TUTORIAL SCHEME

INTRODUCTION
A. Assessment objectives:

Candidates should demonstrate knowledge and understanding of the conduct and regulation of
criminal proceedings in Zimbabwe. Put another way knowledge of the rules that govern the
methods and processes for enforcing legal rights and duties (substantive law). Additionally,
candidates are expected to be able to explain the principles/procedures developed by and how
the courts in Zimbabwe have applied them.

B. General observations:

1. What is obvious from the answer scripts is that an alarming majority of the candidates
present answers to questions which were not being asked but had previously been asked
in past examinations. The lesson to learn is that understand what the question is asking
and do not assume.

• In some previous examination papers a question on the three factors taken into
account when determining an application for discharge at the close of the
State/prosecution case was asked. In other papers although the question asked
mentioned a discharge at the close of state case its focus was on the course of
action that a lawyer should take, if dissatisfied with a court’s ruling refusing to
grant such application. A substantial majority of candidates presented an answer
on the factors taken into account in determining the application.

2. There is an unfortunate tendency/belief on the part of the majority candidates that by

simply paraphrasing or regurgitating a relevant provision of the CP & E Act answers
or constitutes an adequate answer to questions. I say unfortunate because it is expected
that candidates, at this level, appreciate that provisions of the CP & E Act, in the main,
set out the requirements to be satisfied as opposed to spelling out the actual procedure
followed. The procedure followed is a different matter. This shortcoming suggests that
candidates do not read case authority relative to the procedure or do not make any effort
to attend actual court sessions to gain some practical appreciation on how criminal cases
are dealt with. Take for example s 271(2)(b) which governs plea of guilty proceedings.
When properly construed it will be seen that neither subpara (i) of (ii) give the
procedure used by courts when dealing with a plea of guilty but merely provide the
requirements (conditions or standards) that a court should meet in order to satisfy itself
that the accused is genuinely and understandingly admitting to the charge. Another
example is s 256(1) which governs the admissibility of extra-curial statements –
it simply sets the legal standard that must be satisfied before a court can admit such
statement – but does not spell out the procedure that is followed by the court when
determining whether the set legal standard has been satisfied.

EXPLANATION OF SOME KEY STEPS IN CRIMINAL PROCEEDINGS

C. Pre-trial matters:

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✓ Prosecution of crime:
• Section 258 of the Constitution mandates the NPA, headed by the PG to institute and
undertake all criminal prosecutions at the public instance. Nothing much need be said
in this regard.
• Prosecution at the private instance – where the PG declines to prosecute a criminal
matter, the law requires him/her to issue a certificate nolle prosequi. However, for the
PG to issues this certificate certain requirements must be satisfied. Without this
certificate a private party is disallowed from instituting a private prosecution. The
question is, apart from the requirement of obtaining a certificate nolle prosequi explain
these other requirements. The key word being “explain”.
SAMPLE ANSWER:
Section 13 of the CP & E Act stipulates the requirements to be satisfied for a private
party to be permitted to institute a private prosecution to wit:

The private party concerned must show:

(i) some substantial and peculiar interest,

(ii) in the issue of the trial,
(iii) arising out of some injury,
(iv) which he individually has suffered,
(v) in consequence of the commission of the offence.

The question requires the candidates to explain what these requirements mean –
therefore merely stating them (as many a candidate do) is insufficient. Various cases
have explained the requirements. (See Levy v Benatar 1987 (1) ZLR 120 (S); AG v Van
der Merwe & Bornman 1946 OPD 197; Telecel Zimbabwe (Pvt) Ltd v Attorney-General
2014 (1) ZLR 47 (S)

• “Substantial and peculiar interest” – the interest referred to need not necessarily
be of a material or pecuniary character, for prosecution is not designed primarily
to recover compensation. (AG v Van der Merwe & Bornman 1946 OPD 197;
Levy v Benatar 1987 (1) ZLR 120 (S)).

• “in the issue of the trial” – the interest here relates to conviction and sentence,
which should be the sole motivating force behind all private prosecutions. (Levy
v Benatar (supra))

• “arising out of some injury”; “which he individually suffered” – Injury must not
be anticipated but need not be patrimonial. The generally accepted view is that
the private prosecutor is required to show that he has suffered some actionable
injury, there being no title to prosecute if he is unable to prove an invasion of a
legal right – such an injury must be beyond that suffered by the public generally.
For instance, a wilful and mala fide refusal to comply with a civil court order
constitutes a contempt for which the State can prosecute i.t.o. s 182(2)(e) of the
Criminal Law Code. However, even where the order has been obtained at the
instance of a would-be private prosecutor, his interest in the punishment of the
person in disobedience is not peculiar to him, but is shared by every right-
thinking member of Society. Consequently, the private prosecutor would have

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 no locus standi. Section 14 lists a further category of persons who qualify to
institute a private prosecution.

• “in consequence of the commission of the offence” – there must be a factual

basis that establishes a causal connection between the commission of the
offence and the injury suffered by the private prosecutor.

✓ Search and seizure warrants:

• Section 57 of the Constitution guarantees the right to privacy which includes
the protection against searches of a person’s home, premises or property.
However, this right may be derogated from where the investigating authority
applies for and is granted a search and seizure warrant by the court.
• Because by its very nature a search and seizure warrant prima facie erodes the
right to privacy the law provides for strict requirements for it to be a valid
search and seizure warrant. Although s 50 empowers a magistrate, upon
application, on oath, by police, to issue a search and seizure warrant, such
warrant must comply with certain requirements, to wit:
(1) A magistrate can issue a warrant which is only applicable is his/her area of
jurisdiction;
(2) The warrant must clearly specify the premises and/or persons to be
searched and the items to be seized.
(3) The warrant must specify the reasons for the search and seizure i.e., the
offence being investigated.
• In a nutshell, a search and seizure warrant should not be too broad and vague
and lacking in specific detail. (Capital Radio (Pvt) Ltd v Minister of
Information & Ors (2) 2000 (2) ZLR 265 (H))
✓ Remand:
• Remands are predicated on the constitutional right to personal liberty enshrined
in s 49 of the Constitution, which includes “not to be deprived of his/her liberty
arbitrarily or without just cause.”
• The Constitution further stipulates that arresting authorities can only detain a
person for not more than 48 hrs and must either release the arrested person
without charge within the 48 hrs or must bring such person before the court to
obtain a court order for further detention. (s 50(2) of the Constitution).
• This constitutional guarantee is given practical meaning by s 32(2) of the CP &
E Act.
• The legal standard that must be satisfied for a court to order the placement of an
accused on remand is that the allegation upon which the State is relying on must
establish a “reasonable suspicion that the person committed or was about to
commit” the alleged offence. (See AG v Blumears & Anor 1991 (1) ZLR 118
(S)).
• The question is: What, in practical terms, is the court looking at in order to
determine whether indeed the allegations relied upon by the State establish
reasonable suspicion? In AG v Blumears & Anor (supra), GUBBAY CJ
emphasised that “… the criterion of reasonable suspicion is a practical, non-
technical concept which requires the State to place before the court sufficient
facts and circumstances that satisfy two requirements.
• In this regard the two criterion that must be satisfied are that:

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 1. The facts or circumstances provided must constitute a criminal offence
known or recognised in our law. Where the facts or circumstances fall short
of a known criminal offence the issue of the existence of reasonable
suspicion does not arise.

2. The facts or circumstances provided must sufficiently link the accused to

the commission of the offence, in the sense that they create a reasonable
suspicion of the accused having committed or about to commit the offence.
In other words, a nexus between the accused and the acts or omissions that
constitute the offence must clearly emerge from the provided facts so as to
demonstrate a reasonable suspicion of the offence having been committed
by the accused.

✓ Bail:
• Where the court grants the order placing an accused on remand pending trial the
next issue that arises is a determination of whether she/he should be released
from custody so that she/he attends further appearance whilst coming from
home. This is what is known as the question of bail.
• The law governing bail is provide by ss 116 – 135 (inclusive).
• Two important issues must be mentioned in regard bail. Firstly, it must be noted
that remand and bail are two distinct proceedings with the latter only being ripe
for adjudication when an order for placement on remand is granted. It must be
understood that there is a clear distinction between the placement on remand of
an accused person and the question of bail. The consideration for placement on
remand is premised on whether the facts and circumstances (allegations) relied
upon by the prosecution establish a reasonable suspicion that the accused
committed or was about to commit an offence. On the other hand, the question
of bail is premised on the consideration of whether there are compelling reasons
justifying the refusal of bail. The question of bail only arises after an accused
has been placed on remand based on the given allegations. In circumstances
where the accused did not challenge the facts relied upon by the prosecution
during the remand application, it is impermissible or rather incompetent for him
or her to try and impugn the previously unchallenged facts at the bail stage. His
recourse is to go back to the remand court and challenge the correctness of the
facts relied upon by the prosecution as establishing a reasonable suspicion e.t.c.,
(See S v Dzimwasha & Ors HH-119-23 at pgs. 11-13)
Secondly, s 50(1)(d) of the Constitution elevated bail into a constitutional right
which can only be denied if their court is satisfied that there are compelling
reasons justifying the accused continued detention, pending his/her trial. Section
117(2) gives guidance as to what compelling reasons are and s 117(3) gives
guidance on the considerations to be taken into account when determining
whether the State has discharged its onus of establishing a compelling relied
upon.
• A re-application or further application of bail can only be entertained by a court
where the accused first shows that the application is based on facts which were
not placed before the previous court and which facts have arisen or been
discovered after the last determination. (See proviso (ii) to s 116(c)). This must
be distinguished with bail appeal.

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 • Appeal against an adverse bail decision is provided for by s 121(1). Two
important matters are worthy of note. Firstly, it must be realised that the factors
or grounds relevant to an application for bail pending trial do not apply. Thus s
117 of the CP & E Act is not relevant for purposes of bail pending appeal. When
asked about the factors considered in a bail appeal you are simply required to
not only state but also explain the two main interrelated factors considered in an
application for bail pending appeal, namely likelihood of absconding and
prospects of success on appeal. You should thus be familiar with some case
authorities on the subject. [S v Williams 1980 ZLR 466 (A); S v Tengende &
Ors 1981 ZLR 445 (S); S v Kilpin 1982 ZLR 282 AD; S v Mutasa 1988(2) ZLR
4 (S); Aitken & Anor v Attorney General 1992(1) ZLR 249 (S); S v McGowan
1995(2) ZLR 81 (S); and S v Chikumba 2015(2) ZLR 382 (H)]
• Secondly, – a to whether a further appeal is permissible you required to know
the limitations imposed by s 121(8) of the CP & E Act, regarding multiple
appeals against refusal of bail. (See S v Dzawo 1998 (1) ZLR 536 (S);
Chiyangwa v S & Ors SC-1-04). In particular s 121(8) only permits a further
appeal where the offence charged is one either referred to in para 10 of the Third
Schedule or one referred to in the Ninth Schedule and the PG had issued a
certificate i.t.o. s 32(3b) i.e., serious financial offences.
✓ Charge:
• The PG or a prosecutor is dominus litis, meaning is “master of his/her case”.
The court nor anyone else can interfere with prosecutorial discretion nor direct
the prosecution on how to handle their case, including deciding what charge to
prefer, whether to stop the prosecution before or after plea.
• Where the prosecutor decides to stop the prosecution – different legal
consequences attach depending on whether the prosecutor withdraws the charge
before the accused has pleaded to it or after s/he has pleaded to it. This is clearly
spelt out in s 8 which states:

“8 Power to stop public prosecutions

The Prosecutor-General, or any person conducting criminal proceedings on behalf
of the State may—
(a) before an accused pleads to a charge, withdraw that charge, in which event
the accused shall not be entitled to a verdict of acquittal in respect of that charge;
(b) at any time after an accused has pleaded to a charge, but before
conviction, stop the prosecution in respect of that charge, in which event the
court trying the accused shall acquit the accused in respect of that charge.”
(my emphasis)

• Objecting to a charge – this is done by way of taking an exception. There are

only two permissible grounds upon which an accused can except to the charge
to wit:
1. The charge does not disclose any offence cognisable by the court (s
180(1) CP & E Act); or
2. The charge does not disclose reasonably sufficient particulars to
inform the accused of the precise nature of the allegations against him
(s 146(1) CP & E Act)
[S v African Consolidated Resources (Pvt) Ltd 2013(1) ZLR 392 (H);
Douglas Mwonzora v S CCZ-17-16].
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• Improper splitting of charges – s 145 permits the prosecution to lay multi-
charges against an accused in a single indictment but this provision does not
alter the common law position that disallows the improper splitting of charges.
What is important to remember is that in answering a question on improper
splitting of charges it is woefully inadequate to merely state the two practical
tests used by courts when determining whether there has been an improper
splitting of charges. A notable short coming in many a candidate’s answer is
their inability to properly elucidate the scope and meaning of the two practical
tests used to determine whether there has been an improper splitting of charges.
Below is an illustration of an acceptable explanation.

SAMPLE ANSWER

The Same Evidence Test

• This test is usually expressed in the form of a question: does the evidence, which
is necessary to establish one of the charges at the same time also, establish the
other? If the evidence which is necessary to establish one of the charges at the
same time confirms the other, then there is only one offence and the duplication
is impermissible. If not, the accused committed additional offences and may be
convicted of each one.

• Normally the evidence which is necessary to establish one charge or offence

would not at the same time also found the offence described in another charge,
if the two offences have different elements even if both offences are related to
a single transaction. Hence, another indication of duplication flows from the
evidence test: if an accused is charged in two charges with two offences, he
would actually have committed two, offences, even if they had originated in the
same transaction. For example, a woman who whilst at Beitbridge border post
stripes naked as a show of protest to the customs duty charged on her goods,
and then proceeds to assault the customs officer, would then commit two
separate offences. The elements of public indecency and assault are different
with the result that the evidence necessary to prove the one would not
necessarily corroborate the other. Again, applying the same evidence test, a
person who breaks into ‘A’s house, steals some paraffin, matches and a cigarette
stub, leaves and sets the houses of ‘B’ and ‘C’ alight, using the stolen articles,
commits unlawful entry and theft as well as arson precisely because the
elements of the two offences are different.

• Thus, the same indication is expressed differently if the conduct of the accused
is emphasized: could all the criminal aspects of the accused’s conduct be
contained in the same charge? If so then one offence would be committed but if
not, then two have been committed. The criminal aspects or rather the elements
of the offence will in turn not be capable of being contained in the same charge
if the elements not only belong to different offences but moreover also differ
from each other. If this is the case the evidence which is necessary to prove the
one offence would not establish the other precisely because their elements
differ.

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 The Single Intent Test

• This test is particularly applicable where the accused carried out numerous
unlawful acts. The test is expressed as follows: If a person commits numerous
acts, each one of which could, standing alone, be a separate offence, but they
constitute a continuous transaction which is carried out with a single intent, his
conduct would constitute only a single offence. In accordance with this test it
would be impermissible to convict a person who breaks into a house with the
intention to steal, (in the process damages a window pane), and who does indeed
commit theft with the offence of unlawful entry and theft and the offence of
Malicious Damage to Property, for the damage to the window pane, although if
these two transactions stand alone, they constitute separate offences. On the
other hand, convictions of damage to property and of theft would be proper if
the same person were to damage his enemy’s window with intent to cause him
loss, and only thereafter the commission of the theft were to come to mind. Of
cardinal importance is the requirement that the intention behind the breaking
must also be intention which is later given effect to by means of the theft or
other offence in the house. Hence, by the single intent test, a person who
impersonates a policeman in order to carry out an intended robbery commits
only one offence. His conduct is a continuous transaction which is effected with
a single intention. The rule against duplication of convictions would likewise
not allow an inmate of a prison who escapes in the clothes belonging to one of
the wardens to be convicted for escaping as well as of theft of the clothing. The
intention with which the clothes were stolen is indeed the intention which gave
effect to the escape.

✓ Plea of guilty procedure

• The procedure for plea of guilty is governed by s 271(2) of the CP & E Act. However
this section merely prescribes the requirements/standard which must be satisfied before
a court can enter a verdict of guilty.

SAMPLE ANSWER

The majority candidates tend to simply paraphrase and/or regurgitate provisions of the CP &
E Act resulting in a woefully inadequate answer. Section 271(2) of the CP & E Act governs
plea of guilty proceedings. Instead of explaining the procedure used by the courts when dealing
with a plea of guilty, candidates simply regurgitated subparas (b)(i) and (ii) thereof without the
slightest appreciation that when properly construed these subparagraphs only provide the
requirements that a court must fulfil for it to be satisfied that the accused is genuinely and
understandingly admitting to the offence charged. The procedure adopted in fulfilment of these
requirements is a different matter altogether. The following points are expected in the
explanation of the procedure –

• The magistrate records the guilty plea.

• The prosecutor presents viva voce a detailed statement of agreed facts. That is a
statement detailing the relevant acts or omissions that the accused person committed
and that support the charge preferred against him or her.
• The magistrate has a duty to ensure that the accused person understands the same, thus,
where necessary, a facility of simultaneous interpretation must be available.

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 • The facts presented by the prosecutor must be sufficiently detailed so as to demonstrate
with adequate clarity the salient features of the offence charged as it is from these facts
that the magistrate will formulate meaningful questions when explaining or canvassing
the essential elements of the charge in fulfillment of the requirements of s 271(2)(b) [S
v Gwande & Anor HH-101-08 at pg 3]
• The magistrate proceeds to conduct the actual inquiry i.e. the mechanism employed by
the court to satisfy itself that the accused person is understandingly and genuinely
admitting to the charge.
• The inquiry takes the form of marrying the charge, essential elements and the facts
together. The question-and-answer method is the most effective way of conducting the
inquiry. The questioning of the accused person by a magistrate must be designed to
reveal exactly what it is he or she is admitting to and demonstrate that he or she is
understandingly admitting the elements of the offence. It is thus essential for a
magistrate to formulate the questions he or she asks, in a manner that clarifies to and
makes the accused person appreciate all the legal concepts and principles involved in
the charge he or she faces. [S v Thompson Tendai Machokoto HH-115-96 at pg 11]
• The magistrate upon completing explaining the essential elements is duty bound to ask
the accused person the question provided in subs 2(b)(ii). [S v Tachiona & Anor 1994(2)
ZLR 402 (H) at 405]
• Only upon being satisfied that the accused person has understood the charge, essential
elements and the facts and that there is no defence in law clearly open to the accused
person, either on the facts or from the statements made by him or her in court can the
magistrate confirm the plea of guilty – s 272. [S v Chamboko 2001(2) ZLR 269 (H)]
• The magistrate is obliged by s 271(3) to record, in full, all the proceedings conducted,
failure of which constitutes a fatal irregularity. [S v Sibanda 1989(2) ZLR 329 (S); S v
Tito; S v Alberto HH-128-86 and S v Sailos Ndlovu; S v Tawanda Matamise HH-219-
03]

✓ Alteration of plea – Section 272 of the CP & E Act empowers a court, at any time of the
proceedings but before sentence, to alter an accused’s plea of guilty to that of not guilty.

• To put the current applicable law governing change of plea into perspective, one has to
first briefly explain the previous position. In S v Maseko 1986 (2) ZLR 52 (S) it was
pronounced that “an accused who wishes to change a plea of guilty after verdict has
been given must discharge an onus showing on a balance of probabilities that the plea
was not voluntarily, understandingly and correctly made.” In other words, a change of
plea from guilty to not guilty was not for a mere asking – more was required.

• Subsequently, the Supreme Court revisited this earlier position in S v Matare 1993 (2)
ZLR 88 (S) and concluded that “there was no onus on the accused to show anything on
a balance of probabilities. He must simply offer a reasonable explanation for having
pleaded guilty. 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.” This position remains the same whether the application for change
of plea is before or after verdict but before sentence.

✓ Admissibility of extra-curial statements – Candidates are expected to know that two

different procedures exist in regards challenging the admissibility of extra-curial
statements. The correct procedure to follow is dependant on whether the statement being
impugned was not confirmed or was confirmed in terms of s 113 of the CP & E Act.
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✓ Where the statement was confirmed the following is the procedure adopted:

Introduction

In terms of s 256(2) a statement that was confirmed i.t.o. s 113 of the CP & E Act is
admissible into evidence on mere production by the prosecutor without the need to call
evidence establishing that it was made freely and voluntarily.

This provision does not bar an accused person from challenging the production of the
statement at the trial. However, when an accused person challenges such statement, it is
impermissible for the court to immediately go into a trial-within-a-trial as is done with
regards to an unconfirmed statement.

Where the grounds upon which the accused person is challenging the statement are such
that the propriety of the confirmation proceedings are being implicated i.e., that there were
some improprieties or irregularities in the manner the proceedings were conducted then the
main trial must be halted in order to investigate this factual issue. This is what is referred
to as ‘a separate preliminary issue of fact'. The fact investigated being how the
confirmation proceedings were conducted.

It follows that where the challenge does not implicate the conduct of the confirmation
proceedings, but is predicated only on the grounds that the accused person did not make
the statement freely and voluntarily – the court by virtue of s 256(2) is entitled to admit it
into evidence without the need for further evidence.

Separate preliminary issue of fact

This focuses on the circumstances surrounding the way the confirmation proceedings were
conducted. Where an accused person challenges the admissibility of a confirmed statement
by challenging the propriety of the confirmation proceedings, the court should suspend the
main trial and require the prosecution to prove that the confirmation proceedings were
conducted free from any impropriety.

In practice the State normally calls (as witnesses) the magistrate who confirmed the
statement and the prosecutor who applied for the confirmation of the statement.

It is only where the prosecution fails to discharge the onus on them i.e., that the
confirmation proceedings were free from any improprieties, but still wish to rely on the
statement, that the conduct of a trial-within-a-trial becomes competent.

Conversely, if the prosecution successfully discharges their onus the statement will be
provisionally admitted into evidence and the onus shifts to the accused person to show, on
a balance of probabilities, during the main trial, that the statement was not made freely and
voluntarily and therefore no weight should be placed on it.

In S v Woods & Ors SC-60-93 Gubbay CJ stated the position as follows –

“If … at the stage the prosecutor seeks to tender a confirmed extra-curial statement to the court, the
defence is able to raise a potentially sustainable challenge to the propriety of the confirmation
proceedings, even though there is nothing ex facie the record to support it, I consider that the court is
obliged to determine the validity of that challenge as a separate preliminary issue of fact.”

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 He went on to state –
“If the challenge is rejected by the court, and the onus is on the State to prove the absence of
any irregularity, then s 242(1a) [now 256(2)] is satisfied and the statement is provisionally
admissible with the onus upon the accused to rebut the presumption. No separate trial on the
issue of admissibility is required. See S v Gwaze & Anor 1978 RLR 13 (A) at 17H. If, on the
other hand, the challenge is upheld, then the onus remains on the State to prove beyond a
reasonable doubt that the accused made the statement and, if he did, that it was made freely and
voluntarily and without undue influence. See S v Gwaze & Anor (supra) at 18D-E.”

✓ Where statement was not confirmed candidates must note the following:

Firstly, the question is about the procedure used by the courts in Zimbabwe when
determining the admissibility of extra-curial statements during trial proceedings.
Judging from the answers given I can surmise that the majority of candidates who
obtained their law degrees from South African Universities and assume that the
procedure used in SA is similar to that used in Zimbabwe. Our law makes no distinction,
like the law in South Africa, between confession and admission statements. South
Africa has different rules of admissibility, depending on whether a court is dealing with
a confession statement or an admission statement.

Secondly, because the only place the term “extra-curial statement” is used in the CP &
E Act is in the heading of Part VIII of the Act many candidates jump to the erroneous
conclusion that the provisions under that Part provide for the procedure. A simple
reading of the provisions of Part VIII shows that it provides for a pre-trial procedure of
confirmation proceedings which in itself is not mandatory and therefore cannot be the
procedure for admissibility at the trial stage.

Thirdly, candidates must identify that the requirements i.e., the legal standard for
admissibility is provided by s 256(1) of the CP & E Act, but the section does not provide
the procedure. This supports my earlier observation that contrary to popular belief, the
CP & E Act does not spell out the actual procedures but only provides for the
requirements that must be satisfied and that the procedures have been devised by the
courts over a long period of time.
To this end the majority of candidates normally regurgitate the provisions of s 113
dealing with confirmation proceedings and another substantial number of candidates go
at length to explain the legal standard of admissibility and totally ignored the fact that
the question is about the procedure and not the requirements for admissibility of extra-
curial statements.

By way of conclusion, this question requires candidates to know that in our law aspects
of admissibility and criminal liability are separated by our courts. Depending, on the
grounds advanced for challenging the admissibility of any type of evidence, including
extra-curial statements, a trial-within-a-trial, should be held when considering such
challenge. The trial-within-a-trial procedure ensures that: (a) an accused can testify
freely about admissibility and not expose him/herself to cross-examination concerning
his/her guilt and (b) the accused is entitled to a decision whether evidence is included
before testifying in the main trial.

To fully answer the question a candidates must explain the trial-within-a trial procedure
in chronological sequence.

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Discharge at the close of State case:

General observation:

This is an often-repeated question owing to the unwarranted and routine manner in which many
a legal practitioner resort to applying for discharge at the close of the State case. The question
calls upon the candidates to demonstrate their knowledge of the scope and meaning of the three
permissible grounds upon which an application for discharge at the close of the State case can
successfully be made. Merely, stating the three grounds as summarized in S v Kachipare 1998
(2) ZLR 271 (S), is woefully inadequate. In other words, the candidates are required to elucidate
what each factor or ground entails.

Sample answer

Introduction:

In criminal proceedings, when the prosecutor decides that he or she has led all, or sufficient
evidence to prove the charge or charges against the accused person, he or she will indicate this
by formally closing the State’s case. At the close of the State’s case the law permits the court
to discharge the accused person without the need to hear his or her side of the case, if the
evidence adduced by the prosecution falls short of establishing a prima facie case. This is what
is referred to as discharge at the close of the State or prosecution case. The law applicable in
an application of this nature is provided by s 198(3) of the CP & E Act. It reads:

“If at the close of the case for the prosecution the court considers that there is no
evidence that the accused committed the offence charged in the indictment, summons
or charge, or any other offence of which he might be convicted thereon, it shall return
a verdict of not guilty.” (my emphasis)

The issue at this stage is not whether the prosecution has proved its case beyond a reasonable
doubt, but rather that it has adduced sufficient evidence which establishes a prima facie case
against the accused person to warrant him or her to be put on his or her defence.

The law on discharge:

Section 198(3) has been subject to judicial interpretation in a long line of cases. The position
is settled that:

“So far as the law in Zimbabwe is concerned, there is no longer any controversy as to
whether a court may properly refrain from exercising its discretion in favour of the
accused, if at the close of the case for the prosecution, it has reason to suppose that the
inadequate evidence adduced by the State might be supplemented by defence evidence
...” (S v Kachipare 1998 (2) ZLR 271 (S) at 275)

Put simply, where the court considers that there is insufficient evidence to prove that the
accused person committed the offence charged or any other offence upon which he or she might
be properly convicted, it has no discretion but to discharge and acquit the accused person of
the criminal charge he or she pleaded to.

The applicable test:

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The phase “no evidence” in s 198(3) has been interpreted to mean ‘no evidence upon which a
reasonable person acting carefully may convict’. In this regard GUBBAY CJ in S v Kachipare
(supra) at 276 summarised the three permissible grounds applied by courts in Zimbabwe to
resolve the question of whether a discharge is warranted. He stated:

“There is sound basis for ordering the discharge of the accused at the close of the case
for the prosecution where –

(i) there is no evidence to prove an essential element of the offence. (Attorney-

General v Bvuma & Anor 1987 (2) ZLR 96 (S) at 102 F-G)

(ii) there is no evidence on which a reasonable court, acting carefully, might

properly convict. (Attorney-General v Mzizi 1991 (2) ZLR 321 (S) at 323 B)

(iii)the evidence adduced on behalf of the State is so manifestly unreliable that no

reasonable court can safely act on it. (Attorney-General v Tarwerei 1997 (1)
ZLR 575 (S) at 576 G)”

It must be noted that these are the only three permissible and recognised grounds upon which
a court can discharge an accused person at the close of the State case. (Prosecutor-General,
Zimbabwe v Musvaire & Ors 2015 (1) ZLR 471 (H))

Explanation of each of the three factors:

The application of each ground to the particular facts of a case is predicated on a sound
understanding of the applicable principles of law as explained by superior courts in, as already
alluded to, a long line of cases.

• The consideration of essential elements:

Our criminal common law was codified by the Criminal Law (Codification and Reform) Act
[Chapter 9:23]. The essential elements of each offence were fully developed by the common
law and are now defined in the Criminal Law Code. In addition, case law, criminal law
textbooks and both main and subsidiary legislation, other than the Criminal Law Code, define
various offences and constitute a veritable source of the essential elements of these offences.
The evidence led by the State must establish each element. If no evidence is led to establish
any element of the offence charged, the State would have failed to justify placing the accused
person on his or her defence. The accused person is entitled to discharge and acquittal unless
the evidence led by the State establishes the essential elements of a competent or permissible
verdict to the offence charged as provided in the Fourth Schedule to the Criminal Law Code.
In that event, the accused person will have to be placed on his defence, not for the competent
or permissible verdict but for the main offence as was exemplified by AG v Mzizi (supra) where
the regional magistrate had discharged and acquitted the accused person of assault with intent
to rape and rape at the close of the State case despite the fact that he had admitted in his defence
outline and during cross examination to assaulting the complainant. In S v Kuzamba 1999 (1)
ZLR 238 (H) at 241H-242A, ADAM J held that the State had failed to establish the essential
elements of housebreaking with intent to steal and theft at the close of the State case and in
S v Mawarire HH-802-17 at page 15, CHIGUMBA J held that the State had failed to establish
the “unconstitutional means” the accused had allegedly used to subvert a constitutionally
elected government and incitement in the alternative counts of inciting public violence.

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• No evidence on which a reasonable court, acting carefully might properly convict; and
evidence for the State is so manifestly unreliable or so discredited in cross examination
that no reasonable court could safely act on it:

These two factors normally fall to be decided together. In both AG v Tarwirei (supra) and S v
Tsvangirai & Ors 2003 (2) ZLR 88 (H) it was held that it would be in the rarest and most
exceptional circumstances that the credibility of a witness could be utterly destroyed in cross-
examination that no part of his material evidence could possibly be believed. It is difficult to
disbelieve a witness at the close of the State case because at that point the accused is yet to
testify. The State evidence at that stage is measured against itself using the three tools of
credibility, consistency and probabilities.

In this regard in circumstances where no credible evidence is led that tends to link the accused
with the alleged criminal acts or omissions for e.g., where a sole star witness of the State is
discredited, by the prosecution itself, through the impeachment procedure or where a relied
upon State expert witness is utterly discredited under cross-examination, the conclusion will
be that there is no evidence on which a reasonable court, acting carefully, might properly
convict or that the evidence adduced by the State is so manifestly unreliable that no reasonable
court could safely act on it. (See S v Bennet HH-79-10).

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