15—1

CHAPTER 15

TRIAL — PRELIMINARY MATTERS

Section page

1. Set-down date
(1) High Court ........................................................................................................... 15—2
(a) Attorney-General’s discretion as to choice of date ...................................... 15—2
(b) right of defence to be consulted on .............................................................. 15—2
(c) six-month limit from date of committal ...................................................... 15—2
(2) magistrates court .................................................................................................. 15—2

2. Venue
(1) change of ............................................................................................................. 15—3
(2) removal of accused to new venue ........................................................................ 15—3
(3) person brought before wrong court ..................................................................... 15—3

3. Postponement or adjournment of trial .......................................................................... 15—4

4. Representation of accused
(1) by legal practitioner ............................................................................................. 15—5
(a) limitations on right to counsel of choice ..................................................... 15—5
(b) court ordering trial without legal representative .......................................... 15—5
(2) by guardian .......................................................................................................... 15—5
(3) by other person .................................................................................................... 15—6

5. Trial in camera and publication of proceedings

(1) principles ............................................................................................................. 15—6
(2) general power to restrict who may be present at trial .......................................... 15—6
(3) case involving indecent or obscene matter .......................................................... 15—8
(4) trial of juveniles ................................................................................................... 15—8
(5) juvenile witness ................................................................................................... 15—8
(6) power of a Minister to direct ............................................................................... 15—9
(7) disclosure of information ................................................................................... 15—10
(8) pre-trial publicity and contempt of court ........................................................... 15—10

6. Onus of proof .............................................................................................................. 15—11

(1) on prosecution ................................................................................................... 15—11
(2) on defence
(a) nature of onus cast on accused .................................................................. 15—11
(b) when onus may be cast on accused ........................................................... 15—12

7. Multiple accused
(1) same or related offences .................................................................................... 15—13
(2) different offences ............................................................................................... 15—13
(3) separation of trials ............................................................................................. 15—14
15—2 Criminal Procedure in Zimbabwe

1. SET-DOWN DATE

(1) HIGH COURT

(a) Attorney-General’s discretion as to choice of date

Where a person is to be tried before the High Court, the trial date is, in the first instance, determined
by the Attorney-General.1 The Attorney-General does not have an absolute right to set down a case
for trial on whatever arbitrary date he chooses.2 His power to determine a trial date does not
interfere with the right of the court to order postponements,3 as when a case is prevented from
being heard to a final conclusion.4 Again, the High Court, on application by the accused and on
good cause shown, may order that the trial be held earlier.5 Unless the Attorney-General acts
reasonably in his choice of trial date, he may well find it difficult to satisfy the court that it is not
necessary or expedient to postpone the trial.6

(b) Right of defence to be consulted on

The invariable practice in Zimbabwe is that the Attorney-General’s representatives will discuss
the question of trial dates with the legal representatives of accused persons. Whether or not there
is any legal requirement to do so, there are very sound practical reasons for the custom, apart from
the fact that it constitutes the most basic courtesy.7 However, as discussed in section 4(1)(b),
below, it may sometimes happen that the unavailability of a particular legal representative for the
accused on a proposed trial date will mean that the accused must select another representative.

(c) Six-month limit from date of committal

If a person who has been committed for trial or sentence before the High Court is not brought to
trial within six months of the date of his committal, his case must be dismissed. The period of six
months does not include any time during which the accused is, through circumstances beyond the
control of the Attorney-General, not available to stand trial.8

Where the accused has been committed for trial or sentence following a preparatory examination
and the Attorney-General has directed9 that the preparatory examination be re- opened, the accused
is not deemed to have been committed for trial until the further examination has been completed.10

(2) MAGISTRATES COURT

Where a person is to be prosecuted in a magistrates court, he must be brought up for trial at the

1 CP&EA s 160(1).
2 S v Paweni & Anor 1984 (2) ZLR 16 (H) at 27; 1985 (1) SA 301 (ZH) at 310-311.
3 CP&EA s 165; and see section 3 below.
4 R v Levinson 1920 SR 105.
5 CP&EA s 160(1), proviso.
6 S v Paweni & Anor supra.
7 S v Paweni supra at 27E; Paweni & Anor v Attorney-General 1984 (2) ZLR 39 (S) at 41.
8 CP&EA s 160(2).
9 Under s 101(1)(i) of the CP&EA.
10 CP&EA s 160(3).
Trial — Preliminary matters 15—3

next possible court day.11 This does necessarily mean that his trial will take place on that date; it
may very well be postponed. Undue haste in bring a case to court may be prejudicial to the accused
and thus constitute an irregularity.12

2. VENUE

(1) CHANGE OF

Where a person has been indicted for trial before the High Court, any judge of the High Court
may, on the application by or on behalf of the Attorney-General or the accused, order that the trial
be held in some place other than that specified in the notice of trial and at a time stated in the order.
The effect of such an order is as if the Attorney-General had originally indicted the accused for
trial at the new venue and time. If the accused is on bail, his bail is extended until the new trial
date. If recognizances have been taken from witnesses, they are deemed to have been extended to
the new trial date. Notice of the new venue and trial date must be given to the persons bound by the
recognizances, otherwise their recognizances cannot be forfeited.13 A good reason to change the
venue would be that all the witnesses are at a place to which the court goes on circuit.14

A magistrates court may change its place of hearing of any case to any place within its area of
jurisdiction. It may do this if the accused or a witness is unable, through illness or some other
cause, to attend at the place where the court usually sits. It may also change the venue for any other
reasonable cause.15 A typical example would be going to a hospital to take the evidence of a
witness who has been hospitalised.

(2) REMOVAL OF ACCUSED TO NEW VENUE

Where a case before the High Court has been removed for trial elsewhere, the judge granting the
order for the change of venue must, if the accused is in custody, issue a warrant directing that the
accused be transferred to the prison of the area to which the case has been transferred. The accused
must be tried as soon as reasonably possible thereafter, on a date to be determined by the Attorney-
General, but not, unless he consents to it, within 10 days of his arrival there.16

(3) PERSON BROUGHT BEFORE WRONG COURT

If a person is brought for trial before a magistrates court, and it appears that he is not triable before
that court, he is not entitled to an acquittal. The court may, at the accused’s request, direct that he
be tried before some proper court and may remand him for trial accordingly.17 If the accused does
not make such a request, the trial will proceed and the verdict and judgment will have the same
effect as if the court originally had jurisdiction to try the accused.18 This procedure does not affect
the accused’s right, when called on to plead, to plead that the court has no jurisdiction to try him.19

11 CP&EA s 163.
12 S v Finiza SCD 21/94 p 8 (Tk); S v Damane SCD 21/94 p 8 (Tk).
13 CP&EA s 161.
14 R v de Beer (unreported, Bulawayo 1959, referred to in Instant Crime p 73).
15 MCA s 5(4). 16 CP&EA s 162.
17 CP&EA s 164(1). 18 CP&EA s 164(2).
19 CP&EA s 164(3). On pleas to the jurisdiction, see Chapter 15, section 5(5)(a), below.
15—4 Criminal Procedure in Zimbabwe

Comment

It is submitted that this procedure should only be invoked where the accused is not properly
triable before the court because the offence was committed outside the local limits of the
magistrate’s jurisdiction.20 If it appears that the case is not properly triable by the court
because the nature of the offence means that the offence is only subject to the jurisdiction
or more proper for the cognizance of a court of greater jurisdiction, the magistrate should
stop the trial and proceed in terms of s 58(1) of the MCA.

3. POSTPONEMENT OR ADJOURNMENT OF TRIAL

Any court before which a criminal trial is pending may, if it is necessary and expedient, postpone
the trial until such time and to place and on such terms as the court considers proper. If necessary
and expedient, further postponements may be made from time to time.21 There are two limitations
to this general power:

• a person committed for trial before the High Court must be brought to trial within six
months of his committal,22 and

• a trial pending before the magistrates court may not be postponed for more than 14 days
at any one time without the accused’s consent.23

The reasons for properly postponing a trial are numerous. At the magistrates court, the usual ones
are, at the outset, that the investigations have not been completed. The accused may ask for a
postponement in order to obtain legal representation. In such a case the important question is
whether the accused has had enough time to arrange for representation; if it appears that the
application is frivolous or vexatious, it would be proper for the application to be refused.24 It
would also be proper to postpone the trial where it appears that further charges are to be brought,
so that all the charges may be brought at the same time.25 The accused’s legal representative may
ask for a postponement because of the lack of time available to prepare the defence or because
material evidence is lacking and must be obtained.26

Similarly, adjournments of a trial which has begun may be granted, whether or not any evidence
has been given.27 A trial before the magistrates court may not, without the accused’s consent, be
adjourned for more than fourteen days. An adjournment of a trial in the magistrates court may, if
necessary, take place more than once, if sufficient cause is shown to the magistrate.28

The question of how long postponements or adjournments may continue for has been dealt with in
Chapter 5 section 2(5), above.

20 As set out in MCA s 56.

21 CP&EA s 165.
22 CP&EA s 160(2); see section 1(3), above.
23 CP&EA s 165, proviso.
24 R v Second 1969 (2) RLR 285 (A).
25 Paweni & Anor v Attorney-General supra.
26 R v Sindisa & Anor 1941 SR 116.
27 CP&EA s 166(1).
28 CP&EA s 166(2).
Trial — Preliminary matters 15—5

4. REPRESENTATION OF ACCUSED

(1) BY LEGAL PRACTITIONER

Every person who is charged with a criminal offence is permitted to defend himself in person or,
at his own expense, by a legal practitioner of his own choice.29 This constitutional right is reiterated
in the CP&EA,30 the MCA31 and the HCA.32

(a) Limitations on right to counsel of choice

The right of an accused person to defend himself by a legal representative of his own choice is not
absolute. If, for some reason or another, it is not convenient for the practitioner selected by the
accused to conduct the case on the date set down for hearing, the court is not obliged for that
reason alone to postpone or adjourn the proceedings until that particular practitioner becomes
available. What is protected is the right of the accused to resist having a legal practitioner foisted
on him, even where such services will be rendered without charge. While as far as the circumstances
allow, requests for postponement in order to obtain particular counsel should be accommodated,
the overriding requirement is that the administration of justice must run smoothly and that other
parties are not prejudiced.33 If the accused’s first choice of representative is unavailable, he must
look further afield and engage someone else.34 A party’s predilection for a particular practitioner
can seldom, if ever, be regarded as a decisive objection to a date of set down which is in all other
respects reasonable and acceptable.

(b) Court ordering trial without legal representative

Where the accused has previously indicated that he has obtained legal representation and where
no legal representative is present on the trial date, the court should, before ordering that the trial go
ahead in the without the legal representative, clarify whether the absence of the legal representative
is the fault of the accused or of the legal representative.35 While it may sometimes be appropriate
for the court to order that the trial should proceed, the discretion to do so must be exercised
judicially. Where the practitioner’s absence is not due to the fault of the accused, it would be
wrong to penalise the accused.36

(2) BY GUARDIAN

A juvenile under 16 years who is being tried in a magistrate’s court may be defended by his natural
or legal guardian, who may examine and cross-examine the witnesses.37

29 Constitution of Zimbabwe 1980, s 18(3)(d). This right does not apply in proceedings before a local court.
30 Section 191(a).
31 Section 65.
32 Section 51.
33 Lombard en ‘n Ander v Esterhuizen en ‘n Ander 1993 (2) SACR 566 (W).
34 D’Anos v Heylon Court (Pty) Ltd 1950 (1) SA 325 (C) at 333; R v Second supra; S v Paweni & Ors supra at 22-24;
Paweni & Ors v Attorney-General supra at 43-45.
35 S v Godi Juta’s SCD 23/1993 (T) (not reported).
36 S v Nqula 1974 (1) SA 801 (E).
37 CP&EA s 191(b).
15—6 Criminal Procedure in Zimbabwe

(3) BY OTHER PERSON

A person being tried in any court may, where the court considers that he requires the assistance of
another person and has permitted him to be so assisted, may be defended by that other person, who
may examine and cross-examine witnesses.38 It is not clear whether the person giving the assistance
may go further than this and address the court.39

5. TRIAL IN CAMERA AND PUBLICATION OF PROCEEDINGS

(1) PRINCIPLES

The Constitution provides that except in the case of the trial of a detainee for an offence under the
law regulating the discipline of detainees, all proceedings of every court, including the
announcement of the decision of the court, must be held in public.40 This does not prevent the
court from:

(a) excluding from the proceedings (except the announcement of its decision) persons other
than the parties and their legal representatives, to such extent as the court is empowered
by law to do so and may consider necessary or expedient in circumstances where publicity
would prejudice the interests of justice, or in the interests of public morality, the welfare
of persons under the age of twenty-one years,41 or the protection of the private lives of
persons concerned in the proceedings, or to such extent as the court is empowered or
required by law to do so in the interests of defence, public safety, public order or the
economic interests of the State;

(b) excluding from proceedings preparatory to a trial persons other than the accused and his
legal representative.

This constitutional provision accords with the principle that the searching light of public opinion
provides the most effective safeguard against the danger of an arbitrary and despotic judiciary.42

Even when a case is heard in camera, the trial procedure is unchanged. Nothing is withheld from
the accused and he can defend himself in exactly the same way as in a trial in open court. The
fairness of the trial is unaffected, as are the accused’s rights of appeal and review.

(2) GENERAL POWER TO RESTRICT WHO MAY BE PRESENT AT TRIAL

The general power of a court to restrict who may be present at a trial is given in the Courts and
Adjudicating Authorities (Publicity Restriction) Act [Chapter 7:04]. The powers granted under
the Act are additional to and subject to the provisions of any other enactment.43 As will be seen
below, the CP&EA contains some similar provisions.

If, at any stage before or during any proceedings, the court considers it necessary or expedient to

38 CP&EA s 191(c).
39 S v Masithela 1986 (3) SA 402 (O).
40 Constitution of Zimbabwe, s 18(10).
41 The Constitution has not yet caught up with the fact that the legal age of majority is now 18 years.
42 Lansdown & Campbell p 463.
43 CAA(PR)A, ss 3(1) and 12.
Trial — Preliminary matters 15—7

do so, it may make one or more of the orders set out below. The court may act mero motu or on the
application of either party.

(a) It may order that all persons or a specified class of person shall be excluded from the
proceedings. Such an order does not prevent the prosecutor, the accused or his legal
representative from being present at any stage of the proceedings, nor does it prevent any
other person from being present when the court’s decision is announced.44

(b) It may order that the name, address or other information likely to reveal the identity of
any person concerned or mentioned in the proceedings shall not be publicly disclosed or
that information revealing or likely to reveal any place or locality concerned or mentioned
in the proceedings shall not be publicly disclosed.45

(c) It may order that the whole or any specific part of the proceedings shall not be publicly
disclosed.46

The court may not make such an order unless it considers it necessary or expedient to do so for one
or more of the following reasons:
• Publicity would prejudice the interests of justice,47 particularly if the court is satisfied that
a witness who is about to give or has given evidence has reasonable cause to fear that he
or any other person would suffer unlawful injury to his person or property as a result of
giving evidence.48
• The interests of public morality.49
• The interests of the welfare of persons under the age of 18 years.50
• To protect the private lives of persons concerned in the proceedings.51

An order to prevent the identity of persons or places being revealed or that the whole or part of the
proceedings must not be published may be made to protect the safety or private lives of persons
related or connected to any person concerned in the proceedings.52

Comment

Whether an order should be made to prevent embarrassment to the family of the accused
is questionable. It may well be a matter of distress to the accused’s relatives and friends
that his criminal acts should be made known to the world, but it is submitted that this alone
should not be taken as a ground for ordering that the trial should be in camera or that the
proceedings should not be published. Much would depend on the nature of the offence
and whether it can really be said that the private lives of the persons concerned would be
prejudiced by publication.53

44 CAA(PR)A, s 3(1)(a). 45 CAA(PR)A, s 3(1)(b) and (c).

46 CAA(PR)A, s 3(1)(d).
47 This can include the fact that publication of particular information might have the effect of inhibiting the initiation of
prosecutions in appropriate cases: S v Eerenstein & Anor 1973 (4) SA 448 (R).
48 CAA(PR)A, s 3(2)(i). There should be a reasonable possibility (not necessarily a probability) of harm, and a causal
link should be shown between the act of testifying and the possible harm: S v Leepile & Ors (1) 1986 (2) SA 333 (W).
49 CAA(PR)A, s 3(2)(iii). 50 CAA(PR)A, s 3(2)(iv).
51 CAA(PR)A, s 3(2)(v). 52 CAA(PR)A, s 3(2)(vi).
53 R v Miller 1969 (2) RLR 472 (G); 1970 (1) SA 126 (R); S v Plenderleith 1973 (2) RLR 161 (G); 1973 (4) SA 446 (R).
54 S v Niesewand (1) 1973 (1) RLR 210 (A); 1973 (3) SA 581 (RA).
15—8 Criminal Procedure in Zimbabwe

The court must make an order in terms of s 3(1) whenever it is satisfied that it is necessary or
expedient to do so in the interests of defence, public safety, public order or the economic interests
of the State.

In cases involving defence, a trial in camera may be necessary, but the judgment should be a full
one giving all the salient facts of the case. The judgment delivered to the parties should be the
normal judgment of the court and should be treated as part of the proceedings in camera. This
does not mean that those portions of the charge and the judgment which can be divulged without
imperilling the interests of the State should not be divulged. An edited version of the charge and
judgment should be made public as soon as possible.54

Contravention of an order is an offence.55 The Attorney-General’s authority is required to prosecute.56

The fact that an inferior court has made an order would not appear to bind an appeal court. The
record of the trial court must be protected and not made available to the parties and their legal
representatives, although the Registrar of the High Court or Supreme Court may allow a person to
have access to the record if he is satisfied that the person seeking access has good reason to inspect
the record or a particular part of it and that allowing him access will not defeat or be likely to
defeat the purposes for which the order was made.57 Once the proceedings in the appeal court have
begun, the order of the inferior court ceases to have effect. It would be necessary for the appeal
court to make a further order, if so requested or advised.58

(3) CASE INVOLVING INDECENT OR OBSCENE MATTER

Where the accused is being tried on a charge which will involve the production of evidence of an
indecent or obscene nature, the court may direct that every person whose presence is not necessary
in connection with the trial or any particular person or class of persons shall not be present. Such
a direction may be granted at the request of the person against whom or in connection with whom
the offence is alleged to have been committed or, if that person is a minor, at his own request or at
the request of his guardian. The request may be made in writing before the trial or orally during the
trial. It may be general in nature (that is, request that every person be excluded whose presence is
not necessary) or specific (requesting that a particular person or a class of persons be excluded).59

(4) TRIAL OF JUVENILES

The trial of juveniles must be in camera.60 It would, though, be permissible for the court to allow
members of the press or public to be present, if the court considers it in the best interests of the
juvenile concerned, and particularly if the juvenile and his guardian so wish.61

(5) JUVENILE WITNESS

When a juvenile witness is giving evidence, the court may (but does not have to) order that no

55 CAA(PR)A, s 8.
56 CAA(PR)A, s 9.
57 CAA(PR)A, s 6.
58 S v Robinson & Ors 1973 (2) RLR 205 (A); 1974 (1) SA 59 (RA).
59 CP&EA s 194(4).
60 CP&EA s 194(6); and see chapter 13, section 1(5), above.
61 S v Mpetha & Others (1) 1981 (3) SA 803 (C).
Trial — Preliminary matters 15—9

person whose presence is not necessary in connection with the trial shall be present in court except
an officer of court, the accused’s legal representative and the spouse, guardian or other person in
loco parentis of a person on trial who is under the age of 21.62 In the case of a trial before the High
Court, the decision is that of the judge alone, not of the assessors.63

(6) POWER OF A MINISTER TO DIRECT

Under s 18(12) of the Constitution, a Minister may produce to the court a certificate in writing that
it would not be in the public interest that any matter should be publicly disclosed. If such a certificate
is produced, the court must arrange for evidence relating to that matter to be heard in camera and
must take such other action as may be necessary or expedient to prevent disclosure of that matter.

In addition to the power given under s 18(12) of the Constitution, the responsible Minister64 may
issue a certificate in writing, signed by himself, stating that it would not be in the public interest to
disclose publicly —

• the fact that any proceedings may be or will be instituted by or before any court, or any
matter connected with such future proceedings;

• any matter in any proceedings which are not for the determination or existence or extent
of any civil right or obligation.65

When he has issued such a certificate, the Minister may also issue a notice directing that any
information, document or recording (or class of documents or recordings) relating to the proceedings
shall not be transmitted by any one party, witness or a legal representative of a party or witness to
any other party, witness or legal representative, except under such conditions as the Minister may
specify in the notice. The conditions may be for the purpose of ensuring that any information or
matter contained in the document or recording is disclosed to as few people as possible.66 They
may prohibit or restrict the making of copies of any document or recording or the removal or any
document or recording or copy from Zimbabwe. They may require the return of any document or
recording or copy to any person specified in the notice.67

The notice can take two forms. It can be in writing and served on any party to the proceedings or
future proceedings, on any party who is or may be a witness, or on the legal representative of such
a party or witness. It can also be published in the Gazette. No notice may prevent or unduly restrict
the communication between a legal practitioner and his client of any information which would
enable or assist the legal practitioner to prepare for or institute the proceedings or bring them to a
conclusion.68

When a certificate is issued stating that it would not be in the public interest to disclose publicly
the fact that any proceedings may be or will be instituted by or before any court, or any matter
connected with such future proceedings and the certificate is served on a party or witness or a
legal representative of either, the person to whom it is issued must not disclose or cause or permit

62 CP&EA s 194(8); and see Chapter 13, section 2, above.

63 S v Mpetha & Others (2) 1981 (3) SA 813 (C).
64 That is, the Minister responsible for the administratin of an natment nder which a court is established or constituted (or
a Vice-President, if a Vice-President is responsible): CAA(PR)A, s 2
65 CAA(PR)A, s 4(1). 66 CAA(PR)A, s 4(2).
67 CAA(PR)A, s 4(3). 68 CAA(PR)A, s 4(5).
15—10 Criminal Procedure in Zimbabwe

to be disclosed to any other person the fact or matter specified in the certificate. The only exception
is that the fact or matter specified may be disclosed to the extent that is necessary to do so for the
purpose of preparing for or instituting the proceedings or bringing them to a conclusion.69

Where a certificate is issued stating that it would not be in the public interest to disclose publicly
any matter in any proceedings which are not for the determination or existence or extent of any
civil right or obligation, the court to which such a certificate is produced must take such action as
may be necessary or expedient to prevent the public disclosure of the matter specified in the
certificate.70 This action may include an order in terms of s 3(1) of the Act.

Comment

The constitutionality of s 4 of the CAA(PR)A is highly questionable. The provisions go

beyond the provisions of s 18(12) of the Constitution, which relate to proceedings that are
actually before a court, not to future or contemplated proceedings. To prohibit the fact that
proceedings may be instituted is not only beyond the scope of s 18 of the Constitution, but
it may well contravene the right under s 20(1) to receive and impart ideas and information
without interference. The exceptions to this general right set out in s 20(2) would not
appear to cover the sort of control of disclosure of information that is contemplated by s 4
of the CAA(PR)A.

It is also questionable what is meant by “the public interest” in s 4. For example, could a
Minister prohibit the disclosure of information that a senior State employee is to be
prosecuted for corruption? It may not be in the interests of the person concerned or even
of the Minister concerned to disclose such information, but this would not mean that the
disclosure was “not in the public interest”. A court might also have to consider whether it
could go behind a Minister’s certificate and decide whether the public would be better
served by allowing the disclosure of the information than by suppressing it.71

(7) DISCLOSURE OF INFORMATION

A court which has made an order under s 3 or a Minister who has issued a certificate under s 4
may, in writing, authorise the disclosure of the whole or any part of the proceedings, information,
document or recording to which the order or certificate relates. The court or Minister may also
specify the manner in which and the conditions subject to which the disclosure may be made.

(8) PRE-TRIAL PUBLICITY AND CONTEMPT OF COURT

Apart from any of the statutory restrictions described above, another question that must be
considered is the extent to which pre-trial publicity may be given. The only time when pre-trial
statements or comments by the parties or their legal representatives may be restricted is when they
constitute contempt of court. This would happen if there is a real risk that what is said is calculated
to prejudice a fair hearing.72 Jury trials are things of the past in Zimbabwe, while trials in the
magistrates court are by professional judicial officers and trials in the High Court are by judges
and assessors. Consequently, the statements or comments would have to be almost outrageous

69 CAA(PR)A, s 5(1).
70 CAA(PR)A, s 5(2).
71 For a discussion on the meaning of “in the public interest”, see Leicester Properties (Pvt) Ltd v Farran 1976 (1) SA
492 (D) at 494-5.
72 S v Hartmann & Anor 1983 (2) ZLR 186 (S).
Trial — Preliminary matters 15—11

before a real risk of prejudice could be said to exist. Even extensive pre-trial publicity would not
result in a risk of prejudice, because a judge or magistrate must be taken to be capable of removing
from his mind any matters prejudicial or erroneous which may arise from such publicity and to
concentrate his mind on the evidence given in court.73 This comment could equally, it is submitted,
be applied to persons who are of the calibre chosen to be assessors.

Conduct which is legally permissible may, however, be neither wise nor judicious and there is a
well- and long-established custom of lawyers not to discuss in public outside the court matters
concerning cases in which they are involved.74

6. ONUS OF PROOF

(1) ON PROSECUTION

Except where there is an evidential onus cast on the accused, the State is required to prove all the
elements of the alleged offence “beyond reasonable doubt”. This concept is probably easier to
understand than explain.75 For judges and magistrates the standard of proof is a matter of experience
and intuition rather than analysis. In general, no onus rests on the accused. If he gives an explanation,
even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not
only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is
a reasonable possibility that it is true, he is entitled to be acquitted.76 Even an improbable story
could be enough to permit the court to doubt the accused’s guilt.77 Proof beyond a reasonable
doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community
if fanciful possibilities were allowed to deflect the course of justice. If the evidence is so strong as
to leave only a remote possibility in the accused’s favour, which doubt can be dismissed with the
sentence “Of course it is possible, but it is not in the least probable”, the case is proved beyond
reasonable doubt.78

(2) ON DEFENCE

(a) Nature of onus cast on accused

Where the onus of proof falls on the accused, it must be discharged on a balance of probabilities
(unless the statute specifically provides otherwise).79 This means that the burden on the accused is
not as high as on the State. Even so, a reasonable degree of probability is required; conjecture or
surmise is not enough.80 If the evidence is such that the court can say that the accused’s story is
more probable than not, the burden is discharged.81 If the probabilities are evenly balanced, the
accused has not discharged the onus on him.

73 R v Harris [1991] 1 HKLR 389 (CA) at 392-3, per Silke V-P.

74 S v Hartmann & Anor supra at p 196, per Georges CJ.
75 Hoffmann & Zeffertt SA Law of Evidence 4 ed p 525.
76 R v Difford 1937 AD 370 at 373.
77 S v Mashinini Juta SCD 24/94, p 7 (O).
78 Miller v Minister of Pensions [1947] 2 All ER 372 (KB) at 373H per Lord Denning; S v Isolano 1985 (1) ZLR 62 (S)
at 64.
79 Ex p Minister of Justice In re R v Bolon 1941 AD 345.
80 Lansdown and Campbell p 910.
81 Miller v Minister of Pensions supra at p 374.
15—12 Criminal Procedure in Zimbabwe

(b) When onus may be cast on accused

(i) Deeming provisions

Many statutes contain deeming provisions, which provide that if a certain state of facts exists, then
other facts, adverse to the accused, or presumed or deemed to exist. The accused has the onus of
rebutting the presumption so raised.82

(ii) Common law

The accused also has the burden of proof under the common law where the defence is one of
insanity. Where other defences are relied on, it is not necessary for the prosecution to lead evidence
on all possible issues to negative in advance any possible defence. If the accused wishes to rely on
such defences as provocation, duress, self-defence or the like, he must raise the issue, either in the
outline of the defence or in cross-examination.83

(iii) Exceptions, etc

Many statutes creating criminal offences provide for exceptions, exemptions, provisos, excuses or
qualifications. Exceptions and so on can be found in such phrases as “until the contrary is proved”,
“without lawful excuse”, “unless he has reasonable cause”, and so on. Where exceptions and the
like are provided, they need not be specified in the charge, nor does the prosecution have to have
to offer any proof in relation to the matter. To escape liability, the accused must prove the matter.84

(iv) Prima facie case established

At the end of the State case, the court may discharge the accused if it considers that there is no
evidence that the accused committed the offence with which he is charged (or any other offence
for which he might be convicted on that charge).85 It is quite common to describe this situation as
one where the court must decide “whether the accused has a case to answer”, as though a burden
is then cast on the accused. This is not the correct way of viewing the court’s role at this stage. All
the court is called on to do at the end of the State case is decide whether there is any evidence on
which a reasonable person could properly convict.86 If there is such evidence, the accused will not
be discharged. There is (except in the situations mentioned above) no burden then cast on the
accused to answer the State case or to prove or disprove anything. The accused may elect to
remain silent. His silence may or may not strengthen the State case against him. It is only at the
end of the defence case, when all the evidence is in, that the court will decide whether the case
against the accused has been properly proved.87

(v) Mitigation
In regard to evidence or statements in facts in mitigation of sentence, no rigid rules governing the
onus of proof can be satisfactorily laid down. A high degree of flexibility must be observed as to
the degree of proof required.88

82 See Chapter 10, section 7(2), above.

83 Lansdown and Campbell p 910.
84 See Chapter 10, section 8(3), above.
85 CP&EA s 198(3).
86 R v Herholdt & Ors (3) 1956 (2) SA 722 (W); R v Mantell 1959 (1) SA 771 (C); Attorney-General v Mzizi 1991 (2)
ZLR 321 (S).
87 Lansdown and Campbell pp 911–913.
88 S v Shepard 1967 (4) SA 170 (W); S v Chinyani 1969 (2) RLR 42 (A); 1969 (2) SA 588 (RA).
Trial — Preliminary matters 15—13

7. MULTIPLE ACCUSED

(1) SAME OR RELATED OFFENCES

Any number of people implicated in the same offence may tried together. This includes:

(a) persons who are charged as the principle offender or offenders;

(b) persons who are charged with procuring the commission of the offence, even at different
times;

(c) persons charged as accessories after the fact;

(d) persons charged with receiving property obtained by means of an offence, even if the
receiving took place at different times.89

The persons mentioned in (b), (c) and (d) may be charged together even if the principal offender is
not being charged at that time or is not amenable to justice.90

Similarly, a person who counsels or procures another to commit an offence or who aids another to
do so or who is an accessory after the fact may be joined in the same charge as the principal
offender. He may, if the Attorney-General so chooses, be tried separately, whether the principal
offender has or has not been convicted and whether or not he principal offender is amenable to
justice.91

It should be noted that where it is lawful to try the accused together, they should be charged in the
same indictment.92

(2) DIFFERENT OFFENCES

In limited circumstances, persons who are not implicated in the same offence may be charged and
tried together. The requirement is that the alleged offences must have been committed at the same
time and place or at the same place and about the same time. The prosecutor must also inform the
court that evidence which is, in his opinion, admissible at the trial of those persons is also admissible
at the trial of the other person or persons.93

How far s 159 of the CP&EA can be taken is not at all clear. It has been said that it does not
sanction the joint trial of persons who are separately charged with different offences even if there
are some common features.94 But to what extent does it sanction the joint charging and trial of
persons who have committed separate offences?

There is clearly great potential prejudice to the accused in the holding of mass trials on charges

89 But where the property was stolen on different occasions from the same person, it was obtained by several offences,
and it would not be proper to try the receivers jointly: S v Machona & Others 1982 (1) ZLR 87 (S).
90 CP&EA s 158(1).
91 CP&EA s 158(2).
92 S v Machona & Others supra at 92.
93 CP&EA s 159; S v Donaldson & Anor 1995 (1) ZLR 46 (S); S v Dzora & Anor 1995 (1) ZLR 50 (S).
94 S v Kondoni 1982 (1) ZLR 76 (S) at 79.
15—14 Criminal Procedure in Zimbabwe

which are in no way related to one another.95 To avoid such prejudice, there must be something in
common between the offences, such as a common complainant, the fact that the offences occurred
at the same time, and so on. Where evidence would be led which would be admissible against one
accused but not against another, it would be preferable not to invoke s 145A.96

Examples of where the section would justify the joint trial of several persons who committed
different offences would include:
• several persons stealing things from the same owner around the same time;97
• several persons separately receiving items of property stolen from the same complainant
by the same thief during a particular period;98
• several persons who are not alleged to have committed any single offence together but
who committed various offences which formed part of the same incident;99
• two persons who at the same trial commit perjury in the same particular;100
• two motorists who collide at an intersection.101

Several other examples are given in Lansdown and Campbell at p 181.

(3) SEPARATION OF TRIALS

Where two or more persons are charged jointly, whether with the same or with different offences,
the court may, at any time during the trial, direct that the trial of one or more of the accused be held
separately from that of the other or others. The court may make such an order on the application of
the prosecutor or any of the accused, but not apparently mero motu.102

The granting of an order for the separation of trials does not entitle any of the accused to demand
a verdict, though the court apparently may enter a verdict. If a separation of trials is granted, any
case subsequently proceeded with must be begun de novo.103

As to the stage of the trial when a separation should be ordered, it is preferable that the court
should wait at least until the pleas have been entered, in order to see the extent to which differences
exist between the pleas and the possible prejudice that a joint trial may bring.104

95 S v Marimo & Others 1973 (1) RLR 70; 1973 (2) SA 442 (R).
96 Lansdown & Campbell, p 182.
97 As in S v Tereza & Others 1971 (1) RLR 12; 1971 (4) SA 188 (R), where several persons who stole maize from the
same owner were tried jointly. The court there held that the joint trial was irregular, but as this case occurred before the
enactment of s 159, it is submitted that it is no longer a correct statement of the law.
98 As in S v Machona & Others 1982 (1) RLR 87 (S).
99 For example, if three people engage in a fight with a group of others and carry out different acts of violence against the
others, it may be possible to charge them jointly with all the acts of violence on the basis that they shared a common
purpose. However, it may equally be appropriate, if the evidence so indicates, to charge all three in the same indictment
with the specific acts each performed. See the example in Emmins A Practical Approach to Criminal Procedure 4 ed pp
53-55.
100 Lansdown & Campbell p 181.
101 Ibid.
102 CP&EA s 190.
103 Lansdown & Campbell, p 504.
104 Lansdown & Campbell, p 505.
Trial — Preliminary matters 15—15

It is a well-established rule of practice that trials should be separated where one of the accused
pleads guilty but the others plead not guilty.105 The purpose of the practice is to save those who
have pleaded not guilty from being prejudiced, for example by the cross-examination or evidence
of those who have pleaded guilty, and vice versa.106 Where possible, the same judicial officer
should try the several cases and the accused should be brought up together for sentence. This
would not apply where the accused who pleads guilty is called as a witness against the others.107

Where one of the accused changes his plea during the course of the trial, the court is not bound to
order a separation of trials.108

The real test, in deciding whether to order separation of trials, is whether there would be prejudice
to the applicant in the event of a joint trial, prejudice being something that operates to the detriment
of the accused. A bare possibility of prejudice is not enough.109

If accused persons are charged and tried jointly, it is not competent for the prosecution to call one
of them to give evidence them against the other before he has been found guilty and sentenced and
his case disposed of.110 If the prosecutor desires to call one of the accused against the others, he
may apply for a separation of trials, but it is irregular to try the case in instalments when the trial
is a joint one.111

105 S v Zonele 1959 (3) SA 319 (A) at 325D; R v Timothy 1963 R & N 873 (SR); S v Andeya 1981 ZLR 35 (A).
106 Lansdown & Campbell, p 506.
107 R v Rademeyer 1959 (2) R & N 100.
108 S v Levy 1967 (1) SA 347 (W).
109 Lansdown & Campbell loc cit.
110 R v Bangoma & Others 1934 SR 33.
111 R v Mudzwindi & Another 1940 SR 39.
15—16 Criminal Procedure in Zimbabwe