2—1

CHAPTER 2

STRUCTURE OF THE COURTS

Section Page

1. Magistrates courts .......................................................................................................... 2—2

(1) regional divisions and provinces ........................................................................... 2—2
(2) composition of the court ....................................................................................... 2—3
(a) magistrates: grades and qualifications .......................................................... 2—3
(b) assessors ........................................................................................................ 2—4
(3) jurisdiction ............................................................................................................. 2—4
(a) territorial jurisdiction .................................................................................... 2—5
(i) extra-territorial jurisdiction ................................................................... 2—5
(ii) territorial jurisdiction ............................................................................ 2—5
(b) crimes with which magistrates courts may deal ........................................... 2—6
(c) punishments
(i) normal jurisdiction ................................................................................ 2—6
(ii) increased jurisdiction: common law crimes .......................................... 2—7
(iii) increased jurisdiction: statutory offences ............................................. 2—7
(4) inquests .................................................................................................................. 2—8
(5) interpretation of and inquiry into validity of laws ................................................ 2—8
(6) precedent ............................................................................................................... 2—8

2. High Court ...................................................................................................................... 2—8

(1) composition ........................................................................................................... 2—8
(a) judges ............................................................................................................. 2—8
(i) qualifications ......................................................................................... 2—9
(ii) appointment ........................................................................................... 2—9
(iii) acting judges .......................................................................................... 2—9
(iv) retirement ............................................................................................ 2—10
(v) resignation ........................................................................................... 2—10
(vi) security of office and removal from office ......................................... 2—10
(vii) number of judges required ................................................................... 2—11
(viii) procedure where judges’ views are not unanimous ............................ 2—11
(b) juries ............................................................................................................ 2—12
(c) assessors
(i) requirement for and qualifications ...................................................... 2—13
(ii) challenge to assessor ........................................................................... 2—14
(iii) oath ...................................................................................................... 2—14
(iv) function of assessors ............................................................................ 2—14
(v) death or incapacity of assessor ............................................................ 2—14
(vi) remuneration of assessors .................................................................... 2—15
(vii) assessors in appeal cases ..................................................................... 2—15
(2) jurisdiction of High Court ................................................................................... 2—15
(3) precedent ............................................................................................................. 2—16
(4) sittings of the High Court .................................................................................... 2—16
2—2 Criminal Procedure in Zimbabwe

3. Supreme Court .............................................................................................................. 2—16

(1) composition ......................................................................................................... 2—16
(a) judges ........................................................................................................... 2—16
(i) qualifications, appointment and removal ............................................ 2—17
(ii) acting judges of appeal ........................................................................ 2—17
(iii) number of judges required ................................................................... 2—17
(iv) procedure where judges’ views are not unanimous ............................ 2—17
(b) assessors ...................................................................................................... 2—18
(2) jurisdiction ........................................................................................................... 2—18
(3) precedent ............................................................................................................. 2—18

4. Other courts exercising criminal jurisdiction .............................................................. 2—18

(1) juvenile courts ..................................................................................................... 2—18
(2) courts martial ....................................................................................................... 2—18
(3) police boards of officers ...................................................................................... 2—19
(4) prison offences .................................................................................................... 2—20

1. MAGISTRATES COURTS

(1) REGIONAL DIVISIONS AND PROVINCES

The President may create provinces and regional divisions. He may also abolish or alter the
boundaries of any regional division or province.1 The boundaries of regional divisions are not
necessarily coincidental with the boundaries of magisterial provinces.

The Minister of Justice, Legal and Parliamentary Affairs2 may establish one or more courts for
each regional division and appoint one or more places within each regional division and province
for the holding of a court for that division or province.3

Two regional divisions have been created, the Eastern Division and the Western Division.4 The
places for holding court are Harare, Chinhoyi, Chitungwiza, Mutare and Masvingo (in the Eastern
Division) and Bulawayo, Gweru and Hwange5 (in the Western Division).

The following provinces have been created: Manicaland, Mashonaland Central, Mashonaland
East, Mashonaland West, Masvingo, Matabeleland North, Matabeleland South, and Midlands.6
The districts included within the provinces are listed in the statutory instrument creating the
provinces. The ordinary places for holding court and the places for holding periodical courts7
within the provinces are set out in the First Schedule to the Magistrates Court (Provincial Courts)

1 MCA s 3.
2 To whom the administration of the MCA is assigned by SI 24/1984.
3 MCA s 4.
4 Magistrates Court (Regional Divisions and Courts) Notice RGN 293 of 1965.
5 Chitungwisa and Hwange were added by, respectively, the Magistrates Court (Regional Court) (Chitungwiza) Notice
SI 208/1993 and the Magistrates Court (Regional Court) (Hwange) Notice SI 288/1992.
6 Magistrates Court (Provinces) Notice SI 183/1990.
7 A periodical court is a magistrates court which sits at some place other than the ordinary stated place of holding of
such court: MCA s 2.
Structure of the courts 2—3

Notice SI 208 of 1990. It is not necessary to list those places here as the list is both lengthy and
subject to change.

(2) COMPOSITION OF THE COURT

(a) Magistrates: grades and qualifications

Every magistrates court must be presided over by a magistrate.8 Magistrates are appointed by the
Public Service Commission, after consultation with the Judicial Service Commission.9

The qualifications of the various grades of magistrate are as follows:

(i) Ordinary magistrate

No particular qualification is laid down in the Act or the Constitution. The acceptable qualifications
are an administrative matter, to be decided by the Judicial Service Commission.

(ii) Senior magistrate

Before a person may be appointed as a senior magistrate, he must:
(a) have held magisterial office for at least four years;10 or
(b) have held magisterial office for at least two years and have had two years’ employment
in such duties (which must presumably be of a related or relevant nature) as the Minister,
after consultation with the Chief Justice, may approve;11 or
(c) have held magisterial office for at least two years and obtained qualifications approved
by the Minister (again, after consultation with the Chief Justice);12 or
(d) have been for at least four years qualified to practice as a legal practitioner in Zimbabwe
or in a comparable capacity in certain other countries.13

(iii) Provincial magistrate, regional magistrate and chief magistrate

Such magistrates must have already been appointed as senior magistrates, but no further
qualification, either in terms of education or period of service, are required by the Act.14

Before exercising any of the functions of his office, a magistrate must, in open court, take the
oath prescribed by s 9 of the MCA.15

8 MCA s 6.
9 MCA s 7(1), as read with s 75(4) of the Constitution of Zimbabwe 1980. The composition and functions of the
Commission are set out in s 90 and 91 of the Constitution.
10 MCA s 7(2)(a).
11 MCA s 7(2)(b)(i).
12 MCA s 7(2)(b)(ii).
13 MCA s 7(2)(c). The countries are, effectively, South Africa and Sri Lanka (being countries in which the common-law
is Roman-Dutch and English is an official language) or, if the person is a citizen of Zimbabwe, any country in which the
common law is English and English is an official language — which means most countries in the Commonwealth, as well
as most of the States of the United States. The relevance of qualification in an English-law jurisdiction to judicial office in
Zimbabwe is unclear. It is odd that Scotland is excluded, in view of the similarities between Scottish and Roman-Dutch law.
14 MCA s 7(3).
15 He may, of course, make an affirmation instead: s 41 of the Interpretation Act [Chapter 1:01].
2—4 Criminal Procedure in Zimbabwe

(b) Assessors

Magistrates normally sit alone. In limited circumstances, however, assessors may be appointed.
A regional magistrate may, subject to the directions of the Chief Magistrate, choose up to two
persons to sit with him at the trial as assessors.16 Such persons must be qualified in terms of s 6 of
the High Court Act to act as assessors in the High Court.17

The appointment of assessors to assist other magistrates is subject to the approval of the Minister.
The qualifications required of such an assessor are that he should have, in the magistrate’s opinion,
experience in the administration of justice or skill in any matter which may have to be considered
at the trial.18

It would be appropriate for assessors to be appointed in cases where technical evidence has to be
led; for example, if a medical practitioner were to be charged with culpable homicide arising
from the death of a patient who was undergoing treatment at his hands, suitably qualified medical
practitioners should be chosen as assessors.

The appointment of assessors must be made before any evidence is led. If a trial has begun without
assessors but has been stopped and the matter referred to the Attorney-General, then, if the
Attorney-General remits the matter to the magistrate and the magistrate decides he wishes to
choose assessors to assist him, the trial must be commenced afresh.19

Before the trial, an assessor must take an oath that he will give a true verdict according to the
evidence on the issues to be tried.20

The function of an assessor is to assist the magistrate in deciding issues of fact only. Whether a
question is one of fact or of law is a matter for the magistrate to decide. The decision of a majority
of the members of the court on questions of fact is taken to be the decision of the court. However,
where there is only one assessor, and his opinion on the facts differs from that of the magistrate,
the magistrate’s opinion prevails. Where there is a difference of opinion, the reasons for the
court’s decision and the reasons for the finding of the dissenting member must be given.21

In the event of the death or incapacity of an assessor, the magistrate may, with the consent of the
prosecutor and the accused, continue the trial without that assessor. If the magistrate does not
continue the trial, the accused may be tried again before another magistrate (and other assessors,
if assessors are to be appointed). Bail previously granted is extended; if the accused is in custody,
a judge or magistrate may release him on bail.22

(3) JURISDICTION

The meaning of the word “jurisdiction” has been discussed in Chapter 1.

The jurisdiction of the various magistrates courts is considered from three aspects: the territorial

16 MCA s 52(1)(a).
17 The qualifications will be dealt with below.
18 MCA s 52 (1)(b). 19 MCA s 52(2).
20 MCA s 52(3). 21 MCA s 52(3) and (4).
22 MCA s 53.
Structure of the courts 2—5

jurisdiction of the courts, the offences which magistrates courts may deal with, and the punishments
that may be imposed.

(a) Territorial jurisdiction

(i) Extra-territorial jurisdiction

Magistrates courts have extra-territorial jurisdiction in respect of statutory (but not common-
law) offences. Where an enactment has extra-territorial effect and any act, omission or event
which is an element of the offence took place outside Zimbabwe, a magistrates court would (all
other considerations apart) have jurisdiction to try the case, even if no act, omission or event
which is an element of the offence took place in the particular province or regional division.23 A
preparatory examination in respect of such an offence may also be held in a magistrates court.24

(ii) Territorial jurisdiction

The basic rule is that an offence may be tried only in the province or regional division in which it
occurred.25 There are, however, several extensions to this basic rule.
(a) Where the offence is committed within five kilometres of the boundary of a province or
division, or on a vehicle or train on a journey any part of which was within the province
or division or within five kilometres of the boundary thereof, the court of that province
or division may try the case.26
(b) Where any element of an offence is committed within a province or division, the court of
that province or division has jurisdiction to try the case.27
(c) Where a person is charged with theft or receiving of stolen property or with obtaining
any property by means of an offence, he may be tried by any court within whose territorial
jurisdiction he has or has had in his possession any part of the property.28 Thus, where A
receives stolen property in Bulawayo and brings it to Harare, he may be tried in Harare
for the receiving.
(d) A person charged with counselling or procuring the commission of an offence or with
being an accessory after the fact to that offence may be tried by any court by which the
principal offender may be tried.29
(e) Where it is uncertain in which of several jurisdictions an offence has been committed, it
may be tried in any of them.30
(f) The Attorney-General may, with the accused’s consent, direct that the trial be held in the
court of any province;31

23 MCA s 56(6).
24 CP&EA s 95(9).
25 MCA s 56(1).
26 MCA s 56(2)(a) and (b); cf R v van Rensburg 1921 SR 1.
27 MCA s 56(3).
28 MCA s 56(4). This extends the jurisdiction which the courts have long assumed, derived from the common law
principle that, as theft is a continuing offence, the courts have jurisdiction if the stolen property is imported into their
territorial jurisdiction: R v van Rensburg supra at 2-3; S v A 1979 RLR 69 (GD) at 74; 1979 (4) SA 51 (R) at 52-3.
29 MCA s 56(5).
30 MCA s 56(8).
31 MCA s 56(9).
2—6 Criminal Procedure in Zimbabwe

(h) Where the Attorney-General considers it expedient, either because of the number of
accused involved, or with a view to avoiding excessive inconvenience, or with a view to
avoiding the disturbance of public order, he may direct in writing that the trial be held in
a particular province or regional division.32

The preceding provisions also apply to the jurisdiction of magistrates courts to hold preparatory
examinations.33 There is, however, one anomaly. In respect of allegations of kidnapping, child-
stealing or abduction, a preparatory examination may be held in the courts of the province or
regional division in which the kidnapping, child-stealing or abduction took place or in the courts
of any province or regional division in which the person kidnapped, stolen or abducted was
conveyed or concealed or detained.34 There appears to be no corresponding provision in respect
of trials.

(b) Crimes with which magistrates courts may deal

Magistrates courts have jurisdiction over all offences except treason, murder and statutory offences
for which a mandatory death sentence is provided.35 However, only regional magistrates have
jurisdiction to try cases of rape, except:

(a) where the Attorney-General has remitted such a case for trial or sentence before a
magistrate who is not a regional magistrate; or

(b) where the accused is under 18 years of age and the Attorney-General has in writing
authorized a trial before a magistrate who is not a regional magistrate.36

(c) Punishments

(i) Normal jurisdiction

The sentencing powers of the various classes of magistrate are (unless specially provided
elsewhere) as follows:

(a) ordinary magistrate

On summary trial, imprisonment for a period not exceeding twelve months and a
fine not exceeding $2 000 (or up to 12 months’ imprisonment in default). If the
matter is remitted by the Attorney-General under increased jurisdiction for trial or
sentence, the maximum period of imprisonment is increased to two years and the
maximum fine to $3 000.37
(b) senior magistrate
On summary trial or remittal, imprisonment for a period not exceeding two years
and a fine not exceeding $3 000 (or up to two years’ imprisonment in default).38

32 MCA s 61(10), as read with CP&EA s 95(6), (7) and (8)

33 See CP&EA ss 94 and 95
34 CP&EA s 95(5)
35 MCA s 49(1)
36 MCA s 49(2)
37 MCA s 50(1)
38 MCA s 50(2)
Structure of the courts 2—7

(c) provincial magistrate

On summary trial or remittal, imprisonment for a period not exceeding three years
and a fine not exceeding $5 000 (or up to three years’ imprisonment in default).39
(d) regional magistrate
On summary trial or remittal, imprisonment for a period not exceeding seven years
and a fine not exceeding $12 000 (or up to seven years’ imprisonment in default).40
Any magistrates court may impose a moderate correction, not exceeding six cuts, upon a male
person who has not reached the age of 18.41

In no case, of course, has the magistrate the power to impose a sentence greater than that which
may lawfully be imposed for the particular offence.42

(ii) Increased jurisdiction: common law crimes

In respect of certain common law offences, magistrates have increased sentencing powers. These
offences are:

(a) public violence, arson or malicious injury to property or an attempt to commit such an
offence: a magistrate, other than a regional magistrate, has special jurisdiction to impose
a fine not exceeding $7 000 or imprisonment for not more than five years.43

(b) rape, public violence, arson or malicious injury to property or an attempt to commit
such an offence; robbery or attempted robbery, if aggravating circumstances are found
to have been present:44 a regional magistrate has special jurisdiction to impose a fine not
exceeding $15 000 or imprisonment for not more than ten years.45

(iii) Increased jurisdiction: statutory offences

Increased jurisdiction is given in respect of several statutory offences. Examples include the
Customs and Excise Act [Chapter 23:02], the Stock Theft Act [Chapter 9:18], the Law and Order
(Maintenance) Act [Chapter 11:07], the Drugs and Allied Substances Control Act [Chapter 15:03],
the Exchange Control Act [Chapter 22:05] and the Unlawful Organizations Act [Chapter 11:13].
Where no special jurisdiction is given, although the magistrate may (unless the offence is one
with which he may not deal) convict the accused, he should, if the appropriate sentence or a
mandatory minimum sentence is beyond his jurisdiction, transfer the case to the High Court for
sentence.

39 MCA s 50(3).
40 MCA s 50(4).
41 MCA s 50(6).
42 MCA s 50(8).
43 MCA s 51(1).
44 Under MCA s 51(3), a regional magistrate must find aggravating circumstances to exist in relation to robbery or
armed robbery if it is proved that the offender or an accomplice (it does not matter which):
(a) possessed a firearm or dangerous weapon; or
(b) inflicted or threatened to inflict grievous bodily harm; or
(c) unlawfully killed a person;
on the occasion that the offence was committed, whether before, during or after the commission of the offence.
45 MCA s 51(2)
2—8 Criminal Procedure in Zimbabwe

(4) INQUESTS

In terms of the Inquests Act [Chapter 7:07], magistrates may hold inquests into deaths which
occurred suddenly or are suspected or supposed to have been caused by violence or otherwise
than in a natural way.46 The initial investigation is made by the police, who report to a magistrate.
The magistrate may then take such steps as he may consider necessary to ascertain the cause of
death or to bring to justice those persons who appear to have unlawfully caused the death.

The magistrate may order the holding of a post-mortem examination and may hold an inquest.
The procedure for holding an inquest is set out in the Inquest Rules SRGN 466/1958.

Most investigations into sudden deaths do not result in an inquest; they are closed as an inquiry.
Even if an inquest is held, most inquests are in practice conducted simply by a prosecutor handing
in copies of statements and reports which have been supplied by the police in a “sudden death”
docket.

The inquest or inquiry record is sent to the Attorney-General, who may, irrespective of any finding
by the magistrate, direct that further investigation or even a prosecution takes place.

(5) INTERPRETATION OF AND INQUIRY INTO VALIDITY OF LAWS

Magistrates courts are, like the superior courts, frequently faced with questions regarding the
interpretation of statutes. These questions must be decided according to the normal principles.
Questions concerning the validity of laws may also occasionally arise. Although in South Africa
a magistrates court has only a limited right to pronounce upon the validity of legislation,47 there
appears to be no such restriction in the law of Zimbabwe. If the occasion arises, a magistrates
court may inquire into the validity of laws and pronounce whether the law was validly made or
promulgated.

(6) PRECEDENT

Magistrates courts are bound by the decisions of the High Court and the Supreme Court,48 but not
by decisions of other magistrates courts, irrespective of the relative seniority of those other
magistrates courts.49

2. HIGH COURT

(1) COMPOSITION

(a) Judges

The High Court of Zimbabwe consists of:

46 Inquests Act s 2.
47 Lansdown & Campbell SA Criminal Law & Procedure Vol V (Criminal Procedure and Evidence) p 78.
48 As to the weight to be given to conflicting decisions of the superior courts and the rules of precedent to follow, see
Hahlo & Kahn The South African Legal System and its Background pp 252 and ff.
49 Hahlo & Kahn op cit pp 256-7; Mervyn Dendy “Stare decisis and magistrates’ lib: a reply to Professor Kerr” (1993)
110 SALJ 340 at 354; S v Guild Painters & Decorators (Pty) Ltd 1990 (1) SA 760 (C) at 767.
Structure of the courts 2—9

• the Chief Justice of Zimbabwe;50

• the Judge-President of the High Court; and

• such other judges as may be appointed.51

The Judge-President is in charge of the High Court, although he is subject to the directions of the
Chief Justice.

(i) Qualifications
The qualifications required for appointment as a judge of the High Court or the Supreme Court
are that the candidate must:

• be or have been a judge of a court with unlimited jurisdiction in civil or criminal matters
in a country in which the common law is Roman-Dutch or English and English is an
official language;52 or

• be and have been for at least seven years (not necessarily continuously) qualified to
practise as a legal practitioner53 in Zimbabwe, in a country in which the common law is
Roman-Dutch and English an official language, or, if he is a citizen of Zimbabwe, in a
country in which the common law is English and English is an official language.54

(ii) Appointment
Judges of the Supreme Court and High Court are appointed by the President, after consultation
with the Judicial Service Commission. If the appointment is inconsistent with a recommendation
of the Commission, the House of Assembly must be informed.55 Judges may be appointed for a
fixed period but a judge so appointed may, after the expiry of his appointment, continue to sit as
a judge in order to complete proceedings commenced before him while he was a judge.

(iii) Acting judges

Acting judges may be appointed to the Supreme Court and the High Court, but only a judge of the
Supreme Court or the Judge-President of the High Court may act as Chief Justice.56 Acting judges
may be appointed if a judicial office is vacant or if the incumbent is acting in another judicial
capacity57 or otherwise unable to perform the functions of his office. Acting judges may also be
appointed if the services of an additional judge of the High Court are required for a limited
50 Although the Chief Justice is a member of the High Court, he seldom takes part in its proceedings. The last Chief
Justice to do so on a regular basis was Sir Hugh Beadle, who frequently sat in what was then the General Division of the
High Court.
51 Constitution of Zimbabwe 1980, s 81(2).
52 See Note 13, above.
53 The meaning of this term for these purposes is set out in s 82(2) of the Constitution.
54 Constitution s 82(1); and see Note 13 above.
55 Constitution s 84.
56 Constitution s 85
57 Thus, it frequently happens that, in the absence of the Chief Justice, a judge of the Supreme Court is appointed as
Acting Chief Justice. That judge’s position is filled by appointing a judge of the High Court as Acting Judge of Appeal;
and so on.
2—10 Criminal Procedure in Zimbabwe

period. A long-term requirement for an additional judge must be met by appointing a permanent
judge.

An acting judge may be appointed for a specific period or until his appointment is revoked. In
either case, he may, even after the expiry of his appointment, complete proceedings commenced
before him while he was an acting judge.58

(iv) Retirement
A judge (other than an acting judge or one appointed for a specific period) must retire at 65,
unless before reaching 65 he elects to retire at 70. His election is subject to a satisfactory medical
report as to his mental and physical fitness to continue in office.59 He may continue to sit after
retirement in order to complete proceedings commenced before him while he was a judge.

(v) Resignation
Judges may resign their office at any time. Such a resignation must be given by notice in writing
to the President,60 but the President’s acceptance of the resignation is not necesary in order to
make the resignation complete.61 A judge who resigns, unlike a judge who retires, does not have
the right to continue in office in order to complete matters commenced or heard by him before he
resigned.62 However, he may complete outstanding judgments.63

Comment

The judgment in Monderwa Farm does not say so explicitly, but it would seem to be implicit
from the judgment that a judge who resigns may complete an outstanding judgment only if
the hearing and argument have been completed before the date on which his resignation
takes effect.

(vi) Security of office and removal from office

Judges, unlike magistrates, enjoy security of tenure. A judge, acting or otherwise, may only be
removed from office for “inability to discharge the functions of his office” or for “misbehaviour”.64

The inability of a judge to discharge the functions can arise from infirmity of mind or body or
from any other cause.65 “Misbehaviour” means misbehaviour in matters concerning the office of
judge and would include a conviction for an offence of such a nature as to render the person unfit
to exercise the office of judge.66 Official misconduct and neglect of official duties would probably
constitute misbehaviour.67 Whether incompetence (in the sense of persistently reaching illogical
or perverse decisions) would constitute “misbehaviour” is less than clear, but it could arguably

58 Constitution s 85(3).
59 Constitution s 86(1).
60 Constitution s 86(2).
61 Monderwa Farm (Pvt) Ltd v B J B Kirstein (Pvt) Ltd 1993 (2) ZLR 82 (S).
62 Ex p Chief Immigration Officer 1993 (1) ZLR (S).
63 Monderwa Farm (Pvt) Ltd v B J B Kirstein (Pvt) Ltd supra.
64 Constitution s 87(1).
65 Constitution s 87(1).
66 See Halsbury’s Laws of England 3 ed Vol 7 p 341 and the cases therein cited.
67 O Hood Phillips Constitutional & Administrative Law 7 ed p 388
68 Though if collections of legal anecdotes are any authority, several judges in the past have been known among
practitioners as “Old Necessity”, because either (a) necessity knows no law or (b) necessity is the mother of invention. See
Structure of the courts 2—11

be regarded as “inability” to discharge the functions of the office. A poor legal knowledge may
also fall into this category.68

The procedure for the removal of a judge is initiated by the President in the case of the possible
removal of the Chief Justice, or by the Chief Justice in the case of any other judge. A tribunal
must be appointed by the President to inquire into any question of removal of a judge from office.
Once the matter is referred to the tribunal, the judge is suspended from office.

The tribunal consists of at least three members, selected by the President from the following:

(a) persons who are or have been judges of the Supreme Court or High Court of Zimbabwe
or who hold or have held corresponding office in a country in which the common law is
Roman-Dutch or English and in which English is an official language.69

(b) legal practitioners of at least seven years’ standing, from a panel of at least three such
practitioners nominated by the Law Society.70

The tribunal inquires into the matter and reports to the President, recommending to him whether
or not to refer the question of the judge’s removal to the Judicial Service Commission. The President
is bound to comply with whatever recommendation the tribunal makes. The Commission may
either recommend the revocation of the judge’s suspension or advise the President that the judge
should be removed from office. In either event, the President is bound by the Commission’s
recommendation.

(vii) Number of judges required

In criminal trials, the High Court is duly constituted if it consists of one judge and two assessors.71
In review matters, one or more judges are required. For appeals, at least two judges are required.72

(viii) Procedure where judges’ views are not unanimous

If more than two judges are sitting together, the decision of the majority of the judges is the
decision of the court. However, if there is an even number of judges and the opinions of the
judges are equally divided, the decision is suspended until the opinion of a further judge has been
obtained. If considered necessary by the presiding judge, witnesses may be recalled or further
argument be presented before the reconstituted court. Thereafter, the decision of the majority is
the decision of the court.73 It is unclear what would happen if the judge whose opinion was sought
because the court was divided could not agree with either of the other opinions. Normally there
would be no difficulty, because the possible verdicts would be limited to two, even if different
reasons were given, but it is conceivable, for instance in a case where contributory negligence
was involved, for any number of different verdicts to be reached.

If the hearing of an appeal or application is before three or more judges and one dies or retires or
Kahn Law,
Life and Laughter at pp 15 (referring to Buchanan J of the Cape), 23 (Carter J of Natal) and 105-6 (Jorissen J of the
Transvaal Republic). Such lack of legal knowledge does not seem to have resulted in these judges being removed from
office.
69 Constitution s 87(4)(a) and (b). See also comment in n 13, above.
70 Constitution s 87(4)(c) and (5).
71 See below, where the matter is dealt with in more detail.
72 HCA s 3.
73 HCA s 4.
2—12 Criminal Procedure in Zimbabwe

is otherwise unable to sit or is absent, the presiding judge may direct that the matter shall proceed
before the remaining judges or that a further judge be obtained.74

If a matter involves a difficult question of law or if such a question arises during a hearing before
one or more judges, the presiding judge may direct that the matter be continued before more than
two judges. The exact number of judges to sit in these circumstances is a matter for the Chief
Justice or Judge-President.75

(b) Juries

Trial by jury no longer exists in Zimbabwe or South Africa.

Juries were originally introduced into Southern Rhodesia (as the country was then called) in
1899.76 The jury generally consisted of nine European men, though the composition might differ
if the requisite number of qualified jurors could not be found. Majority verdicts were introduced
in 190877 following a series of scandalous verdicts, where white men were acquitted of crimes
against black men even in the clearest of cases, but even this reform proved unsatisfactory.

In 1912 the Administration introduced a bill proposing trial by judge and assessors for cases
where a European was charged with a crime of violence against a black or vice versa. After
debate and referral of the matter to a special committee, a system of “special juries” was established
to try such cases. The special juries consisted of five European men, chosen from a special list.78

The year 1927 saw the introduction of trial by judge and assessors, in cases where the accused
was a “native”, while other persons were given the option of choosing whether to be tried by jury
or by judge and assessors.79 The assessors, where the accused was a native, had to be native
commissioners or persons of similar qualifications, who had served for at least ten years in the
Native Department. This system remained in use for many years, with little change. Over the
years, though, jury trials became rarities; by the late 1960s most Europeans who were tried in the
High Court elected to be tried by judge and assessors. Jury trials were abolished in 1973.80

Trial by jury in South Africa had a similarly chequered history, with the number of cases being
tried by jury dwindling. This happened either because most accused persons elected to be tried
by a judge alone or because the number of offences which could be tried by jury was progressively
whittled down following perverse verdicts by juries. For example, it was almost impossible to
secure a conviction for illicit gold or diamond dealing, no matter how overwhelming the evidence
was.81 Juries were abolished in South Africa in 1969.

Comment

The retention of the jury system would have been hard to justify. To begin with, the system

74 HCA s 4(3).
75 HCA s 4(5)
76 Juries Ordinance 4 of 1899, s 2
77 Juries Amendment Ordinance 10 of 1908, s 3
78 Special Juries Ordinance 13 of 1912
79 Criminal Trial (High Court) Act 18 of 1927
80 CP&E Amendment Act 32 of 1973, s 2, which came into effect on 12 October 1973
Structure of the courts 2—13

was affected by considerations of race and sex, in that the jurors were white males and the
right of trial by jury was limited to persons other than black Africans. Secondly, it was
entirely foreign to the culture of the indigenous people of Zimbabwe. Thirdly, it was (and is)
arguably a completely unsatisfactory method of deciding factual issues. It was frequently
said in Rhodesia that if a jury disregarded the directions of the judge it was almost invariably
wrong; and if it followed his directions, it was superfluous. Fourthly, the argument that trial
by jury is trial by one’s peers, rather than trial by officials, is quite unsustainable in a country
where the people have backgrounds which differ widely in respect of education, culture,
and language.82 A jury which purported to reflect Zimbabwean society at large would be
almost impossible to find and would in any case be a most unsuitable vehicle for making
complex decisions. If jurors had to have certain qualifications, the element of élitism which
would inevitably occur would negate the concept that juries represented society as a whole.
Finally, many classes of people were exempt from jury duty, people who would otherwise
be eminently suitable.83

There may be merit in the view that it is desirable to have some public participation in the
administration of justice, rather than leaving such an important matter entirely to officials.
An expanded system of assessors, similar to the French system, might be one way of
diluting the official element.

Many of the rules of procedure and evidence owe their existence to the jury system. For
instance, it seems anomalous to retain the existing strict and complex rules regarding the
introduction of hearsay evidence or the rule prohibiting (save in limited circumstances)
any mention of an accused person’s previous convictions. South Africa has already gone
some way towards rationalising the law on hearsay evidence84 and it would be logical for
Zimbabwe to do the same.

(c) Assessors

(i) Requirement for and qualifications

Criminal trials before the High Court must be held before a judge and two assessors.85 The
qualifications of assessors in the High Court differ slightly from those in the magistrates court. A

81 See, for example, the anecdotes in Law, Life and Laughter by Ellison Kahn, at pp 125 and 340
82 See the remarks by Lord Denning in What Next in the Law (1982) 1 ed at pp 75-77, where he points out that the jury
system grew up in England at a time when the population was homogeneous and shared similar values. He questions the
value of a jury where that situation no longer applies.
“ Some of [the modern jurors] come from countries where bribery and graft are accepted ... and where stealing is a
virtue as long as you are not found out. They no longer share the same code of morals [or] religious belief [or]
respect for the law. The effect of these divergences is made all the greater when virtually every member of the
population is qualified to sit as a juror. No matter how illiterate or uneducated or unsuitable he may be. And where
the chances, by sheer weight of numbers, are loaded heavily against the jurors being the sensible and responsible
members of the community.”
Incidentally, the remarks Lord Denning made caused considerable controversy; he was accused of racism, the book
was withdrawn and the offending passages rewritten; and Lord Denning’s long and distinguished career on the Bench was
brought to an enforced and untimely end. Whatever may be the sensibilities of Lord Denning’s critics, there can be little
doubt about the underlying argument: that a jury composed of people of widely different backgrounds and beliefs and
moral standards is not a suitable method of reaching decisions on criminal matters.
It is interesting to note, though, that Lord Denning’s solution would be either to have qualifications for jurors or have
trial by judge and assessors.
83 See also the comments more eloquently made by Prof Ellison Kahn in “Restore the Jury? Or ‘Reform? Aren’t things
bad enough already?’” (1992) 109 SALJ 679 and (1993) 110 SALJ 333.
84 See the Law of Evidence Amendment Act 45 of 1988; Hoffmann and Zeffertt South African Law of Evidence 4 ed at
pp 126 ff.
2—14 Criminal Procedure in Zimbabwe

High Court assessor must have:

• experience in the administration of justice; or

• experience or skill in any matter which may have to be considered at the trial; or

• in the case of the trial of a juvenile, experience or skill in dealing with juveniles; or

• any other experience or qualification which, in the opinion of the Chief Justice and the
Judge-President, renders him suitable to act as an assessor in a criminal trial.86

A list of assessors is prepared by the Minister. The choice of assessors is made by the Registrar of
the High Court, subject to any directions given by the Chief Justice or the Judge-President.

(ii) Challenge to assessor

The Attorney-General or the accused each have the right to challenge not more than two persons
chosen to be assessors. No reason for the challenge need be assigned.87 In the event of a challenge,
the Registrar must choose another assessor or assessors. The section does not give the right of
challenge with cause, but it is submitted that an assessor could be asked to recuse himself on the
same grounds as could a judge or magistrate.88 It is also unclear whether, where there is more
than one person on trial, each accused has the right to challenge two assessors, but it is submitted
that logically this should be the case, as one accused’s reasons for challenging an assessor may be
quite different from his co-accused’s.

(iii) Oath
Before the commencement of a trial, the judge administers an oath to the assessors. The form of
the oath is that they will “give a true verdict according to the evidence upon the issues to be
tried”.89 Where several cases are to be tried by the same judge and assessors (eg at a circuit court
session) only one oath is normally taken.

(iv) Function of assessors

The assessors, together with the judge, decide questions of fact.90 On such questions, the decision
of the majority of the court prevails. It sometimes happens that the assessors form the majority,
while the judge is the minority. If any member of the court, whether judge or assessor, dissents
from the findings of fact reached by the other members, the judge must give the reasons for such
dissent.

Decisions on questions of law, as well as the decision as to whether a question is one of fact or of
law, and decisions on the admissibility of evidence are matters for the judge alone, who must
give reasons for his decision.91 It is not necessary for the assessors to withdraw from the court
during the hearing and determination of any of such questions, although the judge may sit alone
if he so chooses.92 The question of whether assessors should sit during a hearing on the admissibility
of an extra-curial statement made by the accused is dealt with in Chapter 20.
85 HCA s 3(b).
86 HCA s 6(1).
87 HCA s 6(4).
88 See Chapter 16 below; and R v Matsego & Ors 1956 (3) SA 411 (A); R v Putter & Anor 1962 R & N 73 (FS)
89 HCA s 7. 90 HCA s 10(2).
Structure of the courts 2—15

(v) Death or incapacity of assessor

If, during a trial, an assessor dies or becomes, in the opinion of the judge, incapable of continuing
to act as an assessor, the judge may direct that the trial be continued without that assessor. The
prosecutor and the accused must agree to this course.93

If the judge does direct that the trial continue without the assessor, any decisions of fact must be
unanimous.94 If the judge and remaining assessor are unable to reach a unanimous decision, the
accused may be tried again, but neither that judge nor that assessor may be members of the court
which subsequently re-tries the accused.95

If the judge does not give such a direction, the accused may be tried again.96

If the accused is to be re-tried for either of these reasons, he must, unless released on bail by a
judge, remain in custody.97

(vi) Remuneration of assessors

Assessors in any courts are entitled to remuneration for their services. The scale of remuneration
and allowances is fixed by the Minister.98

(vii) Assessors in appeal cases

The High Court has appellate jurisdiction in criminal matters originating from the magistrates
courts.99 If the court thinks it necessary or advisable in the interests of justice, it may, where it
appears to the court that such knowledge is required for the proper determination of a case, appoint
any person with special expert knowledge to act as an assessor during an appeal. Such an assessor
acts in an advisory capacity only (in contrast to the powers of an assessor during a trial).100

(2) JURISDICTION OF HIGH COURT

The High Court has full original jurisdiction over all persons and all criminal matters in
Zimbabwe.101 It may deal with any crime and impose any lawful punishment.

Within Zimbabwe, the court’s territorial jurisdiction is unlimited. It may try any person charged
with an offence, no matter where the court is actually sitting.102 In respect of certain statutory
offences, it has extraterritorial jurisdiction. For example, s 53 of the law and Order (Maintenance)
Act [Chapter 11:07] provides that certain provisions of the Act shall have extra- territorial
operation. Similarly, certain offences committed on aircraft may be tried within Zimbabwe, no
matter where in the world the offences were committed.103
91 HCA s 10(1) and (4). 92 HCA s 11.
93 HCA s 8.
94 HCA s 8(2); compare the position of a single assessor in the magistrates court.
95 HCA s 8(3)(b) and (4). 96 HCA s 8(3)(a).
97 HCA s 8(3). 98 HCA s 12; MCA s 73(4); SCA s 34(1)(l).
99 HCA Part VII. This will be dealt with fully below.
100 HCA s 41(f).
101 HCA s 23.
102 CP&EA s 138.
103 Section 3 of the Aircraft (Offences) Act [Chapter 9:01].
104 Gardiner & Lansdown SA Criminal Law & Procedure 6 ed vol 1 p 29.
2—16 Criminal Procedure in Zimbabwe

The court also has extra-territorial jurisdiction in respect of some common law offences. Piracy
jure gentium is probably one such offence.104 Treason is another.105 Where a substantial element
of the offence or the harmful effect thereof occurred within Zimbabwe, other offences may also
be tried here. Thus, in S v Mharapara 1985 (2) ZLR 211 (S), it was held that the courts of Zimbabwe
had jurisdiction to try a Zimbabwean diplomat who, while stationed abroad, stole money belonging
to the Zimbabwe Government.

The High Court has the power to review all proceedings and decisions of all inferior courts and
tribunals and administrative authorities in Zimbabwe.106 Review in criminal matters will be dealt
with in detail in Chapter 26.

(3) PRECEDENT

The High Court is bound by the decisions of the Supreme Court, unless they can be distinguished.107
The rules of precedent applicable to decisions of the High Court are set out in detail in Hahlo &
Kahn South African Legal System and its Background at pp 252 ff.

(4) SITTINGS OF THE HIGH COURT

The court sits at such places and times as directed by the Chief Justice.108 There are two permanent
seats of the court, at Bulawayo and Harare, while circuit sessions are held three times a year at
Gweru, Masvingo and Mutare.109

3. SUPREME COURT

The Supreme Court is the final court of appeal for Zimbabwe.110

(1) COMPOSITION

(a) Judges

The Supreme Court consists of:

• the Chief Justice of Zimbabwe;

• at least two other judges;111 and

• any acting judges of the Supreme Court.

105 Hunt SA Criminal Law & Procedure 2 ed vol 2 p 30.

106 HCA s 26.
107 But see S v Moyo 1992 (1) ZLR 158 (H), where Adam J appeared to decline to accept the Supreme Court’s approach
to sentences for rape and refused to certify a sentence passed by a magistrate (which fell within the guidelines pronounced
by the Supreme Court) as being in accordance with real and substantial justice.
108 HCA s 47.
109 See, for example, the Court Calendar published in GN 466/1991 (Government Gazette of 2 August 1991).
110 Constitution s 80(1).
111 Who are generally referred to as Judges of Appeal, although the term does not appear in the Constitution or the SCA.
Structure of the courts 2—17

At least one permanent judge of the court or the Chief Justice must sit for the court to be duly
constituted. The court would not be duly constituted if all the judges were acting judges of appeal.112

(i) Qualifications, appointment and removal

The qualifications of a judge of the Supreme Court and the methods of appointment and removal
of such a judge are the same as for judges of the High Court.113 There is no legal bar to a suitably
qualified person being appointed directly to the Supreme Court, but the long-standing practice in
Zimbabwe is that only High Court judges are so appointed.114

(ii) Acting judges of appeal

There are two ways in which acting judges of appeal may be appointed.

• If the services of an additional judge of appeal are required for a limited period, the
Chief Justice may appoint a judge of the High Court or a former judge of the Supreme
Court or a former judge of the High Court to act as a judge of appeal for a specified
period.115

• Acting appointments as judges of appeal of persons who are not already judges or former
judges must be made by the President, in consultation with the Judicial Service
Commission.116

(iii) Number of judges required

Where the appeal is from a decision of the High Court, at least three judges must sit, one of whom
must be the Chief Justice or a permanent judge of appeal.117 Where the appeal is from a decision
of any other tribunal, the Chief Justice may direct that the matter be heard by two judges, one of
whom must be the Chief Justice or a permanent judge of appeal.118 If an appeal involves difficult
or important matters or such matters arise during the hearing of an appeal, the presiding judge
may direct that the matter be continued before a greater number of judges, the number to be
determined by the Chief Justice.119

Constitutional cases must be heard by five judges, no more than two of whom may be acting
judges of appeal.120

112 SCA s 3.
113 See above.
114 In contrast to the practice that once prevailed in South Africa, where party politicians such as Tielman Roos and F W
Beyers were appointed as judges of appeal in the 1930s, without having had any previous judicial experience. Graham
Mackeurtan KC, the leader of the Natal Bar and author of the seminal work The Law of the Sale of Goods in South Africa,
was offered an appointment directly to the Appellate Division, but had to decline because of ill-health. He would no doubt
have been an outstanding addition to the Bench despite his lack of previous judicial experience. See Ellison Kahn Law,
Life and Laughter at pp 6 and 143-144.
115 Constitution s 80(3).
116 Constitution s 85(2).
117 SCA s 3.
118 SCA s 3 proviso (i). Appeals from decisions of magistrates courts used frequently to be heard by only two judges, but
this practice is less common now.
119 SCA s 3 proviso (ii)
120 SCA s 3 proviso (iii)
2—18 Criminal Procedure in Zimbabwe

(iv) Procedure where judges’ views are not unanimous

Where there is a difference of opinion between the judges deciding an appeal, the same rules
apply as in the High Court.121

(b) Assessors

Assessors may be appointed to assist the Supreme Court in an advisory capacity only.122

(2) JURISDICTION

The Supreme Court has the jurisdiction to hear and determine appeals in criminal cases from any
court or tribunal from which, in terms of any enactment, such an appeal lies to the Supreme
Court.123 The court has the same review powers as the High Court has.124

(3) PRECEDENT

The Supreme Court, while not bound by any of its own judgments, rulings or opinions, nor by
those of any of its predecessors, will normally treat such judgments as binding, although it will
depart from such judgments when it appears right to do so.125

4. OTHER COURTS EXERCISING CRIMINAL JURISDICTION

Although this book deals with the procedure to be followed in the magistrates court, the High
Court and the Supreme Court, there are other courts and tribunals in Zimbabwe which are
empowered to deal with criminal offences.

(1) JUVENILE COURTS

Juvenile courts are established in terms of s 3 of the Children’s Protection and Adoption Act
[Chapter 5:06]. Although they do not decide on the guilt of a juvenile charged with an offence,
they may decide the fate of a juvenile who has been convicted by another court. This will be dealt
with more fully in Chapter 13.

(2) COURTS MARTIAL

Courts martial are established in terms of s 45 of the Defence Act [Chapter 11:02] (DA). They
have jurisdiction to try members of the Defence Forces126 for any offence in terms of the Act.
They have no jurisdiction over civilians, except, in limited circumstances, in the case of persons
who were previously members of the Defence Forces. Thus, a court martial may, within three

121 SCA s 4
122 SCA s 17(f).
123 SCA s 9(1).
124 SCA s 17(l) and s 25; HCA s 29.
125 SCA s 26(2); Practice Direction No 2 of 1981 1981 ZLR 417.
126 That is, officers, non-commissioned officers or soldiers of the Defence Forces: Defence Act s 2(1).
127 DA s 45(1)(b).
128 DA s 45(1)(b)(ii). The offences are such serious crimes as aiding the enemy (para 2 of the First Schedule), disclosing
information to the enemy (para 3(1)), mutiny and failure to suppress mutiny (paras 8 and 9), desertion (para 15(1)) and
Structure of the courts 2—19

months of a person leaving the Forces, try any person who was a member of the Forces for any
offence under the Act committed while that person was a member.127 In respect of certain serious
offences, a court martial has jurisdiction to try any former member, no matter when he left the
Forces.128

Courts martial have jurisdiction to try offences in terms of the Act. These include offences peculiar
to a disciplined force, but also include civil offences other than treason, murder or rape.129 Civil
offences here means acts or omissions punishable under the law of Zimbabwe. Courts martial
also have jurisdiction to try foreign offences, which are treason or murder (when committed
outside Zimbabwe) and any offence under the law of the foreign country where it occurred which
would also constitute an offence if committed within Zimbabwe.130 In this respect courts martial
have a wider territorial jurisdiction than do the civilian courts of Zimbabwe, but this jurisdiction
is necessary on disciplinary grounds, given that members of the Defence Forces may be on duty
outside Zimbabwe.

The civil courts of Zimbabwe have concurrent and prevailing jurisdiction over members of the
Defence Forces. If a member of the Forces has been tried by a civil court or has had an offence
committed by him taken into account by a civil court for the purpose of sentence, he may not be
tried for that offence by a military court.131 On the other hand, even if a member has been tried
and sentenced by a court martial for an offence, it is still possible for him to be tried for that
offence by a civil court. The only restriction is that the civil court must, in assessing sentence,
take into account any sentence awarded by the military court.132 However, where a person has
been convicted by a court martial and his conviction has been quashed by the Court Martial
Appeal Court, he may not be retried for that offence by any court, whether civilian or military.133
The possibility of a person being tried by both a military court and a civil court for the same
offence does not contravene the “double jeopardy” protection given by s 18(6) of the
Constitution.134

The procedures to be followed by courts martial are set out in the Defence Forces (Courts Martial
Procedure) Regulations 1956.135 The procedure for the summary disposal of charges against
members by superior officers is dealt with in the Defence Forces (Discipline) Regulations 1978.136
The punishments imposable by courts martial are set out in Part VII of the Defence Act.

(3) POLICE BOARDS OF OFFICERS

Members of the Police Force who commit an offence under the Police Act [Chapter 11:10] (PA)
or an offence specified in the Schedule to the Act may be tried by the High Court, the magistrates
court or a board of officers. Unlike the case with members of the Defence Forces, members of the
Police Force can elect to be tried by a magistrates court instead of a board of officers.137

making false statements on attestation (para 30).

129 Para 39(2)(a) of the First Schedule.
130 DA First Schedule para 39. 131 DA s 56(2).
132 DA s 57(1). 133 DA s 87.
134 Constitution s 18(13)(d).
135 FGN 85/1956, as amended.
136 RGN 259/1978, as amended.
137 Police Act s 32.
138 Which deal with certain provisions relating to punishment, such as deposit fines and suspended sentences.
2—20 Criminal Procedure in Zimbabwe

The procedure to be followed at a trial by board of officers is that applicable in the civilian
courts, other than ss 356 to 359 of the CP&EA [Chapter 9:07].138

Former members of the Force may be tried under the PA for offences committed while they were
members.139

The punishments that may be imposed by a board of officers are set out in s 29(c) of the PA and
include imprisonment for up to six months.

(4) PRISON OFFENCES

Offences against discipline140 by an attested member of the Prison Service may be dealt with
internally. The Commissioner of Prisons may appoint a board to hear and determine any alleged
offence against discipline by a member. The board must consist of one, three or five members
who are either senior officers or officers-in charge of prisons. If the member being charged is
himself a senior officer, at least two of the officers should be of at least the same rank as the
member being charged.141 A charge sheet must be prepared and presented to the member before
his trial begins.142

The offender is entitled to be present, but may be removed if he so conducts himself as to make
the continuance of the proceedings impracticable.143 He may defend himself or be legally
represented.144 The procedure at a trial of a prison officer is similar to that at a trial in the magistrates
court, except that where the accused pleads guilty evidence must be led to show that the offence
was committed or to confirm the plea in a material respect.145 Evidence showing that the offence
was committed need not implicate the accused; it merely needs to show that the offence was
committed by someone. It is not proposed to deal in detail with what evidence is necessary to
confirm a plea. The requirement to lead evidence to confirm a plea has been done away with in
the magistrates courts and has never existed in the High Court. Broadly, though, it may be said
that all that is required is evidence outside the accused’s plea of guilty which corroborates that
plea in a material respect and shows that there is a likelihood that the offence was committed.146
Statements or admissions made by the accused are not enough to confirm a plea.147

If the accused is found guilty, the board may impose punishments ranging from an admonition to
dismissal from the service, or combinations of such punishments. Imprisonment is not included
as an option.148

139 PA s 40.
140 Which are set out in the First Schedule to the Prisons (Staff) (Discipline) Regulations 1984 (SI 289/1984).
141 Section 8.
142 Section 9.
143 Section 10.
144 Section 11.
145 Section 14.
146 R v Mulutanye 1965 RLR 31.
147 R v Jeffries 1971 (2) RLR 147 (G); 1971 (2) SA 78 (R).
148 Section 21.
149 Section 22.
Structure of the courts 2—21

Any punishment awarded is subject to confirmation by the Commissioner.149 An appeal lies to

the Prison Service Commission.

Where a member has been found guilty of an offence by a criminal court and sentenced to a fine
or term of imprisonment, the Commissioner may dismiss the member from the Service. Such
dismissal is subject to confirmation by the Prison Service Commission.150

Charges against prisoners for prison offences151 may be dealt with by a visiting justice,152 by a
magistrates court or by the Commissioner or his delegate.153 The Commissioner or his delegate
may only deal with the relatively minor disciplinary offences set out in Part II to the Schedule
and may not impose sentences of imprisonment.154

The procedure at trials by visiting justices is, as far as possible in the circumstances, the same as
in a trial before the magistrates court,155 while that at hearing by the Commissioner or his delegate
is set out in the Prison Regulations.156 1
MCA s 3.
2 To whom the administration of the MCA is assigned by SI 24/1984.
3 MCA s 4.
4 Magistrates Court (Regional Divisions and Courts) Notice RGN 293 of 1965.
5 Chitungwisa and Hwange were added by, respectively, the Magistrates Court (Regional Court) (Chitungwiza) Notice
SI 208/1993 and the Magistrates Court (Regional Court) (Hwange) Notice SI 288/1992.
6 Magistrates Court (Provinces) Notice SI 183/1990.
7 A periodical court is a magistrates court which sits at some place other than the ordinary stated place of holding of
such court: MCA s 2.
8 MCA s 6.
9 MCA s 7(1), as read with s 75(4) of the Constitution of Zimbabwe 1980. The composition and functions of the
Commission are set out in s 90 and 91 of the Constitution.
10 MCA s 7(2)(a).
11 MCA s 7(2)(b)(i).
12 MCA s 7(2)(b)(ii).
13 MCA s 7(2)(c). The countries are, effectively, South Africa and Sri Lanka (being countries in which the common-law
is Roman-Dutch and English is an official language) or, if the person is a citizen of Zimbabwe, any country in which the
common law is English and English is an official language — which means most countries in the Commonwealth, as well
as most of the States of the United States. The relevance of qualification in an English-law jurisdiction to judicial office in
Zimbabwe is unclear. It is odd that Scotland is excluded, in view of the similarities between Scottish and Roman-Dutch law.
14 MCA s 7(3).
15 He may, of course, make an affirmation instead: s 41 of the Interpretation Act [Chapter 1:01].

16 MCA s 52(1)(a).
17 The qualifications will be dealt with below.
18 MCA s 52 (1)(b). 19 MCA s 52(2).
20 MCA s 52(3). 21 MCA s 52(3) and (4).
22 MCA s 53.

23 MCA s 56(6).
24 CP&EA s 95(9).
25 MCA s 56(1).
26 MCA s 56(2)(a) and (b); cf R v van Rensburg 1921 SR 1.
27 MCA s 56(3).
28 MCA s 56(4). This extends the jurisdiction which the courts have long assumed, derived from the common law
principle that, as theft is a continuing offence, the courts have jurisdiction if the stolen property is imported into their
territorial jurisdiction: R v van Rensburg supra at 2-3; S v A 1979 RLR 69 (GD) at 74; 1979 (4) SA 51 (R) at 52-3.
29 MCA s 56(5).
30 MCA s 56(8).
31 MCA s 56(9).

32 MCA s 61(10), as read with CP&EA s 95(6), (7) and (8)

33 See CP&EA ss 94 and 95
2—22 Criminal Procedure in Zimbabwe

34 CP&EA s 95(5)
35 MCA s 49(1)
36 MCA s 49(2)
37 MCA s 50(1)
38 MCA s 50(2)

39 MCA s 50(3).
40 MCA s 50(4).
41 MCA s 50(6).
42 MCA s 50(8).
43 MCA s 51(1).
44 Under MCA s 51(3), a regional magistrate must find aggravating circumstances to exist in relation to robbery or
armed robbery if it is proved that the offender or an accomplice (it does not matter which):
(a) possessed a firearm or dangerous weapon; or
(b) inflicted or threatened to inflict grievous bodily harm; or
(c) unlawfully killed a person;
on the occasion that the offence was committed, whether before, during or after the commission of the offence.
45 MCA s 51(2)

46 Inquests Act s 2.
47 Lansdown & Campbell SA Criminal Law & Procedure Vol V (Criminal Procedure and Evidence) p 78.
48 As to the weight to be given to conflicting decisions of the superior courts and the rules of precedent to follow, see
Hahlo & Kahn The South African Legal System and its Background pp 252 and ff.
49 Hahlo & Kahn op cit pp 256-7; Mervyn Dendy “Stare decisis and magistrates’ lib: a reply to Professor Kerr” (1993)
110 SALJ 340 at 354; S v Guild Painters & Decorators (Pty) Ltd 1990 (1) SA 760 (C) at 767.
50 Although the Chief Justice is a member of the High Court, he seldom takes part in its proceedings. The last Chief
Justice to do so on a regular basis was Sir Hugh Beadle, who frequently sat in what was then the General Division of the
High Court.
51 Constitution of Zimbabwe 1980, s 81(2).
52 See Note 13, above.
53 The meaning of this term for these purposes is set out in s 82(2) of the Constitution.
54 Constitution s 82(1); and see Note 13 above.
55 Constitution s 84.
56 Constitution s 85
57 Thus, it frequently happens that, in the absence of the Chief Justice, a judge of the Supreme Court is appointed as
Acting Chief Justice. That judge’s position is filled by appointing a judge of the High Court as Acting Judge of Appeal;
and so on.
58 Constitution s 85(3).
59 Constitution s 86(1).
60 Constitution s 86(2).
61 Monderwa Farm (Pvt) Ltd v B J B Kirstein (Pvt) Ltd 1993 (2) ZLR 82 (S).
62 Ex p Chief Immigration Officer 1993 (1) ZLR (S).
63 Monderwa Farm (Pvt) Ltd v B J B Kirstein (Pvt) Ltd supra.
64 Constitution s 87(1).
65 Constitution s 87(1).
66 See Halsbury’s Laws of England 3 ed Vol 7 p 341 and the cases therein cited.
67 O Hood Phillips Constitutional & Administrative Law 7 ed p 388
68 Though if collections of legal anecdotes are any authority, several judges in the past have been known among
practitioners as “Old Necessity”, because either (a) necessity knows no law or (b) necessity is the mother of invention. See
Kahn Law,
Life and Laughter at pp 15 (referring to Buchanan J of the Cape), 23 (Carter J of Natal) and 105-6 (Jorissen J of the
Transvaal Republic). Such lack of legal knowledge does not seem to have resulted in these judges being removed from
office.
69 Constitution s 87(4)(a) and (b). See also comment in n 13, above.
70 Constitution s 87(4)(c) and (5).
71 See below, where the matter is dealt with in more detail.
72 HCA s 3.
73 HCA s 4.
Structure of the courts 2—23

74 HCA s 4(3).
75 HCA s 4(5)
76 Juries Ordinance 4 of 1899, s 2
77 Juries Amendment Ordinance 10 of 1908, s 3
78 Special Juries Ordinance 13 of 1912
79 Criminal Trial (High Court) Act 18 of 1927
80 CP&E Amendment Act 32 of 1973, s 2, which came into effect on 12 October 1973
81 See, for example, the anecdotes in Law, Life and Laughter by Ellison Kahn, at pp 125 and 340
82 See the remarks by Lord Denning in What Next in the Law (1982) 1 ed at pp 75-77, where he points out that the jury
system grew up in England at a time when the population was homogeneous and shared similar values. He questions the
value of a jury where that situation no longer applies.
“ Some of [the modern jurors] come from countries where bribery and graft are accepted ... and where stealing is a
virtue as long as you are not found out. They no longer share the same code of morals [or] religious belief [or]
respect for the law. The effect of these divergences is made all the greater when virtually every member of the
population is qualified to sit as a juror. No matter how illiterate or uneducated or unsuitable he may be. And where
the chances, by sheer weight of numbers, are loaded heavily against the jurors being the sensible and responsible
members of the community.”
Incidentally, the remarks Lord Denning made caused considerable controversy; he was accused of racism, the book
was withdrawn and the offending passages rewritten; and Lord Denning’s long and distinguished career on the Bench was
brought to an enforced and untimely end. Whatever may be the sensibilities of Lord Denning’s critics, there can be little
doubt about the underlying argument: that a jury composed of people of widely different backgrounds and beliefs and
moral standards is not a suitable method of reaching decisions on criminal matters.
It is interesting to note, though, that Lord Denning’s solution would be either to have qualifications for jurors or have
trial by judge and assessors.
83 See also the comments more eloquently made by Prof Ellison Kahn in “Restore the Jury? Or ‘Reform? Aren’t things
bad enough already?’” (1992) 109 SALJ 679 and (1993) 110 SALJ 333.
84 See the Law of Evidence Amendment Act 45 of 1988; Hoffmann and Zeffertt South African Law of Evidence 4 ed at
pp 126 ff.
85 HCA s 3(b).

86 HCA s 6(1).
87 HCA s 6(4).
88 See Chapter 16 below; and R v Matsego & Ors 1956 (3) SA 411 (A); R v Putter & Anor 1962 R & N 73 (FS)
89 HCA s 7. 90 HCA s 10(2).
91 HCA s 10(1) and (4). 92 HCA s 11.

93 HCA s 8.
94 HCA s 8(2); compare the position of a single assessor in the magistrates court.
95 HCA s 8(3)(b) and (4). 96 HCA s 8(3)(a).
97 HCA s 8(3). 98 HCA s 12; MCA s 73(4); SCA s 34(1)(l).
99 HCA Part VII. This will be dealt with fully below.
100 HCA s 41(f).
101 HCA s 23.
102 CP&EA s 138.
103 Section 3 of the Aircraft (Offences) Act [Chapter 9:01].
104 Gardiner & Lansdown SA Criminal Law & Procedure 6 ed vol 1 p 29.
105 Hunt SA Criminal Law & Procedure 2 ed vol 2 p 30.
106 HCA s 26.
107 But see S v Moyo 1992 (1) ZLR 158 (H), where Adam J appeared to decline to accept the Supreme Court’s approach
to sentences for rape and refused to certify a sentence passed by a magistrate (which fell within the guidelines pronounced
by the Supreme Court) as being in accordance with real and substantial justice.
108 HCA s 47.
109 See, for example, the Court Calendar published in GN 466/1991 (Government Gazette of 2 August 1991).
110 Constitution s 80(1).
111 Who are generally referred to as Judges of Appeal, although the term does not appear in the Constitution or the SCA.
112 SCA s 3.

113 See above.

2—24 Criminal Procedure in Zimbabwe

114 In contrast to the practice that once prevailed in South Africa, where party politicians such as Tielman Roos and F W
Beyers were appointed as judges of appeal in the 1930s, without having had any previous judicial experience. Graham
Mackeurtan KC, the leader of the Natal Bar and author of the seminal work The Law of the Sale of Goods in South Africa,
was offered an appointment directly to the Appellate Division, but had to decline because of ill-health. He would no doubt
have been an outstanding addition to the Bench despite his lack of previous judicial experience. See Ellison Kahn Law,
Life and Laughter at pp 6 and 143-144.
115 Constitution s 80(3).
116 Constitution s 85(2).
117 SCA s 3.
118 SCA s 3 proviso (i). Appeals from decisions of magistrates courts used frequently to be heard by only two judges, but
this practice is less common now.
119 SCA s 3 proviso (ii)
120 SCA s 3 proviso (iii)
121 SCA s 4

122 SCA s 17(f).

123 SCA s 9(1).
124 SCA s 17(l) and s 25; HCA s 29.
125 SCA s 26(2); Practice Direction No 2 of 1981 1981 ZLR 417.
126 That is, officers, non-commissioned officers or soldiers of the Defence Forces: Defence Act s 2(1).
127 DA s 45(1)(b).
128 DA s 45(1)(b)(ii). The offences are such serious crimes as aiding the enemy (para 2 of the First Schedule), disclosing
information to the enemy (para 3(1)), mutiny and failure to suppress mutiny (paras 8 and 9), desertion (para 15(1)) and
making false statements on attestation (para 30).
129 Para 39(2)(a) of the First Schedule.
130 DA First Schedule para 39. 131 DA s 56(2).
132 DA s 57(1). 133 DA s 87.
134 Constitution s 18(13)(d).
135 FGN 85/1956, as amended.
136 RGN 259/1978, as amended.
137 Police Act s 32.
138 Which deal with certain provisions relating to punishment, such as deposit fines and suspended sentences.
139 PA s 40.
140 Which are set out in the First Schedule to the Prisons (Staff) (Discipline) Regulations 1984 (SI 289/1984).
141 Section 8.
142 Section 9.
143 Section 10.
144 Section 11.
145 Section 14.
146 R v Mulutanye 1965 RLR 31.
147 R v Jeffries 1971 (2) RLR 147 (G); 1971 (2) SA 78 (R).
148 Section 21.
149 Section 22.
150 Section 23.
151 As set out in the Schedule to the Prisons Act [Chapter 7:11].
152 That is, a magistrate exercising jurisdiction in the area in which the prison is situated: s 35.
153 Sections 90 and 91.
154 Section 92(2).
155 Section 96(b).
156 SI 1/1996.
Structure of the courts 2—25