8. PROSECUTORS

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Public prosecutions (“prosecutions at the public instance”)

Almost all prosecutions in Zimbabwe are conducted by officers of the National Prosecuting Authority on behalf of State (i.e. the Government).  Such prosecutions are sometimes called “prosecutions at the public instance”.  Section 263 envisages an Act of Parliament conferring prosecuting powers on other bodies, but to date no such Act has done so (apart from private prosecutions, which will be dealt with later).

All public prosecutions are instituted in the name of the State

The National Prosecuting Authority and the Prosecutor-General

In terms of section 258 of the Constitution, the National Prosecuting Authority, headed by the Prosecutor-General, is responsible for instituting and undertaking criminal prosecutions on behalf of the State.  Prosecutors who make up the staff of the Authority are to be appointed by a board established under the National Prosecuting Authority Act [Chapter 7:20].  Professional members of the NPA must be qualified to practise law in Zimbabwe, i.e. they must be registered legal practitioners.  The Prosecutor-General is declared by section 260 of the Constitution to be independent and impartial, and his staff must exercise their functions in a non-partisan manner.

The Criminal Procedure and Evidence Act elaborates on the functions of prosecutors.  Under the Act, the Prosecutor-General may:

  • delegate his functions to any public prosecutor orlegal practitioner;
  • stop prosecutions (but probably not private prosecutions), in which event the accused person is entitled to an acquittal if he has already pleaded, but not if he has not pleaded;
  • take over the prosecution of cases which have been instituted by a private prosecutor;
  • issue a warrant ordering the liberation from custody of a person whom he has decided not to prosecute.

The Prosecutor-General has power to direct the Commissioner-General of Police to investigate crimes, but neither he nor his staff plays any direct part in such investigations.

The Prosecutor-General is appointed by the President on  the advice of the Judicial Service Commission, following the procedure for the appointment of a judge (i.e. public interviews to select suitable candidates).  His security of tenure is the same as that of a judge — i.e. he cannot be removed from office except for misconduct and after a tribunal has recommended his removal.

In the exercise of his prosecutorial functions, he is not subject to the direction or control of anyone.  Hence a court will not normally comment on the exercise of the Prosecutor-General’s discretion to prosecute a case, and has no power to interdict (i.e. prevent) the Prosecutor-General from doing so or, by order, compel him to do so.  On the other hand, there is South African authority to the effect that a court can intervene when the Prosecutor-General’s discretion is improperly exercised, and the same would probably apply in Zimbabwe.

Other law officers

The National Prosecuting Authority Act [Chapter 7:20] provides for the appointment of a National Director of Public Prosecutions and other professional staff of the National Prosecuting Authority, who must possess legal qualifications entitling them to practise in all courts in Zimbabwe.  The Prosecutor-General can delegate his or her functions to the National Director of Public Prosecutions and other professional staff members of the Authority.

In magistrates courts, prosecutions are conducted by public prosecutors as representatives of the Prosecutor-General.  They are appointed by the Prosecutor-General in writing, and this letter of appointment gives them their authority to prosecute, usually within a particular magisterial province or regional division.  Police officers have been appointed to conduct prosecutions, particularly in smaller centres.  This practice is unconstitutional.

Independence of prosecutors

According to sections 260 and 261 of the Constitution, the Prosecutor-General is independent and he and all the other officers of the National Prosecuting Authority must exercise their functions impartially and without political bias.

Is this a good idea?  In some countries such as Italy and Ireland, prosecutors are completely independent.  In Zimbabwe, before the new constitution came into operation, the Attorney-General (who was responsible for prosecutions) was not insulated from political pressure since he was a member of Cabinet and Parliament.

To some extent this was justifiable, since a prosecutor occasionally has to take the public interest into account in deciding whether or not to prosecute a case, but there is a growing international consensus that in a democracy the decision whether or not to prosecute should not be influenced by partisan political considerations or even suspected of being so influenced.  This is because instituting a prosecution adversely affects the accused person’s dignity, status and reputation, and if the decision to prosecute is influenced by the dominant political party prosecutions may be used to discredit political opponents.  Even the perception that the decision to prosecute may be influenced by political considerations is enough to discredit the prosecution process and hence to undermine public confidence in the law.

In some cases, for example where public security is involved or where public policy must be taken into account, the decision to prosecute may legitimately be influenced by political considerations, but if the rule of law is to be observed these considerations should be set out in written guidelines for prosecutors and the final decision whether or not to prosecute must be left to the independent judgement of the prosecutor.

Hence, in terms of section 260(2) of the Constitution and section 11A of the Criminal Procedure and Evidence Act [Chapter 9:07], the Prosecutor-General must formulate and publish the general principles by which he decides whether and how to institute and conduct criminal proceedings.  The Prosecutor-General has published these principles, and we shall consider them shortly when we deal with the decision to prosecute.

Duties of prosecutors

All prosecutors, whether legal practitioners or not, must dedicate themselves to the achievement of justice, and must pursue that aim impartially.  They must conduct the case against the accused person with candour and absolute fairness.  They have a special duty to ensure that the truth emerges in the court, and must produce all relevant evidence and ensure, as best they can, the truth of that evidence.  If they know of a point in favour of the accused person, they must bring it out, and if they know of a credible witness who can speak of facts which go to show the innocence of the accused, they must themselves call that witness if the accused is unrepresented, and if the accused is represented, they must tender the witness to the defence.  If a State witness departs from his statement, the prosecutor must draw the court’s attention to the discrepancy or reveal the contradiction to the defending practitioner.

Disclosure of discrepancies in witnesses’ testimony

A prosecutor has a duty to disclose material inconsistencies between what a State witness has said in court and what he told the police in his statement.  If the accused is legally represented, the disclosure should be made to the defence counsel by making the statement available to him;  if not, the court should be informed about the discrepancy.  Minor discrepancies need not be disclosed, however, but if in doubt as to whether a discrepancy is material or minor the prosecutor should disclose it.

Another way to deal with discrepancies is by impeaching the witness’s credibility.  This involves confronting the witness with his previous statement.  The procedure for doing this will be set out later in these notes.

The decision to prosecute

The Prosecutor-General has a discretion whether or not to prosecute and, as already mentioned, in the exercise of that discretion he is not subject to interference from any other person or authority though he is obliged to publish the principles on which he bases that discretion.  But if he exercises his discretion mala fide or for an ulterior or improper motive, or if he has not applied his mind to the matter or has disregarded the provisions of a statute, in such a case his decision may be subject to review.

In most cases, the decision whether or not to prosecute is taken by a public prosecutor on behalf of the Prosecutor-General;  and many cases are simply dropped by the police before the accused is brought to court.  But sensitive cases should be referred to the Prosecutor-General for his decision.

In deciding whether or not to prosecute a particular case, the Prosecutor-General (or, where the decision is taken by a public prosecutor, the public prosecutor) should take the following considerations into account:

  • Prosecution is a way of enforcing the law, and if the law is not enforced it will fall into disrepute.So generally speaking, if someone commits a crime he should be prosecuted for it.This is a requirement of the rule of law, one of whose basic tenets is that in a democratic State laws should be enforced and make no distinction between classes and rank.Those who break the law should not be allowed to do so with impunity.
  • Sufficiency of evidence:at the very least, a prima facie case (i.e. one in which, according to the available evidence, the accused is apparently guilty of the crime charged) should exist before it would be justifiable to prosecute the accused.The prosecutor should ask if there is reasonable and probable cause for prosecution.The meaning of “reasonable and probable cause” has been explained as follows:

“… an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.”

  • Whether the accused is able to rely on a special defence, for example a pardon, or diplomatic immunity, or parliamentary immunity, or prescription of the crime (for all crimes except murder the right to prosecute lapses after 20 years).Accomplices who have given satisfactory evidence for the State are not liable to be prosecuted for the crime about which they have given evidence.
  • The triviality of the crime.Even where the maxim de minimis non curat lex does not apply, the triviality of the crime may make a prosecution pointless.And where the consequences of a prosecution to the accused would be out of all proportion to the gravity of the crime, it is proper to decline to prosecute.
  • The age of the accused person.If he is very old and infirm, little may be achieved by prosecuting him;if, on the other hand, he is a juvenile it may be better to deal with him in other ways.
  • Mental illness or stress.If there is medical evidence that the accused is suffering from a mental condition that would be seriously worsened by the strain of prosecution, it may be a reason for declining to prosecute.
  • The attitude of the complainant.This is important, though not decisive, since the decision to proceed with a criminal case vests in the police and the Prosecutor-General, not the complainant.If the complainant does not wish to proceed with the case, the Prosecutor-General should pay due regard to his or her views, since the relationship between the complainant and the accused may be such that prosecution would do more harm than good.
  • The fact that the accused has already been sufficiently punished.For example, it would offend many people’s sensibilities if a person who had been badly injured in a traffic accident caused by his negligence were to be prosecuted, where no one else was injured.
  • The need to use the accused as a witness against someone else.
  • Whether any useful purpose will be served by prosecuting the accused.If prosecution will serve no useful purpose then the Prosecutor-General should decline.
  • Finally, the public interest should be considered in appropriate cases.

In deciding whether or not to prosecute, the police and prosecuting authorities should not knowingly allow a pattern of contravention of a particular statute to develop and then, unexpectedly, arrest and prosecute.  This offends the principle of legality and is unfair.  Secondly, they should not adopt a discriminatory approach and prosecute selectively, distinguishing unjustifiably between persons in similar circumstances.

If a prosecutor doubts the strength of the State case, he should not invite the accused to pay a deposit fine in the hope that the accused may pay the fine and relieve the State of the burden of proving its case.

If a decision is made not to prosecute a case, the charge should be withdrawn against the accused as soon as possible, and if the accused is in custody he must be released “forthwith”.  If the charge is withdrawn before the accused has pleaded, it is possible to bring it again;  that is to say, the accused can be charged again with the same crime arising from the same facts.

Private prosecutions

Almost all prosecutions in Zimbabwe are brought by the State, but private persons are allowed to prosecute crimes in limited circumstances.  This provides a “safety valve” in the machinery of the law, and is an indirect method of controlling corruption or incompetence in the State’s prosecution services.  Can companies and other corporate bodies bring private prosecutions?  The Supreme Court has held that a company can do so, but section 16(2)(a)(iii) of the Criminal Procedure and Evidence Act, as amended in 2016, suggests that only individuals, i.e. human beings, can do so.

Who may prosecute

In order to bring a prosecution, a private person must show:

  • some substantial and peculiar interest (i.e. an interest greater than that of any other member of the public)
  • in the issue of the trial (i.e. in the conviction or acquittal of the alleged offender)
  • arising out of some injury (which must be an actual, not an anticipated, injury but need not be of a patrimonial nature.It must be an injury that would be civilly actionable.)
  • which he or she individually has suffered.
  • in consequence of the commission of the crime.(there must be a causal connection between the injury suffered and the commission of the crime).

The onus is on the private prosecutor to show compliance with these requirements.

Other persons may also bring private prosecutions:

  • husbands and wives may bring prosecutions for crimes committed against their spouses;
  • guardians or curators of minors or mentally disordered or defective persons may bring prosecutions for crimes against their wards;
  • the surviving spouse or child or, failing them, the next of kin, of a deceased person may bring a prosecution for a crime by which the person’s death was caused.

Procedure for instituting private prosecution

Before instituting a private prosecution, the prosecutor must obtain a certificate from the Prosecutor-General stating that he declines to prosecute at the public instance.  This certificate is called a nolle prosequi (“to decline to prosecute”).  If the Prosecutor-General declines to prosecute a case, he must issue a certificate to a person who wishes to institute a private prosecution if the person produces a sworn statement from which it appears to the Prosecutor-General that:

  • the person is the victim of the alleged crime, or otherwise has personally suffered, as a direct consequence of the crime, an invasion of a legal right beyond that suffered by the public generally [this is essentially the same as saying the person must have “a substantial and peculiar interest” in the outcome of the case], and
  • the person has the means to conduct the private prosecution promptly and timeously, and
  • the person will conduct it as an individual or as representative of a class in terms of the Class Actions Act [Chapter 8:17].What this seems to mean is that bodies corporate cannot be granted a certificate nolle prosequi.

The Prosecutor-General can refuse to grant a certificate on the following grounds:

  • that the conduct complained of does not constitute a crime, or
  • that there is no possibility, or only a remote one, of proving the charge against the accused, or
  • whether the accused has adequate means to conduct a defence to the charge, where the person would have qualified for legal aid if he had been prosecuted by the State, or
  • that it is not in the interests of national security or the public interest to grant the certificate.

These appear to be the only grounds on which the Prosecutor-General can refuse to issue a certificate of nolle prosequi.  The last ground – national security and public interest – is excessively wide.

If the accused person is already in prison or on bail, and a warrant for his liberation has been issued by the Prosecutor-General under section 10 of the Criminal Procedure and Evidence Act, the private prosecutor can apply to the High Court or a judge for a warrant for the accused’s further detention.  In such an event, a nolle prosequi is not required, because the Prosecutor-General has already signified his intention not to proceed with the prosecution.

Normally, however, the accused would be brought to court by the issue of a summons, and before a summons can be issued the private prosecutor must produce a nolle prosequi.

A court may order a private prosecutor to give security for the accused person’s costs in the event of an acquittal, and in that event no further steps can be taken in the prosecution until the security has been given.

If the private prosecutor does not appear on the day set down for the accused’s trial, the court will dismiss the charge against the accused and proceedings may not be re-instituted by any private party.  But if the court has reason to believe that the private prosecutor’s absence was due to circumstances beyond his control, it may adjourn the case.

The Prosecutor-General or a public prosecutor may intervene in a private prosecution by taking over the case at any stage of the proceedings.  This is done by applying to the court for an order to stop all further proceedings in the private prosecution;  the court must grant such an order.

The procedure at the trial of a private prosecution is the same as in a criminal trial at the public instance, except that the indictment is in the name of the private prosecutor.

If the accused person is acquitted, the court may order the private prosecutor to pay the whole or part of his expenses, and may award costs against the private prosecutor if it considers the charge or complaint to have been unfounded and vexatious.  On the other hand, if the accused is convicted, the court may order him or the State to pay the prosecutor’s costs and expenses.

 

Section 5 of the Criminal Procedure and Evidence Act.

Section 9 of the National Prosecuting Authority Act.

Section 261 of the Constitution.

Section 5 of the Criminal Procedure and Evidence Act.

Section 8 of the Criminal Procedure and Evidence Act.

Section 20 of the Criminal Procedure and Evidence Act.

Section 10 of the Criminal Procedure and Evidence Act.

Section 259(11) of the Constitution.

Section 259(3) of the Constitution.

Section 259(7) of the Constitution.

Section 260(1) of the Constitution.

Allen v Attorney-General 1936 CPD 302 and Gillingham v Attorney-General 1909 TS 572, cited in Geldenhuys & Joubert Criminal Procedure Handbook 10th ed p. 62.

Highstead Entertainments (Pty) Ltd v Minister of Law and Order & Ors 1994 (1) SA 387 (C) and Ncube & Ors v Attorney-General 2002 (2) ZLR 130 (H).  Note, however, that the South African constitution does not have a provision directly equivalent to section 260(1) of our Constitution.

Sections 8 and 9 of the Act.

Section 12 of the National Prosecuting Authority Act [Chapter 7:20] and section 5 of the Criminal Procedure and Evidence Act.

Section 11 of the Criminal Procedure and Evidence Act.

Zimbabwe Law Officers Association & Anor v National Prosecuting Authority & Ors CCZ 1-2019.  The Court gave the NPA two years in which to “disengage” all police officers currently serving as prosecutors.

They are published in General Notice 247 of 2015.

S v Van Rensburg 1963 (2) SA 343 (N).

This paragraph is a summary of a passage from Smyth v Ushewokunze & Anor 1997 (2) ZLR 544 (S) at 549C-G.  See also Jesse v Pratt & Anor 2001 (1) ZLR 48 (H) for an illustration of how a prosecutor should not conduct himself.

S v Mutsinziri 1997 (1) ZLR 6 (H) and the cases there cited.

S v Mutsinziri supra

Section 260(1) & (2) of the Constitution.  These principles have now been published in General Notice 247 of 2015.

Highstead Entertainment (Pty) Ltd v Minister of Law & Order 1994 (1) SA 387 (C) and Ncube & Ors v Attorney-General 2002 (2) ZLR 130 (H);  contra, see Central African Examiner (Pvt) Ltd v Howman & Ors NNO 1966 RLR 75 (G) at 81-2 and S v Hamadziripi 1989 (2) ZLR 38 (H).

These considerations are a summary of those listed by Reid Rowland Criminal Procedure in Zimbabwe pp. 3-11-12.

In Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A), it was held that a prosecutor would have no reasonable cause for prosecuting (and so would be liable to an action for malicious prosecution) if he did not have such information as would lead a reasonable person to conclude that the accused had probably been guilty of the crime charged.

Hicks v Faulkner (1878) 8 QBD 167 at 171, cited in Bande v Muchinguri 1999 (1) ZLR 476 (H) at 485C.

Section 267 of the Criminal Procedure and Evidence Act.  The section is dealt with in more detail later under Pleas.

S v Hamadziripi 1989 (2) ZLR 38 (H).

See the address given by Prof Jeffrey Jowell Q.C. to students at the University of Cape Town, 2010.

Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 54.  See also S v Humbarume & Anor 2001 (2) ZLR 234 (H) at 238C.

S v Eusuf 1949 (1) SA 656 (N).

Section 321 of the Criminal Procedure and Evidence Act.

Section 320(3) of the Criminal Procedure and Evidence Act.

Geldenhuys & Joubert Criminal Procedure Handbook 2nd ed p. 57.  For an outline of the history and purpose of private prosecutions, see Black v Barclays Zimbabwe Nominees(Pvt) Ltd 1990 (1) SACR 433 (W).

Telecel (Zimbabwe) (Pvt) Ltd v Attorney-General S-1-2014, disapproving the South African case of Barclays Zimbabwe Nominees (Pvt) Ltd v Black 1990 (4) SA 720 (A).

The provision is mentioned below;  it states that the Prosecutor-General may issue a certificate of nolle prosequi only if he is satisfied that the party who intends to institute a private prosecution “will conduct the private prosecution as an individual (whether personally or through his or her legal practitioner) …”

Section 13 of the Criminal Procedure and Evidence Act.

Attorney-General v Van der Merwe & Bornman 1946 OPD 197.

See Lansdown & Campbell S.A. Criminal Law & Procedure vol 5 p. 122;  Ellis v Visser 1954 (2) SA 431 (T) and Levy v Benatar 1987 (1) ZLR 120 (S).  For a contrary view, see Phillips v Botha 1995 (3) SA 948 (W), where the court held that fraudulently stopping cheques given in payment of a gambling debt (which was not civilly enforceable) could be the subject of a private prosecution brought by the injured party.

Phillips v Botha 1995 (3) SA 948 (W)

Section 14 of the Criminal Procedure and Evidence Act.

Section 16 of the Criminal Procedure and Evidence Act.

Section 16(2) of the Criminal Procedure and Evidence Act.  This is contrary to the Telecel case mentioned in footnote 36 and may well be unconstitutional in that it denies corporate bodies the right of access to courts.

Section 16(3) of the Criminal Procedure and Evidence Act.

It is not clear what this provision (section 16(3)(c) of the Criminal Procedure and Evidence Act) is supposed to mean.  The accused’s ability to conduct a defence is not considered by the Prosecutor-General when deciding whether or not to prosecute him at the public instance, so why should it be relevant in a private prosecution?

Section 16 of the Criminal Procedure and Evidence Act.

Section 17 of the Criminal Procedure and Evidence Act.

Section 18 of the Criminal Procedure and Evidence Act.

Section 20 of the Criminal Procedure and Evidence Act;  Central African Examiner (Pvt) Ltd v Howman & Ors NNO 1966 RLR 75 (G) at 82G-I.

Section 22 of the Criminal Procedure and Evidence Act.

Section 22 of the Criminal Procedure and Evidence Act.