amount or the terms of the bail or both are reasonably sufficient to deter the accused from fleeing,
given the
factors referred to in section 117(3)(b).
[Subsection inserted by section 11 of Act 9 of 2006.]
121 Appeals against decisions regarding bail
(1) Subject to this section and to subsection (5) of section 44 of the High Court Act [Chapter 7:06],
where a
judge or magistrate has admitted or refused to admit a person to bail—
(a) the Attorney-General or his representative, within seven days of the decision; or
(b) the person concerned, at any time;
may appeal against the admission or refusal or the amount fixed as bail or any conditions imposed in
connection
therewith.
(2) An appeal in terms of subsection (1) against a decision of—
(a) a judge of the High Court, shall be made to a judge of the Supreme Court;
(b) a magistrate, shall be made to a judge of the High Court.
(3) A decision by a judge or magistrate to admit a person to bail shall be suspended if, immediately
after the
decision, the judge or magistrate is notified that the Attorney-General or his representative wishes to
appeal
against the decision, and the decision shall thereupon be suspended and the person shall remain in
custody until—
(a) if the Attorney-General or his representative does not appeal in terms of subsection (1)—
(i) he notifies the judge or magistrate that he has decided not to pursue the appeal; or
(ii) the expiry of seven days;
whichever is the sooner; or
(b) if the Attorney-General or his representative appeals in terms of subsection (1), the appeal is
determined.
(4) An appeal in terms of subsection (1) by the person admitted to bail or refused admission to bail
shall not
suspend the decision appealed against.
(5) 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 considers should have been made by the judge or magistrate whose
decision is
the subject of the appeal.
(6) Subsections (2) to (6) of section one hundred and sixteen shall apply, mutatis mutandis, in relation
to any
appeal in terms of this section.
(7) Any order made by a judge in terms of subsection (5) shall be deemed to be the order made in
terms of
the appropriate section of this Part by the judge or magistrate whose decision was the subject of the
appeal.
(8) There shall be no appeal to a judge of the Supreme Court from a decision or order of a judge of the
High
Court in terms of paragraph (b) of subsection (2), unless the decision or order relates to the admission
or refusal of
admission to bail of a person charged with any offence referred to in
(a) paragraph 10 of the Third Schedule; or
(b) the Ninth Schedule in respect of which the Attorney-General has issued a certificate referred to in
subsection (3b) of section thirty-two;
in which event subsections (3) to (7) shall apply to such appeal.
[Subsection substituted by section 6 of Act 14 of 2004.]
(9) This section shall apply in regard to a private prosecution as if references to the Attorney-General
were
references to the private party instituting the prosecution.
[Section as substituted by section 2 of Act 8 of 1997.]
122 …..
[Section repealed by section 2 of Act 8 of 1997]
123 Power to admit to bail pending appeal or review
(1) Subject to this section, a person may be admitted to bail or have his conditions of bail altered—
(a) in the case of a person who has been convicted and sentenced or sentenced by the High Court and
who
applies for bail—
(i) pending the determination by the Supreme Court of his appeal; or
(ii) pending the determination of an application for leave to appeal or for an extension of time within
which to apply for such leave;
by a judge of the Supreme Court or the High Court;
(b) in the case of a person who has been convicted and sentenced by a magistrates court and who
applies for
bail—
(i) where the record of a case is required or permitted, in terms of section 57 or 58 of the Magistrates
Court Act [Chapter 7:10], to be transmitted for review, pending the determination of the
review; or
(ii) pending the determination by the High Court of his appeal; or
(iii) pending the determination of an application for leave to appeal or for an extension of time within
which to apply for such leave;
by a judge of the High Court or by any magistrate within whose area of jurisdiction he is in custody:
[Paragraph amended by section 10 of Act 9 of 1997.]
Provided that—
(i) the Attorney-General, in the case of any application to a judge in terms of this subsection, or the
local
public prosecutor, in the case of any application to a magistrate in terms of this subsection, shall be
given reasonable notice of any such application;
(ii) where an application in terms of this subsection is determined by a judge or magistrate, a further
application
in terms of this subsection may only be made, whether to the judge or magistrate who has determined
the previous application or 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.
(iii) a magistrate shall not, without the consent of the Attorney-General, admit a person to bail or alter
a
person’s conditions of bail in respect of an offence specified in the Third Schedule.
(2) Sections 117 and 117A shall, with any changes that may be necessary, apply to this section.
[Subsection amended by section 12 of Act 9 of 2006.]
(3) ….
(4) ….
(5) ….
(6) ….
[Subsections 3 - 6 repealed by section 12 of Act 9 of 2006.]
(7) If a judge or magistrate refuses an application for bail referred to in subsection (1), he may—
(a) direct that the person be treated as an unconvicted prisoner pending the determination of his
appeal,
application or review, as the case may be; or
(b) postpone the payment of any fine.
(8) The time during which a person, pending the determination of an appeal, application or review, is
—
(a) admitted to bail; or
(b) subject to any direction which the Supreme Court or High Court may give to the contrary on any
appeal
or review, treated as an unconvicted prisoner in terms of this section;
shall not count as part of any term of imprisonment under his sentence.
(9) The term of imprisonment of a person shall be resumed or begin to run, as the case requires—
(a) if such person is treated as an unconvicted prisoner in terms of this section, subject to any
directions
which the Supreme Court or the High Court may give to the contrary, as from the day on which the
appeal,
application or review is determined; or
(b) if such person is admitted to bail in terms of this section, as from the day on which he is received
into
prison under his sentence.
(10) A recognizance shall be taken on the admission of a person to bail either from that person alone
or from
him and one or more sureties, in the discretion of the judge or magistrate according to the nature and
circumstances
of the case, and it shall be a condition of such recognizance that the person shall, upon service on or
for
him at some place to be mentioned in the recognizance of a notice signed by the registrar of the High
Court or,
where the conviction or sentence appealed against took place in a magistrates court, by the clerk of
that court
informing that person of the decision of the High Court or the Supreme Court, as the case may be—
(a) pay the fine, if any, due by him within such time and to such person as shall be specified in the
notice; or
(b) surrender himself within such time and to such person as shall be specified in the notice in order to
undergo any other punishment which he is liable to undergo, and the judge or magistrate may add any
or
all of the conditions mentioned in subsection (3) of section one hundred and eighteen which he may
think necessary or advisable to impose.
(11) The provisions of section three hundred and eighty-two shall apply, mutatis mutandis, to the
service of a
notice referred to in subsection (10).
(12) In granting bail in terms of subsection (1) the judge or magistrate may take bail also for the cost
and
charge of serving the notice referred to in subsection (10), which cost and charge shall be the same as
that of
serving a summons in a civil case in a magistrates court against the same person at the same place.
(13) When a person has been admitted to bail in terms of subsection (1), a judge, in the case where the
conviction
or sentence took place in the High Court, or a magistrate in any other case, may, upon the application
of
the Attorney-General or local public prosecutor, as the case may be, and upon information being made
in writing
and upon oath that default has been made in any condition of the recognizance taken from such person
—
(a) issue a warrant for the arrest of such person; and
(b) issue an order calling upon him and his sureties, if any, to appear on a day and at a place specified
in the
order to show cause why the recognizance should not be declared forfeited; and
(c) if cause to the satisfaction of the judge or magistrate, as the case may be, is not shown against any
such
declaration, declare the recognizance to be forfeited, and such declaration of forfeiture shall have the
effect
of a judgment on the recognizance for the amounts therein named against such person and his sureties,
respectively.
124 …..
[Section repealed by section 3 of Act 8 of 1997.]
125 Insufficiency of sureties
If, through mistake, fraud or otherwise, insufficient sureties have been accepted or if they afterwards
become
insufficient, the judge or magistrate granting the bail may issue a warrant of arrest directing that the
accused be
brought before him, and may order him to find sufficient sureties, and on his failing so to do may
commit him to
prison.
126 Alteration of recognizances or committal of person on bail to prison
(1) Any judge or magistrate who has granted bail to a person in terms of this Part may, if he is of the
opinion
that it is necessary or advisable in the interests of justice that the conditions of a recognizance entered
into by that
person should be altered or added to or that that person should be committed to prison, order that the
said conditions
be altered or added to or commit the person to prison, as the case may be:
Provided that—
(i) if the judge or magistrate who granted bail is not available, any other judge or magistrate, as the
case
may be, may act in terms of this subsection;
(ii) a judge or magistrate shall not act in terms of this subsection unless facts which were not before
the
judge or magistrate who granted bail are brought to his attention.
(2) In order to secure the presence before him of a person for the purpose of acting in terms of
subsection (1),
a judge or magistrate may issue a warrant for the arrest of the person and thereafter subsection (1)
shall apply.
(3) The provisions of section thirty-five shall apply, mutatis mutandis, in respect of a warrant issued in
terms
of subsection (2).
127 Person on bail may be arrested without warrant if about to abscond or interfere
with witness
(1) If a peace officer believes on reasonable grounds that a person to whom bail has been granted in
terms of
this Part is about to abscond for the purpose of evading justice or to interfere with the evidence against
him, he
may arrest the person without warrant and shall as soon as possible take him before a magistrate who
may, upon
being satisfied that the ends of justice would otherwise be defeated, commit the person to prison.
(2) A person arrested in terms of subsection (1) shall be informed forthwith by the person arresting
him of
the cause of the arrest.
128 Release of sureties and death of surety
(1) All or any sureties for the attendance and appearance of an accused person released on bail may at
any
time apply to the judge or magistrate before whom the recognizance was entered into to discharge the
recognizance,
either wholly or so far as relates to the applicants.
(2) On an application in terms of subsection (1), the judge or magistrate shall issue a warrant of arrest
directing
that the accused be brought before him.
(3) On the appearance of the accused pursuant to the warrant or on his voluntary surrender, the judge
or magistrate
shall direct the recognizances to be discharged, either wholly or so far as relates to the applicants, and
shall
call upon the accused to find other sufficient sureties, and if he fails to do so may commit him to
prison.
(4) When a surety to a recognizance dies before any forfeiture has been incurred, his estate shall be
discharged
from all liability in respect of the recognizance, but the accused may be required to find a new surety.
129 Rendering in court
The sureties may bring the accused into the court at which he is bound to appear during any sitting
thereof,
and then, by leave of the court, render him in discharge of such recognizance at any time before
sentence, and the
accused shall be committed to a prison there to remain until discharged by due course of law but such
court may
admit the accused person to bail for his appearance at any time it thinks fit.
130 Sureties not discharged until sentence or discharge of accused
The pleading or conviction of any accused person released on bail in terms of this Part shall not
discharge the
recognizance, but the same shall be effectual for his appearance during the trial and until sentence is
passed or he
is discharged:
Provided that the court may commit the accused to a prison upon his trial or may require new or
additional
sureties for his appearance for trial or sentence, as the case may be, notwithstanding such
recognizance, and such
commitment shall be a discharge of the sureties.
131 Deposit instead of recognizance
(1) When any person is required by any judge or magistrate to enter into recognizances, with or
without sureties,
under this Act, such judge or magistrate may, except in the case of a bond for good behaviour, instead
of
causing such recognizances to be entered into, permit him or some person on his behalf to deposit a
sum of money
or Government securities or other property of any description whatsoever acceptable to the Attorney-
General to
such amount as the judge or magistrate may fix.
(2) Conditions in writing shall be made in respect of any deposit in terms of subsection (1) of money,
securities
or property of the same nature as the conditions prescribed by this Part in respect of recognizances,
and all the
provisions of this Part prescribing the circumstances in which recognizances taken from the accused
or an appellant,
as the case may be, alone shall be forfeited, his arrest if about to abscond and remission of forfeited
bail shall
apply, mutatis mutandis, in respect of any such deposit of money, securities or property.
132 Admission to bail by police
(1) Except where the charge against an accused person is one of the offences specified in the Fifth
Schedule,
any police officer of or above the rank of assistant inspector, or a police officer of whatever rank in
charge of a
police station, may, at a police station and at such times as no judicial officer is available, admit to bail
an accused
person who makes or on whose behalf is made a deposit of such sum of money as such police officer
may in the
particular circumstances fix.
(2) The provisions of section one hundred and thirty-one as to conditions, forfeiture and remission of
forfeited
bail shall apply, mutatis mutandis, in respect of any deposit of money made under subsection (1).
133 Provision in case of default in conditions of recognizance
If it appears to the judge or magistrate who admitted the accused to bail that default has been made in
any
condition of the recognizance or if it appears to a judge or magistrate of the court before which an
accused person
has to appear in terms of any recognizance that default has been made in any condition of such
recognizance, such
judge or magistrate may—
(a) issue an order declaring the recognizance forfeited and such order shall have the effect of a
judgment on
the recognizance for the amounts therein named against the person admitted to bail and his sureties
respectively;
(b) issue a warrant for the arrest of the person admitted to bail and afterwards, upon being satisfied
that the
ends of justice would otherwise be defeated, commit him when so arrested to prison until his trial.
134 Remission of bail
The Attorney-General may, in his discretion, remit the whole or any portion of any amount forfeited
under
section ninety-seven or this Part and may, where a portion of such amount has been remitted, enforce
payment in
part only.
135 Release of juvenile offenders without bail
(1) When a person under the age of eighteen years is accused of any offence other than treason,
murder or
rape, any judge, magistrate or police officer who has power under this Part to admit the said person to
bail may,
instead of admitting him to bail or instead of detaining him—
(a) release him without bail and warn him to appear before a court or magistrate at a time and on a
date then
fixed by the judge, magistrate or police officer; or
(b) release him without bail to the care of the person in whose custody he is and warn that person to
bring
him or cause him to be brought before a court or magistrate at a time and on a date then fixed as
aforesaid;
or
(c) place him in a place of safety as defined in section 2 of the Children’s Act [Chapter 5:06] pending
his
appearance before a court or magistrate or until he is otherwise dealt with according to law.
(2) Any person who, having been warned in terms of paragraph (b) of subsection (1), fails without
reasonable
excuse, the burden of proof of which shall rest upon him, to act in accordance with that warning, shall
be
guilty of an offence and liable to a fine not exceeding level three or, in default of payment, to
imprisonment for a
period not exceeding one month.
[Subsection amended by section 28 of Act 9 of 2006.]
PART X
INDICTMENTS, SUMMONSES AND CHARGES
A. Indictments in High Court
136 Charge in High Court to be laid in indictment
(1) When a person charged with an offence has been committed for trial or sentence and it is intended
to
prosecute him before the High Court, the charge shall be in writing in a document called an
indictment.
(2) When the prosecution is at the public instance, the indictment shall be in the name of the Attorney-
General and shall be signed by the Attorney-General or by any legal practitioner in the Attorney-
General’s office.
(3) When the prosecution is a private one, the indictment shall be in the name of the party at whose
instance
it is preferred (who must be described therein with certainty and precision) and must be signed by
such private
party or by his legal representative.
(4) It shall not be competent for two or more persons to prosecute in the same indictment, except in a
case
where two or more persons have been injured by the same offence.
(5) The service upon an accused person of any indictment, together with any notice of trial thereof,
shall be
made by the person and in the manner provided by rules of court.
(6) When a person under the age of eighteen years is served with an indictment and notice of trial as
aforesaid,
the provisions of section sixty-seven shall apply, mutatis mutandis:
Provided that where any reference is made to a direction by a magistrate, that shall be read as a
reference to a
direction by a judge.
137 When case is pending
As soon as the indictment in any criminal case brought in the High Court has been duly lodged with
the registrar
of that court, such case shall be deemed to be pending in that court.
138 High Court may try case wherever offence committed
Any person charged with committing an offence at any place may be tried by the High Court,
wherever sitting.
B. Summonses and charges in magistrates courts
139 Lodging of charges in magistrates court
Where a public prosecutor has, by virtue of his office, determined to prosecute any person in a
magistrates
court for any offence within the jurisdiction of that court, he shall forthwith lodge with the clerk of the
court a
statement in writing of the charge against that person, describing him by his forename, surname, place
of abode
and occupation and setting forth shortly and distinctly the nature of the offence and the time and place
at which it
was committed.
140 Summons in magistrates court
(1) The clerk of the magistrates court shall, upon or after the lodging of any charge, at the request of
the
prosecutor, issue and deliver to the messenger of the court a summons to the person charged to appear
to answer
the charge, together with so many copies of the said summons as there are persons to be summoned.
(2) Except where otherwise specially provided by any enactment, the service upon an accused person
of any
summons or other process in a criminal case in a magistrates court shall be made by the prescribed
officer, either
by delivering it to the accused personally or, if he cannot conveniently be found, by leaving it for him
at his place
of business or most usual or last known place of abode with some inmate thereof.
(3) The service of a summons may be proved by the testimony on oath of the person effecting the
service or
by his affidavit or by due return of service under his hand.
(4) If, upon the day appointed for the appearance of any person to answer any charge, he fails to
appear and
the court is satisfied upon the return of the person required to serve the summons that he was duly
summoned, the
court may, on the request of the prosecutor, issue a warrant for the apprehension of the said person,
and may also
impose on him for his default a fine not exceeding level three or to imprisonment for a period not
exceeding one
month or to both such fine and such imprisonment.
[Subsection amended by section 4 of Act No. 8 of 1997 and section 4 of Act 22 of 2001.]
(5) The court may, upon cause shown, remit any fine or imprisonment imposed under subsection (4).
(6) When a person under the age of eighteen years is summoned as aforesaid, the provisions of section
sixtyseven
shall apply, mutatis mutandis.
141 Written notice to secure attendance of accused in magistrates court
(1) If a person is alleged to have committed an offence and a peace officer, on reasonable grounds,
believes
that a magistrates court, on convicting such accused of that offence, will impose a fine not exceeding
level three,
the peace officer may, whether or not the accused is in custody, hand to the accused a written notice in
the form
prescribed which shall—
(a) give such particulars as are necessary for giving reasonable information of the allegation:
Provided that it shall not be necessary to cite the provision of the enactment under which he is
charged; and
(b) specify the full name and address of the accused; and
(c) call upon the accused to appear at a place and on a date and at a time specified in the written notice
to
answer a charge of having committed the offence in question; and
(d) contain an endorsement to the effect that the accused may, in terms of section three hundred and
fiftysix,
on or before such date as may be specified, admit his guilt in respect of the offence in question and
pay a fine fixed in respect thereof without appearing in court; and
(e) contain a certificate under the hand of the peace officer that he has handed the original of such
written
notice to the accused and that he has explained to the accused the import thereof.
[Subsection amended by section 4 of Act 22 of 2001.]
(2) If the accused is in custody, the effect of a written notice handed to him in terms of subsection (1)
shall be
that he be released forthwith from custody.
(3) A peace officer who hands a person a written notice in terms of subsection (1) shall forthwith
forward a
duplicate original of the written notice to the clerk of the court at which the accused is, in terms of the
notice,
called upon to appear.
(4) The provisions of subsections (4) and (5) of section one hundred and forty shall apply, mutatis
mutandis,
in regard to a written notice handed in terms of subsection (1) to an accused who has not, on or before
the date
specified in paragraph (d) of subsection (1), admitted his guilt in respect of the offence in question and
paid the
fine fixed in respect thereof in terms of section three hundred and fifty-six as if the written notice were
a summons
duly served on the person concerned.
(5) The production to the court by the prosecutor of the duplicate original referred to in subsection (3)
shall
be prima facie proof—
(a) that the original thereof was handed to the accused; and
(b) that the accused has not, on or before the date specified in paragraph (d) of subsection (1),
admitted his
guilt in respect of the offence in question and paid the fine fixed in respect thereof in terms of section
three hundred and fifty-six.
142 Warning to appear in magistrates court
(1) Notwithstanding anything in section one hundred and forty, it shall be competent for a magistrates
court
to obtain the presence of any person to be charged with any offence by means of a warning to such
person.
(2) In all summary trials in a magistrates court without summons, the charge shall be entered upon a
form
called the “Charge Sheet”, containing the name of every accused person, with the name of the offence
with which
he is charged and the necessary particulars thereof concisely stated.
(3) At the trial the charge drawn in terms of subsection (2) shall be read out to the person charged,
who shall
be called upon to plead thereto, and his plea shall be recorded thereon.
(4) The accused or his legal representative shall be entitled at all reasonable times to inspect the
charge as
stated on the charge sheet.
(5) When a person under the age of eighteen years has been arrested by a peace officer for the purpose
of being
brought before a court or has been warned to appear before a court on a charge of having committed
an offence,
the officer who arrested or warned the said person shall, unless otherwise directed by a magistrate,
warn the
parent or guardian of such person, or cause him to be warned, if he can be found within the area of
jurisdiction of
the court, to attend the court on the day on which and at the time at which such person is to be brought
or was
warned to appear before such court and to remain in attendance during the proceedings against such
person in that
court, and thereupon the provisions of subsections (2), (3) and (4) of section sixty-seven shall apply,
mutatis
mutandis:
Provided that this subsection shall not apply in respect of a person under the age of eighteen years
who is
married or who appears to the officer who arrests or warns that person to be tacitly emancipated.
143 Charges in remitted cases
(1) When any case has been remitted by the Attorney-General to be dealt with by a magistrates court,
the
court shall, with all convenient dispatch, cause the accused to be brought before it.
(2) If the accused has been released on bail, the court shall cause a notice to be served on him stating
that the
case has been remitted to it to be dealt with and requiring him to appear on the day appointed for the
trial.
(3) A notice in terms of subsection (2) shall be served in the same manner as a criminal summons and,
if the
accused does not appear as required in the notice, his bail may be estreated and he may be arrested and
brought
before the court as in the case of a person who has not appeared upon a criminal summons.
C. General for all courts
144 Joinder of counts
(1) Any number of counts, for any offences whatever, may be joined in the same indictment, summons
or
charge and where separate indictments, summonses or charges have been presented against an accused
person, the
court may, with the consent of the prosecutor and the accused, treat the separate indictments,
summonses or
charges as being a number of counts joined in the same indictment, summons or charge.
[Subsection amended, by repeal of proviso, by section 5 of Act 8 of 19 97.]
(2) When there are more counts than one in an indictment, summons or charge, they shall be
numbered consecutively,
and each count may be treated as a separate indictment, summons or charge.
(3) If the court thinks it conducive to the ends of justice to do so, it may direct that the accused shall
be tried
upon any one or more of such counts separately and such direction may be made either before or in
the course of
the trial.
(4) The counts in the indictment which are not then tried shall be proceeded upon in all respects as if
they
had been contained in a separate indictment.
(5) If it is alleged that on several different occasions on any one day or during any period any person
has
committed—
(a) an offence against or in respect of any one person; or
(b) an offence which is not an offence against or in respect of any person;
the indictment, summons or charge may charge in one count that the accused committed the offence
on several
different occasions on that day or during that period.
145 Where doubtful what offence has been committed
If, by reason of the nature of an act or series of acts, or of any uncertainty as to the facts which can be
proved,
or if for any other reason whatever it is doubtful which of several offences is constituted by the facts
which can be
proved, the accused may be charged with having committed all or any of those offences, and any
number of such
charges may be tried at one time, or the accused may be charged in the alternative with having
committed some or
one of those offences.
146 Essentials of indictment, summons or charge
(1) Subject to this Act and except as otherwise provided in any other enactment, each count of the
indictment,
summons or charge shall set forth the offence with which the accused is charged in such manner, and
with
such particulars as to the alleged time and place of committing the offence and the person, if any,
against whom
and the property, if any, in respect of which the offence is alleged to have been committed, as may be
reasonably
sufficient to inform the accused of the nature of the charge.
(2) Subject to this Act and except as otherwise provided in any other enactment, the following
provisions
shall apply to criminal proceedings in any court, that is to say—
(a) the description of any offence in the words of any enactment creating the offence, or in similar
words,
shall be sufficient; and
(b) any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany
in
the same section the description of the offence in the enactment creating the offence, may be proved
by
the accused, but need not be specified or negatived in the indictment, summons or charge, and, if so
specified or negatived, no proof in relation to the matter so specified or negatived shall be required on
the part of the prosecution.
(3) Where any of the particulars referred to in this section are unknown to the prosecutor, it shall be
sufficient
to state that fact in the indictment, summons or charge.
(4) Where a person is charged with a crime listed in the first column of the Second Schedule to the
Criminal
Law Code, it shall be sufficient to charge him or her with that crime by its name only.
[Subsection inserted by section 282 of Act 23 of 2004]
(5) No indictment, summons or charge alleging the commission of a crime mentioned in subsection
(4) shall
be held to be defective on account of a failure to mention the section of the Criminal Law Code under
which the
crime is set forth.
[Subsection inserted by section 282 of Act 23 of 2004]
147 Sufficient to allege dates between which thefts took place
It shall be lawful in any indictment, summons or charge in respect of theft to allege that the property
stated to
have been stolen was taken at several different times between any two certain days named in the
indictment,
summons or charge, and upon such an indictment, summons or charge, proof may be given of the theft
of such
property upon any day or days between the two certain days aforesaid.
148 Indictment may charge general deficiency
In an indictment, summons or charge in respect of the theft of money, or in respect of the theft of any
property
by a person entrusted with the custody or care of such property, the accused may be charged and
proceeded
against for the amount of a general deficiency, notwithstanding that such general deficiency is made
up of any
number of specific sums of money or of any number of specific articles or of a sum of money
representing the
value of specific articles, the taking of which extended over any space of time.
149 Not necessary to specify particular coin or bank-note stolen
In any indictment, summons or charge in which it is necessary to make averment as to any money or
any
bank-note, it shall be sufficient to describe such money or bank-note simply as money, without
specifying any
particular coin or bank-note, and such averment, so far as regards the description of the property, shall
be sustained
by proof of any amount of coin or of any bank-note, although the particular species of coin of which
such
amount was composed or the particular nature of the bank-note is not proved, and in cases of money
or bank-notes
obtained by false pretences or by any other unlawful act, by proof that the offender obtained any coin
or any banknote
or any portion of the value thereof, although such coin or bank-note may have been delivered to him
in order
that some part of the value thereof should be returned to the party delivering the same or to any other
person, and
such part has been returned accordingly.
150 Indictments for giving false evidence; and making of conflicting statements on
oath in
judicial proceedings
(1) In an indictment, summons or charge in respect of an offence which relates to taking or
administering an
oath or affirmation, or to giving false testimony, or to making a false statement on solemn declaration
or otherwise,
or to procuring the giving of false testimony or the making of a false statement, it shall not be
necessary to
set forth the words of the oath or affirmation or testimony or statement, but it shall be sufficient to set
forth the
purport thereof or so much of the purport thereof as is material, nor shall it be necessary to allege in
any such
indictment, summons or charge or to prove at the trial that the false testimony or statement was
material to any
issue to be tried in the proceedings in connection wherewith it was given or made, or that it was to the
prejudice of
any person:
Provided that it shall be a sufficient defence on such trial to prove that the false testimony or statement
was
not material to any such issue and was not to the prejudice of any person.
(2) In an indictment, summons or charge which relates to giving false testimony or procuring or
attempting to
procure the giving of false testimony, it shall not be necessary to allege the jurisdiction or state the
nature of the
authority of the court or tribunal before which or the officer before whom the false testimony was
given or intended
or proposed to be given.
(3) Any person who has made any statement on oath, whether orally or in writing, and thereafter on
the same
or another oath makes another statement, whether orally or in writing, which is in substantial conflict
with any
such first-mentioned statement shall be guilty of an offence and liable to a fine not exceeding level
seven or to
imprisonment for a period not exceeding two years or to both such fine and such imprisonment.
[Subsection amended by section 4 of Act 22 of 2001.]
(4) It shall not be necessary to allege in any indictment, summons or charge in respect of an offence in
terms
of subsection (3) or to establish at the trial which of the conflicting statements was false or that either
statement
was material to any issue to be tried in the proceedings in connection wherewith it was made, but it
shall be a
sufficient defence on any such trial to prove—
(a) that the accused when he made each statement believed it to be true; or
(b) that neither statement was material to any such issue as aforesaid; or
(c) that one statement was true and that the other statement, though false, was not material to any such
issue
as aforesaid.
(5) Subsections (1) and (2) shall apply to any indictment, summons or charge in respect of an offence
in
terms of subsection (3).
151 Rules applicable to particular indictments
(1) In an indictment, summons or charge in respect of an offence relating to a testamentary instrument,
it
shall not be necessary to allege that the instrument is the property of any person.
(2) In an indictment, summons or charge in respect of an offence relating to anything fixed in a
square, street
or open place, or in a place dedicated to public use or ornament or to any thing in or taken from a
public place or
office, it shall not be necessary to allege that the thing in respect of which the offence was committed
is the property
of any person.
(3) In an indictment, summons or charge in respect of an offence relating to a document which is
evidence of
title to land or an interest in land, the document may be described as being evidence of the title of the
person or
some one of the persons having an interest in the land to which the document relates, the land or some
part thereof
being described in some manner sufficient to identify it.
(4) In an indictment, summons or charge in respect of the theft of anything whatsoever let to hire to
the offender,
the thing may be described as the property of the person who actually let it to hire.
(5) In an indictment, summons or charge against a person employed in the Public Service regarding an
offence
committed in respect of anything which came into his possession by virtue of his employment, the
thing in
question may be described as the property of the State.
(6) In an indictment, summons or charge regarding an offence committed in respect of anything in the
occupation
or under the management of any public officer, the thing may be described as belonging to such
officer
without naming him.
(7) In an indictment, summons or charge regarding an offence committed in respect of any property,
movable
or immovable, whereof any body corporate has by law the management, control or custody, the
property may be
described as belonging to such body corporate.
(8) In an indictment, summons or charge regarding an offence in respect of any property, if it is
uncertain to
which of two or more persons the property belonged at the time when the offence was committed, the
property
may be described as being the property of one or other of those persons, naming each of them, but
without specifying
which of them, and the indictment, summons or charge shall be sustained, so far as regards the
allegation of
ownership, upon proof that at the time when the offence was committed the property belonged to one
or other of
those persons without ascertaining which of them.
(9) In an indictment, summons or charge in respect of the theft of any property, if the property was not
in the
physical possession of the owner thereof at the time when the theft was committed, but was in the
physical possession
of another person who had the custody thereof on behalf of the owner, it shall be sufficient to allege
that
the property was in the lawful custody or under the lawful control of that other person.
(10) In an indictment, summons or charge in which any trade mark or forged trade mark is intended to
be
mentioned, it shall be sufficient, without further description and without any copy or facsimile, to state
that such
trade mark or forged trade mark is a trade mark or forged trade mark.
(11) In an indictment, summons or charge for housebreaking or for entering any house or premises
with intent
to commit an offence, whether the charge is made under the Criminal Law Code or under any other
enactment,
the indictment, summons or charge may either state the offence which it is alleged the accused
intended to
commit or may aver an intent to commit an offence to the prosecutor unknown.
[Subsection amended by section 28 of Act 9 of 2006.]
(12) In an indictment, summons or charge for robbing or theft from any grave, whether in a cemetery
or burial
place or not, it shall not be necessary to allege that any dead body or portion thereof or anything
whatever in
the grave is the property of any person.
152 Companies, firms and partnerships may be named in indictments by name, style
or title
(1) In every case in which it is necessary in an indictment, summons or charge to name any company,
firm or
partnership, it shall be sufficient to state the name of the company or the style or title of the firm or
partnership,
without naming any of the officers or shareholders of the company or any of the partners in the firm or
partnership
and an individual trading under the style or title of a firm may be described by such style or title.
(2) It shall be sufficient where two or more persons not partners are joint owners of property to name
one of
such persons, adding the words “and another” or “and others”, as the case may be, and to state that the
property
belonged to the person so named and another or others, as the case may be.
153 Means or instrument by which act is done need not be stated
It shall not in any indictment, summons or charge be necessary to set forth the manner in which or the
means
or instrument by which any act is done, unless the manner, means or instrument is an essential element
of the
offence.
154 In indictment for murder or culpable homicide charge as to fact sufficient
It shall be sufficient in every indictment for murder to charge that the accused did wrongfully,
unlawfully and
maliciously kill and murder the deceased, and it shall be sufficient in every indictment for culpable
homicide to
charge that the accused did wrongfully and unlawfully kill the deceased.
155 In indictment for forgery and other cases copy of instrument not necessary
(1) In an indictment, summons or charge in respect of forging, uttering, stealing, destroying,
concealing or
otherwise unlawfully dealing with any instrument, it shall be suff icient to describe such instrument by
any name
or designation by which it is usually known or by the purport thereof, without setting out any copy or
facsimile
thereof or otherwise describing it or stating its value.
(2) In all other cases where it is necessary to make any averment in any indictment, summons or
charge as to
any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be
sufficient to
describe such instrument by any name or designation by which it is usually known or by the purport
thereof,
without setting out any copy or facsimile of the whole or any part thereof, unless the wording of the
instrument is
an element of the offence.
156 Certain particulars not required in case of offence relating to insolvency
In an indictment, summons or charge in respect of an offence relating to an insolvent, it shall not be
necessary
to set forth any debt, act of insolvency, adjudication or other proceeding in any court, or any order,
warrant or
document made or issued out of or by the authority of any court.
157 Allegation of intent to defraud sufficient without alleging whom it is intended to
defraud
(1) It shall be sufficient in any indictment, summons or charge in respect of—
(a) forging, uttering, offering, disposing of or putting off any instrument; or
(b) theft by means of false pretences; or
(c) obtaining anything by means of a fraudulent trick or device or any other fraudulent means; or
(d) inducing, by means of any such trick or device or fraudulent means, the payment or delivery of
any
money or thing; or
(e) attempting to commit or to procure the commission of any such offence;
to allege that the accused did the act with intent to defraud, without alleging the intent of the accused
to be to
defraud any particular person.
(2) In the case of any offence referred to in subsection (1), it shall not be necessary to mention the
owner of
the property in question or to set forth the details of the trick or device.
158 Persons implicated in same offence may be charged together
(1) Any number of persons charged with committing or with procuring the commission of the same
offence,
although at different times, or with having, after the commission of the offence, harboured or assisted
the offender,
and any number of persons charged with receiving, although at different times, any property which
has
been obtained by means of an offence, or any part of any property so obtained, may be charged with
substantive
offences in the same indictment, summons or charge, and may be tried together, notwithstanding that
the principal
offender or the person who so obtained the property is not included in the same indictment, summons
or charge or
is not amenable to justice.
(2) A person who counsels or procures another to commit an offence, or who aids another person in
committing
an offence, or who after the commission of an offence harbours or assists the offender, may be
charged in the
same indictment, summons or charge with the principal offender, and may be tried with him or
separately or may
be indicted and tried separately, whether the principal offender has or has not been convicted or is or
is not amenable
to justice.
159 Joint trial of persons charged with different offences
When it is alleged in an indictment, summons or charge that two or more persons have committed
separate offences
at the same time and place or at the same place and about the same time and the prosecutor informs
the
court that any evidence which is, in his opinion, admissible at the trial of those persons is, in his
opinion, also
admissible at the trial of the other person or persons, such persons may be tried jointly for those
offences on that
indictment, summons or charge.
PART XI
PROCEDURE BEFORE COMMENCEMENT OFTRIAL
A. In High Court
160 Bringing of accused persons to trial before High Court
(1) Except as is otherwise expressly provided in this Act as to the postponement or adjournment of a
trial,
every person committed for trial or sentence whom the Attorney-General has decided to prosecute
before the High
Court shall be brought to trial on such date as may be determined by the Attorney-General:
Provided that the High Court may, on application by the accused and on good cause shown by him,
order that
the trial shall take place on an earlier date than that determined by the Attorney-General.
(2) If a person referred to in subsection (1) is not brought to trial after the expiry of six months from
the date
of his committal for trial, his case shall be dismissed:
Provided that any period during which such person is, through circumstances beyond the control of
the Attorney-
General, not available to stand trial shall not be included as part of the period of six months referred to
in this
subsection.
(3) ….
[Subsection repealed by section 13 of Act 9 of 2006.]
161 Change of place of trial
(1) When an indictment has been presented against an accused person in the High Court, any judge
may,
upon application by or on behalf of the Attorney-General or by or on behalf of the accused, order that
the trial
shall be held at some place other than that specified in the notice of trial and at a time to be named in
the order.
(2) When any order is made under subsection (1), the consequences shall be the same in all respects
and with
regard to all persons as if the Attorney-General had decided to prosecute the accused at the place
named in the
order and at the time specified therein, and if he has been admitted to bail—
(a) the recognizances of the bail shall be deemed to extend to that time and place accordingly; and
(b) the recognizances of any persons who are bound to attend as witnesses shall be deemed to extend
to the
same time and place.
(3) Notice of the time and place named and specified in an order in terms of subsection (1) shall be
given to
the persons bound by the recognizances, otherwise their recognizances shall not be forfeited.
162 When removed prisoner to be tried
Where a case has, in terms of section one hundred and sixty-one, been removed for trial elsewhere and
the
accused is in custody, the judge granting the order of removal shall issue a warrant directing his
transmission
forthwith to the prison of the area to which the case has been removed and the accused shall be tried
as soon as
reasonably possible on a date to be determined by the Attorney-General:
Provided that the accused shall not be tried less than ten days after his arrival at the prison except with
his
consent.
B. In magistrates court
163 Accused in magistrates court to be brought for trial at once
Any person to be prosecuted on a criminal charge in a magistrates court shall be brought for trial at the
next
possible court day.
164 Persons brought before wrong court
(1) If on the trial of a person charged with any offence before any magistrates court it appears that he
is not
properly triable before the court, he is not by reason thereof entitled to be acquitted, but the court may
at the
request of the accused direct that he be tried before some proper court, and may remand him for trial
accordingly.
(2) If he does not make a request in terms of subsection (1), the trial shall proceed and the verdict and
judgment
shall have the same effect in all respects as if the court had originally had jurisdiction to try the
accused.
(3) This section shall not affect the right of the accused to plead to the jurisdiction of a court.
C. General for all courts
165 Trial of pending case may be postponed
Subject to subsection (2) of section one hundred and sixty, any court before which a criminal trial is
pending
may, if it is necessary or expedient, postpone the trial until such time and to such place and upon such
terms as to
such court may seem proper, and further postponements may, if necessary or expedient, be made from
time to
time:
Provided that where a trial is pending before a magistrates court such trial shall not, unless the accused
consents
thereto, be postponed for a period exceeding fourteen days at any one time.
166 Adjournment of trial
(1) A trial may, if it is necessary or expedient, be adjourned at any period of the trial, whether
evidence has
or has not been given.
(2) A trial before a magistrates court shall not, unless the accused consents thereto, be adjourned for a
period
exceeding fourteen days but such adjournment may, if necessary, take place more than once upon
sufficient cause
appearing to the magistrate.
167 Accused may be admitted to bail on postponement or adjournment of trial
(1) When a trial is postponed or adjourned in terms of section one hundred and sixty-five or one
hundred and
sixty-six, the court may direct that the accused be detained until liberated in accordance with law or
release him on
bail or extend his bail if he has already been released on bail, and may extend the recognizances of the
witnesses.
(2) When a trial is postponed or adjourned in terms of section one hundred and sixty-five or one
hundred and
sixty-six and the accused is not in custody and has not been admitted to bail, he shall be deemed to
have been
served with a summons to appear at the time and place to which the trial was postponed or adjourned.
168 Accused to plead to indictment, summons or charge
At the time appointed for the trial or sentence of the accused upon any indictment, summons or
charge, he
shall appear, and shall be informed in open court of the offence with which he is charged as set forth
in the indictment,
summons or charge, and shall, subject to section three hundred and fifty-six, be required to plead
instantly
thereto except where, there being an indictment or summons and the accused having objected so to
plead,
the court finds that he has not been duly served with a copy thereof.
169 Termination of bail on plea to indictment in High Court
If the accused is indicted in the High Court after having been admitted to bail, his plea to the
indictment shall,
unless the court otherwise directs, have the effect of terminating his bail, and he shall thereupon be
detained in
custody until the conclusion of the trial in the same manner in every respect as if he had not been
admitted to bail.
170 Objections to indictment, how and when to be made
(1) Any objection to an indictment for any formal defect apparent on the face thereof shall be taken by
exception
or by application to quash such indictment before the accused has pleaded, but not afterwards.
(2) Any objection to a summons or charge for any formal defect apparent on the face thereof which is
to be
tried by a magistrates court shall be taken by exception before the accused has pleaded, but not
afterwards.
(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought
necessary
and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be
forthwith
amended in the requisite particular by some officer of the court or other person, and thereupon the trial
shall
proceed as if no such defect had appeared.
171 Exceptions
(1) When the accused excepts only and does not plead any plea, the court shall proceed to hear and
determine
the matter forthwith and if the exception is overruled, he shall be called upon to plead to the
indictment, summons
or charge.
(2) When the accused pleads and excepts together, it shall be in the discretion of the court whether the
plea
or exception shall be first disposed of.
172 Certain omissions or imperfections not to invalidate indictment
No indictment, summons or charge in respect of any offence shall be held insufficient—
(a) for want of the averment of any matter unnecessary to be proved; or
(b) because any person mentioned therein is designated by a name of office or other descriptive
appellation
instead of by his proper name; or
(c) because of an omission to state the time at which the offence was committed in any case where
time is
not of the essence of the offence; or
(d) because the offence is stated to have been committed on a day subsequent to the lodging of the
indictment
or the service of the summons or charge or, subject to section one hundred and seventy-four, on an
impossible day or on a day that never happened; or
(e) for want of or imperfection in the addition of any accused or any other person; or
(f) for want of the statement of the value or price of any matter or thing or the amount of damage,
injury or
spoil in any case where the value or price or the amount of damage, injury or spoil is not of the
essence
of the offence.
173 Averments as to time of commission of offence
If any particular day or period is alleged in any indictment, summons or charge as the day on or period
during
which any act or offence was committed—
(a) proof that such act or offence was committed on any other day or time not more than three months
before or after the day or period stated therein shall be taken to support such allegation if time is not of
the essence of the offence;
(b) proof may be given that the act or offence in question was committed on a day or time more than
three
months before or after the day or period stated in the indictment, summons or charge, unless it is made
to appear to the court before which the trial is being held that the accused is likely to be prejudiced
thereby in his defence upon the merits, and if the court considers that the accused is likely to be
thereby
prejudiced in his defence upon the merits, it shall reject such proof and the accused shall be in the
same
position as if he had not pleaded.
174 Proceedings where indictment alleges offence committed on impossible day
If in any case no day is stated in the indictment, summons or charge or an impossible day or a day that
never
happened is stated, the accused may, at any time before pleading, apply to the High Court or any
judge, or to the
court in which he is indicted or charged, and such court or judge shall, upon being satisfied by
affidavit or othe rwise
that the accused is likely to be prejudiced in his defence upon the merits unless some day or time were
stated,
make such order in that behalf as in the circumstances of the particular case seems just.
175 Proceedings if defence is an alibi
If in any case the defence of the accused is that commonly called an alibi, and the court before which
the trial
is held considers that the accused might be prejudiced in making such defence if proof were admitted
that the act
or offence in question was committed on some day or time other than the day or time stated in the
indictment,
summons or charge, then, although the day or time proposed to be proved is within a period of three
months
before or after the day stated in the indictment, summons or charge, the court shall reject such proof,
and thereupon
the same consequences shall take place as in paragraph (b) of section one hundred and seventy-three
mentioned,
anything in that section to the contrary notwithstanding.
176 Indictments relating to blasphemous, seditious, obscene or defamatory matters
No count for publishing a blasphemous, seditious, obscene or defamatory matter, or for selling or
exhibiting
any obscene book, pamphlet, newspaper or other printed or written matter, shall be open to objection
or deemed
insufficient on the ground that it does not set out the words thereof:
Provided that the court may order that particulars shall be furnished by the prosecutor stating what
passages in
such book, pamphlet, newspaper, printing or writing are relied on in support of the charge.
177 Court may order delivery of particulars
(1) The court may either before or at the trial, in any case if it thinks fit, direct that particulars be
delivered to
the accused of any matter alleged in the indictment, summons or charge, and may, if necessary,
adjourn the trial
for the purpose of the delivery of such particulars.
(2) Such particulars shall be delivered to the accused or to his legal representative without charge, and
shall
be entered in the record, and the trial shall proceed in all respects as if the indictment, summons or
charge had
been amended in conformity with such particulars.
(3) ….
[Subsection repealed by section 13 of Act 9 of 2006.]
178 Application to quash indictment
(1) The accused may, before pleading, apply to the court to quash the indictment, summons or charge
on the
ground that it is calculated to prejudice or embarrass him in his defence.
(2) Upon an application in terms of subsection (1), the court may quash the indictment, summons or
charge
or may order it to be amended in such manner as the court thinks just or may refuse to make any order
on the
application.
(3) If the accused alleges that he is wrongly named in the indictment, summons or charge, the court
may, on
being satisfied by affidavit or otherwise of the error, order it to be amended.
179 Notice of application to quash indictment and of certain pleas to be given
When the accused intends to apply to have an indictment, summons or charge quashed under section
one
hundred and seventy-eight or to except or to plead any of the pleas mentioned in section one hundred
and eighty,
except the plea of guilty or not guilty, he shall give reasonable notice, regard being had to the
circumstances of
each particular case, to the Attorney-General or his representative if the trial is before the High Court,
or to the
public prosecutor if the trial is before a magistrates court, or when the prosecution is a private one to
the private
prosecutor, stating the grounds upon which he seeks to have the indictment, summons or charge
quashed or upon
which he bases his exception or plea:
Provided that—
(i) the Attorney-General or prosecutor, as the case may be, may waive such notice;
(ii) on good cause shown, the court may dispense with such notice or adjourn the trial to enable such
notice
to be given.
180 Pleas
(1) If the accused does not object that he has not been duly served with a copy of the indictment,
summons or
charge or apply to have it quashed under section one hundred and seventy-eight, he shall either plead
to it or
except to it on the ground that it does not disclose any offence cognizable by the court.
(2) If the accused pleads, he may plead—
(a) that he is guilty of the offence charged or, with the concurrence of the prosecutor, of any other
offence
of which he might be convicted on the indictment, summons or charge; or
(b) that he is not guilty; or
(c) that he has already been convicted of the offence with which he is charged; or
(d) that he has already been acquitted of the offence with which he is charged; or
(e) that he has received the pardon of the President for the offence charged; or
(f) that the court has no jurisdiction to try him for the offence; or
(g) that the prosecutor has no title to prosecute.
(3) Two or more pleas may be pleaded together, except that the plea of guilty cannot be pleaded with
any
other plea to the same charge.
(4) The accused may plead and except together.
(5) Subject to section one hundred and eighty-eight, the accused may, together with his plea, offer an
explanation
of his attitude in relation to the charge or statement indicating the basis of his defence and such
explanation
or statement shall be recorded and shall form part of the record of the case.
(6) Any person who has been called upon to plead to any indictment, summons or charge shall, except
as is
otherwise provided in this Act or in any other enactment, be entitled to demand that he be either
acquitted or
found guilty by the judge or magistrate before whom he pleaded:
Provided that—
(i) where a plea of not guilty has been recorded, whether in terms of section two hundred and seventy-
two
or otherwise, the trial may be continued before another judge or magistrate if no evidence has been
adduced;
(ii) where a plea of guilty has been recorded, the trial may be continued before another judge or
magistrate
if no evidence has been adduced or no explanation has been given or inquiry made in terms of
paragraph
(b) of subsection (2) of section two hundred and seventy-one.
181 Person committed or remitted for sentence
(1) When a person has, in terms of subsection (4) of section ninety, been committed to the High Court
by a
magistrate for sentence, or his case has been remitted by the Attorney-General to a magistrates court
for sentence,
he shall be called upon to plead to the indictment, summons or charge in the same manner as if he had,
in the case
of such committal, been committed for trial, and in the case of such remittal, as if he were being tried
summarily,
and may plead either that he is guilty of the offence charged or, with the concurrence of the
prosecutor, of any
other offence of which he might be convicted on the indictment, summons or charge.
(2) If the accused pleads that he is not guilty, the court shall, upon being satisfied that he duly
admitted before
the magistrate that he was guilty of the offence charged and was so guilty, direct a plea of guilty to be
entered
or enter such plea, notwithstanding his plea of not guilty, and a plea so entered shall have the same
effect as if it
had been actually pleaded.
(3) If the court is not so satisfied, or if notwithstanding that the accused pleads guilty it appears upon
an examination
of the depositions of the witnesses that he has not in fact committed the offence charged or any other
offence of which he might be convicted on the indictment, summons or charge, the plea of not guilty
shall be
entered and the trial shall proceed as in other cases when that plea is entered.
182 Accused refusing to plead
If the accused, when called upon to plead to an indictment, summons or charge, will not plead or
answer directly
thereto, the court may, if it thinks fit, order a plea of not guilty to be entered on behalf of the accused,
and a
plea so entered shall have the same effect as if it had been actually pleaded.
183 Truth of defamatory matter to be specially pleaded and to be proved by accused
(1) A person charged with the unlawful publication of defamatory matter who sets up as a defence that
the
defamatory matter is true, and that it was for the public benefit that the publication should be made,
shall plead
that matter specially and may plead it with any other plea, except the plea of guilty.
(2) Notice of any special plea in terms of subsection (1) shall, unless waived, be given as provided in
section
one hundred and seventy-nine.
(3) The onus of proving the defence referred to in subsection (1) shall lie upon the accused.
184 Statement of accused sufficient plea of former conviction or acquittal
In any plea of a former conviction or acquittal it shall be sufficient for an accused to state that he has
been
lawfully convicted or acquitted, as the case may be, of the offence charged.
185 Trial on plea to jurisdiction
Upon a plea to the jurisdiction of the court, the court shall proceed to satisfy itself, in such manner and
upon
such evidence as it thinks fit, whether it has jurisdiction or not.
186 Issues raised by plea to be tried
If the accused pleads any plea or pleas other than the plea of guilty or a plea to the jurisdiction of the
court, he
is, by such plea without any further form, deemed to have demanded that the issues raised by such
plea or pleas
shall be tried by the court.
187 Lack of jurisdiction or title to prosecute not to be raised after conviction
Where an accused is convicted of an offence, the fact that—
(a) in the case of proceedings before a magistrates court, the court did not have jurisdiction to try the
accused
in terms of section 56 of the Magistrates Court Act [Chapter 7:10]; or
(b) in the case of proceedings before any court, the prosecutor did not have title to prosecute the
accused;
shall not affect the validity of the conviction if the lack of such jurisdiction or title to prosecute, as the
case may
be, was not pleaded or raised during the proceedings and before such conviction.
188 Outline of State and defence cases
In a trial before a magistrate, if the accused pleads not guilty or a plea of not guilty is entered in terms
of section
one hundred and eighty-two—
(a) the prosecutor shall make a statement outlining the nature of his case and the material facts on
which he
relies; and
(b) the accused shall be requested by the magistrate to make a statement outlining the nature of his
defence
and the material facts on which he relies and, if he is not represented by a legal practitioner, the
provisions
of subsection (2) of section one hundred and eighty-nine shall be explained to him.
189 Statement made or withholding of relevant fact by accused may be used as
evidence
against him
(1) Any statement referred to in paragraph (b) of section one hundred and eighty-eight may—
(a) be taken into account in deciding whether the accused is guilty of the offence charged or any other
offence of which he may be found guilty on that charge; and
(b) except in so far as it amounts to an admission of any allegation made by the State, not be taken
into
account for the purpose of deciding whether the accused should be found not guilty in terms of
subsection
(3) of section one hundred and ninety-eight.
(2) If an accused, when so requested in terms of paragraph (b) of section one hundred and eighty-
eight, has
failed to mention any fact relevant to his defence, being a fact which in the circumstances existing at
the time, he
could reasonably have been expected to have mentioned, the court, in determining whether there is
any evidence
that the accused committed or whether the accused is guilty of the offence charged or any other
offence of which
he may be convicted on that charge, may draw such inferences from the failure as appear proper and
the failure
may, on the basis of such inferences, be treated as evidence corroborating any other evidence given
against the
accused.
PART XII
PROCEDURE AFTER COMMENCEMENT OF TRIAL
A. In all courts
190 Separate trials
When two or more persons are charged in the same indictment, summons or charge, whether with the
same
offence or with different offences, the court may at any time during the trial on the application of the
prosecutor or
of any of the accused, direct that the trial of the accused or any of them shall be held separately from
the trial of
the other or others of them, and may abstain from giving a judgment as to any of such accused.
191 Legal representation
Every person charged with an offence may make his defence at his trial and have the witnesses
examined or
cross-examined—
(a) by a legal practitioner representing him; or
(b) in the case of an accused person under the age of sixteen years who is being tried in a magistrates
court,
by his natural or legal guardian; or
(c) where the court considers he requires the assistance of another person and has permitted him to be
so
assisted, by that other person.
192 Trial of mentally disordered or defective persons
If at any time after the commencement of any criminal trial it is alleged or appears that the accused is
not of
sound mind, or if on such a trial the defence is set up that the accused was not criminally responsible
on the
ground of mental disorder or defect for the act or omission alleged to constitute the offence with
which he is
charged, he shall be dealt with in the manner provided by the Mental Health Act [Chapter 15:06].
193 Detention of persons who are deaf or mute or both
(1) Subject to section one hundred and ninety-two, in any criminal proceedings, if it appears to the
court that
the accused is unable properly to conduct his defence by reason of deafness or muteness or both, the
court may, if
it is satisfied, after hearing such evidence as the State may lead and such other evidence as the court
may think
necessary or desirable, that it is necessary in the interests of the safety of the public or for the
protection of the
accused that the accused should not be released from custody or should be kept in custody, as the case
may be,
order the accused to be kept in custody in some prison pending the decision of the President in terms
of subsection
(3).
(2) A certified copy of an order in terms of subsection (1) shall be transmitted by the registrar or the
clerk of
the court to—
(a) a magistrate of the province in which the prison named in the order is situated; and
(b) the Minister, who shall thereupon ascertain the decision of the President in terms of subsection (3)
and
notify the magistrate referred to in paragraph (a) accordingly.
(3) The President may, from time to time, give such directions as he thinks fit as to the further
detention or
care in an institution or other place of a person detained in terms of subsection (1) and may at any time
order the
discharge of that person.
194 Presence of accused
(1) Every criminal trial shall take place and the witnesses shall, except as is otherwise specifically
provided
by this Act or any other enactment, give their evidence viva voce in open court in the presence of the
accused,
unless he so conducts himself as to render the continuance of the proceedings in his presence
impracticable, in
which event the court may order him to be removed and direct that the trial proceed in his absence.
(2) If the accused absents himself during the trial without leave, the court may direct a warrant to be
issued to
arrest him and bring him before the court forthwith.
(3) The court may, at any time during the trial, order that any or every person who is to be called as a
witness,
other than the accused himself, shall leave the court and remain absent until he is called, and that he
shall remain
in court after his evidence has been given.
(4) …
[Subsection repealed by section 6 of Act 8 of 1997.]
(5) The provisions of subsections (6) and (7) of section seventy-eight shall apply, mutatis mutandis, at
every
criminal trial.
(6) …
[Subsection repealed by section 6 of Act 8 of 1997.]
(7) …
[Subsection repealed by section 6 of Act 8 of 1997.]
(8) …
[Subsection repealed by section 6 of Act 8 of 1997.]
195 Concealment of identity of juvenile on trial
(1) No person shall at any time publish by radio or television or in any document produced by printing
or any
other method of multiplication, the name, address, school or place of occupation or any other
information likely to
reveal the identity of any person under the age of eighteen years who is being or has been tried in any
court on a
charge of having committed any offence:
Provided that, if—
(a) the judge or magistrate presiding at the trial; or
(b) the Minister at any time after the trial;
is of the opinion that publication referred to in this subsection would in the circumstances of the
particular case be
just and equitable and in the public interest or in the interests of any particular person, he may consent
to such
publication and the consent shall be conveyed by a document signed by the judge or the registrar of
the High
Court or by the magistrate or the clerk of the magistrates court or by the Minister, as the case may be.
(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not
exceeding
level six or to imprisonment for a period not exceeding twelve months or to both such fine and such
imprisonment.
[Subsection amended by section 28 of Act 9 of 2006 which incorrectly identifies it as section 196(2)]]
196 Concealment of identity of complainant and witnesses in certain cases
(1) Where an accused is charged with committing or attempting to commit—
(a) any indecent act towards another person; or
(b) any act for the purpose of procuring or furthering the commission of an indecent act towards or in
connection with any other person; or
(c) extortion or a statutory offence of demanding from any other person some advantage which is not
due
and, by inspiring fear in such person’s mind, compelling him to render such advantage;
no person shall at any time publish by radio or television or in any document produced by printing or
any other
method of multiplication the name, address, place of occupation or any other information likely to
reveal the
identity of any person referred to in paragraph (a), (b) or (c) or of any witness unless the judge or
magistrate
presiding at the trial, after consulting the person concerned or, if he is a minor, his guardian, has given
his consent
in writing to such publication conveyed in a document signed by the judge or the registrar of the High
Court or by
the magistrate or the clerk of the magistrates court, as the case may be.
(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not
exceeding
level seven or to imprisonment for a period not exceeding two years or to both such fine and such
imprisonment.
[Subsection amended by section 4 of Act 22 of 2001.]
197 Identity of juvenile witness not to be revealed
(1) No person shall at any time publish by radio or television or in any document produced by printing
or any
other method of multiplication, the name, address, school or place of occupation or any other
information likely to
reveal the identity of any person under the age of eighteen years who is giving or has given or will
give evidence
at any trial unless the judge or magistrate, after consulting the person concerned and his guardian, has
given his
consent to such publication conveyed in a document signed by the judge or the registrar of the High
Court or by
the magistrate or the clerk of the magistrates court or by the Minister, as the case may be.
(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not
exceeding
level seven or to imprisonment for a period not exceeding two years or to both such fine and such
imprisonment.
[Subsection amended by section 4 of Act 22 of 2001.]
198 Conduct of trial
(1) The prosecutor may, at any trial before any evidence is given, address the court for the purpose of
explaining
the charge and opening the evidence intended to be adduced for the prosecution, but without comment
thereon.
(2) The prosecutor—
(a) shall examine the witnesses for the prosecution; and
(b) may put in and read any documentary evidence which is admissible:
Provided that the prosecutor may, if the accused consents, put in the documentary evidence without
reading it.
(3) If at the close of the case for the prosecution the court considers that there is no evidence that the
accused
committed the offence charged in the indictment, summons or charge, or any other offence of which
he might be
convicted thereon, it shall return a verdict of not guilty.
(4) If the Attorney-General is dissatisfied with a decision
(a) of a judge of the High Court in terms of subsection (3), he may with the leave of a judge of the
Supreme
Court appeal against the decision to the Supreme Court; or
(b) of a magistrate in terms of subsection (3), he may with the leave of a judge of the High Court
appeal
against the decision to the High Court.
[Subsection as substituted by section 10 of Act 9 of 1997.]
(4a) In an appeal in terms of subsection (4)
(a) the person who was the accused shall have the right at his own expense to appear in person or to be
legally represented; or
(b) a judge of the Supreme Court or the High Court, as the case may be, may order that the person
who was
the accused should be legally represented, in which event the expenses of his representation shall be
defrayed
out of moneys appropriated for the purpose by Act of Parliament.
[Subsection as inserted by section 10 of Act 9 of 1997.]
(5) On an appeal by the Attorney-General in terms of subsection (4) the Supreme Court or the High
Court, as
the case may be, may—
(a) confirm the decision made in terms of subsection (3); or
(b) allow the appeal and—
(i) remit the case to the court concerned for continuation of the trial; or
(ii) remit the case to the court concerned for trial de novo before a different presiding officer;
or
(c) make such order or give such directions as it deems fit.
[Subsection amended by section 10 of Act 9 of 1997.]
(6) Subject to subsection (3), at the close of the case for the prosecution the court shall—
(a) ask the accused or, if he is legally represented, his legal representative whether it is intended to
adduce
evidence for the defence and whether the accused intends himself to give evidence; and
(b) if the accused is not legally represented, inform him of the provisions of the proviso to subsection
(8)
and of subsection (9) and of subsection (1) of section one hundred and ninety-nine.
(7) If the accused or his legal representative states that it is intended to adduce evidence for the
defence or
that the accused intends himself to give evidence, he may, by himself or his legal representative,
address the court
for the purpose of opening the evidence intended to be adduced for the defence, but without comment
thereon.
(8) Subject to Part XIVA, any witnesses called for the defence shall be examined by the accused or his
legal
representative and the accused, if he gives evidence himself, shall be examined by his legal
representative, if any,
and the accused or his legal representative shall put in and read any documentary evidence which may
be admissible:
Provided that no evidence shall be adduced for the defence before the accused is called to give
evidence or is,
in terms of subsection (9), questioned by the prosecutor or the court, unless the court in its discretion
otherwise
allows.
[Subsection amended by section 7 of Act 8 of 1997.]
(9) If the accused declines to give evidence, the prosecutor and the court may nevertheless question
him and,
if the accused is legally represented, his legal representative may thereafter question him subject to the
rules
applicable to a party re-examining his own witness.
199 Refusal of accused giving evidence or being questioned to answer question
without just
cause may be used as evidence against him
(1) If an accused who gives evidence or is questioned in terms of subsection (7), (8) or (9), as the case
may
be, of section one hundred and ninety-eight refuses to answer any question, he shall be asked to give
his reasons
for so refusing and, if he persists in his refusal, the court, in determining whether the accused is guilty
of the
offence charged or any other offence of which he may be convicted on that charge, may, unless
satisfied that he
had just cause for so persisting, draw such inferences from the refusal as appear proper and the refusal
may, on the
basis of such inferences, be treated as evidence corroborating any other evidence given against the
accused.
(2) For the purposes of subsection (1), an accused who refuses to answer any question shall be deemed
to do
so without just cause—
(a) in the case of an accused giving evidence in terms of subsection (8) of section one hundred and
ninetyeight,
unless he is entitled in terms of this Act to refuse to answer the question on the ground of privilege;
(b) in the case of an accused who is questioned in terms of subsection (9) of section one hundred and
ninety-eight, unless he would be entitled in terms of this Act to refuse to answer the question on the
ground of privilege if he were giving evidence on his own behalf.
200 Summing up
After all the evidence has been adduced, the prosecutor shall be entitled to address the court, summing
up the
whole case, and the accused, or each of the accused if more than one, shall be entitled by himself or
his legal
representative to address the court and if, in his address, the accused or his legal representative raises
any matter
of law, the prosecutor shall be entitled to reply, but only on the matter of law so raised.
201 Validity of verdict
(1) No verdict or judgment or other proceedings whatever of a court in a criminal case shall be invalid
by
reason of its happening on a Sunday.
(2) When by mistake a wrong judgment or sentence is delivered, the court may, before or immediately
after it
is recorded, amend the judgment or sentence, and it shall stand as ultimately amended.
202 Certain discrepancies between indictment and evidence may be corrected
(1) When on the trial of any indictment, summons or charge there appears to be any variance between
the
statement therein and the evidence offered in proof of such statement, or if it appears that any words
or particulars
that ought to have been inserted in the indictment, summons or charge have been omitted, or that any
words or
particulars that ought to have been omitted have been inserted, or that there is any other error in the
indictment,
summons or charge, the court may at any time before judgment, if it considers that the making of the
necessary
amendment in the indictment, summons or charge will not prejudice the accused in his defence, order
that the
indictment, summons or charge, whether or not it discloses an offence, be amended, so far as is
necessary, by
some officer of the court or other person, both in that part thereof where the variance, omission,
insertion or error
occurs and in every other part thereof which it may become necessary to amend.
(2) The amendment may be made on such terms, if any, as to postponing the trial as the court thinks
reasonable
and the indictment, summons or charge shall thereupon be amended in accordance with the order of
the
court, and after any such amendment the trial shall proceed at the appointed time upon the amended
indictment,
summons or charge in the same manner and with the same consequences in all respects as if it had
been originally
in its amended form.
(3) The fact that an indictment, summons or charge has not been amended as provided in this section
shall
not, unless the court has refused to allow the amendment, affect the validity of the proceedings
thereunder.
203 Defect in indictment, summons or charge may be cured by evidence
When an indictment, summons or charge in respect of any offence is defective for want of the
averment of
any matter which is an essential ingredient of the offence, the defect shall be cured by evidence at the
trial in
respect of the offence proving the presence of such a matter which should have been averred, unless
the want of
such averment was brought to the notice of the court before judgment.
204 Verdict to be of same effect as if indictment had been originally correct
Any verdict or judgment which is given after the making of any amendment under this Act shall be of
the
same effect in all respects as if the indictment, summons or charge had originally been in the same
form in which
it was after such amendment was made.
B. In cases remitted to magistrates court
205 ….
206 ….
[Sections 205 and 206 repealed by section 15 of Act 9 of 2006.]
C. Verdicts possible on particular indictments, summonses and charges
207 Conviction for part of crime charged
For the avoidance of doubt it is declared that where a court finds that part but not all of the facts of an
offence
charged have been proved, it shall nevertheless convict the accused of that offence if the facts that are
proved
disclose all the essential elements of that offence.
[Section substituted by Act No. 23 of 2004]
208- 224 ….
[Sections 208 – 224 repealed by Act No. 23 of 2004]
PART XIII
PROCEDURE INRESPECT OFCASESADJOURNED UNDER SECTION 54 OF MAGISTRATES COURT ACT [CHAPTER 7:10]
225 Powers of Attorney-General
Where a magistrate has adjourned a case and submitted a report to the Attorney-General in terms of
section
54 of the Magistrates Court Act [Chapter 7:10], the Attorney-General may—
(a) if the magistrate acted in terms of subsection (1) of that section, in writing—
(i)
[Subparagraph repealed by section 16 of Act 9 of 2006.]
(ii) direct that the case be continued by such magistrate; or
(iii) where such magistrate is not a regional magistrate, direct that proceedings be commenced afresh
in the court of a regional magistrate; or
(b) if the magistrate acted in terms of subsection (2) of that section, in writing direct that the case—
(i) be transferred to the High Court for sentence; or
(ii) be continued by such magistrate.
226 Duties of magistrate
Upon the receipt of the Attorney-General’s direction in terms of section two hundred and twenty-five
the
magistrate shall cause the accused or the person convicted, as the case may be, to be informed of the
Attorney-
General’s decision and shall—
(a) where the Attorney-General has given a direction in terms of subparagraph (i) or (ii) of paragraph
(a) of
that section, comply with that direction; or
(b) where the Attorney-General has given a direction in terms of subparagraph (iii) of paragraph (a) of
that
section, grant a warrant committing the accused to prison, there to be detained till brought to trial
before
the court of a regional magistrate or till admitted to bail or liberated in due course of law; or
(c) where the Attorney-General has given a direction in terms of subparagraph (i) of paragraph (b) of
that
section—
(i) grant a warrant committing the person convicted to prison, there to be detained till brought
before a judge for sentence or till admitted to bail or liberated in due course of law; and
(ii) forthwith transmit the record of the proceedings, together with his reasons for convicting the
person concerned, to the registrar of the High Court;
or
(d) where the Attorney-General has given a direction in terms of subparagraph (ii) of paragraph (b) of
that
section, cause the person convicted to be brought before himand pass sentence upon that person.
227 Powers of judge in respect of case transferred to High Court for sentence
(1) Upon receipt of the documents mentioned in subparagraph (ii) of paragraph (c) of section two
hundred
and twenty-six, the registrar of the High Court shall with all convenient speed lay them before a judge
in chambers
and, if the judge considers the proceedings to be in accordance with real and substantial justice, he
shall cause the
accused to be brought before him in open court, on a date and at a place to be notified by the registrar
to the
accused and to the Attorney-General, to receive sentence in respect of the offence of which he was
convicted by
the magistrate or such other offence as the judge, in the exercise of the powers conferred upon him by
section (2),
has substituted for such first-mentioned offence.
(2) The judge may in respect of the proceedings exercise such of the powers conferred upon the High
Court
by subsections (1) and (2) of section 29 of the High Court Act [Chapter 7:06], as may be appropriate.
228 Sentence by judge
When an accused is brought before a judge in terms of subsection (1) of section two hundred and
twentyseven,
he shall not be called upon to plead to the charge but shall be dealt with as if he had been convicted by
the
High Court of the offence concerned.
PART XIV
WITNESSES AND EVIDENCE IN CRIMINAL PROCEEDINGS
A. Securing attendance of witnesses
229 Process for securing attendance of witnesses
(1) In this section—
“prescribed officer” means the registrar, assistant registrar or clerk of the court or any officer
prescribed by
rules of court.
(2) Either party desiring to compel the attendance of any person to give evidence or to produce any
books,
papers or documents in any criminal case may take out of the office prescribed by rules of court the
process of the
court for that purpose.
(3) When the accused desires to have any witnesses subpoenaed and satisfies the prescribed officer of
the
court that—
(a) he is unable to pay the necessary costs and fees; and
(b) such witnesses are necessary and material for his defence;
the prescribed officer of the court shall subpoena such witnesses.
(4) In any case where the prescribed officer of the court is not so satisfied, he shall, upon the request
of the
accused, refer the application to the judge or magistrate who may grant or refuse such application or
may defer
giving his decision until he has heard the other evidence in the case or any part thereof.
230 Service of subpoenas
Service of subpoenas in criminal cases shall be effected in the manner provided by rules of court.
231 Duty of witness to remain in attendance
Every witness duly subpoenaed to attend and give evidence at any criminal trial shall be bound to
attend and
to remain in attendance throughout the trial, unless excused by the court.
232 Subpoenaing of witnesses or examination of persons in attendance by court
The court—
(a) may at any stage subpoena any person as a witness or examine any person in attendance though
not
subpoenaed as a witness, or may recall and re-examine any person already examined;
(b) shall subpoena and examine or recall and re-examine any person if his evidence appears to it
essential to
the just decision of the case.
233 Powers of court in case of default of witness in attending or giving evidence
(1) When any person appearing either in obedience to the subpoena or by virtue of a warrant, or being
present
and being verbally required by the court to give evidence, refuses to be sworn or, having been sworn,
refuses
to answer such questions as are put to him or refuses or fails to produce any document or thing which
he is required
to produce, without in any such case offering any just excuse for such refusal or failure, the court may
adjourn the proceedings for any period not exceeding eight days, and may in the meantime, by
warrant, commit
the person so refusing or failing to a prison, unless he sooner consents to do what is required of him.
(2) If a person who has been committed in terms of subsection (1) upon being brought up at the
adjourned
hearing again refuses or fails to do what is so required of him, the court, if it sees fit, may again
adjourn the
proceedings and commit him for a like period, and so again from time to time until such person
consents to do
what is required of him.
(3) Nothing in this section shall prevent the court from giving judgment in any case or otherwise
disposing of
the same in the meantime according to any other sufficient evidence taken.
(4) No person shall be bound to produce any document or thing not specified or otherwise sufficiently
described
in the subpoena unless he actually has it in court.
234 Requiring witness to enter into recognizance
(1) Any court before which a trial is pending or proceeding may lawfully require any witness, either
alone or
together with one or more sufficient sureties to the satisfaction of the court, to enter into recognizance
under
condition that the witness shall at any time within twelve months from the date thereof appear and
give evidence
at the trial upon being served with a subpoena at some certain place to be selected by the witness.
(2) If any witness being required in terms of subsection (1) to enter into any such recognizance,
refuses or
fails so to do the court may commit to and detain in a prison the witness so refusing or failing until
such recognizance
has been entered into in terms of that subsection.
(3) The court may, in exercising its powers in terms of subsection (1), add to the recognizance
conditions relating
to one or more of the following matters which it thinks necessary or desirable in the interests of justice
—
(a) the surrender by the witness of his passport;
(b) the times and places at which, and the persons to whom, the witness shall personally present
himself;
(c) the places where the witness is forbidden to go;
(d) the prohibition of communication by the witness with the accused or any other witness;
(e) any other matter relating to the conduct of the witness.
(4) Any recognizance entered into in terms of this section shall specify the forenames and surname of
the
person entering into it, his occupation or profession, if any, the place of his residence and the name
and number, if
any, of the street in which that place is, and whether he is an owner or tenant thereof or a lodger
therein.
(5) Any recognizance entered into in terms of this section shall be liable to be estreated in the same
manner
as any forfeited recognizance is by law liable to be estreated by the court before which the principal
party thereto
was bound to appear.
235 Absconding witnesses
(1) When any person is bound by recognizance to give evidence or is likely to give material evidence
before
any court in respect of any offence, any magistrate may, upon information in writing and on oath that
such person
is about to abscond or has absconded, issue a warrant for the arrest of such person.
(2) If any person is arrested under a warrant issued in terms of subsection (1), any magistrate, if
satisfied that
the ends of justice would otherwise be defeated, may commit him to a prison until the time at which
he is required
to give evidence, unless in the meantime he produces sufficient sureties, but such person shall be
entitled on
demand to receive a copy of the information upon which the warrant for arrest was issued.
(3) If a peace officer believes on reasonable grounds that the delay in obtaining a warrant under
subsection
(1) would lead to a person who is bound by recognizance to give evidence or who is likely to give
material evidence
in respect of any offence absconding, he may arrest the person without warrant and shall, as soon as
possible,
bring him before a magistrate who may, upon being satisfied that the ends of justice would otherwise
be
defeated, commit the person to prison until the time at which he is required to give evidence, unless in
the meantime
he produces sufficient sureties.
(4) A person arrested in terms of subsection (3) shall be informed forthwith by the person arresting
him of
the cause of the arrest.
236 Committal of witness who refuses to enter into recognizance
Any witness who refuses to enter into any recognizance in terms of section two hundred and thirty-
four may
be committed by the court by warrant to the prison for the place where the trial is to be held, there to
be kept until
after the trial or until the witness enters into such a recognizance before a magistrate having
jurisdiction in the
place where the prison is situated:
Provided that, if the accused is afterwards discharged, any magistrate having jurisdiction shall order
such witness
to be discharged.
237 Arrest and punishment for failure to obey subpoena or to remain in attendance
(1) If any person subpoenaed to attend a criminal trial without reasonable excuse fails to obey the
subpoena
and it appears from the return or from the evidence given under oath that the subpoena was served
upon the
person to whom it is directed, or if any person who has attended in obedience to a subpoena fails to
remain in
attendance, the judge or magistrate may issue a warrant directing that such person be arrested and
brought at a
time and place stated in the warrant, or as soon thereafter as possible, before him or some other judge
or magistrate.
(2) When a person has been arrested under a warrant issued in terms of subsection (1), he may be
detained
thereunder before the judge or magistrate who issued it or in any prison or lock-up or other place of
detention or
in the custody of the person who is in charge of him, with a view to securing his presence as a witness
at the trial,
or such judge or magistrate may release him on a recognizance, with or without sureties, for his
appearance to
give evidence as required and for his appearance at the inquiry mentioned in subsection (3).
(3) The judge or magistrate may in a summary manner inquire into the said person’s failure to obey a
subpoena
or to remain in attendance and, unless it is proved that the said person had a reasonable excuse for
such
failure, the judge or magistrate may sentence him to a fine not exceeding level three or to
imprisonment for a
period not exceeding one month or to both such fine and such imprisonment.
[Subsection amended by Act 22 of 2001]
(4) Any person sentenced by a magistrate to a fine or imprisonment in terms of subsection (3) shall
have the
same right of appeal as if he had been convicted and sentenced by a magistrates court in a criminal
trial.
(5) If a person who has entered into a recognizance for his appearance to give evidence at a criminal
trial or
for his appearance at an inquiry referred to in subsection (3) fails so to appear, he may, apart from the
estreatment
of his recognizance, be dealt with as if he had failed to obey a subpoena to attend a criminal trial.
238 Service of subpoena to secure attendance of witness residing outside jurisdiction
of court
(1) In this section—
“proper officer” includes the Sheriff, a deputy sheriff, messenger or deputy messenger or any other
officer
who by any enactment is charged with the duty of serving subpoenas to witnesses in criminal cases.
(2) When a subpoena to give evidence in a criminal case has been issued out of any court and it
appears that
the person whose attendance is thereby required resides or is for the time being in a province or, as the
case may
be, regional division outside the area of jurisdiction of that court, the subpoena shall be delivered to
the proper
officer within that province or, as the case may be, regional division and shall be served by him as
soon as possible
on such person:
Provided that—
(i) the necessary expenses to be incurred by the person subpoenaed in going to and returning from the
court
whereout the subpoena was issued, and his detention at the place whereat and for the purpose for
which
his attendance is required, shall be tendered to him with the subpoena;
(ii) if the subpoena is not sued out by the State, a sum sufficient to cover the expenses of serving the
subpoena
shall be lodged with the registrar or clerk of the court by the person suing out the subpoena.
(3) If any person who has been served in terms of subsection (2) with a subpoena and to whom has
been tendered
the expenses referred to in that subsection fails, without lawful excuse, to attend at the time and place
mentioned in the subpoena, a magistrate of the province or, as the case may be, regional division
within which
that person resides or is for the time being may issue a warrant for the arrest of that person, who shall
be liable to
be dealt with in the same manner as he might have been dealt with if he had failed to attend without
lawful excuse,
when served with a subpoena to attend a like court in the area wherein he resides or is for the time
being.
(4) The return to the proper officer showing that service of the subpoena has been duly effected,
together
with a certificate under the hand of the registrar or clerk of the court that the person whose attendance
was required
by the subpoena failed to attend when called upon, and has established no lawful excuse for the
nonattendance,
shall be sufficient proof of the non-attendance for the purpose of dealing with that person under
subsection (3).
239 Payment of expenses of persons attending court
(1) Subject to this section, any court or magistrate may order the payment of an allowance, in
accordance
with a prescribed tariff, to any person attending a trial or other criminal proceedings:
Provided that an allowance shall be paid to a witness for the accused, or a person accompanying such
a witness,
only in such circumstances as may be prescribed.
[Subsection amended by section 28 of Act 9 of 2006.]
(2) Any allowance paid in terms of subsection (1) shall be paid out of moneys appropriated for the
purpose
by Act of Parliament.
B. Evidence on commission
240 Taking evidence on commission
(1) When in the course of a trial or other criminal proceedings it appears to a judge or magistrate that
the examination
of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be
procured without an amount of delay, expense or inconvenience which in the circumstances of the
case would be
unreasonable, such judge or magistrate may dispense with the attendance of such witness and may
issue a commission
to any magistrate or, where the witness is outside Zimbabwe, to any fit and proper person outside
Zimbabwe,
authorizing such magistrate or person to take the evidence of such witness:
Provided that—
(i) the specific fact or facts with regard to which the evidence of the witness is required shall be set
out, and
the judge or magistrate may confine the examination of the witness to those facts;
(ii) when the commission is issued at the request of the prosecutor, the judge or magistrate shall,
unless the
accused states that he does not wish to be represented, direct as a condition of the issue of the
commission
that the expense necessary to the representation of the accused at the examination of the witness
shall be paid by the prosecution in such amount or at such rate as may seem reasonable to the judge or
magistrate granting the commission.
[Subsection amended by section 28 of Act 9 of 2006.]
(2) The witness, before giving his evidence, shall make an oath or affirmation before the
commissioner by
whom he is to be examined that in the whole of his deposition he will tell the truth, the whole truth
and nothing
but the truth, and the evidence of such witness shall be taken down in writing by the commissioner
and read over
to him.
(3) Where the person appointed as commissioner and the witness to be examined are outside
Zimbabwe, they
shall be entitled to be paid out of moneys appropriated for the purpose by Act of Parliament such fee
as may be
approved by the Minister responsible for finance.
241 Parties may examine witness
(1) Any party to any criminal proceedings in which a commission is issued may transmit any
interrogatories
in writing which the judge or magistrate directing the commission may think relevant to the issue, and
the magistrate
or other person to whom the commission is directed shall examine the witness upon such
interrogatories.
(2) Any such party may appear before such magistrate or other person by his legal representative or, if
not in
custody, in person, and may examine, cross-examine and re-examine, as the case may be, the witness.
242 Return of commission
(1) After a commission under section two hundred and forty has been duly executed, it shall be
returned, together
with the deposition of the witness examined thereunder, to the court which issued it.
(2) The commission, the return thereto and the deposition shall be open at all reasonable times to the
inspection
of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party,
and shall
form part of the record.
(3) Any deposition taken in terms of the commission may also be received in evidence at any
subsequent
stage of the case before another court.
243 Adjournment of inquiry or trial
Where a commission is issued under section two hundred and forty, the trial or other criminal
proceedings
may be adjourned for a specified time, reasonably sufficient for the execution and return of the
commission.
[Section amended by section 28 of Act 9 of 2006.]
C. Competency of witnesses
244 No person to be excluded from giving evidence except under this Act
Every person not expressly excluded by this Act from giving evidence shall be competent and
compellable to
give evidence in a criminal case in any court in Zimbabwe.
[Section amended by section 28 of Act 9 of 2006.]
245 Court to decide questions of competency of witnesses
It shall be competent for the court in which any criminal case is depending to decide upon all
questions concerning
the competency and compellability of any witness to give evidence.
[Section amended by section 28 of Act 9 of 2006.]
246 Incompetency from mental disorder or defect and intoxication
No person appearing or proved to be afflicted with idiocy or mental disorder or defect or labouring
under any
imbecility of mind arising from intoxication or otherwise, whereby he is deprived of the proper use of
reason,
shall be competent to give evidence while under the influence of any such malady or disability.
247 Evidence for prosecution by husband or wife of accused
(1) In this section—
“children” means sons, daughters and adopted children of any age.
(2) The wife or husband of an accused person shall be competent and compellable to give evidence for
the
prosecution without the consent of the accused person where such person is prosecuted for any
offence against the
person of either of them or any of the children of either of them, or for any of the following offences
—
(a) rape;.
(b) aggravated indecent assault;
(c) sexual intercourse or performing an indecent act with a young person;
(d) sexual intercourse within a prohibited degree of relationship;
(e) kidnapping or unlawful detention of a child;
(f) bigamy;
(g) perjury committed in connection with or for the purpose, of any judicial proceedings instituted or
to be
instituted or contemplated by the one of them against the other, or in connection with or for the
purpose
of any criminal proceedings in respect of any offence included in this subsection.
[Subsection substituted by section 17 of Act 9 of 2006.]
(3) The wife or husband of an accused person shall be competent, but not compellable, to give
evidence for
the prosecution without the consent of the accused person where such person is prosecuted for an
offence against
the separate property of the wife or husband of the accused person.
248 Evidence of accused and husband or wife on behalf of accused
(1) Any accused person, and the wife or husband, as the case may be, of an accused person, shall be a
competent
witness for the defence at every stage of the proceedings, whether the accused person is charged solely
or
jointly with any other person:
Provided that—
(i) an accused person shall not be called as a witness, except upon his own application;
(ii) the wife or husband of an accused person shall not be called as a witness for the defence, except
upon
the application of the accused person.
(2) An accused person may elect to give his evidence from, or to be questioned in, the dock or the
witness
box or other place from which the other witnesses give their evidence or, with the consent of the judge
or magistrate,
any other place in the court room.
D. Oaths and affirmations
249 Oaths
(1) It shall not be lawful to examine as a witness any person other than a person described in section
two hundred
and fifty or two hundred and fifty-one except upon oath.
(2) The oath to be administered to any person as a witness shall be administered in the form which
most
clearly conveys to him the meaning of the oath, and which he considers to be binding on his
conscience.
250 Affirmations in lieu of oaths
(1) In any case where any person who is or may be required to take an oath objects to do so, it shall be
lawful
for such person to make an affirmation in the words following:—“I do truly affirm and declare that”
(here state
the matter to be affirmed or declared).
(2) An affirmation or declaration made in terms of subsection (1) shall be of the same effect as if the
person
making it had taken an oath.
(3) Every person authorized, required or qualified by law to take or administer an oath shall accept in
lieu
thereof an affirmation or declaration made in terms of this section.
(4) The same penalties, punishments and disabilities which are respectively in force and are attached
to any
refusal or false or corrupt taking or subscribing of any oath administered in accordance with section
two hundred
and forty-nine shall apply and attach in like manner in respect of the refusal or false or corrupt making
or subscribing
respectively of any such affirmation or declaration as in this section mentioned.
251 When unsworn or unaffirmed testimony admissible
Any person produced for the purpose of giving evidence who, from ignorance arising from youth,
defective
education or other cause, is found not to understand the nature or to recognize the religious obligation
of an oath
or affirmation may be admitted to give evidence in any court without being sworn or being upon oath
or affirmation:
Provided that—
(i) before any such person proceeds to give evidence, the judge or magistrate before whom he is called
as a
witness shall admonish him to speak the truth, the whole truth and nothing but the truth, and shall
further
administer or cause to be administered to him any form of admonition which appears, either from
his own statement or from any other source of information, to be calculated to impress his mind and
bind his conscience, and which is not, as being of an inhuman, immoral or irreligious nature,
obviously
unfit to be administered;
(ii) any such person who wilfully and falsely states anything which, if sworn, would have amounted to
perjury or any offence declared by any enactment to be equivalent to perjury or punishable as perjury,
shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a
period
not exceeding two years or to both such fine and such imprisonment.
[Section amended by section 4 of Act 22 of 2001 and by section 28 of Act 9 of 2006.]
E. Admissibility of evidence
252 Inadmissibility of irrelevant evidence
No evidence as to any fact, matter or thing shall be admissible which is irrelevant or immaterial and
cannot
conduce to prove or disprove any point or fact at issue in the case which is being tried.
253 Hearsay evidence
(1) No evidence which is of the nature of hearsay evidence shall be admissible in any case in which
such evidence
would be inadmissible in any similar case depending in the Supreme Court of Judicature in England.
(2) When evidence of a statement, oral or written, made in the ordinary course of duty,
contemporaneously
with the facts stated and without motive to misrepresent, would be admissible in the Supreme Court of
Judicature
in England if the person who made the statement were dead, such evidence shall be admissible in any
criminal
proceedings if the person who made the statement is dead or unfit by reason of his bodily or mental
condition to
attend as a witness or cannot with reasonable diligence be identified or found or brought before the
court.
[Subsection amended by section 28 of Act 9 of 2006.]
(3) The court may, in deciding whether or not the person in question—
(a) is unfit to attend as a witness, act on a certificate purporting to be a certificate of a medical
practitioner;
(b) is dead or cannot with reasonable diligence be identified or found or brought before the court, act
on
evidence submitted by way of affidavit.
254 Admissibility of dying declarations
(1) A declaration made by any deceased person upon the apprehension of death shall be admissible or
inadmissible
in evidence in every case in which such declaration would be admissible or inadmissible in any
similar
case depending in the Supreme Court of Judicature in England.
(2) When it is made to appear to the satisfaction of any magistrate that any person is dangerously ill
and, in
the opinion of a medical practitioner, not likely to recover from such illness and is able and willing to
give material
information relating to any offence or to any person accused of any offence, and it is not practicable to
examine
in accordance with any other provision of this Act the person so being ill, it shall be lawful for the said
magistrate to take in writing the statement on oath of such person.
(3) The magistrate taking a statement in terms of subsection (2) shall sign it and set out his reason for
taking
the same, the date and place of taking it and the names of the persons, if any, present at the time.
(4) If afterwards, upon the trial of any offender or offence to which the same may relate, the person
who
made a statement taken in terms of subsection (2) is proved to be dead, or if it is proved that there is
no reasonable
probability that such person will ever be able to travel or give evidence, it shall be lawful to read such
statement in
evidence either for or against the accused without further proof thereof—
(a) if the same purports to be signed by the magistrate by or before whom it purports to be taken; and
(b) if it is proved to the satisfaction of the court that reasonable notice of the intention to take such
statement
has been served upon the person, whether prosecutor or accused, against whom it is proposed to be
read
in evidence and that such person or his legal representative had or might have had, if he had chosen to
be present, full opportunity of cross-examining the person who made the same.
255 Admissibility in criminal cases of evidence of absent witnesses in certain
circumstances
(1) The evidence of any witness—
(a) given at a former criminal trial of an accused on the same or a different charge and recorded in a
document
purporting—
(i) to be a transcript of the original record of the said evidence; and
(ii) to have been certified as correct under the hand of the person who transcribed it;
or
(b) whose deposition has been verified in terms of section 115A;
shall, subject to subsection (2), be admissible in evidence on the trial of the accused for any offence.
(2) The evidence of a witness referred to in subsection (1) shall not be admissible unless—
(a) it is proved on oath to the satisfaction of the court that the witness—
(i) is dead or is incapable of giving evidence, or that he or she is too ill to attend; or
(ii) is kept away from the trial by the means and contrivance of the accused; or
(iii) cannot be found after diligent search, or cannot be compelled to attend; or
(iv) is an expert witness whose evidence is given in his or her capacity as an expert witness, and that
the nature of the witness’s professional commitments is such as to render it impossible to secure
his or her attendance at the trial on any given day;
and that the evidence is the same that was given at the previous criminal trial or at the conference
referred
to in section 115A, as the case may be, without any alteration; and
(b) it appears on the record or is proved to the satisfaction of the court that the accused, personally or
by his
or her legal representative, had a full opportunity of cross-examining the witness, even if the accused
or
his or her legal representative, did not avail himself or herself of that opportunity.
(3) Where is proved on oath to the satisfaction of the court that any witness, other than one whose
deposition
was verified as mentioned in subsection (1)(b)—
(a) is dead or incapable of giving evidence, or is too ill, to attend; or
(b) has been kept away from the trial by the means and contrivance of the accused; or
(c) cannot be found after diligent search or cannot be compelled to attend; or
(d) is an expert witness whose evidence is given in his or her capacity as an expert witness, and that
the
nature of the witness’s professional commitments is such as to render it impossible to secure his or her
attendance at the trial on any given day;
the evidence of such witness may, at the discretion of the court, be admissible in evidence on the trial
of the
accused for any offence.
[Section substituted by section 18 of Act 9 of 2006.]
256 Admissibility of confessions and statements by accused
(1) Any confession of the commission of an offence and any statement which is proved to have been
freely
and voluntarily made by an accused person without his having been unduly influenced thereto shall be
admissible
in evidence against such accused person if tendered by the prosecutor, whether such confession or
statement was
made before or after his arrest, or after committal and whether reduced into writing or not:
Provided that—
(i) a certified copy of the record produced in terms of subsection (1) of section 115B shall be
admissible in
evidence against the accused;
(ii) any information given under any enactment which provides a penalty for a failure or refusal to
give such
information shall not, on that account alone, be inadmissible.
[Subsection amended by section 19 of Act 9 of 2006.]
(2) A confession or statement confirmed in terms of subsection (3) of section one hundred and
thirteen shall
be received in evidence before any court upon its mere production by the prosecutor without further
proof:
Provided that the confession or statement shall not be used as evidence against the accused if he
proves that
the statement was not made by him or was not made freely and voluntarily without his having been
unduly influenced
thereto, and if, after the accused has presented his defence to the indictment, summons or charge, the
prosecutor considers it necessary to adduce further evidence in relation to the making of such
confession or
statement, he may re-open his case for that purpose.
(3) If in any confession or statement made or evidence given by an accused person which would
otherwise be
admissible there is contained matter which may be prejudicial to the accused and which is not relevant
to the
charge preferred against him, the prosecutor may delete such matter from the confession, statement or
evidence, as
the case may be, and such confession, statement or evidence, as the case may be, shall be admissible
against such
accused person:
Provided that no confession, statement or evidence from which any matter has been deleted shall be
adduced
or received in evidence unless a copy of the confession, statement or evidence from which such matter
has been
deleted has been served upon the accused and he has not, within five days of such service, demanded
that the
whole or part of any matter so deleted shall be included in the confession, statement or evidence if it is
adduced in
evidence by the prosecutor.
(4) If an accused person demands that the whole or any part of any matter referred to in subsection (3)
shall
be included in his confession, statement or evidence if it is adduced in evidence by the prosecutor,
then such
confession, statement or evidence containing such matter shall, notwithstanding anything to the
contrary in this
Act, be admissible in evidence against him.
257 Failure of accused to mention certain facts to police may be treated as evidence
Where in any proceedings against a person evidence is given that the accused, on being—
(a) questioned as a suspect by a police officer investigating an offence; or
(b) charged by a police officer with an offence; or
(c) informed by a police officer that he might be prosecuted for an offence;
failed to mention any fact relevant to his or her defence in those proceedings, being a fact which, in
the circumstances
existing at the time, he or she could reasonably have been expected to have mentioned when so
questioned,
charged or informed, as the case may be, the court, in determining whether there is any evidence that
the
accused committed or whether the accused is guilty of the offence charged or any other offence of
which he or she
may be convicted on that charge, may draw such inferences from the failure as appear proper and the
failure may,
on the basis of such inferences, be treated as evidence corroborating any other evidence given against
the accused.
[Section substituted by section 20 of Act 9 of 2006.]
258 Admissibility of facts discovered by means of inadmissible confession
(1) It shall be lawful to admit evidence of any fact otherwise admissible in evidence, notwithstanding
that
such fact has been discovered and come to the knowledge of the witness who gives evidence
respecting it only in
consequence of information given by the person under trial in any confession or statement which by
law is not
admissible in evidence against him on such trial, and notwithstanding that the fact has been discovered
and come
to the knowledge of the witness against the wish or will of the accused.
(2) It shall be lawful to admit evidence that anything was pointed out by the person under trial or that
any fact
or thing was discovered in consequence of information given by such person notwithstanding that
such pointing
out or information forms part of a confession or statement which by law is not admissible against him
on such
trial.
259 Confession not admissible against other persons
No confession made by any person shall be admissible as evidence against any other person.
260 Evidence of character— when admissible
Except as is provided in section two hundred and ninety, no evidence as to the character of the
accused or as
to the character of any woman on whose person any rape or assault with intent to commit a rape or
indecent
assault is alleged to have been committed shall, in any such case, be admissible or inadmissible if such
evidence
would be inadmissible or admissible in any similar case depending in the Supreme Court of Judicature
of England.
261 Evidence of genuineness of disputed writings
Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine
shall
be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the
same may
be submitted to the court or magistrate, as the case may be, as evidence of the genuineness or
otherwise of the
writing in dispute.
[Section amended by section 28 of Act 9 of 2006.]
262 Certified copy of record of criminal proceedings sufficient without production of
record
When it is necessary to prove the trial and conviction or acquittal of any person charged with any
offence, it
shall not be necessary to produce the record of the conviction or acquittal of such person, or a copy
thereof, but it
shall be sufficient that it is certified or purports to be certified under the hand of the registrar or clerk
of the court
or other officer having the custody of the records of the court where such conviction or acquittal took
place, or by
the deputy of such registrar, clerk or other officer, that the paper produced is a copy of the record of
the indictment,
summons or charge and of the trial, conviction and judgment or acquittal, as the case may be, omitting
the
formal parts thereof.
263 Issue estoppel
When it is legally competent, notwithstanding the former conviction of an accused, again to charge the
accused
with an offence arising out of the same act or omission upon which the former conviction was based, a
certified copy of the record of the former proceedings shall be admissible on its mere production by
the prosecutor
as conclusive proof that the accused committed the former offence.
264 ….
[Section repealed by sect ion 21 of Act 9 of 2006.]
265 Appointment to public office
Any evidence which would be admissible in any criminal case depending in the Supreme Court of
Judicature
of England as evidence of the appointment of any person to any office or of the authority of any
person to act as a
public officer shall be admissible in criminal cases in Zimbabwe.
[Section amended by section 28 of Act 9 of 2006.]
266 Proof of signature of public officer not necessary
In any criminal proceedings any document—
(a) purporting to bear the signature of any person holding a public office; and
(b) bearing a seal or stamp which purports to be a seal or stamp of the Ministry, department, office or
institution to which such person is attached;
shall on its mere production, without proof of such signature, seal or stamp, be presumed to be signed
by such
person unless it is proved not to have been signed by him.
266A Admissibility of evidence obtained from certain foreign countries
(1) Subject to this section
(a) the record of any evidence taken; or
(b) any document or other article produced or obtained;
in response to a request made by the Attorney-General in terms of section 10 of the Criminal Matters
(Mutual
Assistance) Act [Chapter 9:06] shall be admissible in evidence in any court on its mere production by
any person,
if the court considers that it should be admitted in the interests of justice.
(2) In deciding whether or not it is in the interests of justice for any record, document or article to be
admitted
in evidence in terms of subsection (1), the court shall have regard to
(a) the nature of the proceedings; and
(b) the nature of the record, document or article; and
(c) the purpose for which the record, document or article is tendered in evidence; and
(d) any prejudice that may be occasioned to the accused or the prosecution if the record, document or
article
is admitted in evidence; and
(e) any other factor which, in the court’s opinion, should be taken into account.
(3) In estimating the weight, if any, to be given to any record, document or article admitted in terms of
subsection
(1), the court shall have regard to all the factors which, in its opinion, affect its probative value.
(4) Where a document is admissible in evidence only if it has been prepared, attested, certified,
compiled or
executed by a particular person or by a person holding a particular office, possessing a particular
qualification,
performing a particular function or engaged in a particular activity, a similar document emanating
from a foreign
country shall not be admissible in terms of subsection (1) unless it has been prepared, attested,
certified, compiled
or executed, as the case may be, by an equivalent person in that foreign country.
(5) For the purposes of subsection (4), the Minister may, by statutory instrument, declare that any
person or
class of persons in a foreign country shall be regarded as equivalent to any person or class of persons
in Zimbabwe:
Provided that an omission by the Minister to make such a declaration shall not prevent a court from
determining
for itself whether or not any person in a foreign country is equivalent to a person in Zimbabwe.
(6) A certificate purporting to be signed by the Attorney-General or his deputy and stating that any
record,
document or article was produced or obtained in response to a request in terms of section 10 of the
Criminal
Matters (Mutual Assistance) Act [Chapter 9:06] shall be admissible in evidence in any court on its
mere production
by any person, and shall be prima facie proof of the facts stated therein.
(7) This section shall not be construed as affecting the admissibility under any other law of any record,
document or article referred to in subsection (1).
[Section as inserted by section 2 of Act No. 8 of 1998.)
F. Evidence of accomplices
267 Accomplices as witnesses for prosecution
(1) When the prosecutor at any trial informs the court that any person produced by him or her as a
witness on
behalf of the prosecution has, in his or her opinion, been an accomplice, either as principal or
accessory, in the
commission of the offence alleged in the charge, such person shall, notwithstanding anything to the
contrary in
this Act, be compelled to be sworn or to make affirmation as a witness and to answer any question the
reply to
which would tend to incriminate him or her in respect of such offence.
[Subsection substituted by section 22 of Act 9 of 2006.]
(2) If a person referred to in subsection (1) fully answers to the satisfaction of the court all such lawful
questions
as may be put to him, he shall, subject to subsection (3), be discharged from all liability to prosecution
for
the offence concerned and the court or magistrate, as the case may be, shall cause such discharge to be
entered on
the record of the proceedings.
(3) A discharge in terms of subsection (2) shall be of no effect and the entry thereof on the record of
the proceedings
shall be deleted if, when called as a witness at the trial of any person upon a charge of having
committed
the offence concerned, the person concerned refuses to be sworn or to make affirmation as a witness
or refuses or
fails to answer fully to the satisfaction of the court all such lawful questions as may be put to him.
[Subsection amended by section 22 of Act 9 of 2006.]
268 Evidence of accomplice cannot be used against him
No evidence given by an accomplice on behalf of the prosecution at any trial in respect of any offence
shall, if
the said accomplice is thereafter prosecuted for such offence, be admissible in evidence against him at
his trial:
Provided that if such accomplice is subsequently prosecuted for perjury or for an offence in terms of
subsection
(3) of section one hundred and fifty arising from the giving of such evidence, nothing contained in this
section
shall prevent the admission against him in evidence at his trial for the said perjury or for such offence
of the
evidence so given.
[Seection amended by section 28 of Act 9 of 2006.]
G. Sufficiency of evidence
269 Sufficiency of one witness in criminal cases, except perjury and treason
It shall be lawful for the court by which any person prosecuted for any offence is tried to convict such
person
of any offence alleged against him in the indictment, summons or charge under trial on the single
evidence of any
competent and credible witness:
Provided that it shall not be competent for any court—
(a) to convict any person of perjury on the evidence of any one witness as to the falsity of any
statement
made by the accused unless, in addition to and independently of the testimony of such witness, some
other competent and credible evidence as to the falsity of such statement is given to such court;
(b) to convict any person of treason, except upon the evidence of two witnesses where one overt act is
charged in the indictment or, where two or more such overt acts are so charged, upon the evidence of
one witness to each such overt act;
(c) to convict any person on the single evidence of any witness of an offence in respect of which
provision
to the contrary is made by any enactment.
270 Conviction on single evidence of accomplice, provided the offence is proved
aliunde
Any court which is trying any person on a charge of any offence may convict him of any offence
alleged
against him in the indictment, summons or charge under trial on the single evidence of any
accomplice:
Provided that the offence has, by competent evidence other than the single and unconfirmed evidence
of the
accomplice, been proved to the satisfaction of such court to have been actually committed.
271 Procedure on plea of guilty
(1) Where a person arraigned before the High Court on any charge pleads guilty to the offence
charged or to
any other offence of which he might be found guilty on that charge and the prosecutor accepts that
plea, the court
may, if the accused has pleaded guilty to any offence other than murder, convict and sentence him for
that offence
without hearing any evidence.
(2) Where a person arraigned before a magistrates court on any charge pleads guilty to the offence
charged or
to any other offence of which he might be found guilty on that charge and the prosecutor accepts that
plea—
(a) the court may, if it is of the opinion that the offence does not merit punishment of imprisonment
without
the option of a fine or of a fine exceeding level three, convict the accused of the offence to which he
has
pleaded guilty and impose any competent sentence other than—
(i) imprisonment without the option of a fine; or
(ii) a fine exceeding level three;
or deal with the accused otherwise in accordance with the law;
[Paragraph amended by section 8 of Act 8 of 1997.]
(b) the court shall, if it is of the opinion that the offence merits any punishment referred to in
subparagraph
(i) or (ii) of paragraph (a) or if requested thereto by the prosecutor—
(i) explain the charge and the essential elements of the offence to the accused and to that end
require the prosecutor to state, in so far as the acts or omissions on which the charge is based are
not apparent from the charge, on what acts or omissions the charge is based; and
(ii) inquire from the accused whether he understands the charge and the essential elements of the
offence and whether his plea of guilty is an admission of the elements of the offence and of the
acts or omissions stated in the charge or by the prosecutor;
and may, if satisfied that the accused understands the charge and the essential elements of the offence
and that he admits the elements of the offence and the acts or omissions on which the charge is based
as
stated in the charge or by the prosecutor, convict the accused of the offence to which he has pleaded
guilty on his plea of guilty and impose any competent sentence or deal with the accused otherwise in
accordance
with the law:
Provided that, if the accused is legally represented, the court may, in lieu of the procedure provided in
subparagraphs (i) and (ii), satisfy itself that the accused understands the charge and the essential
elements
of the offence and that he admits the elements of the offence and the acts or omissions on which
the charge is based as stated in the charge or by the prosecutor by relying upon a statement to that
effect
by the legal representative of the accused.
(3) Where a magistrate proceeds in terms of paragraph (b) of subsection (2)—
(a) the explanation of the charge and the essential elements of the offence; and
(b) any statement of the acts or omissions on which the charge is based referred to in subparagraph (i)
of
that paragraph; and
(c) the reply by the accused to the inquiry referred to in subparagraph (ii) of that paragraph; and
(d) any statement made to the court by the accused in connection with the offence to which he has
pleaded
guilty;
shall be recorded.
(4) The court may—
(a) call upon the prosecutor to present evidence on any aspect of the charge; and
(b) with regard to sentence, hear any evidence, including evidence or a statement made by or on behalf
of
the accused.
(5) Where an accused has been convicted in terms of this section, the prosecutor and the court may,
whether
or not he gives evidence, question him with regard to sentence and, if the accused is represented by a
legal practitioner,
his legal representative may thereafter question him subject to the rules applicable to a party re-
examining
his own witness.
272 Procedure where there is doubt in relation to plea of guilty
If the court, at any stage of the proceedings in terms of section two hundred and seventy-one and
before sentence
is passed—
(a) is in doubt whether the accused is in law guilty of the offence to which he has pleaded guilty; or
(b) is not satisfied that the accused has admitted or correctly admitted all the essential elements of the
offence or all the acts or omissions on which the charge is based; or
(c) is not satisfied that the accused has no valid defence to the charge;
the court shall record a plea of not guilty and require the prosecution to proceed with the trial:
Provided that any element or act or omission correctly admitted by the accused up to the stage at
which the
court records a plea of not guilty and which has been recorded in terms of subsection (3) of section
two hundred
and seventy-one shall be sufficient proof in any court of that element or act or omission.
273 Conviction on confession
Any court which is trying any person on a charge of any offence may convict him of any offence with
which
he is charged by reason of a confession of that offence proved to have been made by him, although the
confession
is not confirmed by other evidence:
Provided that the offence has, by competent evidence other than such confession, been proved to have
been
actually committed.
274 Sufficiency of proof of appointment to public office
Any evidence which would, if credible, be considered in any criminal case depending in the Supreme
Court
of Judicature in England to be sufficient proof of the appointment of any person to any public office or
of the
authority of any person to act as a public officer shall, if credible, be deemed, in criminal cases in
Zimbabwe,
sufficient proof of such appointment or authority.
H. Documentary evidence
275 Certified copies or extracts of documents admissible
(1) When any book or other document is of such a public nature as to be admissible in evidence on its
mere
production from the proper custody, any copy thereof or extract therefrom shall be admissible in
evidence in any
court:
Provided that such copy or extract shall not be admissible in evidence unless—
(a) it is proved to be an examined copy or extract; or
(b) it purports to be signed and certified as a true copy or extract by the officer to whose custody the
original
is entrusted.
[Subsection amended by section 28 of Act 9 of 2006.]
(2) The officer to whose custody the original book or record is entrusted shall furnish a certified copy
thereof
or extract therefrom to any person applying at a reasonable time for the same upon payment of such
sum as may
be prescribed.
276 Production of official documents
Any original document in the custody or under the control of any officer of the State by virtue of his
office
may be produced in any criminal proceedings before any court unless the Minister certifies in writing
that it is
undesirable that such original document should be so produced.
[Section amended by section 28 of Act 9 of 2006.]
277 Copies of official documents sufficient
(1) Except when the original is produced, as provided in section two hundred and seventy-six it shall
be sufficient
to produce a copy of or extract from a document described in that section certified as a true copy by
the
head of the Ministry, department or office in whose custody or under whose control such document is.
(2) A copy or extract certified in terms of subsection (1) shall be admissible in evidence before any
court and
shall be of like effect as the original document.
[Subsection amended by section 28 of Act 9 of 2006.]
(3) It shall not be necessary for any head of a Ministry, department or office of the State to appear in
person
to produce any original document in his custody or under his control as such officer, but it shall be
sufficient if
such document is produced by some person authorized by him so to do.
(4) Certified copies of or extracts from any document referred to in subsection (3) may be handed in to
the
court by the party who desires to avail himself of the same.
(5) If any officer authorized or required by this Act to furnish any certified copies or extracts wilfully
certifies
any document as being a true copy or extract knowing that the same is not a true copy or extract, as
the case
may be, he shall be guilty of an offence and liable to imprisonment for a period not exceeding two
years.
278 Admissibility of affidavits in certain circumstances
(1) In any criminal proceedings in which it is relevant to prove—
(a) any fact ascertained by an examination or process requiring knowledge of or skill in bacteriology,
chemistry, physics, microscopy, astronomy, mineralogy, anatomy, biology, haematology, histology,
toxicology, physiology, ballistics, geography or the identification of finger-prints, palm-prints or
footprints
or any other knowledge or skill whatsoever;
(b) any opinion relating to any fact ascertained by an examination or process referred to in paragraph
(a);
a document purporting to be an affidavit relating to any such examination or process and purporting to
have been
made by any person qualified to carry out such examination or process who in that affidavit states that
such fact
was ascertained by him or under his direction or supervision and that he arrived at such opinion, if
any, stated
therein shall, on its mere production in those proceedings by any person, but subject to subsections
(11) and (12),
be prima facie proof of the fact and of any opinion so stated.
(2) In any criminal proceedings in which it is relevant to prove—
(a) any fact ascertained by a medical practitioner in any examination carried out by him which is
proper to
the duties of a medical practitioner;
(b) that any treatment, including the performance of an operation, was administered by a medical
practitioner;
(c) any opinion of a medical practitioner referred to in paragraph (a) or (b) relating to any fact or
treatment
referred to in that paragraph;
a document purporting to be an affidavit relating to any such examination or treatment and purporting
to have
been made by a person who in that affidavit states that he is or was a medical practitioner and in the
performance
of his duties in that capacity he carried out such examination and ascertained such fact in such
examination or
administered such treatment, and, in either case, arrived at such opinion, if any, stated therein shall, on
its mere
production in those proceedings by any person, but subject to subsections (11) and (12), be prima
facie proof of
the facts and of any opinion so stated.
(3) In any criminal proceedings in which it is relevant to prove—
(a) any fact ascertained or thing done by a person registered in terms of the Health Professions Act
[Chapter
27:19] in the course of his duties;
(b) any opinion of a person referred to in paragraph (a) relating to any fact or thing referred to in that
paragraph;
a document purporting to be an affidavit relating to any such duties and purporting to have been made
by a person
who in that affidavit states that he is or was a person registered in terms of the Health Professions Act
[Chapter
27:19] and in the performance of his duties in that capacity he ascertained such fact or did such thing
and, in
either case, arrived at such opinion, if any, stated therein shall, on its mere production in those
proceedings by any
person, but subject to subsections (11) and (12), be prima facie proof of the facts and of any opinion
so stated.
[Subsection amended by section 151 of Act 6 of 2000.]
(3a) For the avoidance of doubt, and without derogating from subsection (3), it is declared that in any
criminal
proceedings for the prosecution of a sexual offence, an affidavit relating to the examination or
treatment of the
alleged victim of the offence made by a suitably qualified nurse who in that affidavit states he or she is
a suitably
qualified nurse and in the performance of his or her duties in that capacity ascertained any fact by
treating or
examining the alleged victim and arrived at any opinion relating to that fact, shall, on its mere
production in those
proceedings by any person, but subject to subsections (11) and (12), be prima facie proof of the facts
and of any
opinion so stated.
[Subsection inserted by section 23 of Act 9 of 2006.]
(4) In any criminal proceedings in which it is relevant to prove any fact relating to—
(a) the condition, efficiency, capability, design, dimensions or mass of any vehicle or part or accessory
thereof; or
(b) any damage alleged to have been caused to any vehicle or part or accessory thereof; or
(c) the mass of any load alleged to have been carried on or in any vehicle;
a document purporting to be an affidavit made by any person who in that affidavit states that he is or
was an
inspecting officer as defined in the Road Traffic Act [Chapter 13:11] and in the performance of his
official duties
in that capacity he ascertained such fact by examining, testing, measuring or weighing such vehicle,
part, accessory
or load, shall, on its mere production in those proceedings by any person, but subject to subsections
(11) and
(12), be prima facie proof of that fact.
(5) In any criminal proceedings in which the physical condition or identity of a deceased person or
dead body
while such person or dead body was in or at a hospital, nursing-home, ambulance or mortuary, is
relevant to the
issue, a document purporting to be an affidavit made by a person who in that affidavit states that he is
or was
employed at or in connection with the hospital, nursing-home, ambulance or mortuary and that in the
performance
of his official duties there or in connection therewith he observed the physical characteristics of the
deceased
person or dead body described in the affidavit, or that while the deceased person or dead body was
under his care,
such person or dead body sustained the injuries or wounds described in the affidavit or sustained no
injuries or
wounds, or that he identified, pointed out or handed over the deceased person or dead body to another
person or
left the deceased person or dead body in the care of another person, or that the deceased person or
dead body was
identified, pointed out or handed over to him or left in his care by another person, shall, on its mere
production in
those proceedings by any person, but subject to subsections (11) and (12), be prima facie proof of the
facts so
stated.
(6) In any criminal proceedings in which the identity of a person since deceased or of the body of a
deceased
person is relevant to the issue, a document purporting to be an affidavit made by a person who in that
affidavit
states that he knew the deceased person in his lifetime and that he identified the person or dead body
to another
person shall, on its mere production in those proceedings by any person, but subject to subsections
(11) and (12),
be prima facie proof of the facts so stated.
(7) In any criminal proceedings in which the receipt, custody, packing, delivery or dispatch of any
document,
finger-print or palm-print, article of clothing, specimen, limb or organ or any object of whatever
nature is relevant
to the issue, a document purporting to be an affidavit made by a person who in that affidavit states that
in the
performance of his duties he received from, or delivered or dispatched to, a person, institute, Ministry,
department
or laboratory mentioned in the affidavit the object described in the affidavit or packed or marked in a
manner so
described, or that during the period mentioned in the affidavit he had the custody, in the manner so
mentioned, of
the object described in the affidavit or packed or marked in the manner so described, as the case may
be, shall, on
its mere production in those proceedings by any person, but subject to subsections (11) to (12), be
prima facie
proof of the facts so stated.
(8) In any criminal proceedings in which it is relevant to prove that the details set out in any—
(a) consignment note executed for the purpose of the transport of any goods by the National Railways
of
Zimbabwe or the Air Zimbabwe Corporation or any other person who carries on the business within
Zimbabwe of transporting goods; or
(b) report executed by an employee of a person referred to in paragraph (a) revealing a discrepancy
between
the details relating to the goods dispatched on a consignment note referred to in that paragraph and the
goods actually present on arrival at the destination specified in the consignment note;
are correct, such details may, subject to subsections (11) and (12), be proved prima facie by the
production by any
person of a document, purporting to be an affidavit made by the person who executed the consignment
note or
report, in which it is stated that the details set out in the consignment note or report are correct in
relation to the
goods described in the consignment note or report.
(9) In any criminal proceedings in which it is relevant to prove that any goods were delivered to the
National
Railways of Zimbabwe or the Air Zimbabwe Corporation or any other person who carries on the
business within
Zimbabwe of transporting goods for transport by that person, a document purporting to be an affidavit
made by a
person who in that affidavit states that, on a date specified in the affidavit, he delivered the goods or
caused the
goods to be delivered to the National Railways of Zimbabwe, the Air Zimbabwe Corporation or such
other pe rson,
as the case may be, or caused such goods to be delivered to that person for transport by that person
shall, on
its mere production in those proceedings by any person, but subject to subsections (11) and (12), be
prima facie
proof of the facts so stated.
(10) In any criminal proceedings in which it is relevant to prove—
(a) that a person or thing has or has not been registered or licensed or that a permit, certificate or
authority
has or has not been issued in respect of any person or thing under an enactment; or
(b) where a person or thing has been registered or licensed or a permit, certificate or authority has
been
issued in respect of any person or thing under an enactment, any particulars of or connected with the
registration, licence, permit, certificate or authority; or
(c) that anything relating to the registration, licence, permit, certificate or authority referred to in
paragraph
(b), including the cancellation or suspension thereof, has been done;
a document purporting to be an affidavit made by a person who in that affidavit states that—
(i) he is a person upon whom the enactment in question confers the power or imposes the duty to do
any thing referred to in paragraph (a); and
(ii) in that capacity, he has the custody and control of the records relating to anything referred to in
paragraph (a) done by himself or any other person in the exercise of that power or duty; and
(iii) he has examined the records referred to in subparagraph (ii) and ascertained—
A. that any person or thing is or is not registered or licensed or that a permit, certificate or
authority has or has not been issued; or
B. any particular referred to in paragraph (b); or
C. that anything referred to in paragraph (c) has been done;
shall, on its mere production in those proceedings by any person, but subject to subsections (11) and
(12), be
prima facie proof of the facts so ascertained.
(11) An affidavit referred to in this section shall not be admissible unless the prosecutor or the
accused, as
the case may be, has received three days’ notice of its intended production or consents to its
production.
(12) The court in which any affidavit referred to in this section is produced in evidence may, of its
own motion
or at the request of the prosecutor or of the accused, cause the person who made the affidavit or any
other
person whose evidence the court considers to be necessary to give oral evidence in the proceedings in
question in
relation to any statement contained in the affidavit or may cause written interrogatories to be
submitted to such
person for reply, and such interrogatories or any reply thereto purporting to be a reply from such
person shall, on
their mere production in those proceedings by any person, be admissible in evidence.
(13) Nothing in this section shall be construed as affecting any provision of any enactment under
which any
certificate or other document is made admissible in evidence, and this section shall be deemed to be
additional to,
and not in substitution of, any such provision.
279 Admissibility of photographs, plans and reports
(1) A medical practitioner who has prepared a report after his examination of any person or body may
read
and put in such report at any trial and such report so read and put in shall, subject to all just
exceptions, be admissible
in evidence in any court.
[Subsection amended by section 28 of Act 9 of 2006.]
(2) A photograph or plan relating any matter which is relevant to the issue in any proceedings shall be
admissible
in evidence at any stage of such proceedings subject to the conditions that—
(a) any person who is a competent and compellable witness in such proceedings and upon whose
indications
or observations such photograph or plan was taken or prepared shall be called as a witness, either
before or after such photograph or plan is put in by the party tendering such evidence; or
(b) the evidence of such person is admitted in terms of section two hundred and fifty-five.
280 …
[Section repealed by section 24 of Act 9 of 2006.].
281 Admissibility of documents transmitted to or made or possessed by accused
(1) In this section—
“document” includes any thing on or in which information is recorded;
“statement” includes any representation of fact, whether made in words or figures or otherwise.
(2) If, in any criminal proceedings against any person, direct oral evidence of a fact would be
admissible, any
statement of such fact contained in any document, whether such document purports to be an original
or a copy,
which—
(a) was made or kept by; or
(b) is proved to have been in the course of transmission to or at any time in the custody or under the
control
of;
that person, or any employee or agent of that person acting within the scope of his employment or
authority, shall
be admissible as evidence of that fact against that person.
(3) Where it is alleged that two or more persons are involved in the same offence, any statement that is
admissible
in evidence in terms of subsection (2) against one such person in respect of such offence shall be
admissible
in evidence against the other such person or persons.
(4) For the purposes of subsection (2), any document or copy thereof which was made or kept by or at
any
time was in the custody or under the control of an employee or agent of a person referred to in that
subsection
shall be presumed to have been made or kept by or to have been in the custody or under the control of
such employee
or agent within the scope of his employment or authority as such, unless the contrary is proved.
282 Admissibility of certain trade or business records
(1) In this section—
“document” includes any thing on or in which information is recorded;
“statement” includes any representation of fact, whether made in words or figures or otherwise.
(2) In any criminal proceedings in which direct oral evidence of a fact would be admissible, any
statement of
such fact contained in a document, whether such document purports to be an original or a copy, shall,
upon the
mere production of the document by any person, be admissible as evidence of that fact if—
(a) that fact relates to any transaction or intended transaction, either inside or outside Zimbabwe, in
the
course of any trade, business or occupation of whatsoever kind or to any other matter in connection
with
such trade, business or occupation; and
(b) that document is part of or that fact has been obtained from records kept in the course of that trade,
business or occupation and compiled from information supplied, directly or indirectly, by a person
who
had or who may reasonably be supposed to have personal knowledge of the matter dealt with in that
information;
and
(c) the person who supplied that information is outside Zimbabwe or is unknown or is not available to
give
oral evidence for any reason whatsoever.
(3) For the purpose of deciding whether or not a statement is admissible as evidence in terms of
subsection
(2), the court may draw any reasonable inference from the form or content of the document in which
the statement
is contained or, in the case of a document received from outside Zimbabwe, from the form or content
of any other
document which accompanied such document when it was received in Zimbabwe.
283 Weight to be attached to statements admissible under section 281 or 282
In estimating the weight, if any, to be attached to a statement admissible in terms of section two
hundred and
eighty-one or two hundred and eighty-two, a court shall have regard to all the circumstances, whether
appearing
from the document concerned or otherwise.
284 Endorsements on negotiable instruments
(1) In this section—
“banking business” means the business of any commercial bank, accepting house, confirming house,
discount
house, building society, savings bank or other financial institution;
“negotiable instrument” means any bill of exchange, letter of credit, cheque, draft or other document,
whether negotiable or not, which has been drawn or issued either inside or outside Zimbabwe and is
intended
to enable any person to obtain, either directly or indirectly, any sum of money, whether in
Zimbabwean
or foreign currency.
(2) Where in any criminal proceedings any negotiable instrument is produced before a court, and there
appears
upon such negotiable instrument any stamp, signature, writing, inscription or other mark which
purports to
have been made by any person or institution purporting to carry on banking business outside
Zimbabwe, it shall be
presumed, unless the contrary is proved, that such stamp, signature, writing, inscription or mark was
made by that
person or institution outside Zimbabwe and, if any date is specified in or in connection with such
stamp, signature,
writing, inscription or mark, that the same was made on that date.
I. Special provisions as to bankers books
285 Interpretation in sections 286, 287, 288 and 289
In this section and in sections two hundred and eighty-six, two hundred and eighty-seven, two hundred
and
eighty-eight and two hundred and eighty-nine—
“bank” means—
(a) any commercial bank, accepting house, discount house or finance house registered under the
Banking Act [Chapter 24:20]; or
[Paragraph amended by section 82 of Act 9 of 1999]
(b) the Post Office Savings Bank of Zimbabwe operating under the Post Office Savings Bank Act
[Chapter 24:10]; or
(c) any building society registered under the Building Societies Act [Chapter 24:02]; or
(d) the Corporation as defined in section 2 of the Agricultural Finance Corporation Act [Chapter
18:02]; or
[Paragraph amended by section 29 of Act 14 of 1998.]
(e) any foreign bank;
“bankers books” means ledgers, day-books, cash-books and other books or records of account kept by
a bank
in the usual and ordinary course of business;
“bankers document” means any form or document relating to the deposit, payment, transfer or
removal of
moneys which is received or executed by a bank in the usual and ordinary course of business and
includes
any instruction or notification in writing so received or executed by a bank in relation to any moneys
held by or on account with that bank;
“foreign bank” means any person carrying on outside Zimbabwe, in a country specified by the
Minister responsible
for justice by notice in a statutory instrument, for the purposes of this section, the business of a
bank, building society or other such financial institution as is mentioned in paragraph (a), (b), (c) or
(d)
of the definition of “bank”.
286 Entries in bankers books and bankers documents admissible in evidence in
certain cases
(1) The entries in any bankers books shall be admissible as prima facie evidence of the matters,
transactions
and accounts recorded therein on proof being given by the affidavit of any director, manager or officer
of the bank
concerned or by other evidence that—
(a) such bankers books are or have been the ordinary books of the bank; and
(b) the said entries have been made in the usual and ordinary course of business; and
(c) the bankers books are in, or come immediately from, the custody or control of the bank.
(2) Any bankers documents shall be admissible as prima facie evidence of the matters or transactions
recorded
therein or endorsed thereon on proof being given by the affidavit of any director, manager or officer of
the
bank concerned or by other evidence that such document—
(a) has been received or executed and kept by the bank in the usual and ordinary course of business;
and
(b) is in, or comes immediately from, the custody or control of the bank.
(3) Any document which purports—
(a) to be an affidavit of a person who is director, manager or officer of a bank; and
(b) to have been made before a person who is qualified in the country concerned to administer an oath;
shall be admissible upon its mere production.
287 Examined copies admissible after due notice
(1) Subject to this section and section two hundred and eighty-nine, a copy of any entry in any bankers
book
or of any bankers document may be proved in any criminal proceedings as evidence of such entry or
document
without production of the original by means of the affidavit of a person who has examined the same
stating—
(a) the fact of that examination; and
(b) that the copy sought to be put in evidence is correct.
(2) No bankers book or copy of an entry therein contained and no bankers document or copy thereof
shall be
adduced or received in evidence under subsection (1) unless ten days’ notice in writing, or such other
notice as
may be ordered by the court before which the proceedings are being or are to be conducted, containing
a copy of
the entries or documents proposed to be adduced and of the intention to adduce the same in evidence
has been
given by the party proposing to adduce the same in evidence:
Provided that such notice shall not be necessary if the other party to the proceedings waives his right
to such
notice.
(3) On the application of any party who has received notice in terms of subsection (2) which relates to
the
bankers books or bankers documents of a bank which—
(a) is not a foreign bank, the court before which the proceedings are being or are to be conducted may
order
that such party be at liberty to inspect and to take copies of any entry or entries in the bankers books or
of the bankers documents of the bank concerned and such orders may be made by the court in its
discretion,
either with or without summoning before it such bank or the other party, and shall be intimated to
such bank at least three days before the copies are required;
(b) is a foreign bank, the court before which the proceedings are being or are to be conducted may
issue a
commission to any fit and proper person outside Zimbabwe authorizing that person to take the
evidence
of any witness specified in the commission as to the correctness of the copies sought to be adduced
and
as to any matters that may be contained in the bankers books or the bankers documents of the bank
concerned
relating to the matters in question in the criminal proceedings and the provisions of sections two
hundred and forty, two hundred and forty-one, two hundred and forty-two and two hundred and
fortythree
shall apply, mutatis mutandis, to such commission.
(4) Any document which purports—
(a) to be an affidavit of a person who has examined an entry in a bankers book or a bankers document
and
stating the things referred to in paragraphs (a) and (b) of subsection (1); and
(b) to have been made before a person who is qualified in the country concerned to administer an oath;
shall be admissible upon its mere production.
288 Bank not compelled to produce any books unless ordered by court
A bank shall not be compelled to produce its bankers books or any bankers documents in any criminal
proceedings
unless the court specially orders that such bankers books or bankers documents shall be produced.
289 Sections 286, 287 and 288 not to apply to proceedings to which bank is party
Nothing in sections two hundred and eighty-six, two hundred and eighty-seven and two hundred and
eightyeight
shall apply to any criminal proceedings to which the bank whose bankers books or bankers documents
may
be required to be produced in evidence is a party.
J. Privileges of witnesses
290 Privileges of accused persons when giving evidence
An accused person called as a witness upon his own application shall not be asked, and if asked shall
not be
required to answer, any question tending to show that he has committed, or has been convicted of, or
has been
charged with, any offence other than that with which he is then charged, or is of bad character, unless
—
(a) he has personally or by his legal representative asked questions of any witness with a view to
establishing,
or has himself given evidence of, his own good character, or unless the nature or conduct of the
defence
is such as to involve imputation of the character of the prosecutor or the witnesses for the
prosecution; or
(b) he has given evidence against any other person charged with the same offence; or
(c) the proceedings against him are such as are described in section three hundred and five or three
hundred
and six, and the notice required by the section concerned has been given to him; or
(d) the proof that he has committed or been convicted of such other offence is admissible to show that
he is
guilty of the offence wherewith he is then charged.
291 Privilege arising out of marital state
(1) A husband shall not be compelled to disclose any communication made to him by his wife during
ma rriage,
and a wife shall not be compelled to disclose any communication made to her by her husband during
the
marriage.
(2) A person whose marriage has been dissolved or annulled by a competent court shall not be
compelled to
give evidence as to any matter or thing which occurred during the subsistence of the marriage or
supposed ma rriage,
and as to which he or she could not have been compelled to give evidence if the marriage still
subsisted.
292 No witness compellable to answer question which witness’ husband or wife might
decline
No person shall be compelled to answer any question or to give any evidence if the question or
evidence is
such that under the circumstances the husband or wife of such person, if under examination as a
witness, might
lawfully refuse and could not be compelled to answer or give.
293 Witness not excused from answering question by reason that answer would
establish civil
claim against him
A witness in criminal proceedings may not refuse to answer a question relevant to the issue, the
answering of
which has no tendency to accuse himself or to expose him to penalty or forfeiture of any nature
whatsoever by
reason only that the answering of such question may establish or tend to establish that he owes a debt
or is otherwise
subject to a civil suit.
294 Privilege of professional advisers
No legal practitioner duly qualified to practise in any court, whether within Zimbabwe or elsewhere,
shall be
competent to give evidence against any person by whom he has been professionally employed or
consulted,
without the consent of that person, as to any fact, matter or thing as to which such legal practitioner,
by reason of
such employment or consultation and without such consent, would not be competent to give evidence
in any
similar proceedings depending in the Supreme Court of Judicature in England:
Provided that no such legal practitioner shall in any proceedings, by reason of any such employment
or consultation,
be incompetent or not legally compellable to give evidence as to any fact, matter or thing relative to or
connected with the commission of any offence for which the person by whom such legal practitioner
has been so
employed or consulted is in such proceedings prosecuted, when such fact, matter or thing came to the
knowledge
of such legal practitioner before he was professionally employed for or consulted with reference to the
defence of
such person against such prosecution.
295 Privilege from disclosure of facts on grounds of public policy
No witness shall, except as in this Act is provided, be compellable or permitted to give evidence in
any criminal
proceedings as to any fact, matter or thing, or as to any communication made to or by such witness, as
to
which, if the case were depending in the Supreme Court of Judicature in England, such witness would
not be
compellable or permitted to give evidence by reason that such fact, matter or thing or communication,
on grounds
of public policy and from regard to public interest, ought not to be disclosed and is privileged from
disclosure:
Provided that it shall be competent for any person to produce or to give evidence of any
communication alleging
the commission of an offence at any trial upon a charge that the making of such communication
constituted
perjury or the statutory offence of making a false statement in an affidavit or solemn or attested
declaration.
[Section amended by section 28 of Act 9 of 2006.]
296 Privilege arising out of State security
(1) Notwithstanding this Act or any other law, no person shall be compellable or permitted to give
evidence
or to furnish any information in any criminal proceedings as to any fact, matter or thing or as to any
communication
made to or by such person and no book or document shall be produced in any such proceedings if an
affidavit,
purporting to have been signed by the Minister responsible in respect of such fact, matter, thing,
communication, book or document, is produced to the court or magistrate to the effect that the
Minister has personally
considered the said fact, matter, thing, communication, book or document and that, in his opinion, it
affects the security of the State and disclosure thereof would, in his opinion, prejudicially affect the
security of the
State.
(2) Nothing in subsection (1) shall derogate from any law relating to the matters referred to therein
and that
subsection shall be additional to, and not in substitution of, any such law.
297 Witness excused from answering questions answers to which would expose him
to penalties
or degrade his character
No witness in any criminal proceedings shall, except as provided by this Act or any other enactment,
be compelled
to answer any question which, if he were under examination in any similar case depending in the
Supreme
Court of Judicature in England, he would not be compelled to answer by reason that his answer might
have a
tendency to expose him to any pains, penalty, punishment or forfeiture or to a criminal charge or to
degrade his
character:
Provided that, notwithstanding anything to the contrary in this section, an accused person called as a
witness
on his own application in accordance with section two hundred and forty-eight may be asked any
question in
cross-examination, notwithstanding that it would tend to incriminate him as to the offence charged
against him.
K. Special rules of evidence in particular cases
298 Evidence on charge of treason
On the trial of a person charged with treason, evidence shall not be admitted of any overt act not
alleged in
the indictment, unless relevant to prove some other overt act alleged therein.
299 Evidence on charge of perjury or subornation
On the trial of a person charged with an offence of which the giving of false testimony by any person
at the
trial of a person charged with an offence is an element, a certificate setting out the substance and
effect only,
without the formal parts, of the indictment, summons or charge, and the proceedings at the trial, and
purporting to
be signed by the officer having the custody of the records of the court where the indictment, summons
or charge
was tried, or by his deputy, shall be sufficient evidence of the trial without proof of the signature or
official cha racter
of the person who appears to have signed the certificate.
300 Evidence on charge of bigamy
(1) Subject to this section and section three hundred and one, on the trial of a person charged with
bigamy, it
must be proved that a lawful and binding marriage between the accused and another person existed at
the time
when the offence is alleged to have been committed.
(2) On the trial of a person charged with bigamy, as soon as the fact of a marriage ceremony in
Zimbabwe
between the accused and another person has been proved, the marriage shall be deemed to have been
lawful and
binding as between them at the date thereof unless it is shown that they were within the prohibited
degrees of
consanguinity or affinity, or that owing to a then subsisting marriage one of them was incapable of
contracting a
lawful and binding marriage with the other.
(3) On the trial of a person charged with bigamy, as soon as the alleged bigamous marriage, wherever
solemnized,
has been proved, the fact that shortly before the alleged bigamous marriage the accused had been
cohabiting
with the person to whom the accused is alleged to be lawfully married and had been treating and
recognizing
such person as a spouse shall, if in addition there is evidence of the performance of a marriage
ceremony between
the accused and such person, be prima facie evidence that there was a lawful and binding marriage
subsisting
between the accused and such person at the time of the solemnization of the alleged bigamous
marriage.
301 Proof of marriage
When the fact that any lawful and binding marriage was contracted is relevant to the issue at any
criminal
trial, such fact shall be presumed unless the contrary is proved—
(a) where the marriage is alleged to have been solemnized in any part of Zimbabwe, as soon as there
has
been produced to the court—
(i) in the case of a marriage in terms of the Marriage Act [Chapter 5:11] or any Act repealed by that
Act, a copy of an entry in a marriage register or a duplicate original thereof which purports to be
certified by a district administrator or the Registrar of Marriages referred to in section 30 of that
Act, as the case may be, or a duplicate original register of the entry;
(ii) in the case of a marriage in terms of the Customary Marriages Act [Chapter 5:07] or any Act
repealed by that Act, a copy from the marriage register, which purports to be certified as a true
copy by a customary marriage officer as defined in section 2 of that Act, or a duplicate original
register of the entry;
(b) where the marriage is alleged to have been solemnized outside Zimbabwe, as soon as there has
been
produced to the court a document which purports to be an extract from a marriage register kept
according
to law in the country where the marriage is alleged to have been solemnized, and which also purports
to be certified as such by an officer or person having the custody of that register:
Provided that the signature of such officer or person to the certificate shall be authenticated in
accordance
with any enactment governing the authentication of documents executed outside Zimbabwe;
(c) wherever the marriage is alleged to have been solemnized, as soon as the fact of the marriage
ceremony
has been proved.
302 Evidence of relationship on charge of incest
On the trial of a person charged with incest—
(a) it shall be sufficient to prove that the woman or girl on whose person or by whom the offence is
alleged
to have been committed is reputed to be related within the prohibited degree of consanguinity or
affinity
to the other party to the incest;
(b) the accused person shall, until the contrary is proved, be presumed to have had knowledge at the
time of
the alleged offence of the relationship existing between him or her and the other party to the incest.
302A Testing of persons accused of sexual offences for HIV infection
(1) In this section—
“accused person” means a person accused of committing a sexual offence;
“designated person”…
[Definition repealed by section 25 of Act 9 of 2006.]
“sexual offence”…..
[Definition repealed by section 25 of Act 9 of 2006.]
(2) For the purposes of section 80 of the Criminal Law Code (“Sentence for certain crimes where
accused is
infected with HIV”), and without derogation from any other law, when an accused person is first
brought before a
court for remand on a charge of committing a sexual offence, or at any later stage, the court shall
direct that an
appropriate sample or samples be taken from the accused person, at such place and subject to such
conditions as
the court may direct, for the purpose of ascertaining whether or not he or she is infected with HIV.
(3) Where a court has given a direction under subsection (2), any medical practitioner or suitably
qualified
nurse shall, if so requested in writing by a police officer above the rank of constable, take an
appropriate sample
from the accused person, and may use such force as is reasonably necessary in order to take the
sample:
Provided that the medical practitioner or suitably qualified nurse may decline to take an appropriate
sample in
terms of this subsection if he or she considers that such taking would be prejudicial to the health or
proper care or
treatment of the accused person.
[Subsection amended by section 25 of Act 9 of 2006.]
(4) An appropriate sample taken in terms of subsection (3)—
(a) shall consist of blood, urine or other tissue or substance as may be determined by the medical
practitioner
or suitably qualified nurse concerned, in such quantity as is reasonably necessary for the purpose of
determining whether or not the accused person is infected with HIV; and
(b) in the case of a blood or tissue sample, shall be taken from a part of the accused person’s body
selected
by the medical practitioner or suitably qualified nurse concerned in accordance with accepted medical
practice.
[Subsection amended by section 25 of Act 9 of 2006.]
(5) The sample or samples taken from an accused person in terms of this section shall be tested for
HIV as
soon as possible and be stored at an appropriate place until the conclusion of the trial:
Provided that—
(i) the results of the testing shall not be revealed at any time before or during the trial, and only be
revealed after the conclusion of the trial if the accused person is convicted of a sexual offence;
(ii) every sample taken from an accused person in terms of this section shall be destroyed if the
accused person is acquitted.
(6) Without prejudice to any other defence or limitation that may be available in terms of any law, no
claim
shall lie and no set-off shall operate against—
(a) the State; or
(b) any Minister; or
(c) any medical practitioner or suitably qualified nurse;
in respect of any detention, injury or loss caused by or in connection with the taking of an appropriate
sample in
terms of subsection (3), unless the taking was unreasonable or done in bad faith or the person who
took the sample
acted negligently.
[Subsection amended by section 25 of Act 9 of 2006.]
(7) Any person who, without reasonable excuse, hinders or obstructs the taking of an appropriate
sample in
terms of subsection (3) shall be guilty of an offence and liable to a fine not exceeding level seven or
imprisonment
for a period not exceeding two years or both.
[Section inserted by Act 23 of 2004]
303 Evidence on charge of infanticide or concealment of birth
(1) On the trial of a person charged with infanticide in terms of the Infanticide Act [Chapter 9:12], or
with
murder or culpable homicide of a newly born child, the child in respect of which the offence was
committed shall
be deemed to have been born alive if it is proved to have breathed, whether or not it has had an
independent
circulation, and it shall not be necessary to prove that such child was at the time of its death entirely
separated
from the body of its mother.
(2) On the trial of a person charged with the concealment of the birth of a child, it shall not be
necessary to
prove whether the child died before, at or after its birth.
304 Evidence as to counterfeit coin
When upon the trial of any person it becomes necessary to prove that any coin produced in evidence
against
him is false or counterfeit, it shall be sufficient to prove that fact by the evidence of any credible
witness.
305 Evidence on charge of receiving
(1) When proceedings are taken against any person for having received stolen goods knowing them to
be stolen,
or for having in his possession stolen property or anything obtained by means of an offence knowing
the same
to have been stolen or so obtained, evidence may be given at any stage of the proceedings that there
was found in
the possession of such person other property stolen or obtained by some such offence as aforesaid
within the
period of twelve months preceding the time when such person was first charged before a magistrate
with the
offence in respect of which proceedings are being taken.
(2) Evidence such as is referred to in subsection (1) may be taken into consideration for the purpose of
proving
that the person concerned knew the property which forms the subject of the proceedings taken against
him to
have been stolen or obtained by an offence referred to in that subsection:
Provided that not less than three days’ notice in writing shall be given to the accused that proof is
intended to
be given of such other property stolen or obtained by some such offence as aforesaid within the
preceding period
of twelve months having been found in his possession, and such notice shall specify the nature or
description of
such other property and the person, if known, from whom the same was stolen or obtained by means
of an offence.
306 Evidence of previous conviction on charge of receiving
When proceedings are taken against any person for having received stolen goods knowing them to be
stolen,
or for having in his possession stolen property or property obtained by means of an offence, and
evidence has
been given that the stolen property or property obtained by means of an offence has been found in his
possession,
then if such person has, within five years immediately preceding the time when such person was first
charged
before a magistrate with the offence for which he is being proceeded against, been convicted of an
offence involving
fraud or dishonesty, evidence of such previous conviction may be given at any stage of the
proceedings and
may be taken into consideration for the purpose of proving that the accused knew that the property
which was
proved to be in his possession was stolen or was property obtained by means of an offence:
Provided that not less than three days’ notice in writing shall be given to the accused that proof is
intended to
be given of such previous conviction.
307 Evidence of counterfeit coin
Upon the trial of any person accused of any offence respecting currency or coin, no difference in the
date or
year or in any legend marked upon the lawful coin described in the indictment and the date or year or
legend
marked upon the false coin counterfeited to resemble or pass for such lawful coin, or upon any die,
plate, press,
tool or instrument used, constructed, devised, adapted or designed for the purpose of counterfeiting or
imitating
any such lawful coin, shall be considered a just or lawful cause or reason for acquitting any such
person of such
offence, and it shall in any case be sufficient to prove such general resemblance to the lawful coin as
will show an
intention that the counterfeit should pass for it.
308 Evidence on trial for defamation
On the trial of a person charged with the unlawful publication of defamatory matter which is
contained in a
periodical, after evidence sufficient in the opinion of the court has been given of the publication by the
accused of
the number or part of the periodical containing the matter complained of, other writings or prints
purporting to be
other numbers or parts of the same periodical previously or subsequently published and containing a
printed
statement that they were published by or for the accused shall be admissible in evidence on either side
without
further proof of their publication.
309 Evidence on charge of theft against employee or agent
(1) At the trial of any person charged with theft while employed in any capacity in the Public Service
or by
the State of money or any other property which belonged to the State or vested in the President, or
which came
into such person’s possession by virtue of the employment, or charged with theft while an employee
or agent of
money or any other property which belonged to his employer or principal, or which came into his
possession on
account of his employer or principal, an entry in any book of account kept by the accused, or kept
under or subject
to his charge or supervision, purporting to be an entry of the receipt of any money or other property,
shall be
evidence that the money or other property so purporting to have been received was so received by
him.
(2) On the trial of a person charged with any offence referred to in subsection (1), it shall not be
necessary to
prove the theft by the accused of any specific sum of money or specific goods or articles if, on the
examination of
the books of account or entries kept or made by him or kept or made in, under or subject to his charge
or supervision,
or by any other evidence, there is proof of a general deficiency, and if the court is satisfied that the
accused
stole the deficient money or part of it or the deficient goods or articles or any part thereof.
310 Evidence on charge relating to seals and stamps
On the trial of a person charged with any offence relating to any seal or stamp used for purposes of the
public
revenue or of the post office in any foreign country, a dispatch from the officer admini stering the
government of
such country, transmitting to the President any stamp, mark or impression and stating it to be a
genuine stamp,
mark or impression of a die, plate or other instrument provided, made or used by or under the
direction of the
proper authority of such country for the purpose of denoting any stamp duty or postal charge, shall be
admissible
as evidence of the facts stated in the dispatch, and the stamp, mark or impression so transmitted may
be used by
the court or witnesses for the purposes of comparison.
L. Miscellaneous matters relating to evidence in criminal proceedings
311 Impounding documents
When any instrument which has been forged or fraudulently altered is admitted in evidence, the court,
judge
or person who admits the instrument may, at the request of the State or of any person against whom it
is admitted
in evidence, direct that it shall be impounded and kept in the custody of some officer of the court or
other proper
person for such period and subject to such conditions as to the court, judge or person admitting the
instrument
seems fit.
312 Cutting counterfeit coin
If any false or counterfeit coin is produced on any trial for an offence against currency or coin, the
court shall
order the same to be cut in pieces in open court or in the presence of a magistrate, and then delivered
to or for the
lawful owner thereof if such owner claims the same.
313 Unstamped instruments admissible in criminal cases
Any instrument liable to stamp duty shall be admitted in evidence in any criminal proceedings,
although it
may not be stamped as required by law.
314 Admissions of fact
(1) In any criminal proceedings the accused or his legal representative or the prosecutor may admit
any fact
relevant to the issue and any such admission shall be sufficient evidence of that fact.
(2) If he considers it desirable for the purpose of clarifying the facts in issue or for obviating the
adduction of
evidence on facts which do not appear to be in dispute, the judge or magistrate may, during the course
of a trial
and on application by the prosecutor, the accused or his legal representative ask the accused or his
legal representative
or the prosecutor, as the case may be, whether any fact relevant to the issue is admitted in terms of this
section.
[Subsection amended by section 28 of Act 9 of 2006.]
(3) Subject to this Act, an accused who is not represented by a legal practitioner shall be warned that
he is
not obliged to make any admission.
315 Presumption that accused possessed particular qualification or acted in particular
capacity
If an act or omission constitutes an offence only when committed by a person possessing a particular
qualification
or vested with a particular authority or acting in a particular capacity, a person charged with such
offence
upon an indictment, summons or charge alleging that he possessed such qualification or was vested
with such
authority or was acting in such capacity shall, at his trial, be deemed to have possessed such
qualification or to
have been vested with such authority or to have been acting in such capacity at the time of the
commission of the
alleged offence, unless he has denied that allegation within three days of notice being served upon him
calling
upon him to admit it:
Provided that if after the prosecutor has closed his case the allegation is denied or evidence is led to
disprove
it, the prosecutor may adduce any evidence and submit any argument in support of the allegation as if
he had not
closed his case.
316 Impeachment and support of witness credibility
It shall be competent for any party in criminal proceedings to impeach or support the credibility of any
witness
called against or on behalf of that party in any manner and by any evidence in and by which, if the
proceedings
were before the Supreme Court of Judicature in England, the credibility of such witness might be
impeached
or supported by such party, and in no other manner and by no other evidence whatever:
Provided that any such party who has called a witness who has given evidence in any such
proceedings,
whether that witness is or is not, in the opinion of the judge or judicial officer presiding at such
proceedings,
adverse to the party calling him, may, after the said party or the said judge or judicial officer has asked
the witness
whether he has or has not previously made a statement with which his testimony in the said
proceedings is inconsistent
and after sufficient particulars of the alleged previous statement to designate the occasion when it was
made have been mentioned to the witness, prove that he previously made a statement with which his
said testimony
is inconsistent.
317 Cases not provided for by this Part
In criminal proceedings, in any case not provided for in this Part, the law as to admissibility of
evidence and
as to the competency, examination and cross-examination of witnesses in force in criminal
proceedings in the
Supreme Court of Judicature in England shall be followed in like cases by the courts of Zimbabwe.
318 English laws applicable
The laws in force in the Supreme Court of Judicature in England which are applied by this Act shall
not include
any amendment thereto made on or after the 1st June, 1927, by any statute of England.
319 Saving as to special provisions in any other enactment
Nothing in this Part shall be construed as modifying those provisions of any enactment whereby in
any criminal
matter specially referred to or provided in such enactment a person is deemed to be a competent
witness or
certain specified facts and circumstances are deemed to be evidence, or a particular fact or
circumstance may be
proved in a manner specified therein.
PART XIVA
PROTECTION OF VULNERABLE WITNESSES
319A nterpretation in Part XIVA
In this Part
“intermediary” means a person appointed as an intermediary in terms of paragraph (i) of section three
hundred
and nineteen B:
“support person” means a person appointed as a support person in terms of paragraph (ii) of section
three
hundred and nineteen B;
“vulnerable witness” means a person for whom any measure has been or is to be taken in terms of
section
three hundred and nineteen B.
319B Measures to protect vulnerable witnesses
If it appears to a court in any criminal proceedings that a person who is giving or will give evidence in
the
proceedings is likely—
(a) to suffer substantial emotional stress from giving evidence or
(b) to be intimidated, whether by the accused or any other person or by the nature of the proceedings
or by
the place where they are being conducted, so as not to be able to give evidence fully and truthfully;
the court may, subject to this Part, do any one or more of the following, either mero motu or on the
application of
a party to the proceedings—
(i) appoint an intermediary for the person;
(ii) appoint a support person for the person;
(iii) direct that the person shall give evidence in a position or place, whether in or out of the accused’s
presence, that the court considers will reduce the likelihood of the person suffering
stress or being intimidated:
Provided that, where the person is to give evidence out of the accused’s presence, the court
shall ensure that the accused and his legal representative are able to see and hear the person giving
evidence, whether through a screen or by means of closed-circuit television or by some other
appropriate means;
(iv) adjourn the proceedings to some other place, where the court considers the person will be less
likely to be subjected to stress or intimidation;
(v) subject to section 18 of the Constitution, make an order in terms of the Courts and Adjudicating
Authorities (Publicity Restriction) Act [Chapter 7:04] excluding all persons or any class of persons
from the proceedings while the person is giving evidence.
319C Factors to be considered in deciding whether or not to protect vulnerable
witness
(1) When deciding whether or not to take any measure under section three hundred and nineteen B,
the court
shall pay due regard to the following considerations—
(a) the vulnerable witness’s age, mental and physical condition and cultural background; and
(b) the relationship, if any, between the vulnerable witness and any other party to the proceedings; and
(c) the nature of the proceedings; and
(d) the feasibility of taking the measure concerned; and
(e) any views expressed by the parties to the proceedings; and
(f) the interests of justice.
(2) To assist the court in deciding whether or not to take any measures under section three hundred
and nineteen
B, the court may interview the vulnerable witness concerned out of the sight and hearing of the parties
to the
proceedings:
Provided that at such an interview the merits of the case shall not be canvassed or discussed.
319D Court to give parties opportunity to make representations
Before taking a measure under section three hundred and nineteen B, the court shall afford the parties
to the
proceedings an opportunity to make representations in the matter.
319E Court may rescind measure taken to protect vulnerable witness
Without derogation from any other law, a court may at any time rescind a measure taken by it under
section
three hundred and nineteen B, and shall do so if the court is satisfied that it is in the interests of justice
to do so.
319F ersons who may be appointed as intermediaries or support persons
(1) Except in special circumstances, which the court shall record, a court shall not appoint a person as
an intermediary
unless that person—
(a) is or has been employed by the State as an interpreter in criminal cases; and
(b) has undergone such training in the functions of an intermediary as the Minister may approve.
(2) In appointing a support person for a vulnerable witness, the court shall select a parent, guardian or
other
relative of the witness, or any other person who the court considers may provide the witness with
moral support
whilst the witness gives evidence.
319G Functions of intermediary or support person
(1) Where an intermediary has been appointed for a vulnerable witness, no party to the criminal
proceedings
concerned shall put any question to the vulnerable witness except through the intermediary:
Provided that the court may put any question to the witness directly or through the intermediary.
(2) Subject to any directions given by the court, an intermediary—
(a) shall be obliged to convey to the vulnerable witness concerned only the substance and effect of any
question put to the witness;
(b) may relay to the court the vulnerable witness’s answer to any question put to the witness:
Provided that when doing so the intermediary shall, so far as possible, repeat to the court the witness's
precise
words.
(3) Where a support person has been appointed for a vulnerable witness, the support person shall be
entitled
to sit or stand near the witness whilst the witness is giving evidence in order to provide moral support
for the
witness, and shall perform such other functions for that purpose as the court may direct.
319H Weight to be given to evidence of witness for whom intermediary or support
person
appointed
When determining what weight, if any, should be given to the evidence of a vulnerable witness for
whom an
intermediary or a support person has been appointed, the court shall pay due regard to the effect of the
appointment
on the witness’s evidence and on any cross-examination of the witness.
[Part as inserted by section 9 of Act 8 of 1997.]
PART XV
DISCHARGE OFACCUSED PERSONS
320 Dismissal of charge in default of prosecution
(1) If the prosecutor, whether public or private, does not appear on the court day appointed for the
trial, the
accused may move the court to discharge him, and the indictment, summons or charge may be
dismissed and,
when the accused or any other person on his behalf has been bound by recognizance for the
appearance of the
accused so to take his trial, may further move the court that such recognizance be discharged, and such
recognizance
may thereupon be discharged.
(2) Where the indictment is at the instance of a private party, the accused may move the court that the
private
prosecutor and his sureties shall be called on their recognizance and, in default of his appearance, that
the same be
estreated and the accused may also apply for an order directing the private prosecutor to pay the costs
incurred by
the accused in preparing his defence.
(3) Nothing in this section shall be construed as depriving the Attorney-General, or public prosecutor
with
his authority or on his behalf, of the right of withdrawing any indictment, summons or charge at any
time before
the accused has pleaded, and lodging a fresh indictment or charge or issuing and serving a fresh
summons for
hearing before the same or any other competent court.
321 Liberation of accused persons
Any person who is acquitted on any indictment, summons or charge or whose case has been dismissed
for
want of prosecution shall forthwith be discharged from custody.
322 Further proceedings against accused discharged for want of prosecution or
whose recognizance
has expired
(1) A person who—
(a) has been discharged in terms of section three hundred and twenty-one for want of prosecution; or
(b) has been admitted to bail but not duly brought to trial;
may be brought to trial in any competent court for any offence for which he was formerly committed
to prison or
admitted to bail at any time before the period of prescription for the offence has run out:
Provided that, subject to subsection (2), a person referred to in—
(a) paragraph (a) or (b) of this subsection shall not be liable to be committed to custody; or
(b) paragraph (b) of this subsection shall not be liable to find further bail;
in respect of proceedings for an offence referred to in this subsection.
(2) A person referred to in subsection (1) who was committed for trial for an offence referred to in that
subsection
may be prosecuted by the Attorney-General before the High Court for that offence, and if that person,
having been duly served with an indictment and notice of trial, fails to appear at the time mentioned in
such
notice, the court may, on the application of the Attorney-General, issue a warrant for his arrest and
detention in
prison until he can be brought to trial or until he finds bail for his appearance to stand his trial on the
said indictment.
PART XVI
PREVIOUS CONVICTIONS, FINGER-PRINTS, ETC.
323 Previous conviction not to be charged in indictment
Except where the fact of a previous conviction is an essential element of the offence with which a
person is
charged, it shall not be lawful in any indictment, summons or charge against any person for any
offence to allege
that such person had been previously convicted of any offence, whether in Zimbabwe or elsewhere.
[Section as amended by Act 23 of 2004]
324 Previous conviction not to be proved, except in certain circumstances
Except in circumstances specifically described in this Act, it shall not be lawful to prove at the trial of
any
person for any offence that he has been previously convicted of any offence, whether in Zimbabwe or
elsewhere,
or to ask any accused person, charged and called as a witness, whether he has been so convicted.
325 Tendering admission of previous conviction after accused has pleaded guilty or
been
found guilty
When any person indicted before the High Court for any offence has been previously convicted of any
offence,
whether in Zimbabwe or elsewhere, it shall be lawful for the prosecutor if the accused has in terms of
section eighty-six admitted that he has been so previously convicted and his admission has also been
subscribed
by the magistrate in accordance with that section, and if further he has pleaded guilty to or has been
found guilty
of the offence, and before sentence is pronounced, to tender the admission in proof of the previous
conviction, and
such admission shall be received by the court upon its mere production as proof of the previous
conviction unless
it is shown that the admission was not in fact duly made or that the signatures or marks thereto are not
in fact the
signatures or marks of the accused and the magistrate respectively:
Provided that if the accused made the admission in terms of section eighty-six, but refused to subscribe
the
same by signature or mark, a solemn declaration signed by the magistrate in terms of section eighty-
six, stating
that the accused did so make the admission but refused to subscribe the same, shall, upon its mere
production, be
sufficient evidence that the accused admitted the previous conviction.
326 Notice that proof of former conviction will be offered
(1) When any person indicted in the High Court for any offence has been previously convicted,
whether in
Zimbabwe or elsewhere, it shall be lawful for the prosecutor in that court, in cases in which the
procedure prescribed
by section eighty-six has not been followed or when he has denied such previous conviction, to give
notice
to him that, in the event of his pleading guilty or being found guilty of the offence for which he is
indicted, proof
will be given of such previous conviction.
(2) The period of the notice required under subsection (1) shall be not less than seventy-two hours.
327 Mode of proof of previous conviction
(1) When notice has been duly served on the accused that evidence of a previous conviction will be
given
against him as provided by section three hundred and twenty-six it shall be lawful, if the accused
pleads guilty or
after he has been found guilty, for the prosecutor before sentence is pronounced to offer to prove such
previous
conviction, and thereupon the court shall ask the accused whether he confesses that he is the person so
appearing
to have been previously convicted and whether he was so convicted as alleged.
(2) If such person does not confess that he has been so convicted, the court shall determine the truth as
to
such of the alleged previous convictions as the accused has not confessed or admitted in the manner
aforesaid.
[Subsection amended by section 28 of Act 9 of 2006.]
(3) If the trial is before a magistrates court, the prosecutor may, after the accused has pleaded guilty or
has
been found guilty, tender evidence of such previous convictions as he may allege in respect of the
accused and
thereupon the court shall ask the accused whether he is the person so alleged to have been previously
convicted,
and shall proceed to determine the truth as to such of the alleged previous convictions as the accused
has not
confessed or admitted.
(4) If on any trial any previous conviction is lawfully proved against the accused or if he confesses or
has
admitted such previous conviction, the court shall take it into consideration in determining sentence
for the offence
to which he has pleaded or of which he has been found guilty.
328 Taking of finger-prints, palm-prints or footprints after conviction
The court which has convicted an accused person may, at the request of the prosecutor, order that the
fingerprints,
palm-prints or footprints of that person be taken.
329 Finger-print and other records to be prima facie evidence of previous conviction
Notwithstanding any provision of the law of evidence, any finger-print records, photographs or other
documents
purporting to be certified under the hand of any police officer, prison officer or immigration officer of
Zimbabwe or elsewhere shall, at the trial of any person accused of any crime or offence, be admissible
before any
court as prima facie evidence against such accused person, either in proof of any previous conviction
or of any
other fact relative to the issue:
Provided that the said finger-print records, photographs or documents shall be produced to such court
by a
police officer, prison officer or immigration officer of Zimbabwe having the custody for the time
being of such
finger-print records, photographs or documents.
PART XVII
JUDGMENT ONCRIMINAL TRIAL
330 Withdrawing charges
(1) When an indictment, summons or charge containing more counts than one is framed against the
same
person, and when a conviction has been obtained on one or more of them, the prosecutor may
withdraw the
remaining charge or charges.
(2) A withdrawal in terms of subsection (1) shall have the effect of an acquittal on such charge or
charges,
unless the conviction is set aside.
(3) On the withdrawal of any charge, the court, subject to the order of the court setting aside the
conviction,
may, upon the application of the Attorney-General, proceed with the trial of the charge or charges so
withdrawn.
331 Arrest of judgment
(1) A person convicted of an offence by the High Court, whether on his plea of guilty or otherwise,
may at
any time before sentence apply to that court that judgment be arrested on the ground that the
indictment does not
disclose any offence.
(2) Upon the hearing of the application, the court may allow any such amendment of the indictment as
it
might have allowed before verdict.
(3) The court may either hear and determine the application forthwith or may reserve the question of
law for
the consideration of the Supreme Court and may nevertheless pass sentence forthwith.
332 Decision may be reserved
Any judge or magistrate presiding over a court before which any person is tried for an offence may
reserve
the giving of his final decision on questions raised at the trial, and his decision when given shall be
considered as
given at the time of trial.
333 Sentence in High Court
(1) If an application for arrest of judgment is not made or is dismissed, the High Court may either pass
sentence
upon the convicted person forthwith or may discharge him on his recognizance, as provided in Part
XVIII,
on condition that he shall appear and receive judgment at some future session of the court or when
called upon.
(2) If sentence is not passed forthwith, any judge may pass sentence upon the convicted person.
334 Provisions applicable to sentences in all courts
(1) All judgments and sentences in criminal proceedings before any court against persons who are of
or
above the age of eighteen years shall be pronounced in open court.
(2) A court may order that no person shall be present when judgment and sentence are pronounced in
any
criminal proceedings before any court against a person under the age of eighteen years or during the
proceedings
mentioned in subsection (3) in respect of the accused except—
(a) the accused and any person against whom such proceedings are being held jointly with the
accused;
(b) the legal representative or spouse of the accused and any co-accused;
(c) a parent or guardian or person in loco parentis of the accused and of any co-accused who is under
the
age of eighteen years;
(d) an officer of court;
(e) a person whose presence is necessary in connection with such proceedings;
(f) a person authorized to be present at such proceedings by the judge or magistrate presiding thereat.
(3) The court may, before passing sentence and for the purpose of informing itself as to proper
sentence to be
passed, receive—
(a) evidence on oath, including hearsay evidence;
(b) affidavits and written reports which may be tendered by the prosecutor, the accused or his legal
representative;
(c) written statements made by the prosecutor, the accused or his legal representative;
(d) statements not on oath made by the accused:
Provided that—
(i) no hearsay evidence, other than evidence of a statistical nature, and no affidavit, written report or
written statement shall be called or tendered by the prosecutor unless the accused or his legal
representative consents thereto;
(ii) no hearsay evidence, other than evidence of a statistical nature, and no affidavit, written report or
written statement shall be called or tendered by the accused or his legal representative unless the
prosecutor consents thereto;
(iii) the court in which any affidavit or written report is tendered may cause the person making it to
be summoned to give oral evidence in the proceedings;
(iv) no hearsay evidence, other than evidence of a statistical nature, shall be given by a witness called
by the court pursuant to its powers conferred by section two hundred and thirty-two unless both
the prosecutor and the accused or his legal representative consent thereto.
(4) …..
[Subsection repealed by section 26 of Act 9 of 2006.]
(5) Where an accused has been convicted of any offence otherwise than in terms of section two
hundred and
seventy-one, the provisions of subsection (5) of that section shall apply, mutatis mutandis.
(6) Any warrant for the execution of any sentence passed in a criminal case by any court may be
issued either
by the judge or magistrate who passed the sentence or by any other judge or magistrate of that court.
(7) If, in a magistrates court, sentence is not passed upon an offender forthwith upon his conviction or
if, by
reason of any decision or order of the Supreme Court or High Court, as the case may be, on appeal,
review or
otherwise, it is necessary to add to or vary any sentence passed in a magistrates court, or to pass
sentence anew in
such court, any magistrate of that court may, in the absence of the magistrate who convicted the
offender or
passed the sentence, as the case may be, pass sentence on the offender after consideration of the
evidence recorded
and in the presence of the offender.
335 Consideration of other offences admitted by accused
(1) Upon convicting an accused of any offence, the court may, with the prosecutor’s consent and on
application
by the accused, pass sentence upon the accused for other untried offences as if they had been
separately
charged if the court is satisfied that the accused freely and voluntarily admits having committed those
other offences.
(2) Notwithstanding anything to the contrary in section 56 of the Magistrates Court Act [Chapter
7:10], a
magistrates court may, in terms of subsection (1), pass sentence upon the accused for an offence
notwithstanding
the fact that no act, omission or event which is an element of the offence took place in the province or
regional
division for which the court is established.
(3) If the court passes sentence upon the accused for an offence in terms of subsection (1), the court
shall record—(
a) the date, place and nature of the offence; and
(b) the sentence passed upon the accused in respect thereof;
and the accused shall be deemed to have been convicted and sentenced for the offence.
(4) If the conviction of the offence with which the accused was charged is set aside on appeal or
review, the
conviction and sentence referred to in subsection (3) shall be deemed to be set aside:
Provided that no person shall be entitled to plead that he has already been acquitted of an offence with
which
he is charged by virtue of the setting aside of a conviction in terms of this subsection.
PART XVIII
PUNISHMENTS
335A Interpretation in Part XVIII
In this Part
“community service” means any service for the benefit of the community or a section thereof which
an offender
is required to render in terms of community service order or an order made under section three
hundred and forty-seven or three hundred and fifty-eight;
“community service order” means an order under section three hundred and fifty A.
[Section inserted by section 10 of Act 8 of 1997.]
336 Nature of punishments
(1) Subject to this Act and any other law, a court may impose the following punishments upon a
convicted
offender—
(a) in the case of the High Court, sentence of death, where the offender is convicted of an offence
referred
to in section three hundred and thirty-seven;
(b) imprisonment for life;
[Paragraph as substituted by section 11 of Act 8 of 1997.]
(b1) imprisonment for a determinate period;
[Paragraph inserted by section 11 of Act 8 of 1997.]
(c) extended imprisonment in terms of section three hundred and forty-six;
(d) a fine;
(d1) community service;
[Paragraph inserted by section 11 of Act 8 of 1997.]
(e) where the convicted person is a male person under the age of eighteen years, corporal punishment;
(f) putting the convicted person under recognizance with conditions.
(2) Nothing in subsection (1) shall be construed as—
(a) authorizing a court to impose for any offence a punishment other than, or in excess of, the
punishment
which by law it is competent for that court to impose for that offence; or
(b) preventing a court from imposing a punishment other than a punishment referred to in subsection
(1),
where the court is specially authorized by any enactment to impose such other punishment.
A. Sentence of death
337 Sentence of death for murder
Subject to section three hundred and thirty-eight, the High Court—
(a) shall pass sentence of death upon an offender convicted by it of murder:
Provided that, if the High Court is of the opinion that there are extenuating circumstances or if the
offender is a woman convicted of the murder of her newly-born child, the court may impose
(a) a sentence of imprisonment for life; or
(b) any sentence other than the death sentence or imprisonment for life, if the court considers such a
sentence appropriate in all the circumstances of the case.
[Proviso amended by section 12 of Act 8 of 1997.]
(b) may pass sentence of death upon an offender convicted of treason.
338 Persons upon whom death sentence may not be passed
The High Court shall not pass sentence of death upon an offender who—
(a) is a pregnant woman; or
(b) is over the age of seventy years; or
(c) at the time of the offence, was under the age of eighteen years.
339 Sentence of death
(1) The form of sentence to be pronounced upon a person who is convicted of an offence punishable
with
death and sentenced to death shall be that he be returned to custody and that the sentence of death
shall be executed
according to law.
(2) Where the sentence of death is carried out the person sentenced shall be hanged by the neck until
he is
dead.
340 Copy of evidence to be transmitted to President
(1) If any sentence of death is pronounced by the High Court, a copy of the evidence shall be
transmitted to
the President and the sentence shall not be carried out until confirmed by him.
(2) The President may signify his confirmation in terms of subsection (1) by telegraph.
341 Examination of woman convicted of certain offences
(1) Where upon the conviction of a woman of any offence referred to in paragraph (a) or (b) of section
three
hundred and thirty-seven a judge is of the opinion that the death sentence is the appropriate penalty
and has
reason to suspect that the woman is pregnant, he shall not pass sentence upon her until he has
determined from
evidence led before him whether the woman is pregnant or not.
(2) For the purpose of making the determination referred to in subsection (1), the judge shall direct
one or
more medical practitioners who are registered in terms of the Health Professions Act [Chapter 27:19]
to examine
the woman privately, either together or successively, and to ascertain whether she is pregnant or not.
[Subsection amended by section 151 of Act 6 of 2000.]
342 Manner of carrying out death sentence
(1) As soon as practicable after a sentence of death is passed the judge who passed the sentence or any
other
judge of the court shall issue his warrant to the Sheriff or his deputy for the execution of the sentence,
but such
warrant shall not be executed until the Attorney-General has, in writing signed by him, given notice to
the Sheriff
or the deputy that the President has decided not to grant a pardon to or reprieve the person so
sentenced or othe rwise
exercise the prerogative of mercy in respect of him.
(2) As soon after the receipt of the notice referred to in subsection (1) by the Sheriff or his deputy as
fitting
arrangements for the carrying out of the sentence can be made in or in the precincts of a prison
appointed in
accordance with law for the carrying out of sentences of capital punishment, the Sheriff or his deputy
shall execute
the judge’s warrant issued to him in terms of subsection (1) in the appointed prison or its precincts:
Provided that the Sheriff or his deputy shall not execute the judge’s warrant if at any time the
Attorney-
General, by notice in writing under his own hand to the Sheriff or the deputy sheriff, intimates that the
President
has decided to grant a pardon or reprieve to the person so sentenced or otherwise to exercise the
prerogative of
mercy with regard to him.
(3) Any notice by the Attorney-General under the proviso to subsection (2) shall be construed for all
purposes
as a cancellation of the judge’s warrant.
B. Imprisonment and fine
343 Cumulative or concurrent sentences
(1) When a person is convicted at one trial of two or more different offences or when a person under
sentence
or undergoing punishment for one offence is convicted of another offence, the court may sentence him
to
such several punishments for such offences or for such last offence, as the case may be, as the court is
competent
to impose.
(2) When sentencing any person to punishments in terms of subsection (1), the court may direct the
order in
which the sentences shall be served or that such sentences shall run concurrently.
344 Discretion of court as to amount and nature of punishment
(1) Subject to paragraph (a) of section three hundred and thirty-seven, where any person is liable by
law to a
sentence of imprisonment for life or for any period, he may be imprisoned for any shorter period.
[Subsection amended by section 13 of Act 8 of 1997.]
(2) A person liable by law to be sentenced to pay a fine of any amount may be sentenced to pay a fine
of any
lesser amount.
(3) Subsections (1) and (2) shall not apply to any offence for which a minimum penalty is prescribed
in the
enactment prescribing a punishment for the offence.
344A Imprisonment for life
Subject to any other law, the effect of a sentence of imprisonment for life imposed on or after the date
of
commencement of the Criminal Procedure and Evidence Amendment Act, 1997, shall be that the
person so
sentenced shall remain imprisoned for the rest of his life.
[Section inserted by section 14 of Act 8 of 1997.]
345 Periodical imprisonment
(1) For the purposes of this section—
“appropriate prison” means a prison specified by the Minister, by statutory instrument, as a prison in
which a
person may be sentenced to undergo periodical imprisonment in terms of this section.
(2) If a court convicts a person of an offence specified in the Sixth Schedule, it may, in lieu of any
other punishment
referred to in subsection (2) of section three hundred and thirty-six and after ascertaining from the
officer
in charge of the appropriate prison that accommodation for the purpose is available, sentence that
person to undergo,
in accordance with the law relating to prisons, periodical imprisonment in that prison for a period of
not
less than ninety-six hours and not more than two thousand hours.
(3) The court imposing a sentence of periodical imprisonment upon any person in terms of this section
shall—(
a) cause such photographs, finger-prints, palm-prints or footprints of that person to be taken as are
reasonably
necessary for identification purposes; and
(b) cause that person to be furnished with a written notice in the prescribed form directing that he
shall, on a
date and at a time specified in the notice or, if prevented from doing so by circumstances beyond his
control, as soon as possible thereafter, surrender himself for the purpose of undergoing that
imprisonment
to the officer in charge of the prison specified in the notice.
(4) A copy of the notice referred to in subsection (3) shall serve as a warrant for the admission into the
prison
concerned of the convicted person and his confinement therein in accordance with the law relating to
prisons.
(5) A person who—
(a) without lawful excuse, the proof whereof shall be on him, fails to comply with a notice with which
he
has been furnished in terms of paragraph (b) of subsection (3); or
(b) surrenders himself for the purpose of undergoing periodical imprisonment while under the
influence of
intoxicating liquor or narcotic drugs; or
(c) impersonates or falsely represents himself to be a person who has been directed to surrender
himself for
the purpose of undergoing periodical imprisonment;
shall be guilty of an offence and liable to imprisonment for a period not exceeding three months.
(6) If, before the expiry of a sentence of periodical imprisonment imposed on a person in terms of this
section,
that person undergoes punishment consisting of any other form of detention imposed by any court,
any
magistrate before whom that person is brought shall set aside the unexpired portion of the sentence of
periodical
imprisonment and, after considering the evidence recorded in respect of the offence in respect of
which the sentence
of periodical imprisonment was imposed, may impose, in lieu of such unexpired portion, any
punishment
which is competent for that offence and does not exceed his own punitive jurisdiction in respect of
that offence.
(7) The Minister may, by notice in a statutory instrument, add to, amend or replace the whole or any
part of
the Sixth Schedule:
Provided that it shall not be competent to include in the Sixth Schedule any offence for which a
sentence of
death or a minimum penalty is prescribed by any enactment.
(8) A sentence of periodical imprisonment provided for by this section shall not be regarded as a
sentence of
imprisonment without the option of a fine for the purposes of any enactment relating to a
disqualification unless
that enactment provides otherwise.
346 Extended imprisonment
(1) Subject to this section, in the exercise of his powers in terms of section two hundred and twenty-
eight or
three hundred and thirty-three, a judge may sentence to extended imprisonment any person who has
been convicted
of an offence specified in the Seventh Schedule if that person—
(a) has, either in Zimbabwe or elsewhere, been previously convicted in at least three separate trials of
any
one or more of the offences specified in the Seventh Schedule; and
(b) had attained the age of twenty-five years when he sustained the last of the three convictions
referred to
in paragraph (a).
(2) In deciding whether or not to sentence a person to extended imprisonment in terms of this section,
a judge
shall have regard to all the circumstances of the case and of the offender, and in particular to—
(a) the seriousness of the offences specified in the Seventh Schedule of which the offender has been
convicted;
and
(b) the need to protect the public; and
(c) the prospects for reforming the offender.
(3) A sentence of extended imprisonment imposed in terms of this section shall endure—
(a) where the offender has not previously been sentenced to extended imprisonment, for not less than
seven
years and not more than fifteen years;
(b) where the offender has previously been sentenced to extended imprisonment, for not less than
fifteen
years and not more than twenty years;
and, when imposing such a sentence, a judge shall inform the offender of the maximum and minimum
periods of
the sentence specified in paragraph (a) or (b), as may be appropriate.
(4) A person sentenced to extended imprisonment in terms of this section shall be dealt with as
provided in
any enactment relating to the management of prisons and the treatment of persons so sentenced.
(5) For the purposes of subsection (3), a person who, before the 6th May, 1983, had been declared a
habitual
criminal shall be deemed to have previously been sentenced to extended imprisonment.
346A ….
[Section repealed by Act 23 of 2004
347 Imprisonment or community service in default of payment of fine
(1) Subject to this section, a court which imposes a sentence of a fine upon an offender may do either
or both
of the following
(a) impose, as an alternative punishment to the fine, a sentence of imprisonment of any duration
within the
limits of the court’s punitive jurisdiction;
(b) permit the offender, as an alternative to paying the fine, to render such community service as may
be
specified by the court.
(2) The period of any sentence of imprisonment imposed in terms of paragraph (a) of subsection (1)
shall
not, either alone or together with any period of imprisonment imposed on the offender as a direct
punishment for
the same offence, exceed the longest period of imprisonment prescribed by any enactment as a
punishment for the
offence.
(3) Where a court has imposed upon an offender a sentence of a fine without an alternative referred to
in
paragraph (a) or (b) of subsection (1) and the fine has not been paid in full or has not been recovered
in full by a
levy in terms of section three hundred and forty-eight, the court may issue a warrant directing that the
offender be
arrested and brought before the court, which may thereupon impose such sentence of imprisonment
and additionally,
or alternatively, permit him to render such community service, as is provided in subsection (1).
(4) Nothing in this section shall be construed as limiting the power of a court under section three
hundred
and fifty-eight to postpone or suspend any sentence.
(5) A court may exercise the powers conferred upon it by this section even in relation to an offence
prescribed
in an enactment which purports
(a) to limit the duration of a sentence of imprisonment that may be imposed as an alternative to a fine;
or
(b) to permit only a sentence of imprisonment to be imposed as an alternative to a fine:
Provided that this subsection shall not apply where a minimum penalty is prescribed in the enactment
concerned
as punishment for the offence.
[Section substituted by section 15 of Act 8 of 1997.]
348 Recovery of fine
(1) When an offender is sentenced to pay a fine, the court passing the sentence may in its discretion
issue a
warrant addressed to the Sheriff or messenger of the court authorizing him to levy the amount by
attachment and
sale of any movable property belonging to the offender, although the sentence directs that in default of
payment of
the fine the offender shall be imprisoned or shall be permitted to render community service.
[Subsection amended by section 16 of Act 8 of 1997.]
(2) The amount which may be levied in terms of subsection (1) shall be sufficient to cover, in addition
to the
fine, the costs and expenses of the warrant and of the attachment and sale thereunder.
(3) A warrant in terms of subsection (1), if issued by the High Court, may be executed anywhere
within Zimbabwe.
(4) A warrant in terms of subsection (1), if issued by a magistrate, shall authorize the attachment and
sale of
the movable property of the offender within the local limits of such magistrate’s jurisdiction, and also
without
such limits when endorsed by a magistrate having jurisdiction in the place where the property is
found.
(5) If the proceeds of the sale of the movable property are insufficient to satisfy the amount of the fine
and
the costs and expenses aforesaid, the High Court may issue a warrant or, in the case of a sentence by a
magistrates
court, may authorize such magistrates court to issue a warrant for the levy against the immovable
property of the
offender of the amount unpaid.
(6) Where a court issues a warrant under this section, it may suspend the execution of any sentence of
imprisonment
imposed as an alternative to the fine and may release the offender upon his executing a bond with or
without sureties as the court thinks fit, conditioned for his appearance before the court or some other
court on the
day appointed for the return of the warrant, such day not being more than fifteen days from the time of
executing
the bond, and in the event of the amount of the fine not having been recovered, the sentence of
imprisonment may
be carried into execution at once or may be suspended as before for a further period or further periods
of not more
than fifteen days, as the court thinks fit.
[Subsection amended by section 16 of Act 8 of 1997.]
(7) In any case in which an order for the payment of money has been made on non-recovery of which
imprisonment may be awarded and the money is not paid forthwith, the court may require the person
ordered to
make such payment to enter into a bond as provided in subsection (6), and in default of his doing so,
may at once
pass sentence of imprisonment as if the money had not been recovered.
(8) …
[Subsection repealed by section 16 of Act 8 of 1997.]
(9) …
[Subsection repealed by section 16 of Act 8 of 1997.]
(10) …
[Subsection repealed by section 16 of Act 8 of 1997.]
348A Effect of part payment of fine or part performance of community service
(1) Where part only of a fine imposed on an offender has been paid or recovered by levy under section
three
hundred and forty-eight—
(a) any period of imprisonment to be served by the offender as an alternative to the fine shall be
reduced by
the same proportion, as nearly as possible, as the amount so paid or recovered bears to the total
amount
of the fine;
(b) any community service which the offender is permitted to render as an alternative to the payment
of the
fine shall be reduced to such extent as the court may determine in order to take into account the
amount
so paid or recovered.
(2) Where an offender renders only part of any community service he is permitted in terms of section
three
hundred and forty-seven to render as an alternative to a fine, the court may reduce any period of
imprisonment
which it has imposed as an additional alternative to the fine, to such extent as the court may determine
in order to
take into account the service the offender has rendered.
(3) A determination in terms of paragraph (b) of subsection (1) or subsection (2) shall be made in the
presence
of the offender concerned, and subsections (5) and (6) of section three hundred and fifty-eight shall
apply,
mutatis mutandis, in regard to bringing the offender before the court for that purpose.
(4) No amount shall be accepted in part payment of a fine if it would have the effect of reducing the
imprisonment
to be served in terms of subsection (1) by a fractional part of a day.
[Section inserted by section 17 of Act 8 of 1997]
349 Court may enforce payment of fine from moneys on accused or salary or wages of
accused
Where a person is sentenced to pay a fine, whether with or without an alternative sentence of
imprisonment,
the court may, without prejudice to any other power under this Act relating to the payment of a fine,
enforce
payment of the fine, whether as to the whole or part thereof—
(a) by seizure of moneys upon the person concerned; or
(b) if money is due or is to become due as salary or wages from any employer of the person
concerned,
by— (i) from time to time ordering the employer to deduct a specified amount from the salary or
wages
so due and to pay over such amount to the clerk of the court in question; or
(ii) ordering the employer to deduct from time to time a specified amount from the salary or wages
from the employer due and to pay over such amount to the clerk of the court in question.
350 Levy of fine and costs on conviction of defamation
When any person is convicted of the unlawful publication of any defamatory matter which was
published by
means of printing, the prosecutor may levy the fine, if any, and costs out of any property of the
offender in like
manner as in civil actions.
350A Community service orders
(1) Subject to this section and to regulations made in terms of section three hundred and eighty-nine, a
court
which convicts a person of any offence may, instead of sentencing him to imprisonment or a fine,
make a community
service order requiring him to render service for the benefit of the community or any section of the
community
for such number of hours as shall be specified in the order.
(2) Where a court makes community service orders in respect of two or more offences of which the
offender
has been convicted, the court may direct that all or any of the hours of service specified in any of the
orders shall
be concurrent with those specified in any other order, and in the absence of such a direction the hours
shall run
concurrently.
(3) A court which makes a community service order in respect of an offender may sentence the
offender to a
fine and additionally, or alternatively, to imprisonment as an alternative punishment, to be paid or
served, as the
case may be, if he fails to render the service specified in the order.
(4) A court may make a community service order in respect of an offender even if he has been
convicted of
an offence under an enactment which makes provision only for a fine and additionally, or
alternatively, imprisonment
as punishment for the offence:
Provided that this subsection shall not apply where a minimum penalty is prescribed in the enactment
concerned
as punishment for the offence.
[Section inserted by section 18 of Act 8 of 1997.]
350B Performance of community service
(1) Subject to this section and to such conditions and requirements as may be prescribed, an offender
in respect
of whom a community service order is in force shall render the service specified in the order for the
number
of hours specified therein.
(2) Unless revoked, a community service order shall remain in force until the offender has rendered
the number
of hours’ service specified in it.
[Section inserted by section 18 of Act 8 of 1997.]
350C Breach of community service order
(1) Subject to this section, if a magistrate has reason to believe, whether from information on oath or
otherwise,
that an offender has failed to comply with any requirement of a community service order, the
magistrate may
order the offender to be brought—
(a) before the High Court, where the community service order was made by that court; or
(b) before a magistrates court, where the community service order was made by that court;
for the purposes of subsection (3).
(2) The magistrate may, if necessary for the purpose of an order under subsect ion (1), order the
offender to
be arrested without warrant and, unless the offender is admitted to bail in terms of Part XI, to be
detained in
prison.
(3) If the court is satisfied that an offender who has been brought before it in terms of subsection (1)
has
failed to comply with any requirement of a community service order, the court may—
(a) amend or extend the order in such manner as the court thinks will best ensure that the offender
renders
the service specified in the order; or
(b) revoke the order and
(i) order the offender to pay any fine or undergo any imprisonment that was imposed on him as an
alternative punishment in terms of subsection (3) of section three hundred and fifty A; or
(ii) where the court that made the order did not impose an alternative punishment in terms of
subsection
(3) of section three hundred and fifty A, deal with the offender for the offence in respect of
which the order was made in any manner in which that court could have dealt with him;
or
(c) make such other order or direction in the matter as the court considers just.
(4) Where a court makes an order referred to in subparagraph (i) of paragraph (b) of subsection (3),
the court
may reduce any fine to be paid or imprisonment to be undergone by the offender concerned to such
extent as the
court considers appropriate in order to take into account any service the offender rendered in
compliance with the
community service order concerned.
(5) An offender who is dealt with by a court under the powers conferred on it by subparagraph (ii) of
paragraph
(b) of subsection (3) shall have the same right of appeal against any sentence or order of the court as if
the
sentence or order had been imposed in a criminal trial.
[Section inserted by section 18 of Act 8 of 1997.]
350D Amendment or revocation of community service order
(1) Subject to this section, on the application of
(a) the offender concerned or, if he is a minor, his parent or lawful guardian; or
(b) the Attorney-General or a public prosecutor;
a court may
(i) amend a community service order;
or
(ii) revoke a community service order and deal with the offender for the offence in respect of which
the order was made in any manner in which the court which made the order could have dealt
with him;
if the court considers it would be in the interests of justice to do so having regard to circumstances
which have
arisen since the order was made.
(2) A community service order made by
(a) the High Court, shall not be amended or revoked in terms of subsection (1) except by the High
Court;
(b) a magistrate, shall not be amended or revoked in terms of subsection (1) except by that magistrate
or by
another magistrate who has the same or greater jurisdiction to impose punishment in criminal cases.
(3) A court may order an offender to be brought before it for the purposes of an application in terms of
subsection
(1) and, if necessary, may order him to be arrested without warrant and, unless admitted to bail in
terms of
Part XI, to be detained in prison.
(4) An offender who is dealt with by a court under the powers conferred on it by paragraph (ii) of
subsection
(1) shall have the same right of appeal against any sentence or order of the court as if the sentence or
order had
been imposed in a criminal trial.
[Section inserted by section 18 of Act 8 of 1997.]
C. Special provisions relating to punishment of juveniles
351 Manner of dealing with convicted juveniles
(1) In this section—
“reform school” means a reform school as defined in section 1 of the Children’s Act of the Republic
of South
Africa, as amended from time to time;
“training institute” means a training institute as defined in section 2 of the Children’s Act [Chapter
5:06].
[Definition amended by section 49 of Act 23 of 2001.]
(2) Any court before which a person under the age of nineteen years has been convicted of any
offence may,
instead of imposing a punishment of a fine or imprisonment for that offence, subject to subsection (1)
of section
three hundred and thirty-seven—
(a) order that he shall be taken before a children’s court and dealt with in terms of the Children’s Act
[Chapter 5:06]; or
[Paragraph amended by section 4;9 of Act 23 of 2001.]
(b) after ascertaining from the Minister responsible for social welfare that accommodation is available,
order that he shall be placed in a training institute in Zimbabwe or in a reform school in the Republic
of
South Africa for the period specified in subsection (1) of section three hundred and fifty-two.
(3) Any court before which a person who is nineteen years of age or more but who is under twenty-
one years
of age has been convicted of any offence other than murder, treason or rape may, instead of imposing
a punishment
of a fine or imprisonment on him for that offence—
(a) order that he shall be placed under the supervision of a probation officer or any other suitable
person
designated in the order for the period specified in subsection (1) of section three hundred and fifty-two
and that he shall reside as directed by the court from time to time; or
(b) after ascertaining from the Minister responsible for social welfare that accommodation is available,
order that he shall be placed in a training institute in Zimbabwe or in a reform school in the Republic
of
South Africa for the period specified in subsection (1) of section three hundred and fifty-two.
(4) Where a magistrates court orders that any person shall be placed in a training institute or reform
school in
terms of subsection (2) or (3), such court shall forward the proceedings to the registrar of the High
Court for
review and the provisions of section 57 of the Magistrates Court Act [Chapter 7:10] and section 29 of
the High
Court Act [Chapter 7:06] shall apply, mutatis mutandis, in relation to any such review.
(5) When any court orders a person to be detained in a training institute or reform school in terms of
subsection
(2) or (3), a warrant shall be issued by the court for the purpose setting forth the offence for which
such
person has been convicted and his age and the said warrant shall be transmitted to the Director of
Social Welfare
and shall be the authority for the conveyance of that person to that training institute or reform school
and his
detention therein.
(6) With a warrant referred to in subsection (5) the court shall also transmit to the Director of Social
Welfare
an account of the history and antecedents of the person who is the subject of the warrant so far as may
be asce rtainable
by the court.
(7) If an order has been made in terms of paragraph (a) of subsection (2) or paragraph (a) of
subsection (3)
upon the conviction of a person, that conviction shall not, for the purposes of any enactment, be
regarded as a
conviction:
Provided that if such person is convicted on a second or subsequent occasion before he attains the age
of
eighteen years, it shall be lawful to prove that earlier conviction as a conviction.
352 Period of retention or supervision
(1) In this section—
“the period of retention” means the period during which a person shall, in terms of subsection (2),
remain in
a training institute, reform school, certified institution or South African institution.
(2) Any person in respect of whom an order in terms of paragraph (b) of subsection (2) or paragraph
(a) or
(b) of subsection (3) of section three hundred and fifty-one has been made shall remain in the training
institute or
reform school or under the supervision in which he has been placed or in the certified institution,
training institute
or South African institution or under the supervision or custody to which he has been transmitted in
terms of the
Children’s Act [Chapter 5:06]—
(a) until a period of three years from the date of the order has elapsed; or
(b) until he is released on licence in terms of the Children’s Act [Chapter 5:06]; or
(c) until he has been discharged from the effect of the order in terms of the Children’s Act [Chapter
5:06];
whichever is the soonest.
(3) After the expiration of the period of retention of a person in a training institute, reform school or
certified
institution, whether by effluxion of time or release on licence, he shall remain under the supervision of
the management
of the training institute, reform school or certified institution—
(a) for a period not exceeding three years from the time of the expiry of his period of retention; or
(b) until he is discharged from the supervision in terms of the Children’s Act [Chapter 5:06]; or
(c) until he attains the age of twenty years;
whichever is the soonest.
(4) Where a court is satisfied, on the application of—
(a) the Minister to whom the administration of the Children’s Act [Chapter 5:06] is assigned; or
(b) the parent or legal guardian of the person concerned;
that a further period in a training institute, reform school or certified institution would advance the
education or
welfare of a person who has been placed in such an institute, school or institution and whose period of
retention
has expired or is about to expire, the court may order that person to return to or remain in the institute,
school or
institution concerned for a further period or periods, as it may fix, and may at any time revoke such
order.
(5) Where the Minister to whom the administration of the Children’s Act [Chapter 5:06] has been
assigned is
satisfied that a further period in a training institute, reform school or certified institution would
advance the education
or welfare of a person who has been placed in such an institute, school or institution and whose period
of
retention has expired or is about to expire, the Minister may order that person to return to or remain in
the institute,
school or institution concerned for a further period or periods, as he may fix, and may at any time
revoke
such order:
Provided that the Minister shall not make such order unless the parent or legal guardian of the person
concerned
has consented to the making of the order.
(6) The period or aggregate of the periods fixed in terms of subsection (4) or (5) shall not extend
beyond—
(a) three years from the date of expiry of the period of retention of the person concerned; or
(b) the date on which the person concerned attains the age of twenty years;
whichever is the sooner.
353 Corporal punishment of male juveniles
(1) Where a male person under the age of eighteen years is convicted of any offence the court which
imposes
sentence upon him may—
(a) in lieu of any other punishment; or
(b) in addition to a wholly suspended sentence of a fine or imprisonment; or
(c) in addition to making an order in terms of subsection (1) of section three hundred and fifty-one;
sentence him to receive moderate corporal punishment, not exceeding six strokes.
(2) Subject to subsection (3), corporal punishment in terms of this section shall be inflicted in private.
(3) The parent or guardian of a person sentenced to corporal punishment in terms of this section shall
have
the right to be present when the punishment is inflicted, and the court shall advise the parent or
guardian, if present
when the sentence is imposed, of his right to be present when it is inflicted.
(4) Corporal punishment shall not be inflicted in terms of this section unless a medical practitioner has
examined
the person on whom it is to be inflicted and has certified that he is in a fit state to undergo the
punishment.
(5) If a medical practitioner has certified that a person on whom corporal punishment is to be inflicted
in
terms of this section is not in a fit state to receive the punishment or any part of it, the person who was
to have
inflicted the punishment shall forthwith submit the certificate to the court that passed the sentence or
to a court of
like jurisdiction and the court may thereupon, if satisfied that the person concerned is not in a fit state
to receive
the punishment or any part of it, amend the sentence as it thinks appropriate.
(6) Subject to this section, the manner in which and place at which corporal punishment shall be
inflicted,
and the person who shall inflict it, shall be as prescribed.
D. Recognizances
354 Recognizances to keep the peace and be of good behaviour
(1) A person convicted of an offence not punishable with death may, in lieu of or in addition to any
punishment
to which he is liable, be ordered by the High Court to enter into his own recognizances, with or
without
sureties, in such amount as the court thinks fit that he shall keep the peace and be of good behaviour
for a time to
be fixed by the court, and may be ordered to be imprisoned until such recognizances with sureties, if
so directed,
are entered into:
Provided that the imprisonment for not entering into the recognizance shall in no case exceed one
year.
(2) If any person is convicted of an offence involving assault or injury to the person, a magistrates
court may,
in lieu of or in addition to any other punishment, order that the convicted person shall give
recognizances, with or
without sureties, in an amount not exceeding level six for a period not exceeding one year to keep the
peace and to
refrain from committing any injury against the complainant.
[Subsection amended by section 28 of Act 9 of 2006.]
(3) If any person having been ordered to give recognizances under subsection (2) refuses or fails to do
so, the
court may order him to be committed to prison for a period not exceeding one month, unless such
recognizances
are sooner found.
(4) Upon information being made on oath that a person bound by recognizances referred to in
subsection (1)
or (2) has failed to observe the conditions of the recognizances, any magistrate may—
(a) in the case of recognizances referred to in subsection (1), order the person to appear before a
judge;
(b) in the case of recognizances referred to in subsection (2), order the person to appear before a
magistrate;
and, if necessary, may cause that person to be arrested and brought before a judge or magistrate, as the
case may
be.
(5) When the person referred to in subsection (4) appears before a judge or magistrate, as the case may
be,
the judge or magistrate shall inquire into the alleged breach of the recognizances and may, for the
purpose, take
evidence on oath from the person concerned and any other person.
(6) Where it appears to a judge or magistrate, whether after an inquiry in terms of subsection (5) or
otherwise,
that any person has failed to observe the conditions of the recognizances referred to in subsection (1)
or (2),
as the case may be, he may order the recognizances to be forfeited.
(7) An order in terms of subsection (6) shall have the effect of a civil judgment of the court.
(8) If a peace officer believes on reasonable grounds that the conditions of recognizances referred to in
subsection
(1) or (2) are not being observed by any person, he may arrest the person without warrant and shall, as
soon as possible, bring him—
(a) in the case of the recognizances referred to in subsection (1), before a judge;
(b) in the case of recognizances referred to in subsection (2), before a magistrate;
for the purposes of inquiry in terms of subsection (5) and the provisions of this section shall thereafter
apply,
mutatis mutandis.
(9) A person arrested in terms of subsection (8) shall be informed forthwith by the person arresting
him of
the cause of the arrest.
355 Recognizances to appear for judgment
When a person is convicted of an offence not punishable with death, the High Court may, instead of
passing
sentence, discharge the offender upon his entering into his own recognizances, with or without
sureties, in such
sum as the court may think fit to appear and receive judgment at some future sitting of the court or
when called
upon.
E. General and miscellaneous provisions as to punishments
356 Payment by accused persons of fines which may be imposed for minor offences
in lieu of
appearance in court
(1) When any person has been summoned or warned to appear in a magistrates court or has been
arrested or
has been informed by a peace officer, by written notice referred to in subsection (1) of section one
hundred and
forty-one or otherwise, that it is intended to institute criminal proceedings against him for any offence,
and a
prescribed officer has reasonable grounds for believing that the court which will try the said person for
such
offence will, on convicting such person of such offence, not impose a sentence of imprisonment or a
fine exceeding
level three, such person may sign and deliver to such prescribed officer a document admitting that he
is guilty
of the said offence and—
(a) deposit with such prescribed officer such sum of money as the latter may fix; or
(b) furnish to such prescribed officer such security as the latter thinks sufficient for the payment of any
fine
which the court trying the case in question may lawfully impose therefor;
not exceeding level three or the maximum of the fine with which such offence is punishable,
whichever is the
lesser, and such person shall thereupon not be required to appear in court to answer a charge of having
committed
the said offence.
[Subsection amended by section 4 of Act 22 of 2001.]
(2) The document, when signed and delivered in terms of subsection (1), shall forthwith be transmitted
to the
clerk of the court before which the person was summoned or warned to appear or, where he has not
been summoned
or warned to attend a particular court, to the clerk of any magistrates court and shall be entered by the
clerk
in the records of that court.
(3) As soon as the document has been recorded in terms of subsection (2) it shall be laid before the
court and
the court shall thereupon—
(a) proceed to convict such person of the offence charged and forthwith sentence him to a fine not
exceeding
level three in accordance with law, whether or not it has jurisdiction in terms of section 56 of the
Magistrates Court Act [Chapter 7:10]; or
Paragraph amended by section 4 of Act 22 of 2001.]
(b) by endorsement on the document signify its refusal to convict such person in accordance with this
section.
(4) If payment of the fine has not been made in accordance with the terms of the security, the security
may, if
movable property has been accepted therefor, be enforced by the sale thereof, and if any balance of the
proceeds
of sale remains, after deduction of the amount of the fine, it shall be paid to the offender.
(5) If the sum deposited is not sufficient to pay the fine imposed, the balance remaining due shall be
recovered
from the offender in a manner provided by section three hundred and forty-eight.
(6) If the sum deposited is greater than the fine imposed by the court, the difference shall be refunded
to the
offender.
(7) Where the court has refused to convict the person concerned, as provided in paragraph (b) of
subsection
(3), the sum deposited shall be refunded to the person concerned and he may be prosecuted in the
ordinary course
and, in that case, if he has already been summoned or warned, he shall be summoned afresh to answer
such charge
as the public prosecutor may prefer against him.
(8) Any magistrate of the court which will try the person concerned for the offence may advise the
prescribed
officer as to the sum of money which the court is likely to consider an appropriate fine in any case
and, in fixing
the sum of money to be deposited under this section, the prescribed officer shall have regard to such
advice.
(9) For the purpose of deciding whether to convict the person concerned in accordance with this
section or
determining the amount of the fine to be imposed, the court may have regard to any statements
relevant to the
offence charged which have been given to the police by any person having knowledge thereof.
(10) Where the document mentioned in subsection (1) purports to have been signed by a director,
manager or
secretary of a corporate body as the representative of such corporate body, such director, manager or
secretary
shall, notwithstanding anything contained in proviso (i) to subsection (3) of section three hundred and
eighty-five,
be presumed to have been authorized by such corporate body to plead guilty on its behalf, unless the
contrary is
proved.
(11) The magistrate who convicted a person under paragraph (a) of subsection (3) may,
notwithstanding anything
contained in any enactment, set aside any such conviction and order the refund to the person
concerned of
the fine paid by him in respect thereof, in any case in which the magistrate is satisfied that such person
should not
have been convicted.
357 Adjudication of minor cases in absence of accused
(1) When a summons has been issued in respect of any case in which the court has summary
jurisdiction and
in which the penalty prescribed by law is a fine, and only in default of payment of such fine,
imprisonment, the
person summoned need not appear personally and may appear through a legal practitioner duly
authorized thereto:
Provided that, where there is no legal practitioner available practising before such court, then any
other person
may appear on behalf of the accused.
(2) Should the person summoned fail to appear, either personally or through a legal practitioner, the
court
may, if satisfied that such summons was duly served, and if further satisfied that the ends of justice
will be met,
proceed to hear such case and adjudicate thereon as fully and effectually as if such person had
appeared.
(3) When a person has been convicted of an offence in his absence in terms of subsection (2), the
court may
direct the collection of any fine imposed, together with the costs of such collection, and further direct
that, on
failure to pay such fine and costs, the offender be arrested and committed to prison to undergo any
sentence of
imprisonment that may have been imposed as an alternative to such fine, and such direction shall be
by warrant in
the prescribed form.
358 Powers of courts as to postponement or suspension of sentences
(1) In this section—
“postponement” means the postponement of the passing of sentence under paragraph (a) of subsection
(2)
and includes any further postponement granted in terms of paragraph (a) of subsection (7);
“suspension” means the suspension of the operation of the whole or part of a sentence under
paragraph (b) of
subsection (2) or of a warrant under paragraph (c) of that subsection, and includes any further such
suspension
granted in terms of paragraph (a) of subsection (7).
(2) When a person is convicted by any court of any offence other than an offence specified in the
Eighth
Schedule, it may—
(a) postpone for a period not exceeding five years the passing of sentence and release the offender on
such
conditions as the court may specify in the order; or
(b) pass sentence, but order the operation of the whole or any part of the sentence to be suspended for
a
period not exceeding five years on such conditions as the court may specify in the order; or
(c) pass sentence of a fine or, in default of payment, imprisonment, but suspend the issue of a warrant
for
committing the offender to prison in default of payment until the expiry of such period, not exceeding
twelve months, as the court may fix for payment, in instalments or otherwise, of the amount of the
fine,
or until default has been made by the offender in payment of the fine or any such instalment, the
amounts of any instalments and the dates of payment thereof being fixed by order of the court, and the
court may in respect of the suspension of the issue of the warrant impose such conditions as it may
think
necessary or advisable in the interests of justice; or
(d) discharge the offender with a caution or reprimand.
(3) Conditions specified in terms of paragraph (a) or (b) of subsection (1) may relate to any one or
more of
the following matters—
(a) good conduct;
(b) compensation for damage or pecuniary loss caused by the offence:
Provided that no such condition shall require compensation to be paid in respect of damage or loss that
is the subject of an award of compensation in terms of Part XIX;
(c) the rendering of some specified benefit or service to any person injured or aggrieved by the
offence:
Provided that no such condition shall be specified unless the person injured or aggrieved by the
offence
has consented thereto;
(d) the rendering of service for the benefit of the community or a section thereof;
(e) submission to instruction or treatment;
(f) submission to the supervision or control of a probation officer appointed in terms of the Children’s
Act
[Chapter 5:06] or regulations made under section three hundred and eighty-nine, or submission to the
supervision and control of any other suitable person;
(g) compulsory attendance or residence at some specified centre for a specified purpose;
(h) any other matter which the court considers it necessary or desirable to specify having regard to the
interests of the offender or of any other person or of the public generally.
(4) If the offender has, during the period of any postponement or suspension ordered under paragraph
(a) or
(b) of subsection (2), observed all the conditions specified in the order, the sentence shall not be
passed or enforced,
as the case may be.
(5) Subject to section 55 of the Magistrates Court Act [Chapter 7:10] and of subsections (12) and
(13), if a
magistrate has reason to believe, whether from information on oath or otherwise, that a condition of
any postponement
or suspension made in terms of paragraph (a), (b) or (c) of subsection (2) has been contravened or that
the offender has failed to pay a fine or any instalment thereof on a date fixed in terms of paragraph (c)
of subsection
(2), he may, whether before or after the expiration of the period of postponement or suspension, order
the
offender to be brought—
(a) where the postponement or suspension was made by the High Court, before that court; or
(b) where the postponement or suspension was made by a magistrates court, before a magistrates court
or
the High Court;
for the purposes of subsection (7).
(6) The magistrate may, if necessary for the purpose of an order in terms of subsection (5), order the
offender
to be arrested without warrant and, unless the offender is admitted to bail in terms of Part IX, to be
detained in
prison.
(7) When the offender is brought before the court in accordance with an order made in terms of
subsection
(5), the court may commit him to undergo the sentence which may then be or has been lawfully passed
or, in its
discretion, the reasons whereof shall be recorded on good cause shown by the offender—
(a) grant a further postponement or suspension, as the case may be, for a further period not exceeding
five
years where the original postponement or suspension was in terms of paragraph (a) or (b) of
subsection
(2) or one year where the original suspension was in terms of paragraph (c) of subsection (2), subject
to
such conditions as might have been imposed at the time of the original postponement or suspension;
or
(b) in the case of a postponement or suspension in terms of paragraph (a) or (b) of subsection (2),
refuse to
pass sentence or bring the suspended sentence into operation, as the case may be.
(8) Where—
(a) the condition or one of the conditions on which any period of imprisonment has been ordered to be
suspended in terms of paragraph (b) of subsection (2) is that the offender pay by a specified date an
amount of money to any person as compensation; and
(b) before the date part of such amount has been paid in terms of the order of suspension; and
(c) solely because of the contravention of the condition specified in paragraph (a) the court, in terms
of
subsection (7), commits the offender to undergo the suspended period of imprisonment;
the provisions of subsection (10) of section three hundred and forty-eight shall apply, mutatis
mutandis, as though
the amount referred to in paragraph (a) were a fine and the suspended period of imprisonment were
the period of
imprisonment referred to in that subsection.
(9) Where—
(a) the operation of a sentence of imprisonment or any part thereof has been suspended in terms of
paragraph
(b) of subsection (2) subject to a condition relating to any matter referred to in subsection (3); and
(b) the offender fulfils the condition in part only;
the court may reduce the period of imprisonment to which it commits the offender in terms of
subsection (7) to
such extent as it considers appropriate in order to take account of the offender’s partial compliance
with the
condition, and upon serving that reduced period of imprisonment the offender shall be deemed to have
served the
full period that was suspended subject to the condition concerned.
(10) Where the contravention of a condition of postponement or suspension made in terms of
paragraph (a)
or (b) of subsection (2) by the High Court consists of a conviction and sentence of a magistrates court,
a record of
the proceedings shall be obtained and transmitted to the registrar of the High Court and subsection (2)
of section
55 of the Magistrates Court [Chapter 7:10] shall apply, mutatis mutandis.
(11) A magistrates court may, in terms of paragraph (c) of subsection (2), direct as a condition of the
suspension
of a warrant that the offender shall, if he fails to pay a fine or any instalment thereof at a specified
time on
any day fixed in terms of that paragraph, surrender himself to the clerk of the court concerned at such
time on
such day unless he has, before that time, obtained an extension of time from the court for the payment
of the fine
or instalment, as the case may be, and any direction in terms of this subsection shall be explained to
the offender
at the time of the passing of sentence.
(12) If the offender surrenders himself in accordance with a direction in terms of subsection (11) or
any extension
of time obtained in terms of that subsection, the provisions of subsection (7) shall apply, mutatis
mutandis.
(13) If the offender fails to surrender himself in accordance with a direction in terms of subsection
(11) or
any extension of time obtained in terms of that subsection—
(a) subsections (5), (6) and (7) shall apply; and
(b) when the offender is brought before the court as referred to in subsection (7), the court may, in a
summary
manner, inquire into the failure of the offender to surrender himself and, unless it is proved that he
has a reasonable excuse for such failure, the court may sentence him to a fine not exceeding level
three
or to imprisonment for a period not exceeding one month or to both such fine and such imprisonment.
[Subsection amended by section 4 of Act 22 of 2001.]
(14) Any person sentenced to a fine or imprisonment in terms of paragraph (b) of subsection (13) shall
have
the right of appeal as if he had been convicted and sentenced by the court concerned in a criminal trial.
(15) If an offender has been discharged with a caution or reprimand under paragraph (d) of subsection
(2),
the discharge shall have the effect of an acquittal, except for the purpose of—
(a) subsection (3) or (4) of section three hundred and twenty-seven; or
(b) section 62 of the Magistrates Court Act [Chapter 7:10].
(16) Where the court has acted under paragraph (a), (b) or (c) of subsection (2) and the offender
changes his
place of residence before the expiration of the period of the postponement or suspension, as the case
may be, he
shall forthwith give notice in writing to the registrar of the High Court, where the postponement or
suspension
was ordered by the High Court, or, where the postponement or suspension was ordered by another
court, to the
clerk of such court, and shall in such notice state fully and clearly where the place of residence to
which he has
removed is situated.
(17) Any person who contravenes subsection (16) shall be guilty of an offence and liable to a fine not
exceeding
level four.
[Subsection amended by section 4 of Act 22 of 2001.]
359 Magistrates court not to impose sentences of less than four days
No person shall be sentenced by a magistrates court to imprisonment for a period of less than four
days,
unless the sentence is that the offender be detained until the rising of the court.
360 …..
[Section repealed by section 282 of Act 23 of 2004]
PART XIX
COMPENSATION AND RESTITUTION
361 Interpretation in Part XIX
In this Part—
“injured party” means a person who is entitled to—
(a) an award of compensation in terms of section three hundred and sixty-two, three hundred and
sixtythree
or three hundred and sixty-four; or
(b) an order in terms of section three hundred and sixty-five for the restoration of property to him.
362 Compensation for loss of or damage to property
(1) Subject to this Part, a court which has convicted a person of an offence may forthwith award
compensation
to any person whose right or interest in property of any description has been lost or diminished as a
direct
result of the offence.
(2) For the purposes of subsection (1)—
(a) if a person has been obliged as a direct result of an offence to incur expenditure in connection with
any
property, a court may regard the whole or any part of the expenditure as being the amount by which
his
right or interest in the property has been diminished, and may award him compensation accordingly;
(b) where damage is occasioned to stolen property or to property that is the subject of an attempted
theft
while the property is out of the owner’s possession, such damage shall be deemed to have been
occasioned
as a direct result of the theft or attempted theft, as the case may be, of the property concerned.
363 Compensation for personal injury
Subject to this Part, a court which has convicted a person of an offence may forthwith award
compensation to
any person who has suffered personal injury as a direct result of the offence.
364 Compensation to innocent purchaser of property
Subject to this Part, where—
(a) a court has convicted a person of an offence involving the unlawful obtaining, possession or
disposal of
property of any description; and
(b) the court is satisfied that the convicted person disposed of the property for value to another person
who
had no knowledge that it had been unlawfully obtained or possessed or was being unlawfully disposed
of, as the case may be;
the court may forthwith award compensation to that other person in an amount not exceeding the
value of any
consideration which he paid or gave in respect of the disposal of the property to him.
365 Restitution of unlawfully obtained property
(1) Subject to this Part, a court which has convicted a person of an offence involving the unlawful
obtaining
of property of any description may order the property to be restored to its owner or the person entitled
to possess
it.
(2) For the purposes of subsection (1), where the property referred to in that subsection consists of—
(a) money, the court may order that an equivalent amount be paid to the injured party frommoneys—
(i) taken from the convicted person on his arrest or search in terms of any law; or
(ii) held in any account kept by the convicted person with a bank, building society or similar
institution;
or
(iii) otherwise in the possession or under the control of the convicted person;
(b) fungibles other than money, the court may order that an equivalent amount or quantity be handed
over to
the injured party from similar fungibles in the possession or under the control of the convicted person.
366 Cases where award or order not to be made
(1) A court shall not award compensation in terms of section three hundred and sixty-two, three
hundred and
sixty-three or three hundred and sixty-four—
(a) in respect of any loss or diminution of a right or personal injury where such loss, diminution or
injury
results from an accident arising out of the presence of a vehicle on a road, unless in the case of loss or
diminution of a right it arises from damage that is treated by paragraph (b) of subsection (2) of section
three hundred and sixty-two as resulting from theft;
(b) in respect of any loss or diminution of a right or personal injury—
(i) where the amount of compensation due to the injured party is not readily quantifiable; or
(ii) where the full extent of the convicted person’s liability to pay the compensation is not readily
ascertainable; or
(iii) unless the court is satisfied that the convicted person will suffer no prejudice as a result of the
claim for compensation or restitution, as the case may be, being dealt with in terms of this Part.
(2) A court shall not order the restitution of any property in terms of section three hundred and sixty-
five if it
appears to the court that another person, who had no knowledge that the property had been unlawfully
obtained,
has acquired a right or interest in the property which might be prejudiced if the property were restored
to its owner
or to the person entitled to possess it.
367 Maximum amount of award or order
Notwithstanding any enactment limiting the civil jurisdiction of the court concerned, any court,
including the
court of a regional magistrate, may—
(a) award compensation in terms of section three hundred and sixty-two, three hundred and sixty-
three or
three hundred and sixty-four in any amount; or
(b) make an order in terms of section three hundred and sixty-five for the restitution of property,
whatever
the value of the property concerned.
368 Application for award or order
(1) A court shall not make an award or order in terms of this Part unless the injured party or the
prosecutor
acting on the instructions of the injured party applies for such an award or order.
(2) A court shall ensure, where appropriate and practicable, that any injured party is acquainted with
his right
to apply for an award or order in terms of this Part.
369 Evidence in connection with awards and orders
For the purpose of determining—
(a) the entitlement of an injured party to have an award or order made in his favour in terms of this
Part; or
(b) the liability of a convicted person to have an award or order made against him in terms of this Part;
or
(c) the amount of compensation payable in terms of this Part;
a court may refer to the proceedings and evidence at the trial or receive further evidence whether
documentary or
verbal.
370 Court may require security de restituendo
A court which makes an award or order in terms of this Part may require the injured party to give
security for
the repayment of the compensation or the return of the property, as the case may be, in case the award
or order is
reversed on appeal or review.
371 Liability under awards and orders to be joint and several
Where a court makes an award or order in terms of this Part against two or more convicted persons,
their liability
under the award or order shall be joint and several, unless in any particular case the court orders
otherwise.
372 Enforcement of awards and orders
Where an award or order has been made in terms of this Part by a court with jurisdiction in civil cases,
any interested
party may lodge a copy of the award or order with the clerk or registrar of the court, who shall record
it,
and thereupon the award or order shall have the same effect as a civil judgment of the court given
against the
person who is named in the order as being liable to pay the compensation or restore the property, as
the case may
be.
373 Payment of award out of moneys taken from or held on behalf of convicted person
Where—
(a) moneys have been taken from a person upon his arrest or search in terms of any law; or
(b) during the trial of a person, moneys have been produced by a witness who holds the moneys on
behalf
of that person; or
(c) a court is satisfied that a person against whom criminal proceedings have been instituted holds
moneys
in an account kept with a bank, building society or similar institution;
and, upon that person’s conviction of an offence, an award of compensation is made against him in
terms of this
Part, the court may order that the award shall be satisfied wholly or partly out of such moneys.
374 Person granted award or order debarred from further civil remedy
A convicted person against whom an award or order has been made in terms of this Part shall not be
liable at
the suit of the injured party in whose favour the award or order was made to any other civil
proceedings other than
proceedings for the enforcement of the award or order in respect of—
(a) the loss or diminution of the right or the personal injury in respect of which the award of
compensation
was made; or
(b) the restitution of the property in respect of which the order was made;
as the case may be.
375 Part XIX not to derogate from other laws relating to compensation or restitution
(1) This Part shall not limit the operation of any other law relating to compensation for loss or
diminution of
rights or for personal injury caused by offences or relating to the restitution of stolen or other property.
(2) The fact that a person failed to apply for an award or order in terms of this Part or was refused
such an
award or order shall not affect his right to claim any compensation or the restitution of any property in
any civil
proceedings.
PART XX
PARDON AND COMMUTATION
376 Saving of President’s prerogative of mercy
Nothing in this Act shall affect the prerogative of mercy of the President.
377 President may commute sentence
(1) In any case in which the President exercises the prerogative of mercy conditionally in respect of an
offender
under sentence of death, he may, without the consent of the offender, commute the punishment to any
punishment provided by law.
(2) Any such commutation shall be signified in writing to the Attorney-General, who shall thereupon
allow
the offender the benefit of the conditional pardon and make an order that he be punished in the manner
directed by
the President and such allowance and order shall have the effect of a valid sentence passed by the
court before
which the offender was convicted.
378 Exercise of prerogative of mercy in respect of offenders under sentence of
imprisonment
The President may, in any case not referred to in section three hundred and seventy-seven, exercise
the
prerogative of mercy in respect of an offender under sentence of imprisonment without the consent of
the offender
and—(
a) where he does so by suspending the operation of the whole or any part of such sentence, he may
suspend
the sentence for such period and upon such conditions as could a court acting in terms of paragraph
(b)
of subsection (2) of section three hundred and fifty-eight, and the provisions of that section shall
thereafter
apply, mutatis mutandis, in respect of such suspension as though the sentence had been suspended by
the court which imposed the sentence upon the offender;
(b) any punishment substituted by the President shall have effect as though it were a valid sentence
passed
by the court before which the offender was convicted.
379 Reference of case by Minister for appeal or opinion
Where—
(a) a person convicted of an offence has exhausted all legal remedies by way of appeal or review in
regard
to his conviction or the sentence imposed upon him, or where such remedies are no longer available to
him; and
(b) it appears to the Minister that there is further evidence which, if true, might reasonably affect the
conviction
or the sentence;
the Minister may—
(i) refer to the Supreme Court any particular point arising in the case on which the Minister desires
the Court’s opinion, in which event the Supreme Court shall consider the point and furnish the
Minister with its opinion thereon; or
(ii) refer the whole case to the Supreme Court, in which event the case shall be treated for all purposes
as an appeal or fresh appeal, as the case may be, to the Supreme Court by the convicted
person and the Supreme Court may exercise any of the powers conferred upon it by the Supreme
Court Act [Chapter 7:13], including the power to hear further evidence or to remit the case to
the court or tribunal of first instance for further hearing and the power to review the proceedings
in the case.
(2) For the purposes of subsection (1), a special verdict in terms of section 28 of the Mental Health
Act
[Chapter 15:06], that a person was mentally disordered or defective at the time he did the act or made
the omission
alleged against him, shall be regarded as a conviction.
(3) Subject to rules of court—
(a) the Supreme Court may consider any point referred to it in terms of paragraph (i) of subsection (1)
in
private;
(b) the procedure to be followed by the Supreme Court in considering a point referred to it in terms of
paragraph (i) of subsection (1) shall be as determined by the Chief Justice.
(4) No appeal, review or other proceedings whatsoever shall lie in respect of—
(a) a refusal or failure by the Minister to refer any case or point to the Supreme Court in terms of
subsection
(1) or to act on any opinion furnished in terms of paragraph (i) of that subsection; or
(b) the proceedings or deliberations of the Supreme Court on a point referred to it in terms of
paragraph (ii)
of subsection (1).
PART XXI
GENERAL
380 Force of process
Every warrant or summons or other process relating to any criminal matter shall be of force
throughout, and
may be executed anywhere within, Zimbabwe.
381 Institution of fresh proceedings when conviction set aside on appeal
When a conviction and a sentence are set aside by the Supreme Court or the High Court or a judge
thereof on
the ground that—
(a) the indictment on which the accused was convicted was invalid or defective in any respect; or
(b) there has been any other technical irregularity or defect in the procedure; or
(c) the proceedings of the trial court were a nullity by reason of want of jurisdiction or otherwise;
proceedings in respect of the same offence to which the conviction and sentence referred may again be
instituted,
either on the original charge, suitably amended where necessary, or upon any other charge, as if the
accused had
not previously been arraigned, tried and convicted:
Provided that no judicial officer or assessor before whom the original trial took place shall take part in
such
proceedings.
382 How documents to be served
(1) Unless a specific period is expressly provided, any notice or document required to be served upon
an accused
person shall be served by delivering it to the accused at least ten days before the day specified therein
for
his trial if his trial is before the High Court, or at least two days, Sundays and public holidays
excluded, before
that day if his trial is before a magistrates court or, where the accused cannot be found, by leaving a
copy of the
notice or document with a member of his household at his dwelling or, if no person belonging to his
household
can be found, then by affixing such copy to the principal outer door of the said dwelling or of any
place where he
actually resides or was last known to reside.
(2) Where the accused has been admitted to bail, any such notice or document referred to in
subsection (1)
may either be served upon him personally or be left at the place specified in the recognizance as that at
which any
notice of trial and service of the indictment or summons may be made.
(3) The officer serving any notice referred to in subsection (1) or (2) shall forthwith deliver or transmit
to the
official from whom he has received the notice or document for service a return of the mode in which
service was
made, and such return shall be prima facie evidence that the service of the notice or document was
made in the
manner and form stated in the return.
(4) Police officers shall, subject to rules of court, be as qualified to serve any notice or document
under this
Act as if they had been appointed deputy sheriffs or deputy messengers or other like officers of the
court.
383 Mode of proving service of process
When it is necessary to prove service of any summons, subpoena, notice or other process or the
execution of
any judgment or warrant under this Act, the service or execution may be proved by affidavit made
before a justice
having jurisdiction to take affidavits in the area wherein the affidavit is made or in any other manner
in which the
service or execution might have been proved if it had been effected in the area wherein the summons,
subpoena,
notice or other process or judgment or warrant emanated.
384 Transmission of summonses and writs by telegraph
Any summons, writ, warrant, rule, order, notice or other process, document or communication which,
by any
enactment or agreement of parties, is required or directed to be served or executed upon any person or
left at the
house or place of abode or business of any person in order that such person may be affected thereby,
may be
transmitted by telegraph, and a telegraphic copy served or executed upon such person or left at his
house or place
of abode or business shall be of the same effect as if the original had been shown to, or a copy thereof
served or
executed upon, such person, or left as aforesaid, as the case may be.
385 Prosecution of corporations and members of associations
(1) In this section—
“director”, in relation to a corporate body, means a person who—
(a) controls or governs that corporate body, whether lawfully or otherwise; or
(b) is a member of a body or group of persons which controls or governs that corporate body,
whether lawfully or otherwise; or
(c) where there is no body or group such as is referred to in paragraph (b), who is a member of the
corporate body.
[Subsection as substituted by Act No. 23 of 2004]
(2) ……
[Subsection repealed by Act No. 23 of 2004]
(3) In any criminal proceedings against a corporate body, a director or employee of that corporate
body shall
be cited, as representative of that corporate body, as the offender, and thereupon the person so cited
may, as such
representative, be dealt with as if he were the person accused of having committed the offence in
question:
Provided that—
(i) if the said person pleads guilty, the plea shall not be valid unless the corporate body authorized him
to
plead guilty;
(ii) if at any stage of the proceedings the said person ceases to be a director or employee of that
corporate
body or absconds or is unable to attend, the court or magistrate concerned may, at the request of the
prosecutor, from time to time substitute for the said person, any other person who is a director or
employee
of the corporate body at the time of the said substitution, and thereupon the proceedings shall
continue as if no substitution had taken place;
(iii) if the said person, as representing the corporate body, is committed for trial, he shall not be
committed to
prison but shall be released on his own recognizance to stand trial;
(iv) if the said person, as representing the corporate body, is convicted, the court convicting him shall
not
impose upon him in his representative capacity any punishment, whether direct or as an alternative,
other than a fine, even if the relevant enactment makes no provision for the imposition of a fine in
respect
of the offence in question, and such fine shall be payable by the corporate body and may be recovered
by attachment and sale of any property of the corporate body in terms of section three hundred and
forty-eight;
(v) the citation of a director or employee of a corporate body to represent that corporate body in any
criminal
proceedings instituted against it shall not exempt that director or employee from prosecution for that
offence in his personal capacity.
[Paragraph amended by Act No. 23 of 2004]
(4) In any criminal proceedings against a corporate body, any record which was made or kept by a
director,
employee or agent of the corporate body within the scope of his activities as such director, employee
or agent, or
any document which was at any time in the custody or under the control of any such director,
employee or agent
within the scope of his activities as such director, employee or agent, shall be admissible in evidence
against the
accused.
(5) For the purposes of subsection (4), any record made or kept by a director, employee or agent of a
corporate
body or any document which was at any time in his custody or control shall be presumed to have been
made
or kept by him or to have been in his custody or control within the scope of his activities as such
director, employee
or agent, unless the contrary is proved.
(6) …..
[Subsection repealed by Act No. 23 of 2004]
(7) In any proceedings against a director or employee of a corporate body in respect of an offence—
(a) any evidence which would be or was admissible against that corporate body in a prosecution for
that
offence shall be admissible against the accused;
(b) whether or not such corporate body is or was liable to prosecution for the offence, any document,
memorandum, book or record which was drawn up, entered up or kept in the ordinary course of that
corporate body’s business or which was at any time in the custody or under the control of any director,
employee or agent of the corporate body in his capacity as director, employee or agent, shall be prima
facie evidence of its contents and admissible in evidence against the accused, unless he is able to
prove
that at all material times he had no knowledge of the document, memorandum, book or record in so
far
as its contents are relevant to the offence charged, and was in no way party to the drawing up of the
document or memorandum or making of any relevant entries in such book or record.
(8) When a member of an association of persons, other than a corporate body, has, in carrying on the
business
or affairs of that association or in furthering or endeavouring to further its interests, committed an
offence,
whether by the performance of an act or by the failure to perform any act, any person who was, at the
time of the
commission of the offence, a member of that association, shall be deemed to be guilty of the offence,
unless it is
proved that he did not take part in the commission of that offence:
Provided that, if the business or affairs of the association are governed or controlled by a committee or
other
similar governing body, this subsection shall not apply to any person who was not at the time of the
commission
of the offence a member of that committee or other body.
(9) In any proceedings against a member of an association of persons in respect of an offence, any
record
which was made or kept by any member, employee or agent of the association within the scope of his
activities as
such member, employee or agent, or any document which was at any time in the custody or under the
control of
any such member, employee or agent within the scope of his activities as such member, employee or
agent including
the accused, shall be admissible in evidence against the accused.
[Subsection as amended by Act No. 23 of 2004]
(10) For the purposes of subsection (9), any record made or kept by a member, employee or agent of
an association
or any document which was at any time in his custody or control shall be presumed to have been made
or
kept by him, or to have been in his custody or control, within the scope of his activities as such
member, employee
or agent, unless the contrary is proved.
(11) This section shall be additional to, and not in substitution for, any other enactment which
provides for
criminal proceedings against corporate bodies or their directors or employees or against associations
of persons or
their members.
386 Provisions as to offences under two or more laws
Where an act or omission constitutes an offence under two or more enactments the offender shall,
unless the
contrary intention appears, be liable to be prosecuted and punished under either enactment or, as the
case may be,
under the enactment or the common law, but shall not be liable to more than one punishment for the
act or omission
constituting the offence.
[Subsection amended by section 28 of Act 9 of 2006.]
387 Estimating age of person
If in any criminal proceedings the age of any person is a relevant fact of which no or insufficient
evidence is
available in those proceedings, the judge or magistrate may estimate the age of such person by his
appearance or
from any information, including hearsay evidence, which may be available, and the age so estimated
shall be
deemed to be such person’s correct age unless it is subsequently proved that the said estimate was
incorrect.
388 Binding over of persons to keep the peace
(1) Where a complaint on oath is made to a magistrate that any person—
(a) is conducting himself violently towards, or is threatening injury to, the person or property of
another; or
(b) has used language or behaved in a manner towards another likely to provoke a breach of the peace
or
assault;
whether in a public or private place, the magistrate—
(i) may order the person to appear before him; and
(ii) if necessary, may cause that person to be arrested and brought before him; and
(iii) when that person appears before him, shall inquire into the matter.
(2) For the purposes of an inquiry in terms of subsection (1), the magistrate may—
(a) order the person concerned to be kept in custody until the expiration of a period of fourteen days or
the
conclusion of the inquiry, whichever is the sooner;
(b) take evidence on oath from the person concerned and the complainant and any other person.
(3) After inquiring into the matter in terms of subsection (1), the magistrate may—
(a) order the person against whom the complaint is made to enter into recognizances, with or without
sureties, in an amount not exceeding the equivalent of a fine of level seven for a period not exceeding
one year to keep the peace towards the complainant and refrain from doing or threatening injury to his
person or property; and
[Paragraph amended by section 4 of Act 22 of 2001.]
(b) order the person against whom the complaint is made or the complainant to pay the costs of and
incidental
to the inquiry.
(4) Any person who, having been ordered to give recognizances in terms of paragraph (a) of
subsection (3),
refuses or fails to do so may be committed to prison for a period not exceeding one month unless such
recognizances
are sooner found.
(5) Upon information being made on oath that a person bound by recognizances referred to in
paragraph (a)
of subsection (3) has failed to observe the conditions of the recognizances, any magistrate—
(a) may order the person to appear before him; and
(b) if necessary, may cause that person to be arrested and brought before him; and
(c) when that person appears before him, shall inquire into the matter.
(6) The provisions of subsection (2) shall apply, mutatis mutandis, in respect of an inquiry in terms of
paragraph
(c) of subsection (5).
(7) Where it appears to any magistrate, whether after an inquiry in terms of paragraph (c) of
subsection (5) or
otherwise, that any person has failed to observe the conditions of recognizances referred to in
paragraph (a) of
subsection (3), he may order the recognizances to be forfeited.
(8) An order in terms of subsection (7) shall have the effect of a civil judgment of the court.
(9) If a peace officer believes on reasonable grounds that the conditions of recognizances referred to in
paragraph
(a) of subsection (3) are not being observed by any person, he may arrest the person without warrant
and
shall, as soon as possible, bring him before a magistrate for the purposes of an inquiry in terms of
paragraph (c) of
subsection (5) and the provisions of this section shall thereafter apply, mutatis mutandis.
(10) A person arrested in terms of subsection (9) shall be informed forthwith by the person arresting
him of
the cause of the arrest.
389 Regulations
(1) Subject to subsection (3), the Minister may by regulation prescribe all matters which by this Act
are required
or permitted to be prescribed or which, in his opinion, are necessary or convenient to be prescribed for
giving effect to this Act.
(2) Regulations made in terms of subsection (1) may provide—
(a) for the persons who shall be prescribed officers for the purposes of section three hundred and fifty-
six;
(b) for the powers and duties of employers in relation to any order made under section three hundred
and
forty-nine for deductions from the wages of offenders;
(c) in relation to the suspension or postponement of sentences, for—
(i) the appointment, powers and duties of persons, to be known as probation officers, to whom may
be entrusted the care or supervision of offenders whose sentences have been suspended or in respect
of whom passing of sentence has been postponed;
(ii) the circumstances in which courts may entrust offenders to the care and supervision of probation
officers;
(iii) the conditions to be observed by offenders entrusted to the care and supervision of probation
officers, and the variation of such conditions:
(d) in relation to community service as defined in section three hundred and thirty-five A, for
(i) the circumstances in which a court may not order an offender to render community service;
(ii) the form and content of orders requiring persons to render community service;
(iii) information to be supplied to offenders regarding any order requiring them to render community
service;
(iv) the manner in which offenders shall render community service.
[Paragraph as inserted by section 19 of Act 8 of 1997.]
(3) The Minister shall not make regulations in terms of this section in respect of matters for which
rules of
court have been made.
FIRST SCHEDULE (Sections 25, 27, 30 and 42)
SPECIFIED OFFENCES IN RELATION TOPOWERS OF ARREST
1. Any offence at common law, other than bigamy, blasphemy, compounding an offence, contempt of
court,
criminal defamation, incest or violating a grave or dead body.
2. Any offence in terms of any enactment in respect of which a punishment of a period of
imprisonment exceeding
six months is provided and may be imposed without the option of a fine.
[Paragraph substituted by section 8 of Act 14 of 2004.]
3. A conspiracy, incitement or attempt to commit, or being an accessory after the fact to, any of the
offences
specified in paragraph 1 or 2.
SECOND SCHEDULE (Section 62)
OFFENCES IN CONNECTION WITHWHICH THINGSMAY BE SEIZED AND CONFISCATED IN TERMS OF SECTION 62
1. Any offence under any enactment relating to the unlawful possession, conveyance or supply of
habitforming
drugs or harmful liquids.
2. Any offence under any enactment relating to the unlawful possession of, or dealing in, precious
metals or
precious stones.
3. Theft, either at common law or as defined by any enactment.
4. Breaking and entering any premises with intent to commit an offence, either at common law or in
contravention
of any enactment.
THIRD SCHEDULE (Sections 32, 116, 117(6) and 123)
OFFENCES IN RESPECT OF WHICHPOWER TOADMIT PERSONS TOBAIL IS EXCLUDED OR QUALIFIED
PART I
1. Murder, where—
(a) it was planned or premeditated, or
(b) the victim was—
(i) a law enforcement officer or public prosecutor performing his or her functions as such, whether
on duty or not, or a law enforcement officer or public prosecutor who was killed by virtue of his
or her holding such a position, or
(ii) a person who has given or was likely to give material evidence with reference to any offence
referred to in the First Schedule;
or
(c) the death of the victim was caused by the accused in committing or attempting to commit or after
having
committed or having attempted to commit one of the following offences—
(i) rape; or
(ii) aggravated indecent assault, or
(iii) robbery with aggravating circumstances;
or
(d) the offence was committed by a person, group of persons or syndicate acting in the execution or
furtherance
of a common purpose or conspiracy.
2. Rape or aggravated indecent assault—
(a) when committed—
(i) in circumstances where the victim was raped or indecently assaulted more than once, whether by
the accused or by any co-perpetrator or accomplice; or
(ii) by more than one person, where such persons acted in the execution or furtherance of a common
purpose or conspiracy; or
(iii) by a person who is charged with having committed two or more offences of rape or aggravated
indecent assault; or
(iv) by a person who knew that he or she had the acquired immune deficiency syndrome or the
human immunodeficiency virus;
or
(b) where the victim—
(i) is a girl or boy under the age of 16 years; or
(ii) is a physically disabled woman who, due to her physical disability, is rendered particularly
vulnerable; or
(iii) is mentally disordered or intellectually handicapped, as defined in section 2 of the Mental Health
Act [Chapter 15:12] (No. 15 of 1996);
or
(c) involving the infliction, of grievous bodily harm.
3. Robbery, involving—
(a) the use by the accused or any co-perpetrators or participants of a firearm; or
(b) the infliction of grievous bodily harm by the accused or any co-perpetrators or participants; or
(c) the taking of a motor vehicle as defined in section 2 of the Road Traffic Act [Chapter 13:11].
4. Assault or indecent assault of a child under the age of 16 years, involving the infliction of grievous
bodily
harm.
5. Kidnapping or unlawful detention involving the infliction of grievous bodily harm.
6. Contravening section 20, 21, 22, 23, 24, 25, 26, 27 or 29 of the Criminal Law Code.
7. An offence referred to in Part II—
(a) where the accused has previously been convicted of an offence referred to in that Part or this Part;
or
(b) which was allegedly committed while he or she was released on bail in respect of an offence
referred to
in that Part or this Part.
PART II
1. Treason.
2. Murder otherwise than in the circumstances referred to in paragraph 1 of Part I.
3. Attempted murder involving the infliction of grievous bodily harm.
4. Malicious damage to property involving arson.
5. Theft of a motor vehicle as defined in section 2 of the Road Traffic Act [Chapter 13:11].
6. Any offence relating to the dealing in or smuggling of ammunition, firearms, explosives or
armaments, or
the possession of an automatic or semi-automatic firearm, explosives or armaments
7. A conspiracy, incitement or attempt to commit any offence referred to in paragraph 4, 5 or 6.
8. Any offence where the Attorney-General has notified a magistrate of his intention to indict the
person
concerned in terms of section 66.
[Schedule inserted by section 27 of Act No. 9 of 2006.]
FOURTH SCHEDULE
[Schedule repealed by section 44 of Act No. 1 of 2002.]
FIFTH SCHEDULE (Section 132)
OFFENCES IN CONNECTIONWITH WHICHBAILMAYNOT BE GRANTED IN TERMS OF SECTION 132 (1)
1. Murder.
2. Rape or aggravated indecent assault.
3. Robbery.
4. Assault in which a dangerous injury is inflicted.
5. Malicious damage to property committed in aggravating circumstances as provided in section 143
of the
Criminal Law Code.
6. Unlawful entry into premises committed in aggravating circumstances as provided in section 131(2)
of the
Criminal Law Code.
7. Theft, making off without payment, receiving any stolen property knowing it to have been stolen,
fraud or
forgery, if the amount or value involved in any such offence exceeds five hundred thousand dollars.
8. Stock theft.
9. Any offence under any enactment relating to the unlawful possession of, or dealing in, precious
metals or
precious stones.
10. Any offence relating to the coinage or banknotes.
11. Contravening section 20, 21, 22, 23, 24, 25, 26, 27 or 29 of the Criminal Law Code.
12. Any conspiracy, incitement or attempt to commit an offence specified in paragraphs 1 to 11
[Schedule substituted by Act No. 23 of 2004]
SIXTH SCHEDULE (Section 345)
OFFENCES FORWHICH SENTENCE OF PERIODICAL IMPRISONMENTMAY BE IMPOSED
1. An offence in terms of—
(a) subsection (2) of section 54; or
(b) subsection (2) of section 55; or
(c) subsection (3) of section 76; or
(d) subsection (6) of section 77;
of the Road Traffic Act [Chapter 13:11].
2. Contravening subsection (1) of section 23 of the Maintenance Act [Chapter 5:09].
SEVENTH SCHEDULE (Section 346)
EXTENDED IMPRISONMENTOFFENCES
1. Murder.
2. Rape or aggravated indecent assault.
[Paragraph amended by Act No. 23 of 2004
3. Robbery.
4. Assault with intent to commit murder, rape or robbery or to do grievous bodily harm.
5. Culpable homicide involving an assault.
6. Indecent assault.
7. Malicious damage to property committed in aggravating circumstances as provided in section 143
of the
Criminal Law Code.
[Paragraph as substituted by Act No. 23 of 2004]
8. Fraud.
9. Forgery.
10. Unlawful entry into premises committed in aggravating circumstances as provided in section 131
(2) of the
Criminal Law Code
11. Theft, stock theft, making off without payment or receiving any stolen property knowing it to have
been
stolen.
12. …..
[Paragraph repealed by Act No. 23 of 2004]
13. Extortion.
14. Any offence, not being an offence under the law of Zimbabwe, by whatever name called, which is
substantially
similar to an offence specified in paragraphs 1 to 13.
15. Any offence in terms of any enactment in respect of which the maximum punishment is
imprisonment for a
period of six months or more without the option of a fine.
16. Any attempt, conspiracy or incitement to commit, or being an accessory after the fact to the
commission of,
an offence specified in paragraphs 1 to 15.
EIGHTH SCHEDULE (Section 358)
OFFENCES IN RELATION TO WHICHPOSTPONEMENT OR SUSPENSION OFSENTENCE, ORDISCHARGE WITH CAUTION OR
REPRIMAND, IS NOT
PERMITTED
1. Murder, other than the murder by a woman of her newly born child.
2. Any conspiracy or incitement to commit murder.
3. Any offence in respect of which any enactment imposes a minimum sentence and any conspiracy,
incitement
or attempt to commit any such offence.
NINTH SCHEDULE (Section 25(1)(b) and 32(3b))
OFFENCES INVOLVINGCORRUPTION, ORGANISEDCRIME OR HARM TO THE NATIONALECONOMY
1. Any offence referred to in Chapter IX (“Bribery and Corruption”) of the Criminal Law Code.
2. Contravening section 63 (“Money-laundering”) of the Serious Offences (Confiscation of Profits)
Act [Chapter
9:17].
3. The sale, removal or disposal outside Zimbabwe of any controlled product in contravention of the
Grain
Marketing Act [Chapter 18:14].
4. Any offence under any enactment relating to the unlawful possession of, or dealing in, precious
metals or
precious stones.
5. Any offence referred to in Chapter VII (“Crimes Involving Dangerous Drugs”) of the Criminal Law
Code,
other than unlawful possession or use of dangerous drugs where the dangerous drug in question is
cannabis.
6. Fraud or forgery
(a) involving prejudice or potential prejudice to the State, except where the magnitude of the prejudice
or
potential prejudice is less than such amount as the Minister may prescribe by notice in a statutory
instrument;
or
(b) committed by a person, group of persons, syndicate or enterprise acting in execution or furtherance
of a
common purpose or conspiracy; or
(c) where the magnitude of the prejudice or potential prejudice to any person is more than such
amount as
the Minister may prescribe by notice in a statutory instrument.
7. Contravening section 42 (“Offences relating to banknotes”) of the Reserve Bank Act [Chapter
22:15] or
committing any offence relating to the coinage.
8. Contravening subparagraph (i) of paragraph (a) of subsection (1) of section 5 of the Exchange
Control Act
[Chapter 22:05] as read with
(a) subsection (1) of section 4 of the Exchange Control Regulations, 1996, published in Statutory
Instrument
109 of 1996, (in this paragraph and paragraph 8 called “the Exchange Control Regulations”), by
dealing in any foreign currency in contravention of paragraph (a) or (b) of that section of the
Regulations
without the permission of an exchange control authority;
(b) subsection (1) of section 10 of the Exchange Control Regulations, by unlawfully making any
payment,
placing any money or accepting any payment in contravention of paragraph (a), (b), (c) or (d) of that
section of the Regulations;
(c) paragraph (a) or (b) of subsection (1) of section 11 of the Exchange Control Regulations, by
unlawfully
making any payment outside Zimbabwe or incurring an obligation to make any payment outside
Zimbabwe;
(d) paragraph (b) (e) or (f) of subsection (1) of section 20 of the Exchange Control Regulations, by
unlawfully
exporting any foreign currency, gold, silver or platinum, or any article manufactured from or
containing
gold, silver or platinum, or any precious or semiprecious stone or pearl from Zimbabwe;
(e) subsection (2) of section 21 of the Exchange Control Regulations, by unlawfully exporting any
goods
from Zimbabwe in contravention of that provision of the Regulations.
9. Contravening paragraph (b) of subsection (1) of section 5 of the Exchange Control Act
[Chapter
22:05] by making any false statement or producing any false document in connection with a
contravention
of subsection (2) of section 21 of the Exchange Control Regulations.
10. Theft of a motor vehicle as defined in section 2 of the Road Traffic Act [Chapter 13:11].
11. Theft or forgery of
(a) a document issued to a person in terms of subsection (1) or (2) of section 7 of the National
Registration
Act [Chapter 10:17], or a passport or drivers licence issued by or on behalf of the Government of
Zimbabwe;
or
(b) any visitors entry certificate or other certificate or permit issued to a person in terms of the
Immigration
Act [Chapter 4:02], or in terms of any enactment relating to refugees; or
(c) any passport, identity document or drivers licence issued by a foreign government; or
(d) a vehicle registration plate; or
(e) any documentation relating to the registration or insurance of a motor vehicle.
12. Stock theft involving a bovine or equine animal.
13. A conspiracy, incitement or attempt to commit any offence referred to in paragraphs 1 to 12.
[Schedule substituted by Act No. 23 of 2004]