PROSECUTORS

• TWO TYPES - PUBLIC & PRIVATE

• VAST MAJORITY OF PROSECUTIONS
BY PUBLIC PROSECUTORS.
 PUBLIC PROSECUTION
• THE PRINCIPAL LAW OFFICER IS THE AG.

• ALL POWERS RELATING TO THE

PROSECUTION OF CRMES IN THE NAME OF
THE STATE ARE VESTED IN THE AG.
• HE MAY ALSO DIRECT THE COMMISSIONER
OF POLICE TO INVESTIGATE AND REPORT
OT HIM ON ANY MATTER WHICH IN THE AGS
OPINION RELATES TO A CRIMINAL
OFFENCE.
 OTHER OFFICERS
• THE PRESIDENT APPOINTS THE DEPUTY AG
AND THE DIRECTOR OF PUBLIC
PROSECUTIONS DPP.
• AG CANNOT PERSONALLY SUPERVISE ALL
PROSECUTIONS SO HAS THE POWER TO
DELEGATE [S 76(4)]
• PUBLIC PROSECUTORS ARE MEMBERS OF
THE PUBLIC SERVICE AND USUAL
REQUIREMENTS FOR DISMISSAL FOLLOW.
 PRIVATE PROSECUTORS
• 13 Private prosecution on refusal of
Attorney-General to prosecute
• In all cases where the Attorney-General declines
to prosecute for an alleged offence, any private
party, who can show some substantial and
peculiar interest in the issue of the trial arising
out of some injury which he individually has
suffered by the commission of the offence, may
prosecute, in any court competent to try the
offence, the person alleged to have committed it.
 REQUIREMENTS
• (1) the private party must show:
• a) some substantial and peculiar interest
• b) in the issue of the trial; and
• (2) the issue must arise out of
• a) some injury
• b) which the private party has suffered
individually
• c) by the commission of the offence.
 SOME CASE LAW
• SOUTH AFRICA

• Ellis v Visser 1954 (2) SA 431(T)

• Held must be able to give rise to a remedy at
civil law

• Makanya v Bailey 1980(4)SA 713 (T)

• Civil remedy test held too be too restrictive.
 POSITION IN ZIMBABWE
• DECIDED IN

• Levy v Benatar 1987 (1) ZLR 120

 OTHER PERSONS WHO MAY
BRING A PVT PROSECUTION.
• COVERED BY SECTION 14
• (1) a husband, in respect of offences committed
against his wife, though the reverse does not apply;
• (2) the legal guardians or curators of minors or
mentally disor­dered or defective persons, in respect of
offences committed against their wards.
• (3) the wife or children or, failing them, the next of kin
of any deceased person, in respect of any offence by
which the death of that person was caused; and
• (4) public bodies and persons on whom the right to
prosecute is conferred by statute in respect of particular
offences
 DECISION IN LEVY’S CASE
• The court held:
• a) Where a private prosecution is brought and the
prosecutor's locus standi is challenged, the onus is upon the
person bringing the private prosecution to establish that the
requirements of section 13 have been complied with.
• b) The court also considered the question of the meaning
of section 13, particularly in the light of Makanya v Bailey

• and held that the private prosecutor is required to show an

actionable injury. The test to apply, the court held, is whether
the allegation by a private party that he has suffered an
injury, if pleaded in a civil suit, would make the declaration
excipiable. If would not, he may prosecute.
 PROCEDURE
• (1) Attorney-General's nolle prosequi.

• The first essential for most private prosecutions

is that the private prosecutor must obtain from
the Attorney-General a signed certificate that he
has seen the statements or affidavits on which
the charge is based and declines to prosecute at
the public instance.
• The Attorney-General is not entitled to refuse to
issue such a certificate in a case where he
declines to prosecute.
 SECURING THE ATTENDANCE
OF THE ACCUSED
• (2) Warrant of detention or summons
•
Where the accused is in prison or on bail and a warrant
for the liberation of the accused has been issued by the
Attorney-General. Here, the private prosecutor may
apply to the High Court or a judge thereof for a warrant
for the further detention of the accused or, if he is on
bail, for his detention. The Attorney-General's certificate
of nolle prosequi is not required, since his warrant for the
liberation of the accused would state that the Attorney-
General sees no grounds for prosecuting the accused.
•
 SUMMONS
• The second way in which the accused
may be brought to court is by summons.
Before a summons may be issued, the
private prosecutor must produce a
certificate of nolle prosequi to the issuer of
process.
 WARRANT OF ARREST?
• Accordingly to Reid Rowland no procedure
for this.
 FAILURE TO APPEAR
• If the private prosecutor fails to appear on
the day appointed for appearance, the
charge or summons will be dismissed.
The proceedings may not be reinstituted at
the instance of any private party.
However, if the court has reason to believe
that the private prosecutor's absence was
caused by circumstances beyond his
control, it may adjourn the case.
 ATTORNEY GENERALS
POWERS
• Even if a private prosecution is dismissed for
want of prosecution, the Attorney-General or a
public prosecutor may afterwards take up the
case.

• The Attorney-General or a public prosecutor

may also take over a private prosecution at any
stage of the proceedings. This is done by
applying to the court for an order to stop all
further proceedings. The court has no
discretion to refuse to grant such an order.
 TRIAL PROCEDURE
• The procedure at a private prosecution is
the same as at a prosecution at the public
instance, except –

• (a) the indictment is in the name of the

private prosecu­tor(s); and

• (b) in the matter of costs

 FEES & COSTS

• (1) Recognizances and security for costs

• Private prosecutors (other than public bodies and

persons who have the right of prosecution given by
statute) must deposit certain sums of money before
taking any proceedings in pursuance of a right of private
prosecutions. These are -
• (a) the deposit of $100; or
• (b) recognizances in that sum together with two
sureties of $50 each; and
• (c) security for the accused's costs.
 COSTS
• (a) acquittal
• If the accused is acquitted, the court may
order the whole or part of his expenses to
be paid by the party who instituted the
prosecution. If the court considers the
charge or complaint to have been
unfounded and vexatious, it shall, on the
application of the accused, award such
costs as it may think fit.
 COSTS CONT
• (b) conviction
• The court may, if the accused is convicted,
order that the accused pay to the
prosecutor the costs and expenses of
bringing the private prosecution.
• These costs may be in addition to an
award of compensation.
• The court may order that the State pay the
costs.
 COSTS CONT 2
• (c) scale of fees

• Any award of costs is taxed according to

the civil scale of fees.