CRIMINAL PROCEDURE LLB 205

GREAT ZIMBABWE UNIVERSITY

Nqobani Nyathi
 INTRODUCTION
• The law of criminal procedure puts substantive criminal law
into action
• CP regulates the duties and powers of criminal courts
CP covers
i. Duties and powers of police in investigating crime
ii. Rights of suspects, arrested, detained and accused
persons
iii. Pre trial procedures –remands, rail, charge sheets,
indictments
iv. Trial Procedures
v. Post trial remedies –Appeals, Reviews, Executive Actions
 Intro
• In Criminal Procedure the first premise is the
Constitution as the supreme law –section 2 (see
also Declaration of rights)
• Every state needs (i) rules (ii) principles (iii)state
structures to prevent, control and cope with
criminal behaviour
• Criminal Procedure rules may not and cannot
operate in isolation with common law and
constitutional rights such as the right to life, human
dignity, privacy, bodily integrity etc.
 The criminal justice system
• Criminal Law and Criminal procedure are part of
the criminal justice system
• An effective criminal justice system is vital to a
democracy
• Everyone must be equal before the law –offenders
must face the law regardless of their status in the
society or political positions that they hold
• See Democratic Alliance v President of the
Republic of South Africa and Others (2013)
 Crime Control and Due Process
The law on Criminal procedure is essentially
designed to ensure DUE PROCESS and to
minimise or even eliminate arbitrariness in
arresting and prosecuting alleged offenders.
It also provides certainty, predictability and
uniformity in the arrest and prosecution of
alleged offenders
 Crime Control Due Process
• There are many definitions of DUE PROCESS but in
its basic conception it refers to fair treatment
through the normal judicial system. In this regard it
is envisaged that the State is required to go through
a series of formal legal procedures before it can take
away our “life, liberty, or property”
• Without due process the rights enshrined in the
Constitution may be meaningless as the process of
bringing alleged offenders may give way to
arbitrariness and caprice or even malice.
Crime control and balancing values
• A constitutional approach and due process is
not a nod a in favour of criminals.
• There must be a balance of crime control and
due process Cloete 1999 (2) SACR 137 (C)
 Internal Tensions
• One cannot create strict criminal procedure rules because these rules are
not confined to criminals only
• Liberty should not be sacrificed to increase efficiency of crime control
• If the state was to have too much power the society will have to under
tyranny (For example random stop and search)
• Criminal Procedure e.g. law enforcement agents must regulate state
power in a positive and negative way (police must do something/authority
of the police must be limited
• There will always be conflict between rights of the accused and rights of
victims, balance must be struck
• Exclusion of evidence obtained in a manner that violates the Declaration
of Rights. See s 70 (3) of the Constitution and s 258A of the CP&E Act –SA
cases Pillay 2004 (2) SACR 419, Tandwa 2008 (1) SACR 613 , Mthembu
2008 (2) SACR 407
 Criminal Procedure and the Constitution

• In Zimbabwe the Constitution is the supreme law (s 2).

• It is possible to have legislation which conflicts with
the Constitution set aside.
• The Constitution and the Declaration of Rights applies
to all law. It binds the executive, legislature, judiciary
and all organs of the state.
• Constitutions and the Declaration of Rights are
however not self executing or self explanatory –They
have to be interpreted authoritatively (principle of
justiciability)
 Declaration of Rights
• Right to life (s 48)
• Right to personal liberty (s 49)-A person can lawfully be deprived
of liberty upon reasonable suspicion that he or she has committed
or is about to commit a criminal offence
• Mukoko V AG It was decided that it is a breach of the right to
liberty to charge and prosecute a person where the reasonable
suspicion of committing an offence is based on information
obtained from the accused by the use of torture or inhuman
treatment.
• Rights of arrested or detained persons (s 50)
• Right to human dignity (s 51)
• Right to personal security ( s 52)
• Freedom from torture, or cruel inhumane or degrading treatment
or punishment (s 53)- Mukoko
• Right to privacy (s 57)
 Declaration of Rights
• Right to a fair hearing (s 69)
• S v Mashayamombe HH-596-15 -a stay of
criminal proceedings could be granted where
it is not possible for an accused to be
guaranteed a fair trial ( see also Mukoko)
• Rights of accused persons (s 70)
 Declaration of Rights
• Neither the prevalence nor offensiveness of
the crime e.g. rape, murder etc. can be used
to justify a violation of constitutional
protections e.g. the presumption of innocence
and right to silence (privilege against self
incrimination)
 Burden of proof
• In order to secure a conviction the Prosecutor must prove
guilt beyond reasonable doubt.
• An accused person does not have to prove innocence.
• Prosecutor has to present concrete evidence and admissible
evidence in order to prove that an accused is guilty.
• If the accused can make the court doubt reasonably that one
or more elements has been proved they must be acquitted.
• An accused may raise reasonable doubt through cross
examination, objecting to admissibility of evidence,
producing own witnesses or testifying themself.
Accusatorial v Inquisitorial Criminal Procedure
• The Zimbabwean Criminal Procedure is accusatorial in nature-The
prosecution is the dominus litis ( the person to whom a suit
belongs)
• Has roots in Roman Dutch and English common law systems
• However, no exaggerated importance should be given to this
concept (means prosecution can do what is legally permissible to
set criminal proceedings in motion e.g. determining the charges
and venue of trial. (Joubert 72)
• In an accusatorial system, generally Police are the primary
investigative source that takes a dossier to a prosecutor
• A judge is a detached umpire and should not enter the arena S v
Konson 2015
• In inquisitorial systems, a judge is the dominus litis (questions
witnesses and accused) –Common in civil law legal systems.
 Sources of Criminal Procedure Law
• The Constitution
• The Criminal Procedure and Evidence Act [Chapter 9:07]
• Criminal Law (Codification and Reform) Act [Chapter 9:23]
• The Magistrates Court Act [Chapter 7:10]
• The High Court Act [Chapter 7:06]
• Supreme Court Act [Chapter 7:13]
• National Prosecuting Authority Act [Chapter 7:20]
• Common Law
• Authoritative texts
• Judicial precedent
 The Criminal Courts of Zimbabwe
• Research the structure and composition of the
Zimbabwean courts and their jurisdiction in
criminal matters
 Prosecution of crime
• In “primitive” societies, all wrongs were private wrongs
and the wronged could take out private vengeance against
the wrong doer. This would lead to bloody feuds. Black v
Barclays Zimbabwe Nominees (Pvt) (Ltd) 1990 (1) SACR
(W) 434e ( Joubert CP Handbook, 12th ed (2016) 50)
• This idea had to be replaced by some form of a criminal
justice system that is official, establishes the guilt of the
accused and punishes the offender without direct
involvement of an individual.
• The need for “legality” and “due process of law” thus
arose.
 Factors that contributed to a public Criminal
Justice system
• Societies became progressive and civilised.
• Formation of organised forms of government and states made it possible to transfer private
vengeance to these political entities that had necessary resources, could create official
structures and ability to publicly enforce justice on behalf of society- Public wrongs were
identified as crimes.

• As states became responsible for enforcement of criminal law, private vengeance and self
help was not tolerated (It became unlawful to exact private vengeance) –Burchell
Principles of Criminal Law 3rd ed (2005) 19.

• Due and Proper Criminal Justice system requires the state to shoulder the prosecutorial
task (Discuss about proceeding against the victims wishes to withdraw and refusal to
institute proceedings by the prosecution) –Victims in certain circumstances may institute a
private Prosecution.

• In most legal systems, there are so called victimless crimes ( criminalised on the basis that
they are harmful to a larger public interest even though there is no readily identifiable
victim, discuss examples. If falls upon the state to prosecute these crimes where necessary
• See Joubert CP Handbook, 12th ed (2016) pp. 50-51
Who Prosecutes crime in Zimbabwe

• Prosecution may either be a (1)

Public Prosecution (at the instance
of the State) or (2) Private
Prosecution (at the instance of
private individual) –Under certain
limited circumstances
 Public Prosecutions
• In Zimbabwe, the National Prosecuting Authority (NPA) is
constitutionally tasked with “instituting and undertaking
criminal prosecutions on behalf of the state…” (s 258 of the
Constitution, s 12 of the NPA Act )
• An Act of Parliament may confer powers of prosecution to
persons other than the NPA but those powers must not limit or
conflict with the NPA’s authority (s 263 Constitution)
• The Constitution also provides for a PG (s 259 Constitution) who
must be independent (s 260 Constitution ) and act according to
the Constitution, together with other officers of the NPA (s 261
Constitution )
• The PG must submit an annual report to Parliament , through
the appropriate Minister (s 262 Constitution)
• Refer to the National Prosecuting Authority Act, and Part 2 of
the CP& E Act
 Public Prosecutions
• For all practical purposes, it is the State that
prosecutes those who violate substantive
criminal law through its appointed officials.
• Charge sheets accordingly read, for example
The State versus John Moyo
• Before independence we followed the English
system that the formal head of State (King-Rex
/Queen-Regina) was injured by every crime
hence, for example R versus John Moyo
 Decision to Prosecute
• See General Principles by which the NPA decides whether and How to
Institute and Conduct Criminal Proceedings –General Notice 2015.
• A prosecutor has a duty to prosecute if there is a prima facie case and
where there is no compelling reason for refusal to prosecute.
• In this context prima face means that the allegations as supported by
statements and evidence available to the prosecution are of such a
nature that if proved in a court by the prosecution, the court should
convict.
• The prosecution does not have to ascertain whether there is a defence
but whether there is a reasonable and probable cause for prosecution.
• At trial the prosecution must be able to furnish proof beyond
reasonable doubt. See Joubert 73, Rowland 3-7
 Factors to consider
• Sufficiency of evidence-discussed above
• Special factors Immunity (president, diplomatic immunity,
parliamentary immunity (limited in Zimbabwe), accomplice
immunity, jurisdiction (territorial) , prescription –( s23 of
the CP &E Act- No prescription for murder and 20 years for
other cases unless specifically provided by law-Is this fair
for offensive and prevalent crimes such rape/aggravated
indecent assault)
• Choice of offence to charge –discretion of the prosecutor
considering issues such as plea bargaining etc – Choice of a
lesser charge may be done for proper reasons or else it will
earn censure of the court in the form of withholding a
certificate on Review that the proceedings were in
accordance with “in accordance with real and substantial
justice” S v Chidodo 1988 (1) ZLR 299 (H).
• Plea bargaining – Not in the American sense but
it is not unusual for legal practitioners to ask the
prosecution to bring a less serious charge than
the one disclosed by evidence or to offer a plea
of guilty to a less serious charge than the one
actually charged
• improper to prefer a lesser charge when to do
so will result in the accused escaping a
sentence which he otherwise would be liable to
(Rowland 3-10)-S v Mpofu 1983 (2) ZLR 118 (HC)
 Declining to prosecute
• A decision not to prosecute must be made for a good reason
• PG may decline to prosecute, an obvious example is where there
is no prima facie case or when no offence is disclosed by facts.
• Even in the presence of a prima facie case, prosecution may be
declined.
• “There is no rule that criminal offences must automatically be
the subject of prosecution. It is perfectly proper, in some
circumstances, to decline to prosecute in spite of the existence of
a prima facie case. The dominant consideration should be
whether a prosecution is in the public interest” (Rowland 3-11),
• S v Hamadziripi 1989 (2) ZLR 38 “It is a legitimate tool in the
prosecutor's kit to decline to prosecute where it is considered that
the institution of a prosecution would serve no useful purpose”
 Factors to be considered
• The triviality of the offence. Even if the maxim de minimis not curat lex is
not strictly applicable, the triviality of the offence may be such as to make
a prosecution pointless.

• The staleness of the offence, even if the prescription period has not
lapsed. The seriousness or triviality of the offence would also be relevant
in this regard.

• The age or infirmity of accused.

• If the complainant indicates a wish to withdraw his complaint, the

Prosecution should consider his/her reasons for so requesting. The wish
to avoid the inconvenience of attending court is of little consequence; but
the relationship between the accused and complainant may well be such
that if the PG were to insist on prosecuting more harm would be done
than good – Discuss the current prosecutorial guidelines
• The fact that the accused has already been
sufficiently punished. For example a person
who had caused a traffic accident in which he
had himself been severely injured or in which
he had caused the death of someone every
close to him.

• The need to use the accused as a witness.

(see Rowland 3-11 to 3-12)
 PRIVATE PROSECUTIONS
• Part 3 of the CP& E Act
• Prosecution by a private party in limited circumstances where the
PG declines to prosecute. Prosecution in the name of the private
prosecutor e.g. Ncube versus Moyo
• Private party must be able to show some substantial and peculiar
interest in the issue of the trial arising out of some injury which
she/he individually has suffered by the commission of the offence-
An interest greater than that of any other member of the public.
See Attorney-General v van der Merwe & Bornman 1946 OPD 197
at 201.
• May prosecute the person alleged to have committed the offence in
any court competent to try the offence.
• Levi v Bernatta 1987 (1) ZLR 120, Maramwidze v Munyaradzi
Kereke
• See s 13 of the CP&E act
 What other persons are entitled to prosecute s 14
CP&E Act
• A spouse of the person against whom the offence was
committed.
• The legal guardians or curators of minors or mentally
disordered or defective persons, in respect of offences
committed against their wards.
• The surviving spouse or children or, where there is no
surviving spouse or child, any of the next-of-kin of any
deceased person, in respect of any offence by which the
death of such person is alleged to have been caused.
• Public bodies and persons on whom the right is specially
conferred by statute, in respect of particular offences.
 Prosecutor-General’s Certificate nolle prosequi

• First essential for most private prosecutions is

that the private prosecutor must obtain from the
PG a signed certificate that she/he has seen the
statements or affidavits on which the charge is
based and declines to prosecute at the public
instance -s 16 (1) of the CP & E Act, s 12 (1) (d) of
the NPA Act.
• The PG shall grant the certificate if the private party makes a written
request in the form of a sworn statement from which it appears to the
PG that the private party
(i) is the victim of the alleged offence, or is otherwise an interested
person by virtue of having personally suffered, as a direct
consequence of the alleged offence, an invasion of a legal right
beyond that suffered by the public generally
(ii) has the means to conduct the private prosecution promptly and
timeously
(iii) will conduct the private prosecution as an individual (whether
personally or through his or her legal practitioner), or as the
representative of a class of individuals recognised as a class for the
purposes of the Class Actions Act [Chapter 8:17] (No. 10 of 1999) –s
16 (2) CP & E Act
• And no other ground exists for the purposes of withholding the
certificate
 Ground for refusal of granting of
certificate of nolle prosequi
• s 16 (3) of the CP& E Act
• that the conduct complained of by the private party does not
disclose a criminal offence; or
• that on the evidence available, there is no possibility (or only a
remote possibility) of proving the charge against the accused
beyond a reasonable doubt; or
• whether the person to be prosecuted has adequate means to
conduct a defence to the charge (in the case of any person who,
but for the fact that the Prosecutor-General has declined to
prosecute him or her, would have qualified for legal assistance at
the expense of the State); or
• that it is not in the interests of national security or the public
interest generally to grant the certificate to the private party.
Procedures for Private Prosecution
• May apply to court for a warrant –s 15 of the CP &E
Act
• May be ordered to give security of costs –s 17
• Dismissal of the case for failure to appear, unless
there are circumstances beyond his/her control s 18
• Conducted like a Public prosecution-except that the
party prosecuting may pay costs at the conclusion of
the matter s 19, Deposit of money
s 20. See also s 22
 Competency of PG to take up and
conduct prosecution at public instance
• The PG or the local PP may apply by motion to
any court before which the prosecution is
pending to stop all further proceedings in the
case, in order that prosecution for the offence
may be instituted or continued at the public
instance and such court shall, in every such case,
make an order in terms of the motion-S20 CP & E
Act
• While the PG’s right to intervene is unfettered it
would be a highly improper exercise of that right
were the PG to take over a prosecution in order
that he might withdraw the charge and frustrate
the ends of justice.
• The right should be exercised only where, the PG
having declined to prosecute at the public instance
because he considers that there is no case to
meet, the subsequent private prosecution shows
that the case actually is one which should have
been prosecuted at public expense. Rowland 4-4
Pre- Trial Procedures
 Securing the presence of the accused
• Lawful methods of securing the presence of
the accused for trial or preparatory
examination -arrest and remand, summons,
warning by the court and extradition.
 Constitutional Provisions on the Rights of
Arrested and Detained persons
Section 50(1)
• be informed at the time of arrest of the reason for the arrest
• be permitted, without delay—
• at the expense of the State, to contact their spouse or partner, or a
relative or legal practitioner, or anyone else of their choice; and
• at their own expense, to consult in private with a legal practitioner and
a medical practitioner of their choice;
• and must be informed of this right promptly-
• be treated humanely and with respect for their inherent dignity;
• be released unconditionally or on reasonable conditions, pending a
charge or trial, unless there are compelling reasons justifying their
continued detention; and
• must be permitted to challenge the lawfulness of the arrest in person
before a court and must be released promptly if the arrest is unlawful.
 Continued
• 50 (2) and 50 (3)
• Any person arrested or detained for the
purposes of being brought to court or for an
alleged offence must be brought to court not
later than 48 hours after arrest or detention
• If not brought within 48 hrs they must be
released immediately unless period extended
by a competent court
 Continued
• Section 50(4) provides that a person who is arrested
or detained for an alleged offence has the right—
• to remain silent;
• to be informed promptly of their right to remain
silent and of the consequences of remaining silent
and of not remaining silent;
• not to be compelled to make any confession or
admission; and
• at the first court appearance after being arrested, to
be charged or to be informed of the reason why
their detention should continue, or to be released.
 Continued
• Section 50(5) provides that a person who is detained, including a
sentenced prisoner, has the right—
• to be informed promptly of the reason for their being detained;
• at their own expense, to consult in private with a legal practitioner of
their choice, and to be informed of this right promptly;
• to communicate with, and be visited by a spouse or partner, a relative,
the person’s chosen religious counselor, the person’s chosen legal
practitioner, the person’s chosen medical practitioner and subject to
reasonable restrictions imposed for the proper administration of prisons
or places of detention, anyone else of the person’s choice;
• to conditions of detention that are consistent with human dignity,
including the opportunity for physical exercise and the provision, at State
expense, of adequate accommodation, ablution facilities, personal
hygiene, nutrition, appropriate reading material and medical treatment;
• to challenge the lawfulness of their detention in person before a court
and, if the detention is unlawful, to be released promptly
 Continued
• An arrest or detention that contravenes s 50 of the Constitution is
illegal. S 50 (8)
• Any person may obtain an order of habeas corpus on behalf of an
illegally detained person(s) who whereabouts are unknown.
• An order for habeas corpus may require a person to be released or
to be brought before a court for lawfulness of the detention to be
justified or require whereabouts of the detained person to be
disclosed. It may also declare detention illegal and order prompt
release- High Court may make any appropriate order –s 50 (
• A person who has been illegally arrested or detained is entitled to
some compensation. S 50 (9)- law may protect judicial officer acting
reasonably or in good faith or other public officer acting reasonably
or in good faith without culpable ignorance or negligence.
 Arrest and Remand
• Arrest involves a deprivation of liberty as provided
under 49 of the Constitution - important
constitutional rights are affected.
• Every person has a right not to be deprived of their
liberty without just cause or arbitrarily.
• It is essential that the correct procedures are
adopted when an arrest is made.
• Even where an arrest is lawful, it may still be
undesirable-It may be quite unnecessary to deprive
a person of his liberty in order to secure his
presence in court. Rowland -5-3 to 5-4
 Continued
• Power to arrest must be exercised sparingly, reasonably and
responsibly. - Allan v Minister of Home Affairs 1985 (1) ZLR
339 (HC)
• It is wrong for the police to arrest a person on some minor
charge and hold him in custody when the real purpose of
keeping him in custody is to investigate a much more serious
offence.-R v Sambo 1964 RLR 565 (A) at 570
• The use of summons procedure rather than arrest is strongly
encouraged.- Rowland 5-4 e.g. Where the offence is not
particularly serious, where the accused is in steady
employment and of fixed abode or where the likely penalty
is a fine rather than imprisonment, there seems little
justification for arresting the accused and placing him on
remand.
 Arrest without a warrant
• In cases of arrest without warrant, a person can only
be lawfully arrested in connection with a criminal
offence if the offence is committed in the presence of
the arresting officer or if the arresting officer has a
reasonable suspicion that the person has committed
or is about to commit a criminal offence. Feltoe CDH
12.
• It is however lawful for any judge, magistrate or
justice, who has knowledge of any offence by seeing it
committed, himself to arrest the offender or by a
verbal order to authorize others so to do.- S24 CP&E
Act
 Continued
• Circumstances of arrest without a warrant are set in in
section 25 of the CP & E Act
• Any peace officer and any other officer empowered by law
to execute criminal warrants is hereby authorized, subject to
the general or specific directions of a superior officer or
person placed in authority over him, to arrest without
warrant—
(1) any person who commits any offence in his presence.
(2) any person whom he or she has reasonable grounds to
suspect of having committed any of the offences mentioned in
the First Schedule or the Ninth Schedule.
(3) person whom he finds attempting to commit an offence, or
clearly manifesting an intention so to do.
 Continued
• See other grounds for arrest by peace officers under
section 25 (2)
• Who is a peace officer – includes any magistrate or
justice, the Sheriff or any deputy sheriff, any police
officer any prison officer any immigration officer any
inspector of mines any—(i) chief, within his area, (ii)
headman, within his chief’s area (iii) village head,
within the area of his village, and (iv) chief’s
messenger or headman’s messenger, within the
chief’s area (Traditional Leaders Act [Chapter
29:17]) ,any other person designated by the Minister
by a statutory instrument
 Reasonable suspicion
• Reasonable suspicion is not the same as proof beyond
reasonable doubt.
• What is required is that the person making the arrest must have
information on the basis of which a reasonable person would
hold a suspicion that the person to be arrested had committed
or was about to commit the criminal offence-Feltoe CDH, 12
• Purcell-Gilpin 1971 (1) RLR 241; Miller 1973 (2) RLR 387; Moll v
Commissioner of Police & Ors 1973 (1) ZLR 234 (H); Allan v
Minister of Home Affairs 1985 (1) ZLR 339 (H); Bull v Attorney-
General & Anor 1986 (1) ZLR 117 (S); Gwenyure v Minister of
Home Affairs HH-702-87; Attorney-General v Blumears 1991 (1)
ZLR 118 (S); Feldman v Minister of Home Affairs S-210-92; Gous v Minister
of Home Affairs & Ors 1992 (2) ZLR 142 (H); Muzabazi v
Jambawu & Ors 1992 (2) ZLR 314 (H).
 Continued
• When arrest should be made –An arrest is discretionary
Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S)
• There was no intention that the power given to a peace officer
to arrest is always, or even ordinarily, to be exercised.
• a peace officer must nevertheless consider whether the arrest is
necessary, taking into account such factors as the possibility of
escape, the prevention of further crime and the obstruction of
police enquiries.- Rowland 5-8
• Paradza v Minister of Justice & Ors S-46-03, See also Botha v
Zvada & Anor 1997 (1) ZLR 415 (S), Nyatanga v Mlambo NO &
Ors 2003 (1) ZLR 508 (H).
• The onus is upon the person making the arrest to prove that the
arrest was lawfully justified-Stambolie v Commissioner of Police
1989 (3) ZLR 287 (S).
 Continued
• S 26 of the CP &E Act –Discuss
• S 27 – Arrest by a private person to s31A
 Procedure after arrest without a warrant
• S 32(1), s 32 (2) and s 32 (3) –Brought to court within 48 hours-
Refer to Constitutional Provisions – Any detention outside the
48 hours is illegal unless the person is brought before a judge
or magistrate upon a charge of any offence and his further
detention is ordered by that judge or magistrate.
• Application for further detentions- Warrants of further
detentions up to 21 days S 32 (3a), s 32 (3b) and s 32 (3c) –
They appear unconstitutional even if sanctioned by the courts.
–No reasonable justification in a Constitutional democracy
• S 32 (5) CP & E Act –Is it consistent with s 50 (1) (a) of the
Constitution
 Arrest with a warrant
• Provided for in terms of Sec 33 of the CPEA.
• In terms of Sec 33 a warrant of arrest can be
issued by a
• Judge
• Magistrate
• Justice (other than a police officer)
 Procedure
• May be issued on written application
subscribed by—
• the Prosecutor-General
• the local public prosecutor
• a police officer who is of or above the rank of
inspector
• a police officer in charge of a police station who
is of or above the rank of assistant inspector
• The application must set forth the offence alleged to
have been committed, and that, from information
available to him/her , he/she has reasonable grounds of
suspicion against that person, or upon the information
to the like effect of any person made on oath before the
judge, magistrate or justice issuing the warrant.
• Magistrates or justices to issue any such warrant when
the offence charged have been committed within their
area of jurisdiction or when the person against whom
the warrant is issued was, at the time when it was
issued, known, or suspected on reasonable grounds, to
be within the area of jurisdiction of the magistrate or
justice.
• See Prinsloo & Anor v Newman 1975 (1) SA 481 (A)
 Resisting Arrest and use of force s 42 (1) CP
&E Act
• Persons authorised to arrest may be justified to use force “as may be
reasonably justifiable and proportionate in the circumstances to
overcome the resistance or prevent the person concerned from
fleeing”
• For first schedule offences
(a) the force is immediately necessary for the purposes of protecting
the person attempting the arrest, any person lawfully assisting the
person attempting the arrest or any other person from imminent or
future death or grievous bodily harm; or
(b) there is a substantial risk that the suspect will cause imminent or
future death or grievous bodily harm if the arrest is delayed; or
(c) the offence for which the arrest is sought is in progress and is of a
forcible and serious nature and involves the use of life-threatening
violence or a strong likelihood that it will cause grievous bodily harm.
• The drastic powers given by the section should
only be exercised when the person effecting
the arrest has done everything in his power to
achieve his purpose by other means there
must be no alternative to using force.-Mazeka
v Minister of Justice 1956 (1) SA 312 (A) at 315
 Use of lethal force s 44 (2)
No use of lethal force shall be lawful unless
there is strict compliance with the conditions
specified in s 42(1) of the CPE Act. See also s 48
of the Constitution.
 Summons
• Provided for by s 140 of the CP& E Act –Issued
by the clerk of court at the request of the
prosecutor upon or after lodging of any charge.
• summons desirable than arrest.
• The fact that the accused has already been
arrested and placed on remand does not
preclude the prosecutor, in an appropriate case,
from withdrawing the charge before plea and
proceeding by way of summons –Rowland 5-23
Written notice to appear s 141 of the CP &E Act

• In the case of petty offences, particularly road

traffic offences, the accused may be handed by a
peace officer a “Notice to appear in court”, issued
in terms of s 141 of the CP&EA.
• “If the accused is in custody, the effect of a
written notice handed to him….. shall be that he
be released forthwith from custody”.- s141(2)
 Warning to appear s 142
• competent for a magistrates court to obtain
the presence of any person to be charged with
any offence by means of a warning to such
person.
• A very unclear section .
• Presumably the accused must already have
been present in court for him to be warned.
 Extradition
• Strictly speaking not a way of securing
presence of an accused at trial
• Only ensures that an accused is handed over
to the authorities of another state in terms of
international law.
• It’s in terms of the Extradition Act [Chapter
9:08]
 Search of persons and premises

• Section 57 of the Constitution provides that every

person has the right to privacy which includes the
right not to have:
• their homes, premises or property entered
without their permission;
• their person, home, premises or property
searched.
• These rights are not absolute as they are not listed
under section 86(3) as rights that may not be
limited by law. Therefore they may be limited by a
law which complies with the provisions of s 86(2) of
the Constitution.
• The police have power under s 49 CP &E Act
to search for and seize articles which are, or
are on reasonable grounds believed to be,
concerned in the commission of a crime; or
which the police reasonably believe may
afford evidence of the commission of a crime;
or which are intended to be used in the
commission of a crime or which the Police
reasonably believe are intended to be so used.
• For a search warrant to be valid it must satisfy the requirements
set out in s 50(1) CPEA.
• A search warrant can be issued either by a judicial officer or by
a justice of the peace.
• The premises or persons to be searched must be precisely
described and the items to be searched for must be specifically
stated.
• The warrant may only be issued if the person issuing it is
satisfied that there are reasonable grounds for carrying out the
search in that there is a reasonable basis for believing that the
search will lead to the seizure of items used to commit a crime
or provide evidence of the commission of a crime.
• See Elliott v Commissioner of Police 1986 (1) ZLR
228 (H) it was held that the search warrant was
invalid because it was far too general and vague.
See also Capital Radio (Pvt) Ltd v Minister of
Information & Ors (2) 2000 (2) ZLR 265 (H)
• Power of search and seizure must not be abused
• A search warrant can also be issued by a
magistrate in terms of s 26 of the Serious Offences
(Confiscation of Profits) Act to search for "tainted
property",
 Search without a warrant
• The circumstances in which the police can lawfully carry out
searches without warrant are set out in s 51 CP &E Act.
• Before the police may lawfully search without warrant and seize
items during that search he/she must satisfy two conditions.
1. The police officer seizing the items must believe on reasonable
grounds that a warrant would be issued to him by the appropriate
authority if he applied for one and 2. he must believe, on
reasonable grounds, that delay in obtaining a warrant would prevent
the seizure.
Chizano v Commissioner of Police HH-392-88; Associated
Newspapers of Zimbabwe (Pvt) Ltd v Madzingo NO & Anor HH-157-
03
See also Chinyayani v Minister of Home Affairs & ors 2010(1) ZLR
280 (H) In Chigwada v Commissioner- General ZRP & ors HH69-11
 REMANDS s 165 of the CP & E Act
• Once a person has been brought before a court on
a criminal charge, the court may postpone the
pending trial.
• A remand is requested by the State when it is not
ready to bring a case to trial because police
investigations are still taking place.
• Where the trial is pending before a magistrates
court, it may not, unless the accused consents to a
longer period, be postponed for a period longer
than fourteen days at any one time.
 Justification for remands
• Justified for a variety of reasons e.eg.
• The police require time to complete their investigations and
paperwork
• The prosecutor’s convenience in arranging the court roll, bearing
in mind that other persons are also likely to be on remand
• For the defence to be arranged (if so requested by the accused)
• To await the PG’s instructions on other matters, such as the venue
of trial
• The difficulty in locating or subpoenaing witnesses.
• Whatever the reasons are, they should be clearly and fully
explained to the court by whichever party is requesting the
remand.
• In terms of s 13(2)(e) of the Constitution,
deprivation of a person's liberty on the grounds of
the commission of a criminal offence is permissible
only if there is a reasonable suspicion that he/she
committed that crime.
• In terms of s 18(2) of the Constitution a person
charged with a criminal offence is entitled to have
his case tried within a reasonable time.
• This applies whether or not he is held in custody.
 Reasonable suspicion

• Where at the initial or subsequent remand the

State is seeking the remand in custody of a person
the court may only grant this application
provided that there is a reasonable suspicion that
the person committed the crime with which he is
being charged.
• Attorney-General v Blumears & Anor 1991(1) ZLR 118 (S
• The State must allege facts that constitute a crime and justify a
reasonable suspicion that the accused committed the crime. The
accused's lawyer may submit that the State has not alleged such
facts or may lead cogent evidence which obliges the magistrate
to reject those facts. The remand procedure is an important
protective process to ensure the finding of a reasonable suspicion
by someone independent of the police and prosecution. The
hearsay rule and cross-examination of witnesses do not apply.
Statements can be made from the bar by legal counsel. Although
the onus is on the State, it does not have to show guilt beyond
reasonable doubt or on a balance of probabilities. The court
cannot reject State allegations simply because they seem to be of
doubtful validity.
• Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (S)
• Held that in order to justify the applicant’s deprivation
of freedom on the grounds of reasonable suspicion that
he had committed an offence, it was not necessary to
establish his guilt beyond a reasonable doubt or even on
the balance of probabilities.
• The test was the same as that for arrest without a
warrant. There had to be sufficient information to
warrant a prudent person in suspecting that the
applicant was legally responsible for the alleged offence.
• In LUPEPE v AG & Anor HB 130- 93, it was
held that before putting anyone on remand,
the police must satisfy themselves that the
information they are acting on is sufficient to
raise a reasonable suspicion and that there are
enough grounds to place him on remand.
• The state must disclose to the court grounds
which when tested objectively give rise to a
reasonable suspicion against the accused.
• See also Williams & Anor v Msipha NO &Ors 2010 (2) ZLR
552 (S)
• If the defence lawyer alleges that there is no case against
his client and therefore that there is no basis for remanding
him, the court may only remand a person if it is satisfied
that there are reasonable grounds for the remand.
• The remand magistrate should obtain information from the
prosecutor justifying the existence of a reasonable
suspicion on the initial remand, and the prosecutor must
satisfy the court that there is still a reasonable suspicion
against him at all subsequent remands.
• Accused may be remanded in custody or out
of custody.
• Where accused is remanded out of custody he
may be remanded on bail or without bail
being required.
 Adequate time and facilities to prepare a defence

• Section 70(1)(b) of the Constitution provides that

a person accused of a crime has the right to be
given adequate time and facilities to prepare a
defence.
• This provision obviously encompasses the right
for the client’s defence lawyer to be given
adequate time to prepare the defence and to
request a postponement of the case where more
time is reasonably required to prepare the
defence.