Chapter 16 - Conduct of Trial

Conduct of trial 16—1
CHAPTER 16
CONDUCT OF TRIAL
Section page
1. Judicial officer’s conduct
(1) general ................................................................................................................. 16—3
(2) irregularities
(a) questioning of witnesses .............................................................................. 16—5
(b) interviewing witnesses ................................................................................. 16—6
(c) illness ........................................................................................................... 16—6
(3) duties
(a) call evidence ................................................................................................ 16—6
(b) impartiality .................................................................................................. 16—7
(c) assistance to undefended accused ................................................................ 16—8
(i) explanations to the accused ................................................................. 16—8
(ii) accused’s conduct of his defence ......................................................... 16—9
(d) protecting witnesses ..................................................................................... 16—9
(e) recusal .......................................................................................................... 16—9
2. Withdrawal of charge
(1) before plea ......................................................................................................... 16—10
(2) after plea ............................................................................................................ 16—12
(3) discharge for want of prosecution ..................................................................... 16—12
3. Arraignment ................................................................................................................ 16—13
4. Plea
(1) requirement to enter ........................................................................................... 16—14
(2) matters to be raised before plea entered
(a) objections ................................................................................................... 16—14
(i) accused not served with copy of charge ............................................ 16—14
(ii) formal defects in charge ..................................................................... 16—14
(b) exceptions to charge and motions to quash charge .................................... 16—14
(c) notice required for exceptions, etc ............................................................. 16—15
(3) who may tender plea .......................................................................................... 16—15
(a) company director ....................................................................................... 16—15
(b) counsel ....................................................................................................... 16—16
(4) accused committed or remitted for sentence ..................................................... 16—16
5. Pleas which may be entered

(1) issues raised by plea to be tried ......................................................................... 16—17
(2) guilty .................................................................................................................. 16—17
(a) on behalf of accused company ................................................................... 16—17
(b) to lesser offence than that charged ............................................................. 16—17
(c) limits of prosecutor’s right to accept plea ................................................. 16—18
(d) murder trial ................................................................................................ 16—18
16—2 Criminal Procedure in Zimbabwe
(3) not guilty ............................................................................................................ 16—18

(4) autrefois convict or acquit
(a) general ....................................................................................................... 16—19
(b) procedure ................................................................................................... 16—19
(c) requirements .............................................................................................. 16—20
(d) acquittal or conviction “on the merits”: meaning ...................................... 16—20
(5) other pleas .......................................................................................................... 16—21
(a) jurisdiction ................................................................................................. 16—21
(i) trial of plea ......................................................................................... 16—21
(ii) effect of failure to raise subject ......................................................... 16—22
(b) Presidential pardon .................................................................................... 16—22
(c) prosecutor having no title .......................................................................... 16—22
(d) truth of defamatory matter ......................................................................... 16—23
(6) combination of pleas .......................................................................................... 16—23
(7) notice required for pleas other than guilty or not guilty .................................... 16—23
(8) altering plea ....................................................................................................... 16—24
(9) refusal to plead .................................................................................................. 16—24
(10) one judicial officer taking plea, another trying the case .................................... 16—25
6. Presence of accused .................................................................................................... 16—25

(1) trial in absence of accused ................................................................................. 16—25
(2) accused absenting himself ................................................................................. 16—26
(3) accused’s place in court room ............................................................................ 16—26
7. Exclusion of witnesses from court room .................................................................... 16—27
8. Prosecution case
(1) outline of prosecution case ................................................................................ 16—27
(a) purpose of and distinction from outline of defence case ........................... 16—28
(b) contents ...................................................................................................... 16—28
(c) recording of ............................................................................................... 16—28
(d) omissions from .......................................................................................... 16—28
(2) evidence for the prosecution .............................................................................. 16—29
(3) cross-examination of prosecution witnesses ..................................................... 16—31
(a) duty to put defence case ............................................................................ 16—31
(b) effect of failure to cross-examine .............................................................. 16—31
(c) departure from State outline ...................................................................... 16—31
9. Discharge at end of prosecution case ......................................................................... 16—32

(1) when application may be made ......................................................................... 16—32
(2) when should be ordered ..................................................................................... 16—32
10. Defence case

(1) court’s duties when accused is put on his defence ............................................ 16—33
(2) defence outline ................................................................................................... 16—34
(3) evidence for the defence .................................................................................... 16—35
(4) cross-examination of defence witnesses ............................................................ 16—35
(5) questioning of accused ...................................................................................... 16—36
(5) accused’s failure to mention relevant facts ........................................................ 16—37
11. Re-opening of state case and defence case ................................................................. 16—37
12. Address by parties ...................................................................................................... 16—38

(1) right of address .................................................................................................. 16—38
(2) order of address ................................................................................................. 16—39
(3) method of address .............................................................................................. 16—39
(4) effect of failure to invite accused to address ..................................................... 16—39
13. Record of trial

(1) contents .............................................................................................................. 16—39
(2) alteration ............................................................................................................ 16—40
(3) lost record .......................................................................................................... 16—40
(4) disclosure ........................................................................................................... 16—41
14. Irregularities ............................................................................................................... 16—41

(1) irregularities vitiating proceedings .................................................................... 16—41
(2) other irregularities ............................................................................................. 16—41
15. Questions of law arising during trial

(1) reservation of question of law ........................................................................... 16—42
(2) reservation of decision on points raised at trial ................................................. 16—43
(3) constitutional questions arising during the trial ................................................. 16—43
16. Miscellaneous
(1) impounding of forged documents ...................................................................... 16—43
(2) cutting up of counterfeit coins ........................................................................... 16—43
1. JUDICIAL OFFICER’S CONDUCT
(1) GENERAL1
The fate of fellow human beings lies in the hands of judicial officers. They must, accordingly,
decide all criminal cases on a fair, objective and impartial basis. They must keep open minds and
refrain from doing anything which could create the impression that they are biased or partisan in
their approach.
The function of a judicial officer in a criminal trial is not merely that of an umpire or referee, to see
that the rules of the game are observed by both sides,2 though he must see that the recognised rules
and procedures are followed. It is of fundamental importance that justice not only is done but is
plainly and undoubtedly seen to be done,3 by so conducting the trial that his open-mindedness, his
impartiality and his fairness are manifest to all who are concerned in the trial and its outcome,
espcially the accused.4
1 See Magistrates Handbook Section 1.

2 Per Curlewis JA (as he then was) in R v Hepworth 1928 AD 265.
3 Paraphrasing the oft-quoted remark of Lord Hewart CJ in R v Sussex Justices ex p McCarthy [1924] 1 KB 256.
Unfortunately Lord Hewart himself was frequently guilty of breaching this standard: Pannick p 84.
4 Per Trollip AJA (as he then was) in S v Rall 1982 (1) SA 828 (A) at 831.
The judicial officer must, in accordance with his oath, apply the law without fear or favour, treating
all persons in the same way, regardless of the person’s rank, status or standing in society. The high
and mighty should be treated in the same way as the lowly and humble.5 All cases should be
treated the same, as each one has deep relevance and possibly serious consequences for the parties
involved.
The attributes, attitudes and comportment of judicial officers are very important.6 Honesty and
judicial rectitude are the very minimum requirements. A judicial officer must also be dignified, so
as to earn the respect of all who appear before him. If there is any virtue a judicial officer should
possess in abundance, it is patience, no matter how difficult it may be at any particular time to
display patience. Witnesses and lawyers can frequently stretch a judicial officer’s patience to the
limit. Allied to patience is courtesy, to which every person in court is entitled. It must always be
possible to cut short a tedious argument or address in a courteous way.
A kind and understanding heart is perhaps the most valuable attribute a judicial officer should
possess. The bench is no place for a cruel and callous person, no matter what his other qualities
and abilities may be. Courage and strength of character are required to resist extraneous and improper
influences. Judicial officers should also have the courage to make the law an instrument of social
change and social justice and the courage to save the law from being the government of the living
by the dead, by blind adherence to outdated and outmoded precedents. This does not, of course,
give a judicial officer the right to disregard clear and binding precedents.
A judicial officer should be prompt and business-like in the performance of his duties, recognising
that time is precious to legal practitioners, to witnesses and to the accused. Lack of punctuality and
dilatoriness in reaching decisions are inexcusable. An inability to make up one’s mind is a fatal
defect. While perfection is a laudable aspiration, it is not necessarily a virtue in the hearing of
trials. The attempt to achieve perfection may cause procrastination and undue delays.
Commonsense is an essential quality. A judicial officer who knows little law may be able to get by,
but without common sense he certainly will not.
A sense of humour is also a desirable quality,7 but it must be remembered by would-be judicial
humourists that the court is not a proper venue for a stand-up comic routine. The parties to the case
have not come to be entertained and they cannot give the traditional responses of a dissatisfied
audience by walking out or booing or refusing to attend.8
Judicial officers are there to apply the law as it is, not as they think it ought to be. While a judicial
officer is as entitled as any other person to his own views on what the law ought to be or on any
other issue, it is not proper for him to express those views from the bench. He should take particular
care to avoid any suggestion that he has made use of judicial proceedings to air personal grievances
or to express views that have no bearing on the case in hand. He should refrain from expressing
himself in extravagant and emotional language, inconsistent with the dispassionate and objective
5 Feltoe op cit p 2.
6 What follows is largely taken from “Attributes, Attitudes and Comportment of Judicial Officers” Legal Forum (1988)
vol 1 no 1 p 3, by the Hon Mr Justice A R Gubbay (then a judge of appeal).
8 Pannick p 82.
approach expected of a judicial officer.9 It would also be improper for a judicial officer to express
his private views as to what the maximum sentence ought to be for a particular offence and tailor
the sentence accordingly,10 as the legislature sets the level of sentence.
The judicial officer’s conduct off the bench is also important. It should be respectable, free from
any hint of the unusual, let alone the deviant.11 Judicial officers should refrain from becoming
involved in contentious organizations and activities in society, such as belonging to a political
party. Such conduct could lead the public to believe that the judicial officer will be partisan in
judging certain types of cases. This applies particularly to magistrates who are stationed in small
communities.12
(2) IRREGULARITIES
(a) Questioning of witnesses
Apart from failing to conform with the general standards of behaviour mentioned above, a judicial
officer can commit serious irregularities in the way he conducts a case. One such irregularity is the
manner in which the judicial officer questions witnesses. It must be recognised that the line between
what is proper and what is irregular is sometimes a very fine one.
The basic caution is that the judicial officer must not descend into the arena and allow his judicial
vision to be clouded by the dust of conflict.13 There are occasions, particularly where the accused
is unrepresented, where a judicial officer will properly take part in the examination of the witnesses,
but in the main, and as far as is reasonably possible, he should leave the dispute to the parties,
interrupting only when it is necessary to clarify some point in the interests of justice.14 Sometimes,
however, as is explained below, there is a positive duty on the judicial officer to interfere.
The judicial officer should refrain from questioning witnesses or the accused in such a way or to
such an extent that it may preclude him from detachedly or objectively appreciating and adjudicating
upon the issues. His ability to assess the demeanour or credibility of the witnesses may be seriously
impaired; in the case of a judge sitting with assessors, this may well adversely influence their
deliberations and opinions. Lengthy questioning of a witness is undesirable, particularly when the
impression is given that the judicial officer is throwing his weight on one side or the other.15
He should also refrain from questioning a witness or the accused in a way which may intimidate or
disconcert him or unduly influence the quality or nature of his replies and thus affect his demeanour
or impair his credibility.16
Not knowing what a witness is expected to say, a judical officer is ill-equipped to carry out the
examination of a witness. Generally, in questioning witnesses, the judicial officer’s role is to listen
9 S v Mahati 1988 (1) ZLR 190 (H).

10 S v Harington 1988 (2) ZLR 344 (S) at 363-4.
11 Pannick p 11, though later (pp 102-103) the author argues that lawful conduct of which the public may not approve
should not be a reason for a person not to be appointed as a judicial officer or for that judicial officer to have to resign.
13 Yuill v Yuill [1945] 1 All ER 183 (CA) at 189, per Lord Greene MR.
14 S v Sigwahla 1967 (4) SA 566 (A), per Holmes JA.
15 S v Magoge 1988 (1) ZLR 163 (S).
16 S v Rall supra, cited in S v Mangezi 1985 (1) ZLR 272 (S).
to the evidence and only ask questions when it is necessary to clear up any point which has been
overlooked or left obscure.17
It would be improper for a judicial officer to question a witness in a language familiar to himself
and the witness but which was not understood by the accused or the prosecutor.18
(b) Interviewing witnesses
The only place where a judicial officer should question a witness is in court. It would be improper
for the witness to be questioned elsewhere out of the presence of the accused. It is a principle of
justice in this country that trials take place in open court and that judicial officers decide cases
solely on evidence heard in open court in the presence of the accused. A judicial officer should
have no communication with any witness except in the presence of the prosecutor and the accused
(or his legal representative).19
(c) Illness
It may happen that due to illness a judicial officer is unable to conduct the trial properly. In this
event, it would be preferable that he recuse himself.20
(3) DUTIES
(a) Call evidence
The court has a general power to subpoena any person as a witness or to call any person present to
give evidence. It may recall and re-examine any witness who has already given evidence. It is
obliged to subpoena and examine, or recall and re-examine, any person whose evidence appear to
be essential to a just decision of the case.21
How far should this power should be used to rectify omissions in the prosecution case? The basic
rule is that the court has a discretion to call or recall witnesses if it considers that to do so will help
it reach a just decision.22 The discretion reposed in the court should at all times be exercised
sparingly, but particularly if the defence case has been closed. It is the duty of the court neither to
build up a case which the prosecution has failed to establish nor to undertake the function of
rebuilding a defence.23
The right to call a witness in a defended case should not be exercised, save in exceptional
circumstances, so as to avoid interfering with the discretion of counsel in their choice of the
evidence which they wish to be placed before the court. However, if there is a conflict between the
witnesses, and a witness is available who can resolve the conflict, the court should call that witness.24
The court’s function is to determine the truth.
17 Jones v National Coal Board [1957] 2 All ER 155, per Denning LJ (as he then was).
18 S v Jenkins 1985 (2) ZLR 193 (S).
19 R v Maharaj 1960 (4) SA 256 (N) at 258, cited in S v Jenkins supra.
20 S v van Rhyn en ’n Ander 1993 (2) SACR 668 (A).
21 CP&EA s 232.
22 R v Green 1936 SR 181.
23 S v Nyamaro & Anor 1987 (2) ZLR 222 (S) at 229-230.
24 S v Muchazivepi 1973 (2) RLR 163 (A); S v Buitendag 1976 (1) RLR 345 (A) at 348.
On the other hand, the court should not call a witness merely to confirm or rebut other evidence on
a point not directly relevant to the issues before the court.25 The court should not use the power to
call a witness to show that the accused is guilty of offence other than the one charged,26 nor may it
recall the accused in order to establish a point not proved by the prosecution.27 It is, however, in
order to call evidence to rectify a fatal deficiency in the prosecution case, such as is caused by the
failure to prove a mere technicality.28
Comment
It is not clear, from the decision in Mavingere, how far a court may go. The court quoted,
with approval, a dictum of Schreiner JA in R v Pretoria Timber Co (Pvt) Ltd & Anor 1950 (3)
SA 163 (A), which indicated that the discretion should not be so exercised as to prevent
the court from hearing evidence that may supply a fatal deficiency in the prosecution case.
In that case, the failure to call the evidence was due to an oversight and not to obstinacy
on the part of the prosecutor, the offences were deliberate and serious and the matter
could be proved without delay and without dispute. in S v Nota A-153-70 (not reported),
the court went further and called eye witnesses to a murder where the prosecution had
failed to call them.
It is submitted that a wide discretion should be given to the court, whose function is, after
all, to administer justice and determine the truth. If the court was aware that witnesses
were available whose evidence could help the court decide the case justly, would it not be
failing in its duty to do justice if it failed to call the witnesses?29 It frequently happens that
neither the prosecution nor the defence wishes to call a particular witness for fear of
weakening its own case; yet it may be the evidence of that very witness which will have a
decisive bearing on the matter. It is submitted that the approach taken in Nyamaro is too
restrictive.
(b) Impartiality
It may seem to be stating the obvious to say that a judicial officer has a duty of impartiality.
Consistent with this duty, it is desirable that a judicial officer should have no communication with
either party in a case save in the presence of the other.30
In practice, this ideal is not always achievable. In the magistrates courts, it is almost unavoidable
that the prosecutors and magistrates have frequent contact with one another outside the court
room. At the larger centres, the senior prosecutor must make administrative arrangements with the
magistrates. Individual prosecutors may meet the magistrate of the court to which they are assigned
in order to discuss administrative questions, such as the order in which the court roll is to be dealt
with. Provided that such encounters are confined to such administrative questions, there can be
little harm in their taking place. What should never happen is that the prosecutor in any way
discusses the merits of a case with the magistrate outside the court room, except on the presence of
the accused or his legal representative.31
25 R v Zakeyu 1963 R & N 434 (FS).

26 R v Joseph 1951 SR 81.
27 R v Naran 1953 SR 156; 1954 (1) SA 509 (SR).
28 S v Buitendag supra ; S v Mavingere 1988 (2) ZLR 318 (S).
29 See S v Buitendag supra at p 348.
30 R v Maharaj supra.
31 R v Mahashi & Anor 1918 SR 3.
In court, a judicial officer should not be seen to assist a prosecutor, however inexperienced the
prosecutor may be. By descending into the arena, even to rectify the shortcomings of such a
prosecutor, a judicial officer destroys any impression of impartiality and invariably places himself
in an adverse position when it comes to assessing demeanour. 32 A prosecutor, however
inexperienced, will be generally (but not always) more capable of conducting litigation than an
unrepresented accused, who will generally (but not always) be more deserving of, and in need of,
guidance from the bench.
(c) Assistance to undefended accused
An undefended accused is usually at a severe disadvantage compared to one who is represented.

He is unfamiliar with the law and with rules of evidence and procedure. He will probably be
unaware of how to defend himself or what is relevant to do so. A judicial officer is accordingly
under an obligation to assist the accused as far as is necessary to ensure that justice is done. This
does not mean that he must assume the role of defence lawyer or attempt to conduct the defence.
What he must do is, as far as possible, ensure that points which are pertinent to the defence case
emerge.33
Some of the duties of a magistrate in this regard are set out in some detail in Magistrates Handbook
pp 107-112.
Some other duties of a judicial officer to an undefended accused are set out below.
(i) Explanations to the accused
(a) The judicial officer should explain the charge to the accused, so that the accused understands
fully what charge he is expected to answer.34
(b) If there is any special onus cast on the accused — for example, if there are any presumptions
which he must rebut — this should be explained to him.35
(c) Where a mandatory sentence is possible unless special circumstances or reasons are shown,
the judicial officer should explain the meaning and import of the phrase to the accused.36
(d) At the end of the State case, if the court decides that the accused should be put on his
defence,37 it should explain to the accused the courses open to him and the possible effect
of taking the various courses.38
32 S v Mangezi 1985 (1) ZLR 272 (S).

33 Thus, in S v Mboto SCD 19/93 p 4 (TkGD), where an unrepresented accused asked a single question of the witness
who identified him as his attacker, the magistrate should have asked questions on the issue so as to reduce the risk of a
possible failure of justice.
34 S v Kefasi & Ors 1975 (1) RLR 357 (G).
35 R v Lebang 1965 RLR 169 (G).
36 S v Chaerera 1988 (2) ZLR 226 (S) at 229; S v Rudolph 1990 (1) ZLR 45 (S). As to what may constitute “special
reasons” or “special circumstances”, see S v Chisiwa 1981 ZLR 666 (G); S v Zvinyenge & Ors S-99-87 (not reported); S v
Mbewe & Ors 1988 (1) ZLR 7 (H); and see Chapter 25, Section 7 below. .
37 This will be dealt with in more detail in Section 9 of this Chapter.
38 R v Macdonald 1964 RLR 124 (SR); Nyikadzino v Attorney-General 1964 RLR 543 (A); S v M & Ors 1975 (2) RLR
270 (A).
(e) In appropriate circumstances, the court should indicate to the accused the availability of
legal aid or at least the advisability of seeking legal representation at his own expense.39
(ii) Accused’s conduct of his defence

The court should allow an undefended accused considerable latitude in cross-examination. A cross-
examiner does not have to demonstrate beforehand the relevance of every question he wishes to
put. The court should avoid giving even the suspicion that the defence is being muzzled. This can
be very difficult, as cross-examination can be very long and tedious, even when the case is
defended.40
The judicial officer has a duty to protect an undefended accused, to ensure that the accused’s case
is fairly put and to restrain an unfair advantage taken by the prosecutor.41
It may be necessary for the court to assist the accused in the cross-examination of State witnesses.
The nature and extent of cross-examination is not always clear to the accused. The explanation
normally given by a magistrate to the accused does not always have much significance to such a
person. It is unfair to expect the accused to perform this task as competently as an experienced
legal practitioner. Too much is frequently expected of laymen defending themselves in criminal
trials and too much is read into their failure to cross-examine or to do so effectively.42 Even
experienced legal practitioners can fall short in this regard without the court drawing an adverse
inference against the accused.43 Where the court is aware of the nature of the accused’s defence
and the accused, through his unfamiliarity with court procedure, fails to put his version properly to
State witnesses, the court should assist by putting pertinent questions to the State witnesses in
order to place the accused’s defence properly before the court, without jeopardising his impartial
judgment.44 The court can do this by formulating the question, clarifying the issues and properly
putting the accused’s defence to the witnesses.45
The court should not only advise the accused of his rights to call witnesses to give evidence, but
should assist the accused to do so, if necessary by having the defence witnesses subpoenaed.46
(d) Protecting witnesses
Witnesses, including the accused, are entitled to the protection of the court from offensive or
oppressive questioning. Judicial officers should stop practitioners on either side if they exceed the
bounds of propriety and courtesy.47
(e) Recusal
Two points should be made at the outset. The first is that judges and magistrates are appointed and
paid to make decisions, not to avoid making them if a litigant doubts, without cause, the judicial
39 S v Dube & Anor 1988 (2) ZLR 385 (S).

40 R v Harry 1969 (2) RLR 416 (A) at 420.
41 R v Muchena 1966 RLR 731 (A).
42 S v Mngomezulu 1983 (1) SA 1152 (N) at 1153; S v Mkwedini 1994 (1) SACR 216 (Tk).
43 S v Maseko 1993 (2) SACR 579 (A).
44 S v Mboto Juta SCD 19/93 (TkD); S v Maseko 1993 (2) SACR 579 (A).
45 S v Rudman & Anor; S v Mthwana 1992 (1) SA 343 (A) at 382.
46 S v Hlakwane en ’n Ander 1993 (2) SACR 362 (O).
47 S v Jakarasi 1983 (1) ZLR 218 (S) at 225.
qualities of those assigned to sit in judgment.48 The second is that the accused, in a trial before a
judge and assessors or a magistrate, does not have a peremptory right of challenge of a member of
the court. If a judicial officer is asked to recuse himself, there must be good reason to do so. He
should not lightly recuse himself. Nonetheless there are circumstances where a duty of recusal
exists. Such a duty exists, for example:
(a) where a member of the court is related to or is friendly with or hostile to the accused or to
a principal witness for the prosecution;49
(b) where a member of the court has an interest in the outcome of the case or in any case
where his personal feelings or interests would make it impossible for him to act in an
impartial manner;50
(c) where the prosecutor wrongly reveals during the trial that the accused has previous
convictions;
(d) generally, where there is a reasonable suspicion of bias (suspicion including the mere
possibility of the existence, present or future, of bias).51
It is clearly desirable that a judicial officer should have no personal knowledge of the persons
appearing before him. In a small community, this may be impossible. However, if as a result of his
personal knowledge, the judicial officer was aware that the accused had previous convictions, he
should generally recuse himself. It would probably be acceptable for him to try the case if the
accused was pleading guilty and had no objection to the particular magistrate hearing the matter.
Practitioners may sometimes seek recusal on the grounds of bias on the part of the court. An
application made on these grounds could lead to the practitioner being punished for contempt of
court, so a practitioner should be extremely careful before making an application in such
circumstances.52 The indications of bias may be incontrovertible, as where the judicial officer
makes comments indicating that he has formed an opinion prejudicial to the accused early in the
case. On the other hand, the fact that he persistently overrules objections and applications by the
legal practitioner may mean no more than that the practitioner persistently makes spurious objections
and applications. Looked at objectively, the judicial officer may well be entirely blameless.
2. WITHDRAWAL OF CHARGE
(1) BEFORE PLEA
The Attorney-General, or the local public prosecutor acting with the Attorney-General’s authority
or on his behalf, may withdraw a charge at any time before the accused has pleaded. It may be
48 Pannick Judges p 41.

49 Feltoe Magistrates Handbook p 121.
50 Pannick op cit p 40.
51 S v Malindi & Ors 1990 (1) SA 962 (A); Council of Review, SA Defence Force & Ors v Monnig & Ors 1992 (3) SA
482 (A); and see Graham van der Leeuw “Courts Martial, Judical and Administrative Tribunals, and the Rule against Bias”
(1993) 110 SALJ 430.
52 S v Muzuza & Ors S-105-89 (not reported).
necessary to do this for any number of reasons. The more usual ones would be delays in securing
vital witnesses, the illness of a vital witness and so on. If a charge is withdrawn before plea, fresh
charges may be brought later. The accused is not entitled to verdict of acquittal. If the accused is in
custody, however, he must be released (unless he is also detained on other charges).53
The right withdraw a charge and proceed afresh does not mean that the prosecutor should use this
as a method of amending the charge. If he wishes to amend the charge, he should seek the court’s
permission to do so under s 202. He should not withdraw the original charge and promptly and
without notice serve and proceed upon a new charge. If he does withdraw the original charge,
proceedings must be begun afresh.54
The ethical question of withdrawing a charge and subsequently proceeding again should also be
considered. While the State is not legally prevented from proceeding again if a charge is withdrawn
before plea, it would be most undesirable for the prosecutor to indicate to the accused that charges
are being withdrawn altogether and then later for him to change his mind and prosecute. This
would particularly be the case if the charges were withdrawn and a promise given to a suspected
criminal for the purpose of securing his evidence at a subsequent trial. However, if the Attorney-
General made a unilateral decision not to prosecute and comunicated this decision to the accused,
the courts probably could not interfere if he changed his mind, particularly if the original decision
was based on an error. Nonetheless, where such a decision has been solemnly taken on behalf of
the State, it should not lightly be resiled from.55
On the other hand, there is nothing wrong in withdrawing a charge against an accused person who
is on remand and at the same time indicating that it is intended to proceed later. Consequently,
unless the prosecutor can say with certainty that the charge is being withdrawn permanently, the
proper course, when withdrawing a charge, would be to indicate that the charge may (or will) be
brought again later. The accused is entitled to know where he stands.
Some practitioners will ask for an undertaking that, having withdrawn the charge, the prosecutor
will not bring that charge against the accused again or even ask for such an undertaking to be
endorsed on the record of the case. A public prosecutor at the magistrate’s court is not likely to be
in a position to give an undertaking of this kind unless he has received specific instructions from
the Director of Public Prosecutions or the Attorney-General that the charge will not be brought
again.
Where a prosecutor has indicated his intention to withdraw a charge before plea, the court is not
empowered to order that a charge be put to the accused. The act of withdrawing the charge terminates
the proceedings against the accused. Any attempt by the court to continue the proceedings after
the charge has been withdrawn would be a nullity.
If the prosecution withdraws a charge before plea with the intention of later summoning the accused,
it must still bear in mind the accused’s constitutional right to trial within a reasonable time. The
effect of lengthy remands has been dealt with.56 Lengthy delays generally, whether the accused is
on remand or is attending in answer to a summons, can justify a court declining to hear a case and
53 CP&EA s 320(3).
54 R v Amon 1960 R & N 626 (FS) at 628.
55 R v Harris [1991] 1 HKLR 389 (CA). See also Chapter 3, Section 4, above.
56 See Chapter 5, Section 2(5), above.
staying a prosecution. The time frame to be considered begins to run from when the accused is
first charged, that is, officially notified that a prosecution was envisaged. The means of notification
are irrelevant. It would thus not avail the State to withdraw a charge against a person who was on
remand and summon him later. What must be considered is the reasonableness of the overall lapse
of time.57
(2) AFTER PLEA
Once the accused has pleaded, he is entitled to a demand that he be either acquitted or found
guilty.58
The Attorney-General may, at any time before conviction, stop a prosecution he has commenced.
If the accused has pleaded to the charge, he is entitled to a verdict of acquittal in respect of that
charge.59 Where the State withdraws a charge after plea but before conviction, it would be
permissible for the court to pronounce a verdict of not guilty in the absence of the accused.60
The State may not withdraw a charge after conviction. Apart from the fact that s 9 does not allow
such an action, the judicial officer, having pronounced verdict, is functus officio in regard to the
verdict.61
(3) DISCHARGE FOR WANT OF PROSECUTION
If the prosecutor — whether public or private — does not appear on the court day appointed for
the trial, the accused may request, and the court may order, that he be discharged. If the accused
was on bail or any other persons had taken out recognizances to secure the presence of the accused,
the accused may request, and the court may order, the discharge of the recognizances.62
Where the prosecution is a private one, the accused may request, and the court may order, that the
private prosecutor and his sureties may be called on their recognizances63 and, in the event of their
failure to appear, that the recognizances be estreated. The accused may also apply for an order that
the private prosecutor pay the costs incurred by the accused in preparing his defence.64
Comment
The effect of s 320(1) is less than clear. In the case of a prosecution at the public instance,
almost invariably a substitute prosecutor would be appointed by the Attorney-General and
could be appointed by the court.65 A public prosecutor’s intention to abandon a prosecution
is hardly likely to be signalled by a failure to appear. His failure to appear is likely to have
a simpler explanation, such as mistake or illness. The court should not grant an application
57 In re Mlambo 1991 (2) ZLR 339 (S).

58 CP&EA s 180(6).
59 CP&EA s 9.
60 R v Hill 1944 SR 78.
61 R v Ryder-Jones 1962 R & N 833 (SR). In some circumstances the court may correct its verdict, but its power to do so
is limited. See Chapter 24, Section 3 below.
62 CP&EA s 320(1).
63 Paid under s 17 of the CP&EA.
64 CP&EA s 320(2); and cf s 22.
65 CP&EA s 8; see Chapter 3, Section 5, above.
for discharge when a public prosecutor fails to appear unless it is clear from all the
circumstances that the State intends to abandon the prosecution.
It is not clear why the subsection mentions private prosecutors either, because under
s 18(1) of the CP&EA, the charge must be dismissed if the private prosecutor fails to
appear on the day appointed for appearance, unless the court sees reason to believe that
the private prosecutor was prevented from being present by circumstances beyond his
control. In that event, the court may adjourn the case. If the charge is dismissed in these
circumstances, the accused may not be subjected to another private prosecution on the
same charge, but he may be charged at the public instance.
Where a person has been discharged for want of prosecution or admitted to bail but not brought to
trial, he may be brought to trial for any offence for which he was previously charged and in
custody or on bail at any time before the period of prescription for the offence has run out. He may
not, however, if he was previously in custody and discharged, be committed to custody. If he was
on bail, he is not liable to find further bail.66 The Attorney- General may prosecute him before the
High Court. If the accused fails to appear at the time mentioned in the notice of trial, he may be
arrested and detained in custody or released on bail.67
The provision in s 322(1) that the accused may be brought to trial at any time before the period of
prescription runs out must be treated with caution. Clearly a trial must begin within the period of
prescription, but the other requirement is that the accused must be brought to trial within a reasonable
time of being officially notified that a prosecution is intended. The effect of excessive delays in
bringing a matter to trial has been dealt with in Chapter 5 Section 2(5) and Section 2(1) of this
chapter.
3. ARRAIGNMENT
A trial begins with the arraignment, which consists of putting the counts in the charge to the
accused so that he can plead to them. Every accused person, if there are more than one, must be
arraigned personally and called upon personally to plead to each charge.
The usual procedure is that the charge is read to the accused, whether by the judge’s clerk (in the
High Court), the magistrate, the prosecutor or the interpreter. It is not necessary for the charge to
be read to the accused if the court is satisfied that the accused has read the charge and understands
it, as may be the situation where the accused appears in answer to a summons.68
It is not necesary to read the charge verbatim to the accused, provided that the essential elements
of the charge are conveyed to him. Formal words, such as section numbers of enactments, could
be omitted.
66 CP&EA s 322(1).
67 CP&EA s 322(2).
68 R v Chinowaita & Ors 1967 RLR 54 (A); 1967 (2) SA 494 (RA).
4. PLEA
(1) REQUIREMENT TO ENTER
When the charge is put to the accused, he is required to plead, or answer, to it “instantly”.69 The
pleas that may be entered and who may enter them are dealt with below.
(2) MATTERS TO BE RAISED BEFORE PLEA ENTERED
(a) Objections
(i) Accused not served with copy of charge

The accused can object to pleading to the charge contained in an indictment or summons on the
grounds that he has not been served with a copy of the indictment or summons.70
(ii) Formal defects in charge

The accused may object to the charge on the grounds of formal defects apparent from the charge
itself. Where he does so, he must except to the charge, but must do so before he pleads to it. In the
case of an indictment, he may instead move to quash it.71 Where a charge on the face of it discloses
an offence, an objection taken on the ground of lack of particularity must be taken before plea.72
An objection to the charge for want of particularity cannot be taken for the first time on appeal.73
(b) Exceptions to charge and motions to quash charge
Where the accused excepts to the charge and does not plead to it, the court must hear the exception
first. If the exception is overruled, the accused must then plead to the charge. If the accused excepts
to the charge and pleads to it as well, the court has a discretion to decide whether to dispose of the
plea or exception first.74
Instead of excepting to a charge, the accused may, before plea, apply for the charge to be quashed
on the ground that it is calculated to prejudice or embarrass him in his defence.75 The court may:
• accede to the request; or
• order the charge to be amended in such manner as the court thinks just; or
• make no order on the motion.76
If the accused alleges that he is wrongly named in the charge, the court may order it to be amended.77
69 CP&EA s 168.
70 CP&EA s 168.
71 CP&EA s 170(1) and (2).
72 R v Menezes 1957 R & N 307 (SR).
73 R v Mangure 1962 (1) SA 869 (SR).
74 CP&EA s 171.
75 CP&EA s 178(1).
76 CP&EA s 178(2).
77 CP&EA s 178(3).
The usual ground for excepting to a charge is that it discloses no offence.78
The practical effect of taking exception to a charge is of little advantage to the accused. If the
objection is well taken, the court may, if the accused is not thereby going to be prejudiced in his
defence, allow the charge to be amended.79 In most cases the victory will be Pyrrhic. About the
only situation where an exception or motion to quash a charge will have a permanent result
satisfactory to the accused is where the charge was ultra vires or the conduct constituted no offence.80
If an exception or objection to the indictment is taken in the High Court, the Court may reserve
any question decided by it on the matter for determination by the Supreme Court.81
(c) Notice required for exceptions, etc
If the accused intends to:
• apply to have the charge quashed; or
• except to the charge; or
• offer any plea other than guilty or not guilty;
he must give reasonable notice to the Attorney-General or his representative (if the trial is before
the High Court), to the public prosecutor (if the trial is before the magistrates court) or to the
private prosecutor (if the prosecution is private). In his notice, he must state the grounds on which
he seeks to have the charge quashed or on which he bases his exception or plea.
The Attorney-General or prosecutor may waive the requirement for notice. On good cause shown,
the court may dispense with the requirement for notice or adjourn the trial to enable the notice to
be given.
What constitutes “reasonable” notice depends on the circumstances of the case.82
(3) WHO MAY TENDER PLEA
In the normal course, the accused pleads personally.
(a) Company director
Where a company is charged, the director or servant representing the company pleads on its behalf.
However, if the representative pleads guilty, the plea is not valid unless the company has authorised
him to plead guilty.83 Proof of such authorisation is normally given in the form of a resolution of
the board of the company.
78 As happened in S v Gabriel 1970 (1) RLR 188 (G); 1970 (3) SA 442 (R), where the defence argued that if death
occurred more than a year and a day after an assault, it was not competent to charge the accused with murder.
79 CP&EA s 170(3).
80 Morris Technique in Litigation p 288.
81 HCA s 24(1).
82 CP&EA s 179.
83 CP&EA s 385(3), proviso (i).
(b) Counsel
It is normal practice for counsel not to rise and state that he appears for the accused until after the
accused has actually been arraigned84 and in the normal course counsel should not tender pleas on
behalf of the accused.85 However, this does not mean that counsel may not do so, provided he is
duly instructed and not prohibited by law from appearing.86 If counsel does plead, the accused
should be asked to confirm the plea.
If after an accused has pleaded not in accordance with his instructions to counsel, and counsel
suggests a plea that does conform to his instructions, the court should find out from the accused
whether he agrees with his counsel’s assertions as to what the plea should be.87
(4) ACCUSED COMMITTED OR REMITTED FOR SENTENCE
Where the accused has been committed by a magistrate to the High Court for sentence,88 or where
his case has been remitted by the Attorney-General to the magistrates court for sentence,89 he will
be called upon to plead to the charge. He may plead guilty as charged or, with the concurrence of
the prosecutor, to any other offence which would be a competent verdict on that charge.90 The plea
of guilty (either at the preparatory examination or on committal or remittal) must be an unequivocal
admission, not one induced by hope of leniency.91
If he pleads not guilty, the court shall, if it is satisfied that:
• he duly admitted before the magistrate that he was guilty; and
• was guilty;
enter a plea of guilty and continue accordingly. If the accused denies having admitted his guilt, he
should be allowed to give evidence. In the light of that evidence and its apparent credibility (or
otherwise), it might be necessary to call the magistrate who conducted the prosecution and the
interpreter. In deciding the second of these questions, the court must have regard to the record
alone. If there is any need to call witnesses, then the court could not be satisfied as to the accused’s
guilt and the matter should proceed to trial. Where the case is before the High Court, the question
is for the judge alone.92
If the court is not satisfied that the accused admitted his guilt before the magistrate, or if, in spite
of a plea of guilty, it appears to the court that the accused did not in fact commit the offence with
which he was charged (or any other offence of which he could be convicted on that charge), a plea
of not guilty will be entered and the trial will proceed in the normal way.93
84 R v Chinowaita supra.
85 S v Nyandoro 1987 (2) ZLR 66 (S).
86 S v Mpongoshe & Anor 1980 (4) SA 593 (A) at 603.
87 S v Nyandoro supra.
88 Under s 91 of the CP&EA; see Chapter 9, above.
89 Under s 101(1)(g) of the CP&EA.
90 CP&EA s 165(1).
91 R v de Beer 1959 (1) R & N 108 (SR).
92 R v Munyaradzi 1963 R & N 327; 1963 (3) SA 468 (FS).
93 CP&EA s 181(2) and (3).
5. PLEAS WHICH MAY BE ENTERED
(1) ISSUES RAISED BY PLEA TO BE TRIED
Where the accused offers any plea other than a plea of guilty or a plea to the jurisdiction of the
court, he is deemed to have demanded that the issues raised by his plea be tried by the court. Thus,
a plea of not guilty puts in issue every allegation material to the offence charged, but not other
allegations which are not material. It is therefore not necessary for the prosecution to prove
immaterial allegations.94
(2) GUILTY
The accused may plead that he is guilty of the offence with which he is charged.
(a) On behalf of accused company
A plea of guilty on behalf of a company must be authorised by the company.95
(b) To lesser offence than that charged
With the concurrence of the prosecutor, the accused may plead guilty to any offence of which he
might be convicted on that charge.96 If the prosecutor accepts a plea to a lesser charge, it is not
competent for the court to convict on a more serious charge.97
There are two ways in which a plea to a lesser offence might be offered. The first is where the
accused admits only part of the offence charged. This might occur, for example, where the accused
is charged with the theft of numerous items, but admits to stealing only some of them. The second
is where the accused pleads guilty to an offence which would be a competent verdict98 on the
charge that is actually brought.
The decision whether or not to accept a plea to a lesser charge is vested in the prosecutor alone.
The court cannot decline to accept the prosecutor’s decision. This does not mean that the prosecutor’s
discretion is unlimited or that the prosecutor should not explain to the court why he has reached
his decision. It is submitted that, unless it is obvious why the prosecutor has reached his decision,
he should give his reasons to the court. It could happen that the court disapproves of the decision.
Although the court has no power to compel the prosecutor to alter his decision, the reasons the
court gives for its disapproval should cause the prosecutor to reconsider his decision and, if
necessary, consult his superiors.99
If the prosecutor accepts a plea to a lesser offence, the accused cannot thereafter be convicted of
the major offence with which he was charged originally.100
94 R v Chikerema 1958 R & N 516 (SR) at 521.

95 See Section 4(3)(a) of this Chapter, above.
96 CP&EA s 180(2)(a). The procedure followed when the accused pleads guilty is dealt with in Chapter 17.
97 R v Machungura 1944 SR 194.
98 Competent verdicts are dealt with in Chapter 24, Section 2(2)(b), below.
99 Emmins pp 87-88.
100 R v Machingura 1944 SR 194.
(c) Limits of prosecutor’s right to accept plea
A prosecutor should not accept a plea of guilty to a lesser charge just for the convenience of
avoiding a prolonged trial. Where the evidence discloses that the accused is guilty of the more
serious charge, acceptance of a plea of guilty to a lesser one may be contrary to the interests of
justice. For example, the accused is charged with drunken driving. The scientific evidence shows
that his blood/alcohol level is such that there is a presumption that he was incapable of having
proper control of the vehicle. Unless he rebuts this presumption, the accused faces a mandatory
prohibition from driving. To avoid such a punishment, he offers (or, more usually, his legal
practitioner offers) a plea of guilty to driving while his blood/alcohol level was over 80 mg/ml, for
which offence a prohibition is not mandatory. The legal practitioner intimates that if the prosecutor
does not accept this lesser plea, they will fight the case every inch of the way. If the prosecutor has
convincing evidence that the accused was drunk or must be presumed to have been drunk, he
would be acting improperly if he allowed the legal practitioner to talk him into accepting the lesser
plea.101
A limited plea, even if not accepted, may be useful to the prosecution in that it amounts to a partial
admission by the accused.
The factors the prosecutor should take into account in deciding whether to accept a plea are set out
in Chapter 3, Section 4(2)(d), above.
(d) Murder trial
The procedure followed where the accused pleads guilty to a charge of murder is dealt with in
Chapter 17, Section 1(2), below.
(3) NOT GUILTY
The accused may plead that he is not guilty of the offence charged. If the accused does so in a trial
before a magistrate (or if a plea of not guilty is entered on his behalf), the prosecutor must make a
statement outlining the nature of his case and the material facts on which he relies.102 The contents
of such a statement are dealt with in Section 8, below.
Together with his plea, the accused may offer an explanation of his attitude to the charge or a
statement indicating the basis of his defence. Any such statement must be recorded and forms part
of the record of the case.103
If the accused does not offer such an explanation or statement, he must be requested to make a
statement outlining the nature of his defence and the material facts on which he relies. If he is not
legally represented he should be warned of the consequences of his failure to mention facts material
to his defence.104 The consequences of failure to mention such facts will be dealt with in Section
10(5), below.
101 S v Mpofu 1983 (2) ZLR 118 (H).

102 CP&EA s 188(a).
103 CP&EA s 180(5).
104 CP&EA s 188(b).
The magistrate is entitled to have regard to what an accused says in this statement in deciding
whether the accused is guilty of the offence charged or of any other offence of which he might be
found guilty on that charge. However, unless the statement amounts to an admission of any allegation
made by the State, it may not be taken into account for the purpose of deciding whether the
accused should be acquitted at the end of the State case.105
(4) AUTREFOIS CONVICT OR ACQUIT
(a) General
The accused may plead that he has already been convicted or that he has been acquitted of the
offence with which he is now charged. Such pleas are respectively known as pleas of autrefois
convict or autrefois acquit, though neither term appears in the CP&EA. If the plea is established,
it is an effectual bar to the proceedings. Consequently, if the plea is raised, the court should adjudicate
on it before any evidence on the merits is led. However, if the plea is rejected and the trial takes
place, and it emerges during the trial it appears that the plea was a good one, the court would, in
the light of the evidence, be entitled to uphold the plea despite having previously rejected it.106
If the accused fails to sustain his plea but brings to light a previous conviction on another charge,
it is a matter entirely within the discretion of the magistrate who adjudicated on the abortive plea
whether he should, in the light of his knowledge of the accused’s previous conviction, recuse
himself from proceeding with the trial.107
(b) Procedure
Where the accused pleads autrefois convict or autrefois acquit, the procedure is to isolate the plea
from the trial and:
(a) call on the accused to provide particulars;
(b) if necessary, adjourn the case to enable the accused to supply particulars or for the
prosecution to make enquiries;
(c) if the accused is ready, after a short adjournment, to lead evidence to establish his plea, he
should be called upon to do so;
(d) if the State is then ready to lead evidence to negative the accused’s version, it should do so
forthwith, and the court should adjudicate on the plea;
(e) if the State is not ready to proceed, an adjournment on this issue should be granted;
(f) if such an adjournment is granted, the court may, in its discretion, proceed with the rest of
the State case;
(g) the court should adjudicate separately on the special plea and not merely deal with the
matter by implication in his verdict on the charge itself.108
105 CP&EA s 189(1), as read with s 198(3); and see Section 9 of this Chapter.
106 Lansdown & Campbell p 436.
107 R v Matengeni 1969 (2) RLR 348 (G); 1969 (4) SA 57 (R).
108 Storry pp 110-111.
(c) Requirements
It is sufficient, to raise the plea, for the accused to state that he has been lawfully convicted (or
acquitted) of the offence with which he is charged.109 The onus of proving the plea rests on the
accused. This can be done by producing the record or a certified copy of the record of the previous
trial and oral evidence that the accused was the same person as the one who was tried before.
For the plea to succeed, it must be shown that the accused was “in jeopardy” at the previous trial,
the elements which constitute being “in jeopardy” having been defined as:
(a) that the accused had been previously tried on the same charge;
(b) by a court of competent jurisdiction; and
(c) the former conviction or acquittal was on the merits.110
It is not enough that the acts are the same at both trials. The accused must have been in jeopardy of
conviction for the offence for which he is subsequently tried.111 The substance of the matter and
not mere technicality must be considered. A difference in the charges will not necessarily be
decisive. Substantial identity is shown if the accused could have been convicted at the former trial
of the offence with which he is charged at the later one. The evidence necessary to support the
second charge must have been sufficient to secure a conviction on the first one. Thus, it would be
competent to try a person for murder after he had been convicted of attempted murder arising out
of the same unlawful assault on the deceased, where the death occurred after the first conviction.
There would, at the first trial, have been no possibility of convicting him of murder.112 On the other
hand, where the accused was acquitted of theft by conversion and later charged with theft by false
pretences arising out of the same facts, a plea of autrefois acquit was successfully raised.113
(d) Acquittal or conviction “on the merits”: meaning
For a plea of autrefois acquit or autrefois convict to succeed, the previous acquittal or conviction
must have been on the merits of the case. This means that if the previous proceedings or charge
were defective the plea may not succeed, because the accused was previously in no jeopardy of
being convicted. If he was convicted and the proceedings were set aside on account of their invalidity,
there was neither a conviction nor an acquittal on the merits and the accused may be charged
again.114
However, if the prosecutor at the previous trial had, mistakenly or otherwise, withdrawn the charge
after a plea of not guilty, the acquittal would be on the merits and it would not be competent to
charge him again.115 An acquittal because of a mistake of law by the first court is also an acquittal
on the merits.116 The Attorney-General’s recourse is not to re-charge the accused, but to appeal on
109 CP&EA s 184.

110 See Lansdown & Campbell p 437 and the cases cited at n 38.
111 R v Wilson 1969 (2) RLR 512 (A); 1970 (1) PH H38 (RA); reported sub nom R v Watson 1970 (1) SA 320 (RA).
112 S v Gabriel 1970 (2) RLR 251 (A); 1971 (1) SA 646 (RA).
113 See S v Bizi 1970 (2) RLR 184 (A); 1971 (1) PH H37 (RA), where, although, the magistrate in the first trial was held
to have erred in law in acquitting the accused, the acquittal was nonetheless held to have been “on the merits”.
114 S v Nyamayevu 1978 RLR 140 (G) at 145.
115 S v Ndou & Ors 1971 (1) SA 668 (A); S v Teele 1979 (4) SA 610 (BH); S v Nhari 1984 (2) ZLR 69 (S).
116 S v Bizi 1970 (2) RLR 184 (RA).
a point of law. In appropriate cases, the Supreme Court may alter the verdict to one of guilty and
either itself pass sentence or remit the matter to the trial court for sentence to be passed.117
Where a conviction and sentence are set aside on appeal or review or under s 227 of the CP&EA118
on the ground that the indictment was invalid or defective, or that there were technical irregularities
or defects, or that the proceedings were a nullity (eg for lack of jurisdiction), proceedings may be
brought again in respect of same offence, whether on the same charge or another one. A plea of
autrefois convict will not avail the accused. The only requirement is that the second trial must be
before a different judicial officer (and assessors, if the original trial was in the High Court).119
The acquittal or conviction of members of the Defence Forces by courts martial is not a bar to their
being subsequently charged in the civil courts, although any sentence passed by a military court
must be taken into account.120 However, where a conviction by a court martial has been quashed
by the Courts Martial Appeal Court, the person concerned is not liable to trial again by any court,
whether civil or military.121
(5) OTHER PLEAS
(a) Jurisdiction
The accused may plead that the court has no jurisdiction to try him for the offence.122 For the plea
to succeed, it must be shown that the court could have no cognizance of the matter because the
offence was committed outside the geographical limits of the court’s area of jurisdiction or because
the offence itself was one which the court did not have jurisdiction to deal with.123 Under a general
plea of not guilty it is permissible to take advantage of the lack of jurisdiction of the court.124
(i) Trial of plea

If the accused pleads to the jurisdiction of the court, the court must proceed to satisfy itself whether
it has jurisdiction or not. It may do this in whatever way and on whatever evidence it thinks fit.125
The onus of showing that the court has jurisdiction rests on the State.126 Evidence may or may not
be necessary, depending on whether the court can take judicial notice of the facts on which the
plea is based, such as that the crime is not one which the court is empowered to deal with.127
Comment
The procedure to be followed where a magistrates court finds that it has no jurisdiction to
hear the case is not clear. In terms of s 164 of the CP&EA, where it appears that the
accused is not properly triable by the court, he is not entitled to be acquitted, but the court
117 SCA s 13; and see Chapter 27, Section 2, below.

118 See Chapter 23, below.
119 CP&EA s 381.
120 Defence Act [Chapter 11:02], s 47(1, proviso); and see Chapter 2, Section 4(2), above.
121 Defence Act, s 87.
122 CP&EA s 180(1)(f).
123 In general, see Chapter 1, Section 6, above.
125 CP&EA s 185.
126 R v Radebe 1945 AD 590.
may, at the request of the accused, direct that he be tried by some proper court. If the
accused does not make such a request, the trial proceeds and the verdict and judgment
are as effective as if the court originally had jurisdiction to deal with the case. Section
164(3) provides that the right of the accused to plead to the jurisdiction is not affected. So
what happens where the accused pleads successfully to the jurisdiction of the court? Can
the court adjourn the case to a court which does have jurisdiction?128
Where in the course of a trial before a magistrate’s court, whether or not any evidence has
been led, it appears that the offence is from its nature only subject to the jurisdiction or
more proper for the cognizance of a court of greater jurisdiction, the magistrate must stop
the trial, adjourn the case, and report the matter to the Attorney-General.129 If the accused
pleads to the jurisdiction on the grounds that the offence is one which ought to be dealt
with by a court of greater jurisdiction, is it permissible for the court to invoke s 54(1)? It is
submitted that this would be the sensible course to take. It would be desirable, though, for
the CP&EA to be amended to clarify the issue.
(ii) Effect of failure to raise subject

Where an accused is convicted before a magistrates court, the fact that the court did not have
territorial jurisdiction to try him does not affect the validity of the conviction if the lack of jurisdiction
was not pleaded or raised during the proceedings and before conviction.130
(b) Presidential pardon
The accused may plead that he has received the pardon of the President131 for the offence charged.132
In such an event, it would be necessary for the accused to show that he has been pardoned, which
implies a freedom from all punishment for the offence,133 and not merely that he had received a
remission of sentence.134
(c) Prosecutor having no title
The accused is entitled to plead that the prosecutor has no title to prosecute.135 This does not mean
that the accused can challenge the locus standi of the Attorney-General’s representative or claim
that in the particular case he has not been properly authorised. If that is the accused’s contention,
it might form the ground of an allegation of irregularity in the proceedings. What is meant by the
plea is that the State or the private prosecutor has no authority to claim the punishment of the
accused in respect of the offence charged. For example, a statute might make it clear that a
prosecution should be undertaken only by a private person or some corporate body, such as a
municipality. The plea might also be applicable where the prosecution is instituted under a law
which requires that certain incidents must precede the attachment of liability for prosecution and
128 As is the case in South Africa: Criminal Procedure Act 51 of 1977, s 110(2).
129 MCA s 54(1).
130 CP&EA s 187. For the territorial jurisdiction of magistrates courts, see MCA s 56and Chapter 2, Section 1(2)(a),
above.
131 In terms of s 31I of the Constitution.
132 CP&EA s 180(1)(e).
133 Jowitt’s Dictionary of English Law 2 ed vol 2 pp 1310-1311.
134 As could only happen after conviction and sentence: see Constitution, s 31I(1)(b), (c) and (d) and CP&EA ss 377 and
378.
135 CP&EA s 180(1)(g).
where the charge does not allege that those incidents had occurred.136 It might be just as effective
to attack the validity of the charge or plead to the jurisdiction of the court.
The most likely use of the plea is where a private prosecution takes place. It might be alleged that
the private prosecutor is not one of those persons in whom the right of private prosecution is
vested.137
The grounds on which the plea is made must be clearly set forth by the accused and the matter then
tried by the court.138
If the accused does not raise the question of the prosecutor’s title to prosecute before conviction,
the validity of any subsequent conviction is not affected.139
(d) Truth of defamatory matter
A person charged with the unlawful publication of defamatory matter who wishes to set up the
defence that the matter is true and that its publication was for the public benefit must enter a
special plea to that effect. Such a special plea may be joined with any plea other than one of guilty.
If the special plea is raised, the onus is on the accused to prove the defence.140
(6) COMBINATION OF PLEAS
The accused may enter any combination of pleas. The only exception is that a plea of guilty cannot
be joined with any other plea.141 The accused may also plead and except to the charge.142
(7) NOTICE REQUIRED FOR PLEAS OTHER THAN GUILTY OR NOT GUILTY
Where the accused intends to plead anything other than guilty or not guilty or, on a charge of
unlawful publication of defamatory matter, to raise the special plea of truth and publication for the
public benefit, he must give reasonable notice to the Attorney-General or his representative (if the
trial is before the High Court), to the public prosecutor (if the trial is before the magistrates court)
or to the private prosecutor (if the prosecution is private). In his notice, he must state the grounds
on which he seeks to have the charge quashed or on which he bases his exception or plea.
The Attorney-General or prosecutor may waive the requirement for notice. On good cause shown,
the court may dispense with the requirement for notice or adjourn the trial to enable the notice to
be given.
What constitutes “reasonable” notice depends on the circumstances of the case.143
136 For example, in R v Mall 1960 (1) SA 73 (N), it was held that before the Attorney-General could indict following a PE,
it would be necessary for the evidence at the PE to show that the alleged offence had been committed.
137 See Chapter 4, Section 1 above.
138 See Lansdown & Campbell pp 452-453.
139 CP&EA s 187.
140 CP&EA s 183; R v Chikerema 1958 R & N 516 at 522.
141 CP&EA s 180(3).
142 CP&EA s 180(4).
143 CP&EA ss 179 and 183.
(8) ALTERING PLEA
Where the accused has pleaded guilty, he may apply, whether before or after conviction, for the
plea to be altered to one of not guilty. If the application is granted, the court will require the
prosecutor to proceed with the trial. However, any element of the offence or act or omission which
is admitted by the accused before the court records a plea of not guilty and which has been recorded
in terms of s 271(3) of the CP&EA is sufficient proof of that element or act or omission.144
There is no onus on the accused to prove his explanation for the change of plea. He must simply
offer a reasonable explanation for having pleaded guilty in the first place. Unless the court is
convinced beyond reasonable doubt that the explanation is not merely improbable but positively
false, the accused must be allowed to change his plea.145
Where the accused seeks a correction of a plea of guilty, in most circumstances it may be preferable
to enter a plea of not guilty and proceed with the trial, rather than embark on a trial within a trial.146
Where the accused has been convicted and sentenced, it is not permissible for the trial court to
amend the plea, because it is now functus officio. The accused’s only recourse would be to appeal
or seek to have the matter raised on review. In appropriate circumstances the court may set aside
the conviction and remit the matter for retrial,147 but he would have to show that there had been a
miscarriage of justice before the plea could be altered.148
(9) REFUSAL TO PLEAD
Occasionally it may happen that the accused refuses to plead at all or will not do so directly. In this
event, the court may, if it thinks fit, enter a plea of not guilty. Such a plea has the same effect as
though the accused had actually pleaded not guilty.149
The reason for the refusal to plead should be established. If it is because the accused is deaf or
dumb or both, it may be necessary to invoke the procedure under s 193of the CP&EA.150 It may be
that the accused simply fails to understand what is required of him, in which case a careful
explanation of the charge should be given. It may be that the accused is apparently mentally
disturbed, in which case the court should follow the procedure set out in s 28 of the Mental Health
Act.151 Only if the accused through malice or wilful obstructiveness refuses to plead should a plea
of not guilty be entered. A refusal to plead is not a contempt of court.152
A refusal to plead may be part of behaviour rendering the continuance of the trial in the accused’s
presence impracticable. The procedure to be followed is dealt with in Section 6, below.
144 CP&EA s 272.

145 S v Matare 1993 (2) ZLR 88 (S); Attorney-General, Transvaal v Botha 1993 (2) SACR 587; 1994 (1) SA 306 (A).
146 Attorney-General, Transvaal v Botha supra at 329I-330B.
147 See, for example, R v Mozi 1956 R & N 357 (SR), where the reviewing judge, being in doubt whether the accused had
intended to plead guilty, remitted the matter for retrial and ordered that the accused be allowed to explain and, if he wished,
to amend his plea.
148 S v Mudambi 1995 (2) ZLR (S).
149 CP&EA s 182.
150 See Chapter 12, Section 2, above.
151 See Chapter 12, Section 1(3) above.
152 S v Monnoyane 1977 (2) PH H141 (O), cited in Lansdown & Campbell at p 405.
(10) ONE JUDICIAL OFFICER TAKING PLEA, ANOTHER TRYING THE CASE
In the normal course the accused will be tried and a verdict will be returned by the judge or
magistrate before whom he pleaded. However, where a plea of not guilty has been entered (whether
because the accused has pleaded not guilty or because the court has entered such a plea in terms of
s 272), the trial may be continued before another judge or magistrate if no evidence has been led.
Similarly, if a plea of guilty has been recorded, the trial may be continued before another judge or
magistrate if no evidence has been led or there has been no inquiry in terms of s 271(2)(b)153 of the
CP&EA.154
6. PRESENCE OF ACCUSED
In the normal course, every criminal trial must take place and the witnesses must give their evidence
verbally in open court in the presence of the accused. This requirement is imposed by s 194(1) of
the CP&EA and accords with the accused’s right, given by s 18(3) of the Constitution, to be
afforded facilities to examine (whether in person or through a legal representative) the witnesses
called by the prosecution. The HCA also gives a right to an accused person to be present at the
hearing of his trial by the High Court.155 In some circumstances, though, a trial in the absence of
the accused is permissible.
(1) TRIAL IN ABSENCE OF ACCUSED
Trial in the accused’s absence is permissible if he so conducts himself as to render the continuation
of the proceedings in his presence impracticable. In that event, the court may order the accused to
be removed and may direct that the trial continue in his absence.156 Before resorting to this procedure,
the court should warn the accused of the consequences of his behaviour. Even if the accused is
removed, it is advisable, at the end of the State case, to have the accused brought in and be asked
whether he wishes to lead evidence.157
Although s 18(3) of the Constitution provides that —
“ except with his own consent, the trial shall not take place in [the accused’s] absence”,
there is no provision in the CP&EA which specifically allows for this situation.
What the CP&EA does provide for 158 is trial in the absence of the accused where the accused has
been summoned to appear for trial on a charge, the prescribed penalty for which is a fine, and only
in default of payment, imprisonment. Where a summons has been issued on such a charge, the
accused need not appear personally and may appear through a legal practitioner. If the accused
fails to appear, either personally or through a legal practitioner, the court may, if satisfied (a) that
the summons was duly served and (b) that the ends of justice would be met, proceed to hear the
153 See Chapter 17, Section 2, below.

154 CP&EA s 180(6).
155 HCA s 50(1).
156 CP&EA s 194(1); Constitution s 18(3).
157 R v Pauline 1928 TPD 643 at 646; Lansdown & Campbell p 471.
158 In s 357(1).
case and adjudicate on it. If the accused is convicted and fined, the court may order the collection
of the fine and the costs associated with the collection. It may also order that in the event of failure
to pay the fine and costs, the accused should be committed to prison to undergo a sentence of
imprisonment, if one was imposed as an alternative to the fine.
Comment
In S v Kamanga 1991 (2) ZLR 25 (H), the High Court expressed the view that this procedure
should be used more often than it is, in respect of people who have been issued with traffic
tickets warning them to appear in court and who do not wish to go to court but are willing
to pay the fine.
The High Court’s approach is, with respect, very practical, but it is questionable whether
the procedure under s 357(1) is permissible under s 18(3) of the Constitution. That
subsection permits trial in the absence of the accused in only two situations: (a) where he
consents to it or (b) where his conduct makes it impracticable to continue the trial in his
presence. The mere fact that the accused has failed to appear (or appointed a legal
practitioner who has also failed to appear) does not in itself indicate his consent to the trial
taking place in his absence. There may well be another explanation for his absence. It is
also difficult to know how the court could be satisfied that the ends of justice will be met by
a trial in the absence of the accused, without an indication from the accused that he has
consented to this procedure. It is equally difficult to know how the court could, in the absence
of any cross-examination or explanation from the accused, be satisfied that the State case
has been established beyond reasonable doubt or that the accused had no valid defence
to the charge.159
It is submitted that it would be unsafe for the court to invoke s 357(1) in the absence of a
positive indication from the accused, such as a letter to that effect, that he consented to
trial in his absence. The consent of the prosecutor and of the accused’s legal representative
does not make the use of the procedure proper or competent, unless all the other
requirements have been met.160
(2) ACCUSED ABSENTING HIMSELF
If the accused walks out of court and indicates a refusal to take part in the proceedings, the correct
procedure is for the court to order his arrest161 and attempt to hold the trial in the accused’s
presence.162
(3) ACCUSED’S PLACE IN COURT ROOM
The normal place for the accused to sit in court is in the dock, if there is one in the particular court
room. This is, however, merely a convention; there is no statutory requirement to that effect. If the
accused has a genuine aversion to going into the dock, the court should allow him to take his place
at any convenient place in court. On the other hand, if the accused’s refusal to enter the dock is
made with the express object of defying the court and of being contemptuous of its proceedings,
he may be convicted of contempt of court.163
159 See Clemence Masango “Traffic Offenders fined in absentia under new ruling”, Legal Forum (1993) vol 4 no 3 p 29.
160 S v Weinberg 1993 (2) ZLR 448 (H).
161 In terms of s 194(2) of the CP&EA.
162 Matimba v Aylward NO & Anor 1962 R & N 571 (SR).
163 R v Mpofu 1970 (1) RLR 28 (H); 1970 (2) SA 162 (R).
Where the accused is a company, and is being represented by a director or servant who is not also
being charged in his personal capacity, it is normal to allow the director or servant to occupy some
place other than the dock.
7. EXCLUSION OF WITNESSES FROM COURT ROOM
The court may, at any time during a 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.
The court may also order that a witness who has given evidence should remain in court.164
The court also has a discretion to excuse a witness from further attendance.165 The prosecutor
should ask for the witness to be excused:
• where the witness is not likely to be needed again; or
• if he may be needed again, can easily be brought back to court.
If the court considers that there may be any possibility of collusion between a witness who has
given evidence and witnesses who are waiting to do so, the witness should be ordered to remain in
court, unless some other method can be found of ensuring that collusion does not take place.
8. PROSECUTION CASE
(1) OUTLINE OF PROSECUTION CASE
At the beginning of a trial in the High Court, the prosecutor may, before any evidence is given,
address the court for the purpose of explaining the charge and opening the evidence which the
prosecution intends to lead. However, no comment should be made on the proposed evidence.166
The decision as to whether to address the court is the prosecutor’s, but an address is the usual
practice. It is advisable if the case is at all complex.
In the magistrates court, if the accused pleads not guilty or if a plea of not guilty is entered, the
prosecutor must make a statement outlining the nature of his case and the material facts on which
he relies.167 This statement should be recorded.168
In his address, the prosecutor should concisely outline the nature of the case and the material facts
without giving too much detail. The most efficient method to achieve this end is to précis the
evidence of each State witness, setting this out in the order in which the State proposes to lead its
evidence. It is not always easy to decide what to include and what to leave out of the opening
address, but bearing in mind the purpose of the address should make it easier for the prosecutor to
select what to include.
164 CP&EA s 194(3).

165 CP&EA s 231.
166 CP&EA s 198(1).
167 CP&EA s 188.
168 S v Seda 1980 ZLR 109 (G).
Where there has been a plea of guilty and the plea has been accepted, the procedure is different.
This will be dealt with in Chapter 17, below.
(a) Purpose of and distinction from outline of defence case
The outline of the State and defence cases perform similar functions to the pleadings in a civil
trial. They serve not only to identify what may be in issue between the State and the accused, but
to advise each of the substance of the matters in issue, with the ovious advantages this affords of
avoiding delay in completing the trial. However, there is one major distinction between the outline
of the State case and that of the defence case. If the accused, in his evidence, departs significantly
and without good explanation from the outline of the defence which he makes, this may be a
matter for comment or even adverse conclusion. The same does not apply to a departure by a State
witness from the outline given. This is because the State outline is often a précis of the witnesses’
statements, often compiled by a policeman with no legal training. Even if it is compiled by a
lawyer, the précis is only that lawyer’s version of the police’s version of the witnesses’ statements.
In contrast, the defence outline is a categorical assertion by the accused person of facts on which
he relied for his defence. Consequently, the divergence between the State outline and the testimony
of a State witness must be so gross as to be utterly irreconcilable before an adverse conclusion
should be drawn from the fact of the divergence alone.169 The prosecutor’s duty when a State
witness departs materially from his statement to the police is dealt with in paragraph (b), below.
(b) Contents
The State outline should not contain evidence that the prosecution does not intend to lead. It is
highly improper and prejudicial to the accused for the prosecutor to leave damning statements in
the outline when he knows he is not going to call the evidence of the witness in question.170 Nor
should the prosecutor include in his outline the contents of any statement made by the accused. He
should only give an outline of what may be proved without the accused’s statement. With regard
to the accused’s statement, the prosecutor may only refer to the allegation that a statement was
made.171 It may turn out that the statement is ruled to be inadmissible.
(c) Recording of
The opening address by the prosecutor does not have to be recorded172 but as a matter of practice
is it highly desirable that it should be recorded. It would be helpful and time-saving if the statement
were prepared and written out beforehand.173
(d) Omissions from
Since an opening address is not mandatory, the omission of the name of a witness from the
prosecutor’s opening address does not mean that the witness cannot be called. It might be otherwise
if the State deliberately withheld the name of a witness or the fact of the witness’s existence in
169 S v Seda 1980 ZLR 109 (G); S v Mandwe 1993 (2) ZLR 233 (S).
170 S v Bhaiwa 1988 (1) ZLR 412 (S).
171 S v Nkomo 1989 (3) ZLR 117 (S); 1990 (1) SACR 682 (ZS).
172 High Court (Criminal Procedure) Rules 1966, r 35(1)(d).
173 S v Seda 1980 ZLR 109 (G).
order to mislead or prejudice the accused and if such withholding had caused actual or potential
prejudice.174
(2) EVIDENCE FOR THE PROSECUTION
After his opening address, the prosecutor should, before he calls any of his witnesses, inform the
court of any admissions which the defence has intimated that it is prepared to make. The prosecutor
and the defence lawyer should have discussed the case beforehand to establish whether there are
any material facts which either is prepared to admit.
The matters which may properly be admitted are dealt with in Chapter 18, Section 1, below.
The prosecutor then calls the witnesses for the prosecution and adduces such evidence as may be
admissible to prove that the accused is guilty of the offence charged (or of any other offence of
which he may be convicted on that charge).
It is within the prosecutor’s discretion as to the order in which witnesses should be called and
evidence adduced, but, to avoid confusion, it is suggested that the following rules should be
observed:
(a) When there are several counts, the witnesses should be called, as far as possible, in the
order in which the counts are set out in the charge.
(b) Exhibits should be put in as soon as possible. Where there are several counts, the exhibits
should, as far as possible, be put in following the order in which the counts are set out in
the charge.
(c) When there are several counts and numerous witnesses, the court should always be told
which count or counts the witness is giving evidence on.
Where documentary evidence may be received by the court on its mere production, the prosecutor
should read out the document, unless the accused or his representative has a copy and dispenses
with the reading of the document.
The prosecutor has a discretion as to what witnesses to call to support his case, but a refusal to call
those witnesses whose testimony is essential to a narrative of the prosecution case would be
improper. For instance, in a prosecution for assault, some witnesses may give an account which
does not coincide with the victim’s account. The prosecutor would not be justified in refusing to
call the witnesses merely for that reason. In the exercise of his discretion, the prosecutor must act
fairly and not be influenced by any oblique motive: the prosecution must be conducted with due
regard to the traditional considerations of candour, fairness and justice. This does not, however,
oblige the prosecutor to call witnesses regarded by him as material, not to his own case, but to that
of the defence, solely in order to give the defence the advantage of cross-examination. This would
amount to undertaking the task of the defence and confusion would be apt to result. What the
prosecutor must do is have available the witnesses whom he has indicated to the defence that he
intends to call. If any such witnesses are not called, they must be made available to the defence.175
174 S v Gquma & Ors (1) 1994 (2) SACR 179 (C).
175 R v Oliva [1965] 3 All ER 116 (CCA); S v Kelly 1980 (3) SA 301 (A); S v Beahan 1989 (2) ZLR 20 (S).
The prosecutor should also bring to the notice of the court (or, in a defended case, to the notice of
the defence) information in his possession which may be favourable to the accused.176
The prosecutor also has a duty to disclose material inconsistencies between the evidence that a
witness gives in court and what the witness told the police. It is not necessary to disclose trifling
variations, nor a material discrepancy where the later version is favourable to the accused. However,
in the latter case, the prosecutor may deem it necessary to discredit the witness. This is dealt with
in Chapter 18, Section 7(f), below.
As to what sort of variation should be disclosed, it should be remembered that a witness cannot be
expected to adhere in every tiny detail to the statement which he made to the police. Indeed, if he
did so, it might be suspected that he had concocted or memorised his evidence. Statements are
often made by unsophisticated persons through interpreters who have an indifferent knowledge of
English and this may very easily cause variations. As long as the stories are essentially the same,
the prosecutor should not feel obliged to draw minor discrepancies to the court’s attention.
Essentially, the disclosure of the inconsistent statement need only be made when such a course
favours the accused and when, in effect, the witness in evidence is making things worse for the
accused.
The exercise of the duty calls for good sense on the part of the prosecutor, who must remember
that statements made by witnesses are privileged177 and the disclosure of a previous statement
which is seriously at variance with the evidence given is only made in order to prevent a possible
miscarriage of justice. He is not expected to draw attention to every inconsistency, only to serious
ones. A discrepancy is serious whenever there is a real possibility that the probing of it by means
of cross-examination could have an adverse effect on the assessment by the trial court of the
witnesss’ credibility and reliability. Such a real possibility is not created by a discrepancy of a
minor or trivial nature. In assessing the nature of the discrepancy the prosecutor is entitled to take
into account the fact that police statements are frequently not taken with the degree of care, accuracy
and completeness which is desirable. That does not mean that he is entitled to ignore an averment
in a statement which is prima facie in conflict with the witness’s evidence. If it is not clear that the
discrepancy is either serious or trivial, the prosecutor should not act as the final arbiter on the
question. If he is in doubt, he must make the statement available to the defence (or the court if the
accused is unrepresented). If it should turn out that the discrepancy is of no real consequence, no
more harm would have been done than to waste the little time required to establish that; but if he
fails to disclose a discrepancy which is indeed serious, that might well result in a failure of justice.178
It is as well to realise that, after the disclosure of the inconsistent statement, the witness may have
a perfectly acceptable explanation, for example, that the police did not record his statement correctly
or that it was not correctly interpreted. If the court is satisfied that a satisfactory explanation has
been given it will not reject the testimony of the witness. Accordingly, it is good practice for the
prosecutor to ask which of the two statements is correct.179
When the prosecutor has to draw attention to a previous statement inconsistent with the testimony
given by the witness, the statement should be made available to the defence for cross- examination.
176 S v van Rensburg 1963 (2) SA 343 (N).

177 R v Steyn 1953 SR 76.
178 S v Xaba 1983 (3) SA 717 (A); S v Paweni 1985 (2) ZLR 133 (S) at 137-8 .
179 R v Michael George 1945 (2) PH H254.
If the witness denies making the statement, it may be necessary to prove that he he made it, by
calling the person to whom he made it and, if necessary, the interpreter. If the statement has to be
proved it will be put in as an exhibit.
(3) CROSS-EXAMINATION OF PROSECUTION WITNESSES
The accused or, if he is defended, his legal representative has the right to cross-examine witnesses
called for the prosecution.
(a) Duty to put defence case
It is standard practice for the cross-examiner to put to each opposing witness as much of his own
case or of the defence as concerns that witness. He should inform the witness of witnesses who
will contradict him. The witness should be given a fair opportunity to explain the contradictions
put to him. It is improper and unfair to let a witness’s statement go unchallenged in cross-examination
and then to argue afterwards that the witness should be disbelieved.
The fact that a witness’s answer will almost certainly be a denial is not a reason not to cross-
examine him or put the defence version. The court is entitled to see the witness’s reaction to the
version put to him.180
(b) Effect of failure to cross-examine
The failure to cross-examine a witness generally implies acceptance of the witness’s evidence,181
though this is not an absolute rule.182 The failure to cross-examine does not amount to an admission
of the correctness of the witness’s evidence. This is particularly the case where the accused is
unrepresented. If it is not necessary to cross-examine to put the accused’s case, because it has
already been disclosed (for example, in cross-examining other witnesses), no adverse inference
should be drawn.183 Similarly, if an undefended accused has in his defence outline asserted facts
which contradict the witness, the judicial officer should not normally draw an adverse inference if
the accused fails to put the point specifically to the witness.184 Cross-examination may also be
superfluous where the witness’s evidence is manifestly absurd or contains internal evidence of its
own falsity.185 However, failure to cross-examine is unlikely to be condoned where the failure
misleads the cross-examiner’s opponent into acting on the assumption that certain material parts
of his case are unchallenged or where witnesses for the prosecution are witnesses whose evidence
must be regarded with special caution, such as accomplices, traps and so on.
(c) Departure from State outline
It would be perfectly proper for a defence lawyer to cross-examine State witnesses on apparent
departures from the outline given by the prosecutor. However, the fact that there has been a departure
may not in itself be reason for disbelieving the witness, for the reasons outlined in Section 8(1)(a),
above.
180 S v P 1973 (2) RLR 400 (A); 1974 (1) SA 581 (RA); Lansdown & Campbell pp 787-788.
181 R v Matabi 1951 SR 36; Defenders Handbook p 63.
182 R v Hulett & Anor 1948 (1) SA 808 (N) at 810; S v van Pittius & Anor 1973 (3) SA 814 (C) at 818.
184 Defenders Handbook p 63.
185 R v Matabi supra .
9. DISCHARGE AT END OF PROSECUTION CASE
At the end of the State case, the court may return a verdict of not guilty if it is considers that there
is no evidence that the accused committed the offence charged or any other offence of which he
might be convicted on that charge.186
(1) WHEN APPLICATION MAY BE MADE
The application, if any, should be made at the close of the State case. There is no provision for the
accused to be discharged after the defence case has opened and before it has closed.187 Although
the usual procedure will be that an application is made by or on behalf of the accused, no application
by the defence is necessary. It is quite permissible for the prosecutor to make the application
(though if the prosecutor had such doubts as to cause him to make an application, the normal
course would be for him to withdraw the charge) or for the court to act mero motu.188
There is no statutory provision which requires that the accused be informed of his right to apply
for his discharge at the close of the case for the prosecution, even where there is no evidence on
which a reasonable man might convict. Nor, until recently, has there been any rule of practice to
that effect.189 However, in recent years the courts have taken the approach that the option of applying
for discharge at the end of the State case is one of the procedural choices open to the accused,
which the judicial officer hearing the trial must, as part of his general duty of assisting an undefended
accused, explain to him whenever he is unrepresented and has no case to answer. For the judicial
officer to refrain from doing so, to confine himself to informing the accused of the courses open to
him, is to imply that the accused has a case to meet and thus to mislead him. The alternative
approach is that if the court is of the view that the accused has no case to meet, it should discharge
him mero motu.190 On the other hand, if the judicial officer is of the view that the accused has a
case to answer, it would be superfluous to invite him to apply for his discharge.
(2) WHEN SHOULD BE ORDERED
The judicial officer has a discretion whether or not to grant an application for discharge. However,
it may not discharge the accused on the offence on which he is charged if there is evidence that he
has committed an offence of which he might be convicted on that charge. It is thus not possible, in
effect, to invoke a competent verdict at the end of the State case and put the accused on his defence
only on a lesser charge. The application, if successful, has the effect of terminating the case
completely.191
There will be a basis for ordering the discharge of the accuse at the end of the State case where:
• there is no evidence to prove an essential element of the offence;192
186 CP&EA s 198(3).

187 S v Wana & Ors 1994 (1) SACR 33 (Tk).
188 R v Mkize & Ors 1960 (1) SA 276 (N) at 280, per Burne AJ.
189 S v Ngcube & Anor 1976 (1) SA 341 (N) at 344D, per Howard J (as he then was).
190 See S v Nzimande 1993 (2) SACR 218 (N) at 220 and the cases there cited.
191 R v Dzingayi & Ors 1967 RLR 171 (G), followed in A-G v Mzizi 1991 (2) ZLR 321 (S) at 323.
192 As in S v Ruzani 1984 (1) ZLR 334 (H).
• there is no evidence on which a reasonable court might convict;193 or
• the evidence adduced by the prosecution is so manifestly unreliable that no reasonable

court could safely act on it.194
There is a discretion vested in the court, arising from the use of the word “may” in s 198(3). This
means that the court is empowered to discharge or continue with the trial. The discretion must be
exercised judicially, however. It is not a judicious exercise of that discretion when a court puts an
accused on his defence so that his evidence may strengthen prosecution evidence.195 Where the
accused relies on a defence, such as private defence, which he has not successfully introduced
through the State witnesses, it would be proper to put him on his defence.196
The decision on this matter is a question of law and one to be made by the judge alone, where the
case is before the High Court.197
If the Attorney-General is dissatisfied with a decision to discharge, he may, with the leave of a
judge of the Supreme Court, appeal to that court against the decision. The accused has the right, at
his own expense, to appear in person or to be legally represented. A judge of the Supreme Court
may order that legal aid be granted.198
On appeal, the Supreme Court may:
• confirm the lower court’s decision to discharge the accused;
• allow the appeal and remit the case to be continued by the court a quo;
• allow the appeal and remit the case for trial de novo before a different presiding officer; or
• make such order or give such directions as it deems fit.199
10. DEFENCE CASE
(1) COURT’S DUTIES WHEN ACCUSED IS PUT ON HIS DEFENCE
If the accused is not discharged at the end of the State case, the court must ask the accused (or, if
he is legally represented, his legal representative) whether it is intended to lead evidence for the
defence and whether the accused himself intends to give evidence. If the accused is not legally
represented, the court must also inform him that:
193 R v Herholdt & Ors (3) 1956 (2) SA 722 (W); A-G v Mzizi supra.
194 Practice Note [1962] 1 All ER 448 (QBD); S v Hartlebury & Anor 1985 (1) ZLR 1 (H) at 3, per McNally J (as he then
was).
195 A-G v Bvuma & Anor supra at 101 per Dumbutshena CJ. This decision effectively, as far as the Zimbabwean courts are
concerned, puts an end to the controversy dealt with by Lansdown and Campbell at pp 519-520 and discussed by McNally
J in S v Hartlebury & Anor supra at 3-4.
196 A-G v Bvuma & Anor supra at 103.
197 S v Hartlebury & Anor supra at 2-3.
198 CP&EA s 198(4), as amended by Act 24 of 1989, following the decision in A-G v Howman 1988 (2) ZLR 402 (S).
199 CP&EA s 198(5), introduced by Act 24 of 1989.
• he will not be allowed to call his witnesses until after he has given evidence or been
questioned by the prosecutor or court;
• even if he chooses not to give evidence, he is liable to be questioned by the prosecutor and
the court,200 and
• if he gives evidence or is questioned and refuses to answer a question, he will be asked

why he refuses to answer; and
• if he persists in his refusal to answer, the court may, unless it is satisfied that he had just
cause for his persistence, draw such inferences from the refusal as appear proper and that
the refusal may be treated as evidence corroborating any other evidence given against the
accused.201
This procedure is mandatory. The failure to ask the accused whether he wishes to give evidence is
an irregularity necessitating the setting aside of a conviction, though in proper cases an appeal
court may remit the matter for the correct questions to be put.202 The failure to explain, to an
accused who has misunderstood his right to give evidence or the other courses open to him, what
his rights really are is also an irregularity justifying an appeal court in setting aside the conviction.203
The fact that the accused has been informed of these matters should be recorded; it has been held
a fatal irregularity not to record this fact.204
(2) DEFENCE OUTLINE
Together with his plea, the accused may offer an explanation of his attitude in relation to the
charge or a statement indicating the basis of his defence. This explanation or statement must be
recorded and forms part of the record of the case.205
In a trial before a magistrate, if the accused pleads not guilty or a plea of not guilty is entered, the
prosecutor must make a statement outlining the nature of his case and the material facts on which
he relies.206 The accused must then be requested by the magistrate to make a statement outlining
the nature of his defence and the material facts on which he relies. If the accused is not legally
represented, the magistrate must explain to him that if he fails to mention any fact relevant to his
defence, being a fact which, in the circumstances existing at the time, he could reasonably be
expected to have mentioned, the court, in determining whether there is any evidence that the
accused committed the offence charged (or any offence of which he might be convicted on that
charge), may draw such inferences from the failure as appear proper, and that the failure may, on
the basis of that inference, be treated as evidence corroborating any other evidence given against
the accused.207
200 In terms of CP&E s 198(6).

201 CP&EA s 199(1).
202 R v MacDonald 1964 RLR 124 (A).
203 Nyakidzino v A-G 1964 RLR 543 (A); R v Simon 1948 SR 7; 1948 (2) SA 925 (SR); S v M & Ors 1975 (2) RLR 270
(A).
204 R v Rushinga & Ors 1947 SR 1; 1947 (1) PH H35 (SR); R v Barnard 1951 SR 215; 1951 (2) PH H115 (SR).
205 CP&EA s 180(5).
206 See above, Section 8(1).
207 CP&EA ss 188(b) and 189(2).
The defence outline must be given before the prosecution evidence, to prevent it being tailored to
fit that evidence.
The purpose of the defence outline and the difference from the State outline is dealt with in Section
8(1)(b), above.
In a trial before the High Court, it is not necessary to give the defence outline after the plea
because the accused will already have supplied a written outline of his defence to the Attorney-
General.208
At the beginning of the defence case, the accused or his legal representative may address the court
for the purpose of opening the evidence intended to be led for the defence, but without comment
on that evidence.
(3) EVIDENCE FOR THE DEFENCE
The normal procedure is that the accused must give his evidence or be questioned by the prosecutor
and the court before any other evidence is led for the defence, unless the court in its discretion
allows otherwise.209 The purpose of this provision is to prevent the accused tailoring his evidence
to fit in with what the defence witnesses say. This purpose should be borne in mind in considering
applications to lead the defence evidence in any other order. If the purpose would not be defeated
by allowing some or all or the defence evidence to be given before the accused gives his evidence,
it would be appropriate to allow the accused to give his evidence at some other than at the beginning
of the defence case. The circumstances where this would be appropriate would include those
where:
(a) the other defence witnesses are giving evidence of a technical nature and their evidence
would be unlikely to influence the accused’s narrative;
(b) the evidence is of a formal nature;
(c) the evidence relates to character issues;
(d) the evidence is of an ancillary nature.
(4) CROSS-EXAMINATION OF DEFENCE WITNESSES
The prosecutor is entitled to, and generally should, cross-examine the defence witnesses, including
the accused. If the accused is jointly charged with another and elects to give evidence, he may be
cross-examined by his co-accused.
While as a general rule it would be wise to for the prosecutor to cross-examine defence witnesses
if he does not accept what they say, the fact that the prosecutor decides not to cross-examine the
accused on a particular point, or at all, is not necessarily an indication that he accepts the truth of
what the accused says. However, it may well be decisive in determining the accused’s guilt. A
great deal may turn on the circumstances on each case. Sometimes it may be safe for a prosecutor
208 See Chapter 9, Section 3(2), above.

209 CP&EA s 198(8), proviso.
to decide not to cross-examine the accused. This perilous course of action should only be taken, if
at all, after careful consideration and when the accused’s version is manifestly false. The point on
which the accused is to be contradicted may be so obvious that it is unnecessary to put it to him in
cross-examination, or his story may be so wildly improbable that cross-examination would be a
waste of time.210 Similarly, where the prosecution has been conducted in such a way that it is
obvious that the accused’s story is not accepted by the prosecutor and where the only questions
that could be put would only elicit denials, it would not be fatal to the State case if the prosecutor
did not cross-examine.211
(5) QUESTIONING OF ACCUSED
If the accused declines to give evidence, the prosecutor and the court may nevertheless question
him. If the accused is legally represented, his legal representative may question him afterwards,
subject to the rules applicable to a party re-examining his own witness.212 Answers given by an
accused when questioned in this manner are not admissible as evidence against any co-accused;
they are in the same position as extra-curial statements.213
The right of the prosecutor and the court to question the accused even though he has declined to
give evidence should not be taken as an invitation to hector or bully the accused. The accused,
whether being cross-examined or questioned in terms of s 198(6), is entitled to the same courtesy
from the prosecutor as the prosecutor is entitled to expect from witnesses.214
If the accused, whether in cross-examination or while being questioned in terms of s 198(6),

refuses to answer a question, he must be asked the reason for his refusal. 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 it is satisfied that he had
just cause for persisting in his refusal to answer, draw such inferences from the refusal as appear
proper. The refusal may, on the basis of those inferences, be treated as evidence corroborating any
other evidence given against the accused.215
If the accused refuses to give evidence, but the prosecutor and court fail to question him, it cannot
be said that he has refused to answer and no adverse inference can be drawn against him for that
reason.216
A refusal to answer is deemed to lack just cause unless the accused is entitled to refuse to answer
the question on the grounds of privilege.217 It is not enough for the accused’s legal representative
to form the opinion that the accused would be justified in refusing to answer questions and to
advise him to do so. The accused must himself set out the reasons which would constitute just
cause.218
210 Hoffmann and Zeffertt p 462.

211 S v Chigwana & Ors 1976 (1) RLR 349 (A).
212 CP&EA s 198(6).
213 S v Andeya 1981 ZLR 35 (A) at 37.
214 S v Jakarasi 1983 (1) ZLR 218 (S) at 225.
215 CP&EA s 199(1).
216 S v Shoniwa 1990 (1) ZLR 311 (S).
217 CP&EA s 199(2). As to when a witness (including the accused) may decline to answer a question on the grounds of
privilege, see Chapter 18, Section 4, below.
218 S v Makandhla 1981 ZLR 423 (S).
Comment
This procedure, distasteful as it may be to some practitioners, is sanctioned by the

Constitution. Section 18(3) provides that —
“ No person who is tried for a criminal offence shall be compelled to give evidence at
the trial.”
The procedure under s 199 might arguably be a breach of that protection, but s 18(13)(d)
provides that —
“ Nothing contained in or done under the authority of any law shall be held to be in
contravention of … subsection (8) to the extent that the law in question authorizes a
court, where the person who is being tried refuses without just cause to answer any
question put to him, to draw such inferences from that refusal as are proper and to
treat that refusal, on the basis of such inferences, as evidence corroborating any
other evidence given against that person.”
It can be seen that s 199 fits safely within this exception.
(5) ACCUSED’S FAILURE TO MENTION RELEVANT FACTS
The accused’s failure to mention facts relevant to his defence can allow the court to draw such
inferences from the failure as appear proper. The failure may, on the basis of those inferences, be
treated as evidence corroborating any other evidence given against the accused. Such a failure
may occur:
• in the outline of his defence when he is indicted to appear before the High Court;219
• at a trial before a magistrates court, when, having pleaded not guilty, he makes a statement
outlining his defence;220 or
• when being questioned by the police.221
However, if the accused gives evidence and fails to mention facts relevant to his defence, no
adverse inference should necessarily be drawn, particularly if the accused is undefended and has
mentioned the relevant facts at some other time, such as in his defence outline or in his cross-
examination of prosecution witnesses.
11. RE-OPENING OF STATE CASE AND DEFENCE CASE
After the prosecutor has formally closed his case at the end of his evidence, he will not, save in the
most exceptional circumstances, be allowed to re-open his case. Evidence cannot be called in
rebuttal where it is merely confirmatory of the original case. Rebutting evidence may be called by
the prosecutor in respect of new matter introduced during the course of the defence case and
which the prosecutor could not reasonably have been expected to foresee. If an indication of the
219 CP&EA s 111(2).

220 CP&EA s 189(2).
221 CP&EA s 257; and see Chapter 20, Section 1(2), below.
existence of the matter was given during the State case, whether in cross-examination or otherwise,
the court will not normally allow the prosecution to reopen its case. If such an indication is given
and the prosecutor does not have the evidence at hand to lead immediately in rebuttal, he should
seek an adjournment to obtain the evidence.
Similarly, if the prosecution is allowed to lead rebutting evidence, the defence must be allowed the
opportunity of rebuttal.222
In some instances, an act or omission only constitutes an offence when committed by a person
possessing a particular qualification or vested with a particular authority or acting in a particular
capacity. Where a person is charged with such an offence and the charge alleges that he possessed
that qualification or was vested with that authority or acted in that capacity, he is deemed to have
possessed that qualification or to have been vested with that authority or to have acted in that
capacity, unless he had denied that allegation within three days of being served with a notice
calling on him to admit it. If such a notice is not served or he fails to answer it until the trial, he
may still, as part of the defence case, deny the allegation and lead evidence to rebut it. In that
event, the prosecutor is entitled to lead evidence and submit argument in support of the allegation
as if he had not closed his case.223
12. ADDRESS BY PARTIES
After all the evidence has been led for both sides, the prosecutor is entitled to address the court,
summing up the whole case. In his address, the prosecutor should, as always, regard himself as a
minister of justice, not an advocate striving at all costs for a prosecution.224
After that, the accused (or each of the accused, if there is more than one) is entitled by himself or
through his legal representative to address the court. If, in his address, the accused or his
representative raises any matter of law, the prosecutor is entitled to reply, but only on the matter of
law that was raised.225
The question of the right to address the court on the question of sentence is dealt with in Chapter
25, Section 3, below.
(1) RIGHT OF ADDRESS
It is the prosecutor’s right to decide whether or not to address the court and how much or how little
to say. He must be relied on not to labour a case that speaks for itself. The fact that the accused is
unrepresented does not mean that the prosecutor is not entitled to address the court or that he
should not address the court. The only question is whether an address would serve any useful
purpose.
The principle objection to the court intimating that it does not wish to hear the prosecutor lies in
the fact that it is a clear indication that the court has formed an opinion, however tentative, that the
accused is guilty of the offence charged, before hearing the accused or his legal representative on
222 See Lansdown & Campbell pp 516-517 and the cases there cited.
223 CP&EA s 315.
224 Emmins p 136.
225 CP&EA s 200.
the matter. The address by the accused or his representative may put an entirely different light on
the case.226
Equally, the accused or his representative has a right to address the court. A refusal or failure to
permit this right to be exercised is an irregularity which will, in general, lead to the setting aside of
a conviction.227
(2) ORDER OF ADDRESS
The order of addresses remains the same, irrespective of whether or not evidence is led for the
defence.
(3) METHOD OF ADDRESS
In most cases, the address will be given verbally. It is unclear whether a written address may be
handed in, either instead of or in addition to the oral address.228 It is submitted that with the
disappearance of trial by jury, no harm could come of supplying written heads of argument to
supplement an oral address, particularly where the case or issues are complex.
(4) EFFECT OF FAILURE TO INVITE ACCUSED TO ADDRESS
Mere failure to invite the accused to address the court is not an irregularity. It would only be an
irregularity if the facts showed that (a) the accused or his legal representative wished to address
the court and (b) the presiding judicial officer deprived him of an opportunity to do so before
verdict. Even if there is such an irregularity, this would not necessarily lead to the setting aside of
the conviction unless the review or appeal court considers that a substantial miscarriage of justice
had actually occurred. Where the evidence against the accused is so overwhelming, and his own
evidence so unacceptable that there is no reasonable possibility that the accused could have presented
any argument that might have influenced the trial court to acquit him, the appeal court would not
be justified in setting aside the conviction on the grounds of the irregularity.229
13. RECORD OF TRIAL
(1) CONTENTS
A full and comprehensive record should be kept of the trial. A failure to do so amounts to gross
irregularity. The need for a full and comprehensive record is obvious: without one, how could any
review or appellate tribunal assess the correctness of proceedings placed before it?230 In addition,
there are specific requirements imposed by the CP&EA to record certain matters.231
226 R v Ganyana 1960 R & N 491; 1960 (4) SA 52 (FS).

227 See Lansdown & Campbell p 526 and the cases cited at notes 65-67.
228 S v Funnekotter 1970 (1) RLR 57 (G); 1970 (2) SA 577 (R).
229 S v Mutambanengwe 1975 (2) RLR 219 (A); 1976 (2) SA 433 (RA). In de Wet v Patch NO 1976 (1) RLR 65 (G), a
conviction by an officer in charge of a prison of committing a prison offence was set aside where the accused was not
invited to address the court, but the Prison Regulations 1966, in terms of which the trial took place, made such an invitation
peremptory.
230 S v Ndebele 1988 (2) ZLR 249 (H).
231 For example, the accused’s explanation of his attitude in relation to the charge (s 180(5)); the explanation to the
accused of the elements of the charge (s 271(3)).
Where there is no mechanical recorder or shorthand writer available, presiding judicial officers
have a duty to write down completely, clearly and accurately everything that is said and happens
before them which can be of any relevance to the merits of the case. They must ensure that they do
not record the evidence in a way which is meaningless or confusing or which does not give the real
sense of what the witness says. They must remove obscurities of language or meaning wherever
possible by asking questions.232
Comment
It can be seen that this can be a difficult task. Even though a verbatim report is not required
and would be practically impossible, the task of sifting the relevant from the irrelevant and
reducing verbal meanderings into a meaningful and adequate narrative is not an easy
one.
(2) ALTERATION
Once the record of a trial leaves a magistrate’s custody, he is functus officio and should not correct
the record. The record may only be altered in accordance with defined rules and in exceptional
cases. Informal amendments could amount to a gross irregularity, leading possibly to the quashing
of the conviction.233 If a mistake concerning an important particular is made inadvertently, the
magistrate should make a note on the record as to the nature of the mistake and explain how the
record ought to read.234
The usual procedure for amending the record is for the State to move the court to have the record
amended. The application is served on the magistrate and the accused and is accompanied by
affidavits from persons swearing to the fact that the record is faulty and that the corrections required
to be made would accurately reflect what was said in evidence. In a case on automatic review, this
elaborate procedure is not essential, but a reviewing judge, before authorising an amendment to
the record, should be perfectly satisfied that the record is at fault.235
(3) LOST RECORD
Records of court proceedings should be preserved with meticulous care. The clerk of court, where
a case goes on appeal, has the duty to lodge the original record with the Registrar of the Supreme
Court.236 It is his obligation to ensure that the complete record is so lodged. If there is anything
remiss with the record, the fault will be visited on the State. If is not possible to reconstruct the
record or the missing parts, it may well happen that the conviction has to be set aside.237
Where a record is lost before verdict, the proceedings remain valid. A trial de novo cannot be
ordered. It then becomes the task of the magistrate or clerk of court to compile afresh a record of
the completed part of the trial in any manner which is fair and as reliable as possible. At the
resumed trial, after the record has been reconstructed as well as possible, the magistrate is entitled
232 S v Davy 1988 (1) ZLR 386 (S).

233 S v Ndebele supra.
234 S v Mukadziwashe 1984 (1) ZLR 254 (H) at 256.
235 S v Bernard 1971 (1) RLR 188 (G).
236 Supreme Court (Magistrates Court) (Criminal Appeal) Rules 1979 (SI 504 of 1979), r 24(2).
237 S v Manera 1989 (3) ZLR 91 (S); S v Meyer Juta SCD 16/1993 (C) p 4.
to recall any witnesses to give evidence, to lay his reconstructed evidence before him and ask him
whether it tallies with the evidence he gave previously. The witness will then be subject to cross-
examination on the answers given to the questions put by the magistrate on the correctness of the
record. The trial thereafter should continue in the normal way.238
Where a record is irretrievably lost after verdict and sentence but before review, the clerk of court
(rather than the magistrate, who is functus officio) must by affidavit state that this has happened.
He should obtain from the presiding magistrate, witnesses and others present at the trial affidavits
as to the contents of the record. Thereafter he must give both parties the opportunity to read these
affidavits so that they may also give their versions. The reconstructed record from the best secondary
evidence must then be sent for review.239
(4) DISCLOSURE
Where a court has made an order under the CAA(PR)A, excluding certain persons from the trial or
ordering that the whole or any part of the proceedings should not be disclosed, or where a Minister
has issued a certificate under s 4 of the Act, the record of the trial is thereafter accessible only to
the accused and his legal representative. Other persons may be allowed access if the registrar of
the High Court or Supreme Court or the magistrate is satisfied that the person seeking access has
good cause to inspect the record or part of it and that to allow that person access to the record will
not defeat the purposes for which the order was made or the Ministerial certificate issued.240
14. IRREGULARITIES
Irregularities can and do occur in the conduct of trials. They vary in nature and degree. They fall
into two categories.
(1) IRREGULARITIES VITIATING PROCEEDINGS
Irregularities can be of so gross a nature as to vitiate the proceedings. If such an irregularity

occurs, the proceedings may be set aside on appeal or review without reference to the merits, and
the accused can be charged again.241
(2) OTHER IRREGULARITIES
Where lesser irregularities occur, an appeal or review court can separate the good from the bad,
and consider the merits of the case, including any findings as to the credibility of the witnesses.
Unless the court comes to the conclusion that a substantial miscarriage of justice has actually
occurred as a result of the irregularity, the court will not set aside the proceedings on the grounds
of the irregularity only.242
238 S v Williams 1987 (1) ZLR 184 (H).

239 S v S (a juvenile) 1991 (1) ZLR 237 (H).
240 CAA(PR)A, s 6. See also Chapter 15, Section 5, above.
241 S v Naidoo 1962 (4) SA 348 (A); S v Nyamayevu 1978 RLR 140 (G).
242 SCA s 11(2); HCA s 29(3).
15. QUESTIONS OF LAW ARISING DURING TRIAL
(1) RESERVATION OF QUESTION OF LAW
If any question of law arises during a trial in the High Court, the court may, after the accused has
been convicted and sentenced or acquitted, reserve the question of law for consideration by the
Supreme Court. The court may do this of its own motion or at the request of the prosecutor or of
the accused. Where the court does reserve a question of law, it must state the question reserved and
direct that a copy of the question be sent to the registrar of the Supreme Court.243
Similarly, the High Court may reserve for determination by the Supreme Court any question decided
by it on exception or objection to the indictment. Where the court does reserve such a question, it
must state the question reserved and direct that a copy of the question be sent to the registrar of the
Supreme Court.244 It is not clear whether the court may reserve such a question of its own motion
or whether one of the parties should apply.
The question as to whether at the end of the State case there was sufficient evidence on which a
reasonable man might convict the accused on any of the counts on which he was charged is a
question of law and as such could be reserved.245
There is no appeal against a decision by the High Court to reserve a question of law for determination
by the Supreme Court.246
Because of the existence of a system of appeals to the Supreme Court, the procedure of reserving
questions of law has lost much of its former importance. Ordinarily, where leave to appeal is
granted or where there is a right of appeal, this is enough to enable all issues, factual, legal or
procedural, to be dealt with by the Supreme Court. The reservation of questions of law is now
useful only where the trial court wishes to raise a question of law of its own motion or where the
only point involved is a legal question, the precise nature of which can be brought out most
conveniently by reservation of the question.247
The court should grant an application by the accused to reserve a question of law unless the
application is manifestly frivolous or absurd and would amount to an abuse of the process of the
courts or where, because of the clarity of the law on the point, there is no possibility that the
Supreme Court would answer the question in favour of the accused.248 This contrasts with the
approach taken when application is made for leave to appeal (where such leave is required), that
there should be a reasonable prospect of success on appeal.249
No time limit is set down for when the accused may make an application for reservation of a
question of law, but the application should be brought as soon as possible after judgment or at any
rate within a reasonable time after that.250
243 HCA s 25.

244 HCA s 24.
245 S v Matanzima Juta SCD 19/1993 p 2 (TkA).
246 HCA s 44(8).
247 R v Nzimande 1957 (3) SA 772 (A) at 774.
248 R v Nafte 1929 AD 333; Lansdown & Campbell p 654.
249 See Chapter 27, Section 1, below.
250 S v Haarmeyer 1970 (4) SA 113 (O).
A question of law should not be reserved where the record does not disclose one.
(2) RESERVATION OF DECISION ON POINTS RAISED AT TRIAL
Any judge or magistrate presiding at a trial may reserve the giving of his final decision on questions
raised at the trial. In that event, the decision, whenever given, is considered as having been given
at the time of trial.251
(3) CONSTITUTIONAL QUESTIONS ARISING DURING THE TRIAL
Reservation of questions of law may only be made after the trial is over. Constitutional questions
may be raised at any time. If in any proceedings in the High Court or in any court subordinate to
the High Court, any question arises as to an alleged contravention of the Declaration of Rights, the
presiding judge or magistrate may, and if so requested by a party to the proceedings, must refer the
question to the Supreme Court. The judge or magistrate may decline to refer the matter if, in his
opinion, the raising of the question is merely frivolous or vexatious.
The court may adjourn the proceedings pending the determination of the matter by the Supreme
Court.
16. MISCELLANEOUS
(1) IMPOUNDING OF FORGED DOCUMENTS
Whenever any instrument which has been forged or fraudulently altered has been admitted in
evidence, the court may direct that the instrument be impounded and kept in the custody of an
officer of the court or other proper person for such period and subject to such conditions as the
court thinks fit. The court may take this course at the request of the State or any person against
whom the instrument was admitted in evidence, though not, it would seem, of its own motion.252
It is of interest to note that there is no equivalent to this procedure in South Africa. It is questionable
whether the procedure should be retained here. It is rarely used and, it is submitted, of little practical
value, as any exhibits which have been produced are invariably kept in the custody of the clerk of
court or some other responsible State official.
(2) CUTTING UP OF COUNTERFEIT COINS
If any false or counterfeit coin is produced during any trial for an offence against currency or
coin,253 the court must order the currency or coin to be cut in pieces in open court or in the presence
of a magistrate and then delivered to or for the lawful owner, if he claims it.254
251 CP&EA s 332.

252 CP&EA s 311.
253 Presumably this could only be the residual species of crimen laesae majestatis consisting of making or defacing coins,
if that is still an offence: Hunt pp 56 and 65. Although the defacing and other defilement of bank notes is an offence under
s 14 of the Reserve Bank of Zimbabwe Act [Chapter 22:10], there appears to be no statutory provision protecting coins.
254 CP&EA s 312.
This procedure is also non-existent in South Africa. It is submitted that it also has little practical
value, as it relates only to offences against the coinage. Whether making counterfeit coins is an
offence against the coinage or merely a species of fraud is debatable, but nowadays coins are of so
little face value (sometimes the metal in them is more valuable) that the practice of forging coins
has almost entirely died out.

Chapter 16 - Conduct of Trial

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Chapter 16 - Conduct of Trial

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Conduct of trial 16—1

3. Arraignment ................................................................................................................ 16—13

5. Pleas which may be entered

(3) not guilty ............................................................................................................ 16—18

6. Presence of accused .................................................................................................... 16—25

7. Exclusion of witnesses from court room .................................................................... 16—27

9. Discharge at end of prosecution case ......................................................................... 16—32

10. Defence case

11. Re-opening of state case and defence case ................................................................. 16—37

12. Address by parties ...................................................................................................... 16—38

13. Record of trial

14. Irregularities ............................................................................................................... 16—41

15. Questions of law arising during trial

1. JUDICIAL OFFICER’S CONDUCT

1 See Magistrates Handbook Section 1.

(a) Questioning of witnesses

9 S v Mahati 1988 (1) ZLR 190 (H).

(b) Interviewing witnesses

(a) Call evidence

25 R v Zakeyu 1963 R & N 434 (FS).

(c) Assistance to undefended accused

An undefended accused is usually at a severe disadvantage compared to one who is represented.

(i) Explanations to the accused

32 S v Mangezi 1985 (1) ZLR 272 (S).

(ii) Accused’s conduct of his defence

(d) Protecting witnesses

39 S v Dube & Anor 1988 (2) ZLR 385 (S).

(1) BEFORE PLEA

48 Pannick Judges p 41.

(2) AFTER PLEA

(3) DISCHARGE FOR WANT OF PROSECUTION

57 In re Mlambo 1991 (2) ZLR 339 (S).

(1) REQUIREMENT TO ENTER

(2) MATTERS TO BE RAISED BEFORE PLEA ENTERED

(i) Accused not served with copy of charge

(ii) Formal defects in charge

(b) Exceptions to charge and motions to quash charge

• accede to the request; or

• make no order on the motion.76

The usual ground for excepting to a charge is that it discloses no offence.78

(c) Notice required for exceptions, etc

If the accused intends to:

• apply to have the charge quashed; or

• except to the charge; or

• offer any plea other than guilty or not guilty;

What constitutes “reasonable” notice depends on the circumstances of the case.82

(3) WHO MAY TENDER PLEA

In the normal course, the accused pleads personally.

(a) Company director

(4) ACCUSED COMMITTED OR REMITTED FOR SENTENCE

If he pleads not guilty, the court shall, if it is satisfied that:

• he duly admitted before the magistrate that he was guilty; and

5. PLEAS WHICH MAY BE ENTERED

(1) ISSUES RAISED BY PLEA TO BE TRIED

(a) On behalf of accused company

A plea of guilty on behalf of a company must be authorised by the company.95

(b) To lesser offence than that charged

94 R v Chikerema 1958 R & N 516 (SR) at 521.

(c) Limits of prosecutor’s right to accept plea

(d) Murder trial

(3) NOT GUILTY

101 S v Mpofu 1983 (2) ZLR 118 (H).