Criminal Procedure and Evidence Act (Chapter 9:07)

Government Gazette
This is the latest version of this legislation.

Zimbabwe

Criminal Procedure and Evidence Act

Chapter 9:07

  • Commenced on 1 June 1927

  • [Up to date as at 31 December 2016]
  • [Note: This version of the Act was revised and consolidated by the Law Development Commission of Zimbabwe]


AN ACT to consolidate and amend the law relating to procedure and evidence in criminal cases, and to make provision for other matters incidental to such procedure and evidence.


Part I – Preliminary

1. Short title

This Act may be cited as the Criminal Procedure and Evidence Act [Chapter 9:07].

2. Interpretation

In this Act—accused” or “accused person” means a person who has been arrested for or charged with an offence;[definition inserted by section 2 of Act 2 of 2016]authorised person”, for the purposes of taking an intimate sample or buccal sample pursuant to section 41(3) or 41B, means a health practitioner, medical officer or other person who has successfully undergone the relevant training to enable him or her to take a bodily sample;[definition inserted by section 2 of Act 2 of 2016]bodily sample” means an intimate or buccal sample taken from a person;[definition inserted by section 2 of Act 2 of 2016]buccal sample” means a sample of cellular material taken from the inside of a person’s mouth for the purposes of conducting a forensic DNA analysis of that sample;[definition inserted by section 2 of Act 2 of 2016]company” means a company incorporated or registered under any enactment generally governing companies or under any special enactment or under letters patent or Royal Charter;compelling reasons”, for the purposes of—(a)sections 39B(2)(b), 258A(2)(b) and 385A(3), means any reason related to—(i)safeguarding the enjoyment of rights and not prejudicing the rights and freedoms of other persons that might be put in immediate jeopardy; or(ii)safeguarding the interests of defence, public safety, public order, public health, regional or town planning or the general public interest, that might be put in immediate jeopardy;(b)Part IX (“Bail”), shall be construed in accordance with section 115C;[definition inserted by section 2 of Act 2 of 2016]court” or “the court”, in relation to any matter dealt with under a particular provision of this Act, means the judicial authority which under this Act or any other enactment has jurisdiction in respect of that matter;day” or “day-time”, when used in contra-distinction to “night” or “night-time”, means the space of time between sunrise and sunset;DNA” means deoxyribonucleic acid;[definition inserted by section 2 of Act 2 of 2016]forensic DNA analysis”, in relation to an intimate or buccal sample, means the identification in that sample of genetic sequences commonly called “markers” that are highly variable and particular to each person;[definition inserted by section 2 of Act 2 of 2016]health practitioner” means any person in respect of whose profession or calling a register is kept in terms of the Health Professions Act [Chapter 27:19];[definition inserted by section 2 of Act 2 of 2016]judge” means a judge of the High Court;justice” means a justice of the peace appointed or exercising functions as such under any enactment;legal representative” means—(a)in relation to a person who is represented by a legal practitioner, that legal practitioner;(b)in relation to an accused person under the age of sixteen who is assisted by his natural or legal guardian, that guardian;(c)in relation to an accused person whom a court has in terms of section one hundred and ninety-one permitted to be assisted by another person, that other person;medical officer” means a—(a)medical practitioner; or(b)State Registered Nurse;employed wholly or mainly or on a part-time basis by the Police Service, the Prisons and Correctional Service or other organ of State, or a local authority;[definition inserted by section 2 of Act 2 of 2016]Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may, from time to time, assign the administration of this Act;money” includes all coined money, whether current in Zimbabwe or not, and all bank-notes, bank-drafts, cheques, orders or warrants or any other authorities whatever for the payment of money;National Director of Public Prosecutions” means the National Director of Public Prosecutions appointed in terms of section 8 of the National Prosecuting Authority Act [Chapter 7:20];[definition inserted by section 2 of Act 2 of 2016]night” or “night-time”, when used in contra-distinction to “day” or “day-time”, means the space of time between sunset and sunrise;offence” means an act or omission punishable by law;peace officer” includes—(a)any magistrate or justice;(b)the Sheriff or any deputy sheriff;(c)any police officer;(d)any prison officer;(e)any immigration officer;(f)any inspector of mines;(g)any—(i)chief, within his area; and(ii)headman, within his chief’s area; and(iii)village head, within the area of his village; and(iv)chief’s messenger or headman’s messenger, within the chief’s area;as defined in the Traditional Leaders Act [Chapter 29:17];[paragraph amended by section 52 of Act 25 of 1998](h)any other person designated by the Minister by a statutory instrument;person” and “owner” and other like terms, when used with reference to property or acts, include corporations of all kinds, and any other association of persons capable of owning or holding property or doing acts and they also, when relating to property, include any department of the State;premises” includes, in addition to any land, building or structure, any vehicle, conveyance, ship or boat; “property” includes everything animate or inanimate, corporeal or incorporeal, capable of being the subject of ownership;public prosecutor” ” means the Prosecutor-General or a person who has the Prosecutor-General’s authority to institute and conduct criminal proceedings on behalf of the State;[definition substituted by section 2 of Act 2 of 2016]sexual offence” means—(a)for the purpose of section 278, any of the following offences or an attempt to commit any of the following offences—(i)rape;(ii)aggravated indecent assault;(iii)sexual intercourse or performing an indecent act with a young person;(iv)sodomy;(v)sexual intercourse within a prohibited degree of relationship;(vi)deliberate infection of another with a sexually transmitted disease;(vii)deliberate transmission of HIV;(viii)coercing or inducing a person for the purpose of engaging in sexual conduct;(b)for the purpose of section 302A, any of the following offences or an attempt to commit any of the following offences—(i)rape;(ii)aggravated indecent assault;(iii)sexual intercourse or performing an indecent act with a young person, involving any penetration of any part of his or her or another person’s body that involves a risk of transmission of HIV;(iv)deliberate transmission of HIV;[definition inserted by section 2 of Act 9 of 2006]statutory capital offence[definition repealed by section 2 of Act 2 of 2016]suitably qualified nurse” means a State certified nurse, paediatric nurse, State certified traumatology nurse or general registered nurse registered as such in terms of the Health Professions Act [Chapter 27:19] (No. 6 of 2000);[definition inserted by section 2 of Act 9 of 2006]valuable security” includes any document which is the property of any person and which is the evidence of the ownership of any property or of the right to recover or receive any property.

3. Proceedings to which Act applies

This Act shall apply to all criminal proceedings in the High Court and the Supreme Court and in magistrates courts in respect of any offence.

4. Neither acquittal nor conviction a bar to civil action for damages

Neither a conviction nor an acquittal following on any prosecution shall be a bar to a civil action for damages at the instance of any person who may have suffered any injury from the commission of any alleged offence.

Part II – Prosecution on behalf of State

[Part II (sections 5 – 11A) substituted by section 3 of Act 32 of 2016]

5. Delegation of functions by Prosecutor-General

(1)Subject to the general or specific instructions of the Prosecutor-General, the public prosecutor to whom responsibility for public prosecutions is assigned under the National Prosecuting Authority Act [Chapter 7:20] (No. 5 of 2014), shall exercise all the rights and powers and perform all of the functions conferred upon the Prosecutor-General by section 259 of the Constitution, this Act or any other enactment, insofar as they relate to criminal proceedings.
(2)The Prosecutor-General may, when he or she deems it expedient, appoint any legal practitioner entitled to practise in Zimbabwe to exercise (subject to the general or specific instructions of the Prosecutor-General) all or any of the rights and powers or perform all or any of the functions conferred upon the Prosecutor-General by section 259 of the Constitution, this Act or any other enactment, whether or not they relate to criminal proceedings.
(3)The officer referred to in subsection (1) or a legal practitioner appointed in terms of subsection (2) may, subject to any conditions which the Prosecutor-General may impose—(a)sign any certificate, authority or other document required or authorised by an enactment referred to in those subsections; and(b)appoint a member of the National Prosecuting Authority constituted in terms of the National Prosecuting Authority Act [Chapter 7:20] (No. 5 of 2014), or a legal practitioner entitled to practise in Zimbabwe, as the case may be, to exercise the rights and powers or perform the functions delegated to him or her in terms of subsection (1) or (2), and the provisions of this subsection shall apply, with such changes as may be necessary, in respect of that appointment.

6. National Director of Public Prosecutions

There shall be a National Director of Public Prosecutions appointed in terms of section 8 of the National Prosecuting Authority Act [Chapter 7:20] (No. 5 of 2014).

7. Change of prosecutor

Criminal proceedings instituted on behalf of the State by one public prosecutor may be continued by any other public prosecutor.

8. Power to stop public prosecutions

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

9. Prosecutions for contempt of court proceedings

(1)A court or tribunal may, on its own motion, institute proceedings for contempt of court against any person who is alleged to have impaired its dignity, reputation or authority in the presence of the court or tribunal.
(2)No court, tribunal or person, other than the Prosecutor-General or someone acting on the express authority of the Prosecutor-General, shall institute or continue any proceedings for contempt of court against anyone who is alleged to have impaired the dignity, reputation or authority of a court or tribunal in circumstances other than those referred to in subsection (1).
(3)Nothing in this section shall affect the institution of proceedings for contempt of court against any person for the purpose of enforcing any order of a court or tribunal.

10. Power of ordering liberation of persons committed for further examination, sentence or trial

(1)The Prosecutor-General may order the liberation of any person committed to prison for further examination or trial, and for that liberation a document setting forth that the Prosecutor-General sees no grounds for prosecuting such person and signed by him or her shall be a sufficient warrant.
(2)If, in the opinion of the Prosecutor-General, the accused person has been wrongly convicted by the court, the Prosecutor-General may, at any stage after conviction, make representations to the court that—(a)there is compelling evidence that exonerates the convicted person of the offence; or(b)compelling evidence incriminating a person other than the convicted person has been brought to the Prosecutor-General’s knowledge; or(c)new evidence obtained links the convicted person to a lesser offence and not to the offence for which he or she was convicted;and that the evidence referred to in paragraph (a), (b) or (c) was not within the Prosecutor-General’s knowledge at the time of trial.
(3)Upon hearing the representations of the Prosecutor-General, the court may—(a)uphold the conviction; or(b)set aside the conviction and liberate the convicted person; or(c)make such order or give such directions as it deems fit.
(4)If the Prosecutor-General is dissatisfied with the court’s decision in terms of subsection (3), the Prosecutor-General may appeal against such decision to a superior court.
(5)On an appeal by the Prosecutor-General in terms of subsection (4), the superior court may—(a)confirm the decision made in terms of subsection (3); or(b)remit the case to the convicting court for sentencing; or(c)make such order or give such directions as it deems fit.

11. Functions of local public prosecutor

(1)All public prosecutors attached to a magistrates court are, as representatives of the Prosecutor-General and subject to his or her instructions, charged with the duty of prosecuting in that magistrates court, in the name and on behalf of Zimbabwe, all offences which, under any enactment governing magistrates courts or any other enactment, that magistrates court has jurisdiction to try.
(2)Criminal proceedings instituted in a magistrates court by any local public prosecutor may be continued by any other public prosecutor.
(3)When there is lodged with or made before a local public prosecutor a sworn declaration in writing by any person disclosing that any other person has committed an offence chargeable in the magistrates court to which such public prosecutor is attached, he or she shall determine whether there are good grounds for prosecution or not:Provided that—(i)he or she may refer to the Prosecutor-General the question whether he or she shall prosecute or not;(ii)any other person may be specially authorised by the Prosecutor-General to prosecute in the matter.

11A. Publication of principles on which decisions to prosecute are based

(1)The Prosecutor-General shall, at intervals of not more than two years, review the statement which he or she is required by section 260(2) of the Constitution to formulate, and which sets out the principles by which he or she decides whether and how to institute and conduct criminal proceedings.
(2)When formulating or reviewing the principles by which he or she decides whether and how to institute and conduct criminal proceedings in terms of section 260(2) of the Constitution, the Prosecutor-General shall consult—(a)the Judicial Service Commission; and(b)the Law Society of Zimbabwe; and(c)such other persons and bodies as he or she thinks appropriate;and while he or she shall not be bound to adopt any recommendation made by those persons and bodies, he or she shall pay due regard to them.
(3)The Prosecutor-General shall ensure that the statement of principles referred to in subsection (1) is published as widely as practicable, and in particular shall ensure that copies of the statement, as amended from time to time, are kept at all offices of the National Prosecuting Authority and are available for inspection there by members of the public at all reasonable times during office hours.[Part II (sections 5– 11A) substituted by section 3 of Act 32 of 2016]

Part III – Private prosecutions

12. Interpretation in Part III

In this Part—private party” means a person authorized by section thirteen or fourteen to prosecute any offence.

13. Private prosecution on refusal of Prosecutor-General to prosecute

In all cases where the Prosecutor-General declines to prosecute for an alleged offence, any private party, who can show some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually has suffered by the commission of the offence, may prosecute, in any court competent to try the offence, the person alleged to have committed it.

14. What other persons entitled to prosecute

The following shall possess the right of prosecution—(a)a spouse of the person against whom the offence was committed;(b)the legal guardians or curators of minors or mentally disordered or defective persons, in respect of offences committed against their wards;(c)the surviving spouse or children or, where there is no surviving spouse or child, any of the next-of-kin of any deceased person, in respect of any offence by which the death of such person is alleged to have been caused;(d)public bodies and persons on whom the right is specially conferred by statute, in respect of particular offences.[section amended by section 4 of Act 2 of 2016]

15. Private prosecutor may apply to court for warrant

Where, by virtue of the right of prosecution given to private parties by section thirteen or fourteen, any private party desires to prosecute for any offence any person for whose liberation from prison any warrant has been issued by the Prosecutor-General, such private party may apply to the High Court or, in case such court is not then sitting, to any judge, for a warrant for the further detention or, if he is on bail, for the detention of such person, and such court or judge shall make such order as to it or him seems right under the circumstances.

16. Certificate of Prosecutor-General that he or she declines to prosecute

(1)Except as is provided by subsection (4), it shall not be competent for any private party to obtain the process of any court for summoning any party to answer any charge, unless such private party produces to the officer authorised by law to issue such process a certificate signed by the Prosecutor-General that he or she has seen the statements or affidavits on which the charge is based and declines to prosecute at the public instance, and, subject to the conditions set forth in subsections (2) and (3), in every case in which the Prosecutor-General declines to prosecute he or she shall, at the request of the party intending to prosecute, grant the certificate required.
(2)The Prosecutor-General shall grant the certificate referred to in subsection (1) if—(a)there is produced to him or her by the private party a written request in the form of a sworn statement from which it appears to the Prosecutor-General that the private party(i)is the victim of the alleged offence, or is otherwise an interested person by virtue of having personally suffered, as a direct consequence of the alleged offence, an invasion of a legal right beyond that suffered by the public generally; and(ii)has the means to conduct the private prosecution promptly and timeously; and(iii)will conduct the private prosecution as an individual (whether personally or through his or her legal practitioner), or as the representative of a class of individuals recognised as a class for the purposes of the Class Actions Act [Chapter 8:17] (No. 10 of 1999);and(b)no grounds exist in terms of subsection (3) for withholding the certificate.
(3)The Prosecutor-General may refuse to grant the certificate referred to in subsection (1) upon any one or more of the following grounds, namely—(a)that the conduct complained of by the private party does not disclose a criminal offence; or(b)that on the evidence available, there is no possibility (or only a remote possibility) of proving the charge against the accused beyond a reasonable: doubt; or(c)whether the person to be prosecuted has adequate means to conduct a defence to the charge (in the case of any person who, but for the fact that the Prosecutor-General has declined to prosecute him or her, would have qualified for legal assistance at the expense of the State); or(d)that it is not in the interests of national security or the public interest generally to grant the certificate to the private party.
(4)When the right of prosecution referred to in this Part is possessed under any statute by any public body or person in respect of particular offences, subsections (1), (2) and (3) shall not apply.[section substituted by section 5 of Act 2 of 2016]

17. Private prosecutor may be ordered to give security for costs

Where a private prosecution is being or has been instituted by a person other than a public body or person described in section 14(d), the court may order him or her to give such security as the court may direct for the payment of any costs incurred by the accused person in respect of his or her defence, and where the court has made such an order no further steps shall be taken in the prosecution until the security has been given.[section substituted by section 6 of Act 2 of 2016]

18. Failure of private prosecutor to appear on appointed day

(1)If the prosecutor, being a private party, does not appear on the day appointed for appearance, the charge or complaint shall be dismissed unless the court sees reason to believe that such party was prevented from being present by circumstances beyond his control, in which case it may adjourn the hearing of the case.
(2)In the case of any dismissal in terms of subsection (1), the accused shall not be again liable to prosecution on the same charge by any private party, but no such dismissal shall prevent the Prosecutor-General, or a public prosecutor on the instructions of the Prosecutor-General, from afterwards taking up the case.

19. Mode of conducting private prosecutions

A private prosecution shall, subject to this Act, be proceeded with in the same manner as if it were being conducted at the public instance, except that all costs and expenses of the prosecution shall be paid by the party prosecuting, subject to any order that the court may make when the prosecution is finally concluded.

20. Competency of Prosecutor-General to take up and conduct prosecution at public instance

[heading substituted by Act 5 of 2014]In the case of a prosecution at the instance of a private party, the Prosecutor-General or the local public prosecutor may apply by motion to any court before which the prosecution is pending to stop all further proceedings in the case, in order that prosecution for the offence may be instituted or continued at the public instance and such court shall, in every such case, make an order in terms of the motion.

21. Deposit of money by private prosecutor

In the case of a criminal prosecution at the instance of a private party, the registrar or clerk of the court shall, for the service of any criminal summons or subpoena or execution of any warrant of arrest or other criminal process, demand and receive the prescribed fee.

22. Costs of private prosecution

(1)Where a person prosecuted at the instance of a private party is acquitted, the court in which the prosecution was brought may order the party that instituted the prosecution to pay to the party prosecuted the whole or any part of the expenses, including the costs both before and after committal, which may have been occasioned to him by the prosecution.
(2)Where the court, upon hearing the charge or complaint on a private prosecution, pronounces the same unfounded and vexatious, it shall award to the accused on his request such costs as it may think fit.
(3)Where a person prosecuted at the instance of a private party is convicted, the court may order the convicted person to pay the costs and expenses of the private prosecution in addition to any sum awarded in terms of Part XIX:Provided that if the private prosecution was instituted after a certificate by the Prosecutor-General that he declined to prosecute the court may order the costs to be paid by the State.
(4)Any costs awarded in terms of this section shall be taxed according to the scale applicable in civil cases in the court concerned unless a special scale of costs for private prosecutions has been prescribed in rules of court.

Part IV – Prescription of offences

23. Prescription of offences

(1)The right of prosecution for murder shall not be barred by any lapse of time.
(2)The right of prosecution for any offence other than murder, whether at the public instance or at the instance of a private party, shall, unless some other period is expressly provided by law, be barred by the lapse of twenty years from the time when the offence was committed.

Part V – Arrests

A. Without warrant

24. Arrest and verbal order to arrest

(1)It shall be lawful for any judge, magistrate or justice, who has knowledge of any offence by seeing it committed, himself to arrest the offender or by a verbal order to authorize others so to do.
(2)The persons authorized in terms of subsection (1) are empowered and required to follow the offender if he flees, and to execute the order on him out of the presence of the judge, magistrate or justice.

25. Arrest without warrant by peace officer or other officer

(1)Any peace officer and any other officer empowered by law to execute criminal warrants is hereby authorized, subject to the general or specific directions of a superior officer or person placed in authority over him, to arrest without warrant—(a)any person who commits any offence in his presence;(b)any person whom he or she has reasonable grounds to suspect of having committed any of the offences mentioned in the First Schedule or the Ninth Schedule:Provided that if, in the case of an offence mentioned in the Ninth Schedule, the peace officer or other officer concerned has reason to believe that the offence is sufficiently serious to justify the issue by the Prosecutor-General of a certificate referred to in subsection (3b) of section thirty-two, the officer concerned shall not effect an arrest in terms of this paragraph—(i)unless he or she is a police officer who is of or above the rank of assistant inspector, or is given leave by such an officer to effect the arrest; and(ii)where the alleged offence is disclosed by an anonymous complainant, unless the officer concerned immediately (and in any case no later than the end of the day on which the complaint is received) records in writing the particulars, time and date of such complaint and the manner in which it was made;[paragraph (b) substituted by section 2 of Act 14 of 2004](c)any person whom he finds attempting to commit an offence, or clearly manifesting an intention so to do.
(2)Any peace officer may, without any order or warrant, arrest—(a)any person having in his possession any implement of housebreaking and not being able to account satisfactorily for such possession;(b)any person in whose possession anything is found which it is reasonably suspected is stolen property or property dishonestly obtained, and who is reasonably suspected of having committed an offence with respect to such thing;(c)any person who obstructs a police officer or other peace officer while in the execution of his duly or who has escaped or attempts to escape from lawful custody;(d)any person reasonably suspected of being a deserter from the Defence Forces of Zimbabwe;(e)any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been concerned in, any act committed at any place outside Zimbabwe, which if committed in Zimbabwe would have been punishable as an offence, and for which he is, in terms of any enactment relating to extradition or fugitive offenders or otherwise, liable to be arrested or detained in custody in Zimbabwe;(f)any person being or loitering in any place under such circumstances as to afford reasonable grounds for believing that he has committed or is about to commit an offence;(g)any person reasonably suspected of committing or of having committed an offence under any enactment governing the making, supply, use, possession or conveyance of intoxicating liquor, habit-forming drugs, traditional beer or harmful liquids or the possession or disposal of arms or ammunition;(h)any person reasonably suspected of being a prohibited immigrant in Zimbabwe, for the purpose of any enactment regulating entry into or residence in Zimbabwe;(i)any person found in any gambling-house or at any gambling-table, the keeping or visiting whereof is in contravention of any enactment for the prevention or suppression of gambling or games of chance;(j)any person reasonably suspected of being or having been in unlawful possession of stock or produce, as defined in any enactment for preventing the theft of stock or produce.
(3)Whenever it is provided in any enactment that the arrest of any person may be made by a police officer or other official without warrant, subject to conditions or to the existence of circumstances in that enactment set out, an arrest by any peace officer, without warrant or order, may be made of such person, subject to those conditions or the existence of those circumstances.

26. Power of peace officer to call for name and address of certain persons

(1)A peace officer may call upon—(a)any person whom he has power to arrest; and(b)any person reasonably suspected of having committed any offence; and(c)any person who may in his opinion be able to give evidence in regard to the commission or suspected commission of any offence;to furnish such peace officer with his full name and address.
(2)If a person on demand in terms of subsection (1)—(a)fails to furnish his full name and address, the peace officer making the demand may forthwith arrest him; or(b)furnishes to the peace officer a name or address which the peace officer, upon reasonable grounds, suspects to be false, such person may be arrested and detained for a period not exceeding twelve hours until the name and address so furnished have been verified.
(3)Any person who, when called upon under this section to furnish his name and address, fails to do so, or furnishes a false or incorrect name and address, shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment.[subsection amended by section 4 of Act 22 of 2001]

27. Arrest by private person for certain offences committed in his presence

(1)Any private person in whose presence anyone commits or attempts to commit an offence mentioned in the First Schedule, or who has knowledge that any such offence has been recently committed, is authorized to arrest without warrant or forthwith to pursue the offender, and any other private person to whom the purpose of the pursuit has been made known is authorized to join and assist therein.
(2)Any private person is authorized to arrest without warrant any other person whom he believes on reasonable grounds to have committed an offence and to be escaping from, and to be freshly pursued by, one whom such private person believes on reasonable grounds to have authority to arrest the escaping person for that offence.
(3)When it is provided by any enactment with respect to an offence that the offender may be arrested without warrant by any private person particularly specified, any such specified person may arrest the offender without warrant.

28. Arrest by private persons of persons fighting in public places

Any private person is authorised to arrest without warrant any person whom he or she sees engaged in fighting in a public place in order to prevent such person from continuing the fight, and to deliver him or her over to a police officer to be dealt with according to law.[section substituted by section 7 of Act 2 of 2016]

29. Owners of property may arrest in certain cases

The owner, lawful occupier or person in charge of any property on or in respect of which any person is found committing an offence, or any person authorized by such owner, lawful occupier or person in charge, may arrest without warrant the person so found.

30. Arrest by private person for certain offences on reasonable suspicion

Any private person may without warrant arrest any other person upon reasonable suspicion that such other person has committed any offence specified in the First Schedule.

31. Arrest of persons offering stolen property for sale

Where anyone may without warrant arrest another for committing an offence, he may also arrest without warrant any person who offers to sell, pawn or deliver to him any property which on reasonable grounds he believes to have been acquired by such person by means of any such offence.

31A. Arrest by persons in charge of ship, boat or aircraft

(1)The commander or person in charge of any ship, boat or aircraft may without warrant arrest any person whom he knows or on reasonable grounds believes to have committed, to be committing or to be about to commit an offence aboard the ship, boat or aircraft.
(2)A commander or person in charge of any ship, boat or aircraft may authorise any member of the crew of the ship, boat or aircraft or any passenger aboard the ship, boat or aircraft to assist him in arresting any person in terms of subsection (1), and the member of the crew or the passenger so authorised shall have the same power to effect the arrest as the commander or person in charge of the ship, boat or aircraft.[section inserted by Act 23 of 2004]

32. Procedure after arrest without warrant

(1)For the purposes of this section—court day” means any day except a Sunday or a public holiday.
(2)Subject to subsections (3a), (3b) and (3c), a person arrested without warrant shall as soon as possible be brought to a police station or charge office and, if not released by reason that no charge is to be brought against him, may be detained for a period not exceeding forty-eight hours unless he is brought before a judge or magistrate upon a charge of any offence and his further detention is ordered by that judge or magistrate or a warrant for his further detention is obtained in terms of section thirty-three.[subsection substituted by section 44 of Act 1 of 2002 and amended by section 3 of Act 14 of 2004]
(3)Any person who is arrested or detained—(a)for the purpose of bringing him or her before a court; or(b)for an alleged offence;and who is not released must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on Sunday or a public holiday.[subsection substituted by section 8 of Act 2 of 2016]
(3a)Where the person arrested without warrant is charged with any offence referred to in paragraph 10 of the Third Schedule and the judge or magistrate before whom the person is brought in terms of this section is satisfied that there is a reasonable suspicion that the person committed the offence, the judge or magistrate shall order that person’s further detention or issue a warrant for his or her further detention for a period of twenty-one days.[subsections (3a) to (3d) inserted by section 3 of Act 14 of 2004]
(3b)Where the person arrested without warrant is charged with any offence referred to in the Ninth Schedule and there is produced to the judge or magistrate before whom the person is brought in terms of this section—(a)a certificate issued by or on behalf of the Prosecutor-General stating that, in the Prosecutor-General’s opinion—(i)the offence in question involves significant prejudice or significant potential prejudice to the economy or other national interest of Zimbabwe; and(ii)the further detention of the person arrested for a period of up to twenty-one days is necessary for any one or more of the following reasons—(A)the complexity of the case; or(B)the difficulty of obtaining evidence relating to the offence in question; or(C)the likelihood that the person arrested will conceal or destroy the evidence relating to the offence in question or interfere with the investigation of the offence or both;and(b)the following, where the arrest is made in the circumstances referred to in paragraph (b) of subsection (1) of section twenty-five—(i)proof that the arresting officer was an officer of or above the rank of assistant inspector at the time of the arrest, or that the arresting officer made the arrest with the prior leave of such an officer; and(ii)where the alleged offence was disclosed through an anonymous complaint, a copy of the complaint as recorded in accordance with subparagraph (ii) of the proviso to paragraph (b) of subsection (1) of section twenty-five;the judge or the magistrate shall, if satisfied that there is a reasonable suspicion that the person committed the offence, order that person’s detention or issue a warrant for his or her further detention for a period of twenty-one days or the lesser period specified in the certificate.[subsections (3a) to (3d) inserted by section 3 of Act 14 of 2004]
(3c)A person referred to in subsection (3a) or (3b) shall, unless the charge or charges against him or her are earlier withdrawn, remain in detention for twenty-one days or the lesser period specified in a certificate mentioned in subsection (3b), as the case may be, from the date when an order or warrant for the person’s further detention was issued in terms of the relevant subsection, and no court shall admit such person to bail during that period.Provided that the arresting officer or other officer in authority over him or her shall, at intervals of not more than forty-eight hours beginning on the date when the order or warrant for the person’s further detention is issued, make a report to the Prosecutor-General on the progress of the investigations into the charge or charges against the person in detention, and if the Prosecutor-General is satisfied on the basis of any such report that the person’s detention is no longer justified, the Prosecutor-General may order the immediate and unconditional release of the detained person.[subsections (3a) to (3d) inserted by section 3 of Act 14 of 2004. Proviso inserted by Act 23 of 2004 and amended by section 28 of Act 9 of 2006]
(3d)A person referred to in subsection (3a) or (3b) may continue to be detained after the expiry of the period referred to in subsection (3c) pending the outcome of investigations into the charge or charges against him or her if (without prejudice to the person’s right to apply for bail) an order or warrant for that person’s further detention is obtained from a judge or magistrate in terms of section thirty-three within forty-eight hours of the expiry of the period referred to in subsection (3c).[subsections (3a) to (3d) inserted by section 3 of Act 14 of 2004]
(4)[subsection repealed by section 3 of Act 14 of 2004]
(5)When an arrest is made without warrant, the person arrested shall be informed forthwith by the person arresting him of the cause of the arrest.

B. With warrant

33. Warrant of arrest by judge, magistrate or justice

(1)Any judge, magistrate or justice (other than a police officer) may issue a warrant for the arrest of any person or for the further detention of a person arrested without a warrant on written application subscribed by—(a)the Prosecutor-General; or(b)the local public prosecutor; or(c)a police officer who is of or above the rank of inspector; or(d)a police officer in charge of a police station who is of or above the rank of assistant inspector;setting forth the offence alleged to have been committed, and that, from information available to him, he has reasonable grounds of suspicion against that person, or upon the information to the like effect of any person made on oath before the judge, magistrate or justice issuing the warrant:Provided that it shall not be lawful for a magistrate or justice to issue any such warrant except when the offence charged has been committed within his area of jurisdiction or except when the person against whom the warrant is issued was, at the time when it was issued, known, or suspected on reasonable grounds, to be within the area of jurisdiction of the magistrate or justice.[subsection amended by section 9 of Act 2 of 2016]
(2)Any warrant referred to in subsection (1) may be issued on any day of the week, including Sunday.
(3)Subject to subsection (4), a warrant issued for the arrest of a person shall remain in force until it is cancelled by the person who issued it or until it is executed.
(4)Where a warrant is issued for the arrest of a person and such person is detained by virtue of an arrest without warrant, the warrant shall be deemed to have been cancelled and the provisions of this Act relating to the arrest of a person without warrant shall apply in respect of such person.

34. Execution of warrants

(1)Every peace officer is authorized and required to obey and execute any warrant issued in terms of section thirty-three.
(2)A peace officer or other person arresting any person by virtue of a warrant under this Act shall, upon demand of the person arrested, produce the warrant to him and notify him of the substance thereof.
(3)A person arrested by virtue of a warrant under this Act shall as soon as possible be brought to a police station or charge office, unless any other place is specially mentioned in the warrant as the place to which such person shall be brought, and he shall thereafter be brought as soon as possible before a judicial officer upon a charge of the offence mentioned in the warrant.
(4)If a person arrested by virtue of a warrant is charged with any offence referred to in-(a)paragraph 10 of the Third Schedule, and the judicial officer before whom the person is brought in terms of this section is satisfied that there is a reasonable suspicion that the person committed the offence, the judicial officer shall order that person’s continued detention for a period of twenty-one days; or(b)the Ninth Schedule and there is produced to the judicial officer before whom the person is brought in terms of this section a certificate issued by or on behalf of the Prosecutor-General in the same terms as those specified in subsection (3b) of section thirty-two, the judicial officer shall, if satisfied that there is a reasonable suspicion that the person committed the offence, order that person’s continued detention for a period of twenty-one days or the lesser period specified in the Prosecutor-General’s certificate.[subsection (4) inserted by section 4 of Act 14 of 2004]
(5)A person referred to in subsection (4) shall, unless the charge or charges against him or her are earlier withdrawn, remain in detention for twenty-one days or the lesser period specified in a certificate mentioned in paragraph (b) of subsection (4), as the case may be, from the date when an order for the person’s further detention was issued in terms of that subsection, and no court shall admit such person to bail during that period.Provided that the arresting officer or other officer in authority over him or her shall, at intervals of not more than forty-eight hours beginning on the date when the order for the person’s further detention is issued, make a report to the Prosecutor-General on the progress of the investigations into the charge or charges against the person in detention, and if the Prosecutor-General is satisfied on the basis of any such report that the person’s detention is no longer justified, the Prosecutor-General may order the immediate and unconditional release of the detained person.[subsection (5) inserted by section 4 of Act 14 of 2004. Proviso inserted by Act 23 of 2004 and amended by section 28 of Act 9 of 2006]
(6)A person referred to in subsection (4) may continue to be detained after the expiry of the period referred to in subsection (5) pending the outcome of investigations into the charge or charges against him or her if (without prejudice to the person’s right to apply for bail) an order or warrant for that person’s further detention is obtained from a judge or magistrate within forty-eight hours of the expiry of the period referred to in subsection (5).[subsection (6) inserted by section 4 of Act 14 of 2004]

35. Arrest on wireless or telegraphic transmission of warrant

A communication which—(a)sets out or substantially outlines the terms of a warrant issued in terms of section 33; and(b)is sent or communicated electronically or in an official publication;shall be sufficient authority for the arrest of the person named in the warrant as if it were the original warrant.[section substituted by section 10 of Act 2 of 2016]

36. Arresting wrong person

(1)Any person duly authorized to execute a warrant of arrest who thereupon arrests a person, believing in good faith and on reasonable and probable grounds that he is the person named in the warrant, shall be protected from responsibility to the same extent and subject to the same provisions as if the person arrested had been the person named in the warrant.
(2)Any person called on to assist the person making such arrest and believing that the person in whose arrest he is called on to assist is the person for whose arrest the warrant was issued, and every officer in charge of a prison who is required to receive and detain such person, shall be protected to the same extent and subject to the same provisions as if the arrested person had been the person named in the warrant.

37. Irregular warrant or process

Any person acting under a warrant or process which is bad in law, on account of a defect in substance or in form apparent on the face of it, shall, if he in good faith and without culpable ignorance and negligence believes that the warrant or process is good in law, be protected from responsibility to the same extent and subject to the same provisions as if the warrant or process were good in law, and ignorance of the law shall in such case be an excuse:Provided that it shall be a question of law whether the facts of which there is evidence may or may not constitute culpable ignorance or negligence in his so believing the warrant or process to be good in law.

38. Tenor of warrant

Any warrant issued under this Act shall be to apprehend the person described therein and to bring him before a judicial officer as soon as possible upon a charge of an offence mentioned in the warrant.

C. General

39. Assistance by private persons called on by officers of the law

(1)Every male inhabitant of Zimbabwe between the ages of sixteen and sixty is, when called upon by any police officer, authorized and required to assist that police officer in making any arrest which by law that police officer is authorized to make of any person charged with or suspected of the commission of any offence, or to assist that police officer in retaining the custody of any person so arrested.
(2)Any inhabitant of Zimbabwe referred to in subsection (1) who, without sufficient excuse, refuses or fails to assist when called upon to do so shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment.[subsection amended by section 4 of Act 22 of 200 and by section 49 of Act 2 of 2016]

39A. Voluntary attendance at police station or charge office

Where for purposes of assisting the police with an investigation a person attends voluntarily at a police station or charge office or voluntarily accompanies a police officer to a police station or charge office without having been arrested—(a)he or she shall be entitled to leave the police station or charge office at will unless he or she is placed under arrest; and(b)he or she shall be informed promptly that he or she is under arrest if a decision is taken to arrest him or her on reasonable suspicion that he or she has committed an offence.[section inserted by section 11 of Act 2 of 2016]

39B. Police officers may restrain, etc., persons in certain circumstances without intention to arrest

(1)In the exercise of a police officer’s socially protective function, a police officer may—(a)without intending to charge a person with an offence or without having formed the intention to charge a person with an offence; and(b)by the of use such force as is reasonably justifiable and proportionate in the circumstances of the case (but never by the use of lethal force) to overcome any resistance on the part of the person concerned or to prevent the person concerned from escaping;physically restrain a person and remove him or her to a police station or charge office, and there detain that person for a period of not more than twenty-four hours, in either of the circumstances specified in subsection (2).
(2)A police officer may exercise the powers referred to in subsection (1) in either of the following circumstances—(a)where the person concerned is found not to be in his or her sound or sober senses (whether by reason of intoxication or a mental disorder or defect)—(i)in a public place; or(ii)in a private place or private residence where the owner or any lawful occupier thereof requests the intervention of a police officer;or(b)where there are compelling reasons (the proof whereof rests with the police officer concerned) for so restraining, removing and detaining the person concerned:Provided that if a decision to charge a person so restrained, removed and detained with an offence is not made within twenty-four hours, the person must be released unconditionally no later than the expiry of that period.
(3)Whenever the police exercise their powers in terms of subsection (1), the police shall, as soon as possible, record in their occurrence book as defined in section 47, the particulars of the detained person and the reasons for such detention.[section inserted by section 11 of Act 2 of 2016]

40. Breaking open of doors after failure in obtaining admission for purpose of arrest or search

It shall be lawful for any peace officer or private person, who by law is authorized to arrest any person known or suspected to have committed any offence, to break open for that purpose the doors and windows of, and to enter and search, any premises in which the person whose arrest is required is known or suspected to be:Provided that such officer or private person aforesaid shall not act under this section—(a)if directions, whether general or specific, to the contrary have been given to him by a superior officer or other person placed in authority over him;(b)unless he has previously failed to obtain admission after having audibly demanded admission and notified the purpose for which he seeks to enter such premises.

41. Arrest-how made, and search thereon of person arrested

(1)In making an arrest, the peace officer or other person authorized to arrest shall actually touch or confine the body of the person to be arrested, unless there is a submission to the custody by word or action.
(2)A peace officer or other person arresting any person under this Part may search that person, and shall place in safe custody all articles, other than necessary wearing apparel, found on him.
(3)Any peace officer may take or cause to be taken the finger-prints, palm-prints, footprints and photographs of any person arrested upon any charge, and may take or cause to be taken such steps as he or she may think necessary in order to ascertain whether or not the body of any such person bears any mark, characteristic or distinguishing feature, or shows any condition or appearance:Provided that no intimate or buccal sample may be taken from the person who has been arrested except—(a)in case of a buccal sample, by an authorised person at the request and in the presence of the peace officer; or(b)in the case of an intimate sample—(i)by a medical officer at the written request of a police officer of or above the rank of superintendent; or(ii)by the medical officer of any prison at which the arrested person is detained; or(iii)by an authorised person of the same sex as the person from whom the intimate sample is to be taken;in order to ascertain some fact which is material to the investigation of the charge upon which such person has been arrested.[subsection substituted by section 12 of Act 2 of 2016]
(4)When it is desired to search or examine the body of a woman in terms of this section, such search or examination, unless made by a medical officer, shall be made only by a woman and shall be conducted with strict regard to decency and, if there is no woman available for such search or examination who is a police officer or a prison officer, the search or examination may be made by any woman specially named for the purpose by a peace officer.
(5)Any finger-prints, palm-prints, footprints or photographs and the records of any steps taken under this section shall be destroyed if the person concerned is found not guilty at his trial or his conviction is set aside by a superior court or the Prosecutor-General declines to prosecute him in terms of paragraph (a) of subsection (1) of section one hundred and one or the charge against him is withdrawn.

41A. Arrested person to be informed of his or her rights

(1)Subject to this section, where a person has been arrested by a peace officer, whether with or without a warrant, the peace officer shall cause the person to be informed promptly, in a language he or she understands, of—(a)the reason for the arrest; and(b)his or her right to remain silent; and(c)the consequences of remaining silent and of not remaining silent; and(d)his or her right to contact, at the State’s expense, any one of the following—(i)a legal practitioner of his or her choice; or(ii)a medical practitioner of his or her choice; or(iii)his or her spouse or partner; or(iv)his or her relative of choice; or(v)anyone else of his or her choice;for the purpose of informing the person contacted about the arrest.
(2)Where a person has been informed of his or her rights referred to in subsection (1) in the English language, it shall be presumed, unless the contrary is proved, that he or she was informed of his or her rights in a language he or she understands.
(3)For the purposes of subsection (1)(d), if an arrested person does not succeed, without any fault on his or her part, in contacting a person of his or her first choice, the arrested person shall be allowed an opportunity to contact any other person until he or she succeeds in contacting him or her.
(4)The Tenth Schedule shall guide a peace officer as to the form of the words to be used for the purposes of subsection (1).
(5)Where a person has been arrested by a private person in terms of this Act or any other enactment, the private person must as soon as possible deliver the arrested person over to a police officer, who must then, as soon as he or she is satisfied that the arrest is justified, cause the arrested person to be informed of his or her rights in the manner provided in subsection (1).
(6)Every person concerned in the arrest of another person, under this Act or any other enactment and whether the arrest is with or without warrant, shall ensure that the arrested person is—(a)treated humanely and with respect for his or her inherent dignity; and(b)permitted to challenge the lawfulness of the arrest in person before a court; and(c)released promptly if the arrest is unlawful.
(7)A person who has been detained following an arrest, under this Act or any other enactment and whether with or without warrant, shall be accorded, by the person for the time being in charge of the place where he or she is being detained, the right to—(a)be informed promptly of the reason for his or her detention; and(b)consult in private with a registered legal practitioner of his or her choice, and to be informed of this right promptly; and(c)communicate with, and be visited by—(i)a spouse or partner; and(ii)a relative; and(iii)a religious counsellor of his or her choice; and(iv)a registered legal practitioner of his or her choice; and(v)a registered medical practitioner of his or her choice; and(vi)subject to any reasonable restrictions imposed for the proper administration of the place of detention, any other person of his or her choice;and to be informed of this right promptly; and(d)to remain silent and to be informed of this right, and of the consequences of exercising or not exercising this right, if there is reason to believe that he or she may not be aware of it.
(8)The person for the time being in charge of the place where a person is being detained following his or her arrest, under this Act or any other enactment and whether with or without warrant, shall ensure that the conditions of detention are consistent with human dignity, including—(a)the affording of a reasonable opportunity for the detained person to engage in physical exercise; and(b)the right of the detained person to wear clothing of his or her choice, unless—(i)the exercise of the right is likely to prejudice his or her health or the reasonable requirements of discipline in the place where he or she is detained; or(ii)the clothing is required for the purposes of any investigation or inquiry;whereupon, in either case, he or she must be provided with decent alternative clothing to wear; and(c)the provision, at State expense, of—(i)adequate accommodation; and(ii)adequate ablution facilities and other facilities for maintaining personal hygiene; and(iii)adequate nutrition; and(iv)appropriate reading material; and(v)adequate medical treatment; and(vi)such other facilities as may be prescribed.
(9)A person who is being detained following his or her arrest, under this Act or any other enactment and whether with or without warrant, shall be entitled to challenge the lawfulness of the detention in person before a court, and the person for the time being in charge of the place where he or she is being detained shall cause him or her to be informed of this right promptly.[section inserted by section 13 of Act 2 of 2016]

41B. Bodily samples for investigation purposes

(1)An authorised person may take a bodily sample of a person or group of persons, or supervise the taking of a bodily sample from any person or group of persons, if the person or persons concerned consent to such sample being taken at the verbal or written request of a peace officer who is satisfied that there are reasonable grounds—(a)to suspect that the person, or any one or more persons in a group of persons, has committed an offence; or(b)for believing that the bodily sample and the resulting forensic DNA analysis thereof will be of value in the investigation of an offence by excluding or including one or more persons as possible perpetrators of the offence.
(2)If a person does not consent to the taking of a bodily sample, a warrant may be issued by a judge or magistrate upon written request by a police officer who is of or above the rank of inspector, if it appears from written information given by the police officer under oath that there are reasonable grounds—(a)to suspect that the person named in the information, or any one or more persons in a group of persons so named, has committed an offence; or(b)for believing that the bodily sample and the resulting forensic DNA analysis thereof will be of value in the investigation of an offence by excluding or including one or more named persons as possible perpetrators of the offence.
(3)A bodily sample must be taken—(a)by an authorised person or by a person under the supervision and in the presence of the authorised person; and(b)with strict regard for decency and decorum:Provided that no intimate or buccal sample may be taken from the person who has been arrested except—(a)in case of a buccal sample, by an authorised person at the request and in the presence of the peace officer; or(b)in the case of an intimate sample, in private by—(i)a medical officer at the written request of a police officer of or above the rank of superintendent; or(ii)the medical officer of any prison at which the arrested person is detained; or(iii)by an authorised person of the same sex as the person from whom the intimate sample is to be taken;in order to ascertain some fact which is material to the investigation of the charge upon which such person has been arrested.
(4)If in any criminal proceedings the results of a forensic DNA analysis of a bodily sample are embodied in an affidavit sworn to by an authorised person in which that person deposes to the following facts—(a)that he or she is an authorised person who is qualified to undertake forensic DNA analysis of bodily samples; and(b)that the bodily sample was obtained by that person or by another named authorised person under the supervision of the first named person under conditions which safeguard as much as is reasonably possible against the possibility of the contamination of that sample;such affidavit shall, upon its mere production, be admissible as prima facie proof of the facts deposed therein.
(5)Any bodily sample taken from a person and the records of any steps taken under this section shall, in the case of—(a)an accused person, be destroyed if he or she has been found not guilty at his or her trial, or his or her conviction is set aside by a superior court, or the charge against him or her is withdrawn, unless the person consents in writing to the preservation of the bodily sample;(b)a person other than an accused person, be retained until the criminal proceedings to which they are relevant have been finally concluded, whereupon they shall be destroyed, unless the person consents in writing to the preservation of the bodily sample.
(6)A person referred to in subsection (5)(a) or (b) shall have the right to receive written notification from the custodian of his or her bodily sample of the destruction thereof in accordance with that subsection.[section inserted by section 13 of Act 2 of 2016]

41C. Records to be kept of arrested and detained persons

(1)The officer in charge of every police station or charge office where persons are brought following their arrest, or where they are detained, shall ensure that a record is kept showing, in respect of every such person(a)the person’s name and other identity particulars; and(b)the date and time on which the person was brought to the police station or charge office or was first detained there, as the case may be; and(c)the offence for which the person was arrested or detained; and(d)where the person has been released, the date and time of the release and the reasons for it; and(e)where the person has been transferred elsewhere—(i)the place to which he or she was transferred; and(ii)the date and time of the transfer; and(iii)the reasons for the transfer.
(2)Every police officer at a police station or charge office where records are required to be kept in terms of subsection (1) shall permit any interested person, including a legal practitioner representing a person who is believed to have been arrested or detained, to inspect the records at all reasonable times.
(3)The officer in charge of a police station or charge office where records are required to be kept in terms of subsection (1) shall ensure that the records are kept there for at least three years.[section inserted by section 13 of Act 2 of 2016]

41D. Search and examination of arrested person

(1)A person who arrests another person, under this Act or any other enactment and whether with or without warrant, may search that person, and shall place in safe custody all articles, other than necessary wearing apparel, found on him or her.
(2)A peace officer may take or cause to be taken the finger-prints, palm-prints, footprints and photographs of any person arrested upon any charge, under this Act or any other enactment and whether with or without warrant, and the medical officer of any prison or any medical officer of the Ministry responsible for health or any peace officer may take a sample of the arrested person’s blood, saliva or tissue or cause to be taken such other steps as he or she may think necessary in order to ascertain whether or not the body of the arrested person has any mark, characteristic or distinguishing feature or shows any condition or appearance:Provided that a bodily, saliva or tissue sample shall only be taken by a medical officer at the request in writing of a police officer of or above the rank of superintendent, in order to ascertain some fact which is material to the investigation of the charge upon which the person has been arrested.
(3)Any search of the body of an arrested person in terms of this section shall be made—(a)by a medical officer; or(b)where it is not made by a medical officer, by any person who is of the same sex as the arrested person;and shall be conducted with strict regard to decency and decorum.
(4)Any finger-prints, palm-prints, footprints, photographs or samples taken under this section, and the records of any steps taken under this section, shall be destroyed if the person concerned is found not guilty at his or her trial or if his or her conviction is set aside by a superior court or if it is decided not to prosecute him or her or if the charge against him or her is withdrawn.
(5)Section 41B(6) applies, with such changes as may be necessary, to a person referred to in subsection (4).[section inserted by section 13 of Act 2 of 2016]

42. Resisting arrest

(1)If any person who is authorised or required under this Act or any other enactment to arrest or assist in arresting another person, attempts to make the arrest and the person whose arrest is attempted resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the person concerned cannot be arrested without the use of force, the person attempting the arrest may, in order to effect the arrest, use such force as may be reasonably justifiable and proportionate in the circumstances to overcome the resistance or prevent the person concerned from fleeing:Provided that the person attempting the arrest is justified in terms of this section in using force against the person concerned only if the person sought to be arrested was committing or had committed, or was suspected of having committed an offence referred to in the First Schedule, and the person attempting the arrest believes on reasonable grounds that—(a)the force is immediately necessary for the purposes of protecting the person attempting the arrest, any person lawfully assisting the person attempting the arrest or any other person from imminent or future death or grievous bodily harm; or(b)there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or(c)the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life-threatening violence or a strong likelihood that it will cause grievous bodily harm.
(2)For the avoidance of doubt it is declared that no use of lethal force for the purposes of subsection (1) shall be lawful unless there is strict compliance with the conditions specified therein.[section substituted by section 14 of Act 2 of 2016]

43. Power to retake on escape

If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him or cause him to be pursued and arrested in any place in Zimbabwe.

44. ***

[section repealed by Act 23 of 2004]

45. Saving of other powers of arrest

Nothing in this Part shall be construed as taking away or diminishing any authority specially conferred by any other enactment to arrest, detain or put any restraint on any person.

46. Saving of civil rights

Nothing in this Part shall be construed as taking away or diminishing any civil right or liability of any person in respect of a wrongful or malicious arrest.

Part VI – Search warrants, seizure, detention and disposal of property connected with offences and custody of women unlawfully detained for immoral purposes

47. Interpretation in Part VI

In this Part—article” includes any document or substance.articles whose possession is intrinsically unlawful” means harmful liquids, dangerous drugs, child pornography as defined in the Trafficking in Persons Act [Chapter 9:25], adult pornography whose possession is prohibited under the Censorship and Entertainments Control Act [Chapter 10:04], unlicensed firearms and ammunition, arms or weapons of war, explosives whose use or possession is not authorised under the Explosives Act [Chapter 10:08], forged or counterfeit currency or forged or counterfeit travel or identity documents, any plate or dye used for forging currency or documents and any other article specified by the Minister in regulations made under section 389;full receipt”, in relation to an article seized in terms of this Part, means a receipt specifying the nature of the article, the name and address of the person from whom it was seized and (if some other person is known to be the owner thereof) the name and address of the owner thereof, the date of seizure and the place of custody, and the name and signature of the seizing officer:Provided that if three or more such articles are seized from the same person at the same time, the receipt may refer to a description of the articles in a list attached thereto that is signed by the seizing officer and retained by the person from whom it was seized;occurrence book” means the journal kept at a police station of events required to be recorded therein on a daily basis;premises” or “land” includes any container, vehicle, vessel or aircraft present within or upon such premises or land.[section substituted by section 15 of Act 2 of 2016]

48. Savings as to certain powers conferred by other enactments

This Part shall not derogate from any power conferred by any other enactment to enter any premises, to search any person, container or premises, to seize any article, to declare any article forfeited or to dispose of any article.

49. State may seize certain articles

(1)The State may, in accordance this Part, seize any article(a)which is concerned in or is on reasonable grounds believed to be concerned in, the commission or suspected commission of an offence, whether within Zimbabwe or elsewhere; or(b)which it is on reasonable grounds believed may afford evidence of the commission or suspected commission of an offence, whether within Zimbabwe or elsewhere; or(c)which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.
(2)A police officer who seizes and removes any article in accordance with this Part, whether under or without a warrant, must make a full receipt in duplicate for the article so seized and removed, and—(a)give a copy of it to the owner or possessor thereof (unless the owner or possessor of the article is arrested in connection with an offence involving the article, in which case paragraphs (b), (c) and (d) following apply); or(b)in the absence of the owner or possessor, or if the owner or possessor of the article is arrested in connection with an offence involving the article, or if the owner or possessor is unknown or cannot be ascertained by the police officer after due inquiry, give a copy of it to (as the case may be)—(i)the person apparently in charge or control of or in lawful occupation of the land, premises upon or in which the article is seized: or(ii)the person apparently in charge or control of the vehicle, vessel or aircraft from which the article is seized;or(c)in the absence of the persons referred to in paragraph (b), give a copy of it to (as the case may be)—(i)an apparently responsible person present upon or in the land or premises from which the article is seized: or(ii)an apparently responsible person present as a passenger within the vehicle, vessel or aircraft from which the article is seized and removed;or(d)in the absence of all of the persons referred to in paragraph (a), (b) and (c), attach or leave a copy of the receipt in any part of the premises, land, vehicle, vessel or aircraft from which the article to which the receipt relates was seized and removed.[subsection inserted by section 16 of Act 2 of 2016]
(3)If an owner or possessor from whom any article is seized in accordance with this Part did not receive a full receipt therefor by reason having been arrested in connection with an offence involving the article, he or she shall have the right to demand and receive such a receipt immediately upon being released on bail or upon being conditionally released, and thereupon he or she becomes entitled to all the rights provided under this Part to holders of such receipts.[subsection inserted by section 16 of Act 2 of 2016]
(4)Any police officer responsible for the seizure of an article under this Part who—(a)fails to comply with subsection (2);(b)fails, upon a demand being made by an owner or possessor of the article pursuant to subsection (3), to furnish a full receipt in respect of that article;shall, unless the article or articles in question are articles whose possession is intrinsically unlawful, be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment.[subsection inserted by section 16 of Act 2 of 2016]

50. Article to be seized under warrant

(1)Subject to sections fifty-one, fifty-two and fifty-three, an article referred to in section forty-nine shall be seized only by virtue of a warrant issued—(a)by a magistrate or justice (other than a police officer), if it appears to the magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of any person, or upon or in any premises or area, within his area of jurisdiction; or[paragraph amended by section 44 of Act 1 of 2002 and by section 17 of Act 2 of 2016](b)by a judge or magistrate presiding at criminal proceedings, if it appears to the judge or magistrate that any such article in the possession or under the control of any person or upon or in any premises is required in evidence in the proceedings.
(2)A warrant issued in terms of subsection (1) shall require a police officer to seize the article in question and shall to that end authorize such police officer, where necessary—(a)to search any person identified in the warrant or any premises within an area identified in the warrant; or[paragraph amended by section 44 of Act 1 of 2002](b)to enter and search any premises identified in the warrant, and to search any person found upon or in those premises.
(3)A warrant—(a)may be issued on any day and shall be of force until it is executed or it is cancelled by the person who issued it or, if that person is not available, by a person with like authority; and(b)shall be executed by day, unless the person issuing the warrant in writing authorizes the execution thereof by night.
(4)A police officer executing a warrant in terms of this section shall, before or after such execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant.[subsection amended by section 17 of Act 2 of 2016]

51. Search and seizure without warrant

(1)A police officer may, without warrant, search any person or container or premises for the purposes of seizing any article referred to in section forty-nine and additionally, or alternatively, seize any such article(a)if the person concerned consents to the search for and additionally, or alternatively, the seizure of the article in question or if a person who may consent to the search of the container or premises consents to such search and additionally, or alternatively, the seizure of the article in question; or(b)if he on reasonable grounds believes that—(i)a warrant would be issued to him in terms of paragraph (a) of subsection (1) of section fifty if he applied for one; and(ii)the delay in obtaining a warrant would prevent the seizure or defeat the object of the search, as the case may be.
(2)Where a police officer has reason to suspect that an offence has been committed by any person on board a boat on inland waters, it shall be lawful for him to stop, go on board and search such boat without warrant and to seize any thing which he has reasonable grounds for believing will afford evidence as to the commission of an offence under any law.
(3)Any person who, when called upon in terms of subsection (2) to stop a boat under his control, fails to comply immediately with such request shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment.[subsection amended by section 4 of Act 22 of 2001]
(4)A police officer executing a search without a warrant in the circumstances specified in subsection (1)(b) shall, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, furnish that person with the particulars of his or her name, rank and number, and the reasons for carrying out the search and seizure without warrant.[subsection inserted by section 18 of Act 2 of 2016]
(5)Any police officer who contravenes subsection (4), shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment, unless the affected person is lawfully charged with and arrested for an offence in connection with such search and seizure.[subsection inserted by section 18 of Act 2 of 2016]

52. Seizure of article on arrest or detention of person carrying same

(1)On the arrest and search of any person, the person making the arrest may—(a)if he is a peace officer, seize any article referred to in section forty-nine which is in the possession or under the control of the person arrested and, where such peace officer is not a police officer, shall forthwith deliver any such article to a police officer; or(b)if he is not a peace officer, seize any article referred to in section forty-nine which is in the possession or under the control of the person arrested and shall forthwith deliver any such article to a police officer.
(2)A police officer to whom an article is delivered under subsection (1)(a) or (b) shall forthwith, and in any event not later than forty-eight hours after such delivery, make and deliver the full receipt referred to in section 49(2), and any failure to do so entitles the owner or possessor thereof to demand the return of the seized article upon expiry of that period, unless the article or articles in question are of a kind whose possession is intrinsically unlawful.[subsection substituted by section 19 of Act 2 of 2016]
(3)Any police officer may stop and interrogate any person who is found at any time between sunset and sunrise carrying or transporting any goods or articles of any description and if—(a)such person does not account satisfactorily for the possession of the goods or articles so being carried or transported; and(b)there are reasonable grounds for suspecting that such goods or articles—(i)have been criminally procured; or(ii)are of a kind whose possession is intrinsically unlawful;such officer may convey such goods or articles and the person so carrying or transporting the same to any prison or police station, and detain such person in custody:Provided that section 32(3) and the other provisions of this Act relating to the rights of arrested persons shall apply in relation to the person so detained and, if he or she is released from custody, the goods and articles that he or she was carrying or transporting shall be returned to him or her, unless they are seized and a full receipt therefor is given to him or her in accordance with section 49.[subsection inserted by section 19 of Act 2 of 2016]

53. Search by occupier of land

Any person who is lawfully in charge or occupation of any land and who reasonably suspects that—(a)stolen stock or produce, as defined in any law relating to the theft of stock or produce, is upon or in any premises on that land; or(b)any article has been placed upon or in any premises on that land or is in the possession or under the control of any person upon such premises in contravention of any law relating to harmful liquids, dependence-producing drugs, arms and ammunition or explosives;may at any time, if a police officer is not readily available, enter the premises for the purpose of searching the premises and any person thereupon or therein and, if any such stock, produce or article is found, he shall take possession thereof and forthwith deliver it to a police officer.

54. Entering of premises for purposes of obtaining evidence

(1)Where a police officer in the investigation of an offence or alleged offence reasonably suspects that a person who may furnish information with reference to any such offence is upon or in any premises, he may, without warrant, enter the premises for the purpose of interrogating such person and obtaining a statement from him:Provided that a police officer shall not enter any dwelling in terms of this section without the consent of the occupier thereof.
(2)Where a police officer of such class as the Minister may designate considers on reasonable grounds that it is necessary for the purpose of investigating or detecting an offence to examine any books, documents or other records, he may, without warrant—(a)enter any premises for the purpose of examining such books, documents or other records; and(b)require from any person thereupon or therein the production then and there of such books, documents or other records which are or have been upon or in the premises or in the custody or under the control of any person by whom the premises are occupied or used;and may examine and make extracts from and copies of all such books, documents and other records:Provided that a police officer shall not enter any dwelling in terms of this subsection without the consent of the occupier thereof.
(3)A police officer executing powers under subsection (1) or (2) shall, upon demand of any person whose rights are affected by the exercise of such powers, furnish that person with the particulars of his or her name, rank and number, and the reasons for exercising those powers.[subsection inserted by section 20 of Act 2 of 2016]
(4)Any police officer who—(a)contravenes subsection (3); or(b)enters a dwelling without the consent of the occupier thereof in the purported exercise of powers under subsection (1) or (2);shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment, unless, in the case of a contravention of subsection (3), the affected person is lawfully charged with and arrested for an offence in connection with the exercise of powers under subsection (1) or (2).[subsection inserted by section 20 of Act 2 of 2016]

55. Resistance against entry or search

(1)A police officer who may lawfully search any person or premises or who may enter any premises in terms of section fifty-four may use such force as may reasonably be necessary to overcome any resistance against such search or entry, including the breaking of any door or window of the premises:Provided that the police officer shall first audibly demand admission to the premises and notify the purpose for which he seeks to enter the premises.
(2)The proviso to subsection (1) shall not apply where the police officer concerned is on reasonable grounds of the opinion that any article which is the subject of the search may be destroyed or disposed of if the provisions of that proviso are first complied with.

56. Award of damages for false information on oath

Where any person falsely gives information on oath for the purposes of subsection (1) of section fifty and a warrant is issued and executed on such information, and such person is in consequence of such false information convicted of perjury or any statutory offence involving the making of a false statement on oath, the court convicting such person may, upon the application of any person who has suffered any damage in consequence of the unlawful entry, search or seizure, as the case may be, or upon the application of the prosecutor acting on the instructions of that person, award compensation in respect of such damage and the provisions of section three hundred and sixty-two shall apply, mutatis mutandis, to the award.

57. Search to be conducted in decent and orderly manner

A search of any person or premises in terms of this Part shall be conducted with strict regard to decency and order, and section 41B(3) shall apply to the search of any person.[section amended by section 49 of Act 2 of 2016]

58. Custody and disposal of seized articles

(1)Subject to subsection (2), a police officer who seizes any article referred to in section 49 or to whom any such article is delivered in terms of this Part or to whom an article seized in terms of any other enactment is delivered to be dealt with in terms of this Part, shall—(a)take it or cause it to be taken forthwith and delivered to a place of security under the control of a police officer; and(b)have all relevant particulars in relation to it and its seizure entered in an inventory (which may be an electronic inventory, provided that a manual or material back-up of the inventory is maintained simultaneously) kept at the place of custody, namely a sufficient description of the article, details of the date and particulars of the full receipt (if any) issued in relation thereto, and the identification number and mark assigned to it; and(c)endeavour to ensure that the article, if vulnerable to damage or contamination from moisture or dust, is kept free from contamination by moisture and dust, and that the place of security where it is lodged is protected from access by unauthorised persons; and(d)be held, subject to section 59, until the criminal proceedings which are instituted in relation to that article—(i)have been abandoned or discontinued or are concluded otherwise than with the conviction of the accused, in which event the custodian police officer shall forthwith restore any such article the accused or the owner thereof, as may be appropriate, unless the article is one whose possession is intrinsically unlawful; or(ii)have resulted in the conviction of the accused, in which event the convicting court shall—(A)order any such thing to be restored to the accused or the owner thereof, as may be appropriate; or(B)order any such article to be forfeited to the State or destroyed.
(2)A police officer may, if the article is stolen property or property suspected to be stolen, with the consent of the person from whom it was seized, deliver the article to the person from whom, in the opinion of such police officer, such article was stolen, and shall warn such person to hold such article available for production at any resultant criminal proceedings, if required to do so.
(3)If the seized article needs to be destroyed or disposed of because it is perishable or has become a hazard to human health or safety, and there is any valid reason for not returning the article in question to the owner or possessor thereof or other person to whom a full receipt was given in respect of its seizure, then the police officer shall—(a)issue to the owner or possessor thereof or other holder of the full receipt a notice of destruction or disposal of a seized article substantially in the form set out in the Eleventh Schedule, in which the owner, possessor or holder is also notified of his or her right to object to the proposed destruction or disposal within fourteen days of the date of issuance of the notice; and(b)not earlier than fourteen days thereafter destroy the article or have it destroyed, or dispose of the article in such manner as the circumstances may require; and(c)at least twenty-four hours before the day on which the article is to be destroyed or disposed of, notify in writing the person to whom the notice of destruction or disposal of the seized article was issued, and afford the notified person or his or her authorised representative an opportunity to witness the destruction or disposal.
(4)Immediately upon receiving any objection to a notice of destruction or disposal of a seized article, a police officer shall apply for a warrant of destruction or disposal of a seized article in terms of subsection (5), upon not less than seven days’ written notice to the owner or possessor thereof, or, if his or her whereabouts or identity cannot be ascertained after due inquiry, upon delivery of the notice to the same person or in the same manner and at the same place as the receipt referred to in section 49(2) was delivered.
(5)An application for a warrant of destruction or disposal of a seized article shall be made by a police officer to a magistrate or justice (other than a police officer) having jurisdiction over the area where the article was seized, for which purpose the police officer shall swear by affidavit that—(a)the seized article (of a description and having the identification number specified in the affidavit) needs to be destroyed or disposed of because it is perishable or has become a hazard to human health or safety; and(b)there is a valid reason (specified in the affidavit) for not returning the article in question to the owner or possessor thereof or other person to whom a full receipt was given in respect of its seizure; and(c)a full receipt in respect of the article was issued on a specified date; and(d)written notice of the time and place of the application for the warrant was timeously given to the owner or possessor thereof or other person mentioned in paragraph (b).
(6)In an application for a warrant of destruction or disposal of a seized article the magistrate or justice shall, if the owner or possessor thereof, or other person mentioned in subsection (5)(b), is present, allow—(a)him or her to make representations in person, in writing or through a legal practitioner, in opposition to the application; and(b)the applicant police officer to respond to any submissions made under paragraph (a);but no postponement of the application shall be entertained, and no submissions shall be made by either party except those concerning—(c)the truth or otherwise of any statement referred to in subsection (5)(a), (b), (c) or (d); and(d)any allegation by the applicant police officer that the notified party or the party who is opposing the application is not entitled to the possession or ownership of the seized article by reason of not having a full receipt in relation thereto or for some other lawful reason;and the application must be determined on the same day on which it was made, whether the notified person is present or not.[section substituted by section 21 of Act 2 of 2016]

58A. Continued retention of seized articles if institution of criminal proceedings is delayed

(1)If within twenty-one working days from the date—(a)when an article was seized and receipt therefor was given (provided that the date shown on the receipt shall be determinative if it is dated later than the day of seizure); or(b)when a person referred to in section 49(3) receives a receipt for any article previously seized from him or her;no prosecution of an offence in respect of which the seized article is required as an exhibit is initiated, that is to say—(c)no summons is issued to the accused person for the prosecution of the offence; or(d)no statement of the charge is lodged with the clerk of the magistrates court before which the accused is to be tried, where the offence is to be tried summarily; or(e)no indictment has been served upon the accused person, where the person is to be tried before the High Court;then the seized article shall (unless the article in question is one whose possession is intrinsically unlawful) be returned as soon as possible by the police officer who detained it, or by any other person acting in his or her stead, to the premises, place, vehicle, vessel or aircraft from which it was removed or, where that is impracticable, be availed for collection at such place as the police officer shall direct the owner or possessor thereof to go, unless the police officer earlier, upon at least seventy-two hours’ notice to the owner or possessor thereof, serves upon him or her a written notice of continued retention of the seized article, in which the police officer shall—(f)affirm that investigations relating to the offence in respect of which the seized article is required as an exhibit are ongoing and are being actively pursued without undue delay; and(g)afford the owner or possessor thereof an opportunity to lodge at a specified police station a written objection to the retention of the article within forty-eight hours of the date of issuance of the notice of continued retention;and if no such objection is lodged, the seized article may be retained in custody by the police until the pertinent criminal proceedings have been concluded, abandoned or discontinued and the seized article dealt with in accordance with this Part.
(2)If the owner or possessor of a seized article is not served with a notice of continued retention after the expiry of the period specified in subsection (1) and no prosecution in respect of the seized article is initiated within that time, then the owner or possessor has the right to recover the article (unless it is one whose possession is intrinsically unlawful) from the police upon mere production of the receipt issued to him or her by a police officer in relation thereto, unless a police officer forthwith delivers to the owner or possessor the notice of continued retention, and subsection (1) shall thereupon apply in relation to such notice.
(3)Immediately upon receiving any objection to a notice of continued retention of a seized article, a police officer shall apply for a warrant of further retention of the seized article in terms of subsection (4), upon not less than seven days’ written notice to the owner or possessor thereof, or, if his or her whereabouts or identity cannot be ascertained after due inquiry, upon delivery of the notice to the same person or in the same manner and at the same place as the receipt referred to in section 49(2) was delivered.
(4)An application for a warrant of further retention of a seized article shall be made by a police officer to a magistrate or justice (other than a police officer) having jurisdiction over the area where the article was seized, for which purpose the police officer shall swear by affidavit that the seized article (of a description and having the identification number specified in the affidavit) is required in evidence in criminal proceedings and that—(a)investigations in respect thereof are ongoing and are being actively pursued without undue delay; and(b)a full receipt in respect of the article was issued on a specified date; and(c)written notice of the time and place of the application for the warrant of further retention of the seized article was timeously given to the owner or possessor thereof or other person mentioned in subsection (3).
(5)In an application for a warrant of further retention of a seized article the magistrate or justice shall, if the owner or possessor thereof, or other person mentioned in subsection (3), is present, allow—(a)him or her to make representations in person, in writing or through a legal practitioner, in opposition to the application; and(b)the applicant police officer to respond to any submissions made under paragraph (a);but no postponement of the application shall be entertained, and no submissions shall be made by either party except those concerning—(c)the truth or otherwise of any statement referred to in subsection (4) (a), (b) or (c); and(d)any allegation by the applicant police officer that the notified party or the party who is opposing the application is not entitled to the possession or ownership of the seized article by reason of not having a full receipt in relation thereto or for some other lawful reason;and the application must be determined on the same day on which it was made, whether the notified person is present or not.
(6)The effect of—(a)the issuance of a warrant of further retention of a seized article is that the article may be retained in custody by the police until the pertinent criminal proceedings have been concluded, abandoned or discontinued and the seized article dealt with in accordance with this Part; or(b)the refusal to issue a warrant of further retention of the seized article is that it must be returned without delay to the holder of the receipt issued in respect thereof, subject to any directions the magistrate or justice may give for the preservation or safe custody of the same until the expiry of a specified period or on the initiation of a prosecution in connection therewith, whichever event happens earlier.
(7)Any holder of the receipt referred to in subsection (6)(b) who fails to comply with any directions given to him or her for the preservation or safe custody of the article returned to him or her until the expiry of a specified period or on the initiation of a prosecution in connection therewith, whichever event happens earlier, shall be guilty of the crime of defeating or obstructing the course of justice contrary to section 184 of the Criminal Law Code and liable to the penalties therefor.[section inserted by section 21 of Act 2 of 2016]

58B. Manner of service of notices for purposes of sections 58 and 58A

References to a police officer—(a)issuing a notice of destruction or disposal of a seized article to the owner or possessor thereof or other person to whom a full receipt was given in respect of its seizure for the purpose of section 58(3)(a);(b)notifying such owner, possessor or person for the purpose of section 58(3)(c);(c)notifying such owner, possessor or person for the purpose of section 58(4);(d)issuing a notice of further retention of a seized article to the owner or possessor thereof or other person to whom a full receipt was given in respect of its seizure for the purpose of section 58A(1);(e)notifying such owner, possessor or person for the purpose of section 58A(3);are to be interpreted as requiring the police officer to deliver such notice to the owner, possessor or person concerned or his or her authorised representative in any of the following ways—(f)by hand delivery to the owner, possessor, person representative concerned in person, or to a responsible individual at the place of business or residential address of the owner, possessor, person representative; or(g)by registered post addressed to the place of business or residential address of the owner, possessor, person representative; or(h)by delivery to the place of business or residential address of the owner, possessor, person representative through a commercial courier service; or(i)by electronic mail or telefacsimile at the electronic mail or telefacsimile address furnished by the owner, possessor, person representative to the police officer.[section inserted by section 21 of Act 2 of 2016]

59. Disposal of article where no criminal proceedings are instituted, where it is not required for criminal proceedings or where accused admits his guilt

(1)Subject to subsection (2), if in connection with any article referred to in section 58(1), and regardless of whether a notice of further retention of the seized article or warrant of further retention of the seized article has been issued in relation to the article—(a)no criminal proceedings are instituted; or(b)it appears that such article is not required at the trial for purposes of evidence or for purposes of an order of court; or(c)criminal proceedings are instituted and the accused admits his guilt in accordance with section three hundred and fifty-six;the article shall—(i)if the person from whom it was seized may lawfully possess the article, be returned to that person; or(ii)if the person from whom it was seized may not lawfully possess the article, be delivered to the person who may lawfully possess it; or(iii)if no person may lawfully possess the article (whether by reason of its being an article whose possession is intrinsically unlawful, or otherwise) or if the police officer concerned does not know of any person who may lawfully possess the article, be forfeited to the State.[subsection amended by section 22 of Act 2 of 2016]
(2)If the person who may lawfully possess the article in question is known and has not applied for the return or delivery of the article, notice shall be sent by registered post to his last known address that he may take possession of the article, and if such person fails to take possession of the article within three months from the date of such notice being sent, the article shall be forfeited to the State.
(3)Where an article has been forfeited to the State in terms of paragraph (iii) of subsection (1) or subsection (2), a magistrate within whose area of jurisdiction the article was, in terms of paragraph (c) of section fifty-eight, retained in police custody may at any time within a period of three years from the date of the original seizure by a police officer or delivery to a police officer, as the case may be, of the article, upon the application of any person who claims that any right referred to in paragraph (a) or (b) is vested in him, inquire into and determine such right and, if the magistrate finds that the article(a)is the property of the applicant, he shall—(i)set aside the forfeiture and direct that the article be returned to such person; or(ii)if the State has disposed of the article, direct that the applicant be paid adequate compensation by the State;(b)was sold to the accused in pursuance of a contract under which he becomes the owner of the article upon payment of a stipulated price, whether by instalments or otherwise, and under which the seller becomes entitled to the return of the article upon default of payment of the stipulated price or any part thereof, he shall—(i)direct that the article be sold by public auction and that the said seller be paid out of the proceeds of the sale an amount equal to the value of his rights under the contract to the article, but not exceeding the proceeds of the sale; or(ii)if the State has disposed of the article, direct that the said seller be paid adequate compensation by the State.
(4)If a determination by a magistrate of an application in terms of subsection (3) is adverse to the applicant, he may appeal therefrom as if it were a conviction by the court making the determination.
(5)When determining any rights in terms of subsection (3), the magistrate may hear such evidence, whether by affidavit or orally, as he may think fit.
(6)If, in making an order under subsection (3)(a) or (b) in favour of an applicant, it appears to the magistrate, from the evidence presented before him or her in the course of hearing the application, that—(a)the amount, if any, realised by the State when disposing of the article in question was inadequate to cover any costs reasonably incurred in securing the safe custody of the article; and(b)the applicant was negligent or unduly dilatory in pursuing his or her claim to the article in question;the magistrate shall afford the State an opportunity to submit a claim for the recovery of any costs reasonably incurred in securing the safe custody of the article, and, if such submission is made—(c)may grant the whole or any part of such costs as to the magistrate appears reasonable:Provided that such costs must not exceed the reasonably estimated value of the article to be returned, or the value of the compensation awarded or sale price realised under this section, as the case may be; and(d)shall direct the amount of the costs awarded under paragraph (c) to be deducted from any compensation payable or sale price realised under this section.[subsection inserted by section 22 of Act 2 of 2016]

60. Article to be transferred to court for purposes of trial

(1)If criminal proceedings are instituted in connection with any article referred to in section 58(1) and the article is required at a trial for the purposes of evidence or of any order of court, the police officer concerned shall, subject to subsection (2), deliver the article to the registrar or clerk of the court where such criminal proceedings are instituted.[subsection amended by section 28 of Act 9 of 2006 and section 49 of Act 2 of 2016]
(2)If it is, by reason of the nature, bulk or value of the article in question, impracticable or undesirable that the article be delivered to the registrar or clerk of the court in terms of subsection (1), the registrar or clerk, as the case may be, may require the police officer concerned to retain the article in police custody or in such other custody as may be determined in terms of section 58(1).[subsection amended by section 49 of Act 2 of 2016]
(3)The registrar or clerk, as the case may be, of the court shall place any article received in terms of subsection (1) in safe custody, which may include the deposit of money in an official banking account if such money is not required at the trial for the purposes of evidence.[subsection amended by section 28 of Act 9 of 2006]
(4)Where the trial in question is to be conducted in a court other than the court to which the article was delivered in terms of subsection (1), the registrar or clerk, as the case may be, of the court shall—(a)transfer any article received in terms of that subsection, other than money deposited in a banking account in terms of subsection (3), to the registrar or clerk, as the case may be, of the court in which the trial is to be conducted, and that registrar or clerk shall place such article in safe custody; or(b)in the case of any article retained in police custody or in some other custody in terms of subsection (2) or any money deposited in a banking account in terms of subsection (3), advise the registrar or clerk of the court in which the trial is to be conducted accordingly.

61. Disposal of article after commencement of criminal proceedings

(1)Subject to this Act and except as otherwise provided in any other enactment under which any matter shall or may be forfeited, the judge or magistrate presiding at criminal proceedings may, at the conclusion of the proceedings, unless the article is further required as an exhibit at a trial, make an order that any article referred to in section sixty or produced in evidence—(a)if the person from whose possession it was obtained may lawfully possess such article, be returned to that person; or(b)if the person from whose possession it was obtained is not entitled to the article or may not lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or(c)if no person is entitled to the article (whether by reason of its being an article whose possession is intrinsically unlawful, or otherwise) or if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.[subsection amended by section 23 of Act 2 of 2016]
(2)The court may, for the purpose of making any order in terms of subsection (1), hear such additional evidence, whether by affidavit or orally, as it may think fit.
(3)If the judge or magistrate concerned does not, at the conclusion of the relevant proceedings, make an order in terms of subsection (1), the registrar or clerk of the court may hand the article to the person who, in terms of paragraph (a) or (b) of subsection (1), is entitled to the article and, if he is in any doubt as to who is entitled to the article, shall refer the matter to a judge or magistrate, as the case may be, who may make any order referred to in subsection (1) and for that purpose may hear such additional evidence, whether by affidavit or orally, as he may think fit:Provided that, if within a period of three months after the conclusion of the trial the article has not been handed to any person and no order has been made in respect thereof or is pending in respect thereof, the article shall be forfeited to the State.
(4)Any order made in terms of subsection (1) or (3) may be suspended pending any appeal or review.
(5)Where the court makes an order in terms of paragraph (a) or (b) of subsection (1) or subsection (3), the provisions of subsection (2) of section fifty-nine shall apply, mutatis mutandis, in respect of the person in whose favour the order is made.
(6)If circumstances so require or if the criminal proceedings in question cannot for any reason be disposed of, the judge or magistrate concerned may make any order referred to in paragraph (a) or (b) of subsection (1) at any stage of the proceedings.

62. Forfeiture of article to State

(1)A court convicting any person of any offence may, without notice to any other person, declare forfeited to the State—(a)any weapon, instrument or other article by means whereof the offence in question was committed or which was used in the commission of such offence; or(b)if the conviction is in respect of an offence specified in the Second Schedule, any vehicle, container or other article which was used for the purpose of or in connection with the commission of the offence in question or, in the case of a conviction relating to the theft of any goods, for the conveyance or removal of the stolen property;and which was seized in terms of this Part:Provided that such forfeiture shall not affect any right referred to in paragraph (a) or (b) of subsection (4) if it is proved that the person who claims such right did not know that the weapon, instrument, vehicle, container or other article was being used or would be used for the purpose of or in connection with the commission of the offence in question or, as the case may be, for the conveyance or removal of the stolen property in question, or that he could not prevent such use, and that he may lawfully possess such weapon, instrument, vehicle, container or other article, as the case may be.
(2)A court convicting any person or which finds an accused not guilty of any offence shall declare forfeited to the State any article seized under this Part whose possession is intrinsically unlawful.[subsection amended by section 24 of Act 2 of 2016]
(3)Any article declared forfeited in terms of subsection (1) shall be kept for a period of three months with effect from the date of declaration of forfeiture or, if an application is within that period received from any person for the determination of any right referred to in paragraph (a) or (b) of subsection (4), until a final decision in respect of any such application has been given.
(4)Any judge or magistrate of the court in question may at any time within a period of three years from the date of declaration of forfeiture of an article in terms of subsection (1), upon the application of any person, other than the accused, who claims that any right referred to in paragraph (a) or (b) is vested in him, inquire into and determine any such right and, if the court finds that facts referred to in the proviso to subsection (1) are proved and that the article(a)is the property of the applicant, the court shall—(i)set aside the declaration of forfeiture and direct that the article be returned to such person; or(ii)if the State has disposed of the article, direct that the applicant be compensated by the State to the extent to which the State has been enriched by such disposal;(b)was sold to the accused in pursuance of a contract under which he becomes the owner of the article upon the payment of a stipulated price, whether by instalments or otherwise, and under which the seller becomes entitled to the return of the article upon default of payment of the stipulated price or any part thereof, the court shall—(i)direct that the article be sold by public auction and that the said seller be paid out of the proceeds of the sale an amount equal to the value of his right under the contract of the article, but not exceeding the proceeds of the sale; or(ii)if the State has disposed of the article in question, direct that the said seller be compensated by the State by an amount equal to the value of his rights under the contract to the article, but not exceeding the extent to which the State has been enriched by such disposal.
(5)If a determination by the court of an application in terms of subsection (4) is adverse to the applicant, he may appeal therefrom as if it were a conviction by the court making the determination, and such appeal may be heard either separately or jointly with an appeal against the conviction as a result whereof the declaration of forfeiture was made or against a sentence imposed as a result of such conviction.
(6)When determining any rights in terms of subsection (4), the record of the criminal proceedings in which the declaration of forfeiture was made shall form part of the relevant proceedings, and the court making the determination may hear additional evidence, whether by affidavit or orally, as it may think fit.
(7)If, in making an order under subsection (4)(a) or (b) in favour of an applicant, it appears to the judge or magistrate, from the evidence presented before him or her in the course of hearing the application, that—(a)the amount, if any, realised by the State when disposing of the article in question was inadequate to cover any costs reasonably incurred in securing the safe custody of the article; and(b)the applicant was negligent or unduly dilatory in pursuing his or her claim to the article in question;the judge or magistrate shall afford the State an opportunity to submit a claim for the recovery of any costs reasonably incurred in securing the safe custody of the article, and, if such submission is made—(c)may grant the whole or any part of such costs as to the judge or magistrate appears reasonable:Provided that such costs must not exceed the reasonably estimated value of the article to be returned, or the value of the compensation awarded or sale price realised under this section, as the case may be; and(d)shall direct the amount of the costs awarded under paragraph (c) to be deducted from any compensation payable or sale price realised under this section.[subsection inserted by section 24 of Act 2 of 2016]

62A. Forfeiture of unlawful consideration in cases of bribery

(1)In this section, “agent” and “principal” shall have the meaning given to those terms by section 169 of the Criminal Law Code.
(2)Where a court has convicted a person of bribery and does not exercise its powers in terms of section 62 to declare any consideration unlawfully obtained by the convicted person to be forfeited to the State, the court may, in addition to passing sentence give summary judgment in favour of—(a)the convicted person’s principal, where the convicted person was an agent when the crime was committed; or(b)in any other case, the State;for an amount equal to the value of the consideration unlawfully received by the convicted person, together with interest, calculated from the date on which the convicted person received the consideration, at the highest rate permissible in terms of the Moneylending and Rates of Interest Act [Chapter 14:14].
(3)A judgment given by a court in terms of subsection (1) shall have the same effect and may be executed in the same manner as if the judgment had been given in a civil action instituted in the court.[proviso repealed by section 25 of Act 2 of 2016][section inserted by section 282 of Act 23 of 2004]

63. Disposal of article concerned in offence committed outside Zimbabwe

(1)Where an article in connection with which—(a)an offence was committed or is on reasonable grounds suspected to have been committed in a country or territory outside Zimbabwe; or(b)there are reasonable grounds for believing that it will afford evidence as to the commission in a country or territory outside Zimbabwe of any offence or that it was used for the purpose of or in connection with the commission of any such offence;has been seized, the magistrate within whose area of jurisdiction the article was seized may, on application and if satisfied that such offence is punishable in that country or territory by death or by imprisonment for a period of twelve months or more or by a fine of level six or more, order such article to be delivered to a member of a police force established in such country or territory who may thereupon remove it from Zimbabwe.[subsection amended by section 4 of Act 22 of 2001]
(2)When the article so removed from Zimbabwe is returned to the magistrate or the magistrate refuses to order that the article be delivered as aforesaid, the article shall be returned to the person from whose possession it was taken, unless the magistrate is authorized or required by law to dispose of it otherwise.

63A. Forfeiture and disposal of seized articles whose possession is intrinsically unlawful

(1)If any article whose possession is intrinsically unlawful is seized by a police officer, such police officer or his or her superior shall as soon as possible communicate to the police officer in command of the police district within which the seized article is to be held in custody the fact of such seizure, together with all relevant particulars concerning the article.
(2)Subject to subsection (3), the seized article whose possession is intrinsically unlawful shall be held in custody in accordance with this section until—(a)it is forfeited to the State by virtue of this paragraph—(i)three months from the date when it was so seized, if no criminal proceedings are instituted in connection therewith within that period; or(ii)on the date that criminal proceedings, having been instituted in connection therewith, are abandoned, withdrawn or concluded otherwise than by the conviction of the accused;or(b)the article is declared forfeited to the State in terms of section 62(2);whereupon it shall be destroyed or disposed of in accordance with this section.
(3)If the seized article whose possession is intrinsically unlawful is, in the opinion of police officer seizing it, too hazardous or dangerous to be removed or kept in custody in the manner prescribed by this section, and accordingly needs to be destroyed on the spot or dealt with or kept in custody in some other manner or place than that prescribed (whether before or after it is forfeited to the State), the police officer shall forthwith communicate his or her apprehensions to the police officer in command of the police district within which the article is seized, and shall comply with any directions as to the removal, custody, destruction or disposal of the article as the police officer so in command may give him or her, and shall record or cause to be recorded the following in the occurrence book on the day of their occurrence or no later than twenty-four hours thereafter—(a)the date of seizure of the article and a sufficient description of it; and(b)the date of the communication of the seizing police officer’s apprehensions to the police officer in command of the police district within which the article is seized, and any directions received from the latter in relation thereto; and(c)the date and manner of the removal, custody, destruction or disposal of the article.
(4)Section 58(1)(a), (b) and (c) applies to the custody of an article whose possession is intrinsically unlawful except that—(a)if possible, it shall be kept in a place of security that is exclusively reserved for the custody of seized articles whose possession is intrinsically unlawful; and(b)a separate inventory from that mentioned in section 58(1)(b) shall be kept in relation to such articles; and(c)the police officer in control of the seized article shall be subject to any directions concerning the custody of the article issued by the Environmental Management Authority or other agency of the State having any statutory responsibility in respect of the seized article.
(5)Within seven days of the date of forfeiture in terms of subsection (1), the police officer in command of the police district within which the seized article is held in custody (hereafter in this section called “the responsible police officer”) shall communicate in writing to the Commissioner-General of Police, or any Assistant Commissioner appointed by the Commissioner-General generally or specifically for that purpose, and to the Prosecutor-General, and to any agency of the State having any statutory responsibility in respect of the seized article(a)the full particulars of such article, including a sufficient description of it and the dates of its seizure and forfeiture to the State; and(b)the date, time and place for the destruction of the article, or, if the article is to be disposed of in any other manner, the manner of its disposal and the date, time and place of the disposal.
(6)The responsible police officer shall be in charge of the destruction or disposal of the seized article at the date, time and place referred to in subsection (5)(b):Provided that whenever the responsible police officer is prevented by illness or other reasonable cause from discharging his or her function under this subsection, such function shall be discharged by any police officer of or above the rank of sergeant designated by the responsible police officer for that purpose.
(7)The Prosecutor-General or any public prosecutor appointed by the Prosecutor-General generally or specifically for that purpose, and any other person on behalf of an agency that received a communication referred to in subsection (5), shall be entitled to be present at the destruction of the seized article or to witness its disposal, as the case may be.
(8)On the date and time appointed by the responsible police officer under subsection(5), the police officer in charge of the destruction or disposal of the seized article shall, immediately upon such destruction or disposal, sign a declaration attesting to the destruction or disposal of the seized article, to which any witnesses authorised by subsection (7) to be present thereat shall also subscribe their names and signatures.[section inserted by section 26 of Act 2 of 2016]

63B. Admissibility in evidence of certain notices and entries made under this Part

(1)Any original or authenticated copy of—(a)a full receipt issued in relation to an article seized in terms of this Part;(b)an entry in an inventory referred to in section 58(1)(b);(c)a notice of destruction or disposal of a seized article or a notice to be present at the destruction or disposal thereof issued to any person for the purposes of section 58(3)(a) or (c);(d)a notice of further retention of the seized article served in terms of section 58A(1);(e)an entry in an occurrence book made for the purposes of section 63A(3);shall, upon its mere production by any person, be prima facie proof of the facts stated therein.[section inserted by section 26 of Act 2 of 2016]

64. Women detained for immoral purposes

(1)If it appears to a magistrate on complaint made on oath by a parent, husband, relative or guardian of a woman or girl, or any other person who, in the opinion of the magistrate, is acting in good faith in the interests of a woman or girl, that there are reasonable grounds for suspecting that such woman or girl is unlawfully detained for immoral purposes by any person in any place within the magistrate’s jurisdiction, he may issue a warrant directed to a peace officer and authorizing him to search for such woman or girl, and when found to take her to and detain her in a place of safety until she can be brought before a magistrate, and the magistrate before whom she is brought may cause her to be delivered up to her parents, husband, relatives or guardians, or otherwise deal with her as the circumstances may permit and require.
(2)The magistrate issuing the warrant may by warrant direct any person accused of so unlawfully detaining the woman or girl to be arrested and brought before him or some other magistrate having jurisdiction.
(3)A woman or girl shall be deemed to be unlawfully detained for immoral purposes if she—(a)being under the age of sixteen years, is detained for those purposes, whether against her will or not; or(b)being of or over the age of sixteen years and under the age of eighteen years, is for those purposes detained against her will or against the will of her father or mother or any other person who has the lawful care or charge of her; or(c)being of or above the age of eighteen years, is for those purposes detained against her will;and a woman or girl shall be deemed to be detained for immoral purposes if she is detained by any person in order that she may be unlawfully carnally known by any man, whether a particular man or not.
(4)A peace officer authorized by warrant under this section to search for a woman or girl may enter, if need be, by force any house or other place specified in the warrant, and may remove the woman or girl therefrom.
(5)A warrant under this section shall be executed by the police officer mentioned in it, who shall, unless the magistrate otherwise directs, be accompanied by the parent, husband, relative, guardian or other person by whom the complaint is made, if such person so desires.

Part VII – Committal for trial in the High Court of accused persons

[Part VII substituted by section 3 of Act 9 of 2006]

65. Accused to be committed for trial by magistrate before High court

No person shall be tried in the High Court for any offence unless he or she has been previously committed for trial by a magistrate for or in respect of the offence charged in the indictment:Provided that—(i)in any case in which the Prosecutor-General has declined to prosecute, the High Court or any judge thereof may, upon the application of any such private party as is described in sections 13 and 14, order any person to be committed for trial;(ii)an accused person, other than an accused person committed for trial under section 66, shall be deemed to have been committed for trial for or in respect of the offence charged in the indictment if the evidence taken before the committing magistrate contains an allegation of any fact or facts upon which the accused might have been committed upon the charge named in the indictment, although the committing magistrate may, when committing the accused upon such evidence, have committed him or her for some offence other than that charged in the indictment or for some other offence not known to the law;(iii)an accused person who is in actual custody when brought to trial, or who appears to take his or her trial in pursuance of any recognizance entered into before any magistrate, shall be deemed to have been duly committed for trial upon the charge stated in the indictment unless he or she proves the contrary;(iv)nothing in this section shall be construed as affecting the power of a judge to sentence a person whose case has been transferred to that court on the direction of the Prosecutor-General in terms of section 225;(v)no irregularity or defect in—(a)any proceedings referred to in section 66; or(b)any other matter relating to the bringing of an accused person before the High Court;shall affect the validity of the trial, but the court may, on the application of the prosecutor or the accused, adjourn the trial to some future day.[section substituted by section 3 of Act 9 of 2006]

66. Summary committal for trial of accused person

(1)If the Prosecutor-General is of the opinion that any person is under reasonable suspicion of having committed an offence for which the person may be tried in the High Court, the Prosecutor-General shall cause written notice to be served on—(a)a magistrate for the province within which the person concerned resides or for the time being is present; or(b)any magistrate before whom the trial of the offence could be held in respect of the offence concerned;informing the magistrate of his or her decision to indict the person concerned for trial before the High Court and of the offence for which the person is to be tried.
(2)On receipt of a notice in terms of subsection (1), the magistrate shall cause the person to be brought before him or her and shall forthwith commit the person for trial before the High Court and, if the person is in custody, shall issue a warrant for the further detention of the person in prison pending his or her trial before the High Court for the offence for which he or she has been committed.[subsection substituted by section 27 of Act 2 of 2016]
(2a)If a person who is committed for trial in terms of subsection (2) has earlier been granted bail on the charge for which he or she is committed, the grant shall stand but a judge of the High Court may, in terms of Part IX, alter the conditions of the recognizance or revoke the bail and commit the person to prison.[subsection inserted by section 27 of Act 2 of 2016]
(3)For the purpose of bringing a person before a magistrate to be committed for trial in terms of subsection (2)—(a)the clerk of the magistrates court concerned shall issue a summons at the request of a public prosecutor requiring the person to appear before the magistrate at a specified date, time and place and stating the nature of the offence in respect of which he or she is to be indicted for trial; or(b)the magistrate may issue a warrant for the person’s arrest.
(4)Section 140 shall apply, with any changes that may be necessary, to a summons issued in terms of subsection (3)(a) as if it had been issued in terms of that section.
(5)Part V shall apply, with any changes that may be necessary, to a warrant issued in terms of subsection (3)(b) as if it had been issued in terms of section 33(1).
(6)Where an accused has been committed for trial in terms of subsection (2) there shall be served upon him or her in addition to the indictment and notice of trial—(a)a document containing a list of witnesses it is proposed to call at the trial and a summary of the evidence which each witness will give, sufficient to inform the accused of all the material facts upon which the State relies; and(b)a notice requesting the accused(i)to give an outline of his or her defence, if any, to the charge; and(ii)to supply the names of any witnesses he or she proposes to call in his or her defence together with a summary of the evidence which each witness will give, sufficient to inform the Prosecutor-General of all the material facts on which he or she relies in his or her defence;and informing the accused of the provisions of section 67(2) in the event that the accused declines to give the information referred to in paragraph (b), whether on the grounds that he or she wishes to exercise his or her right to silence or otherwise.[subsection substituted by section 27 of Act 2 of 2016]
(7)The Prosecutor-General shall lodge with the registrar of the High Court a copy of the document and notice referred to in subsection (6).
(8)Where the accused is to be represented at his or her trial by a legal practitioner, the legal practitioner shall, at least three days, Saturdays, Sundays and public holidays excluded, before the date for trial determined by the Prosecutor-General in terms of section 160(1)—(a)send to the Prosecutor-General; and(b)lodge with the registrar of the High Court;a document containing the information referred to subsection (6)(b).
(9)Where the accused is not to be represented at his or her trial by a legal practitioner, the Prosecutor-General may—(a)serve on the accused a notice directing him or her to appear before a specified magistrate to provide the information referred to in subsection (6)(b), and(b)send to the magistrate specified in terms of paragraph (a) a copy of—(i)the document and notice referred to in subsection (6); and(ii)the notice served in terms of paragraph (a).
(10)The magistrate shall cause an accused on whom a. notice in terms of subsection (9) is served to appear before him or her and—(a)ask the accused if he or she understands the facts set out in the document referred to in subsection (6)(a) and, if necessary, explain those facts, and(b)inform him or her of—(i)his or her right to remain silent by declining to do either or both of the following—(A)to give an outline of his or her defence, if any, to the charge; and(B)to supply the names of any witnesses he or she proposes to call in his or her defence together with a summary of the evidence which each witness will give, sufficient to inform the Prosecutor-General of all the material facts on which he or she relies in his or her defence;and(ii)the consequences of remaining silent, that is to say, informing the accused of the provisions of section 67(2).[paragraph substituted by section 27 of Act 2 of 2016](c)request the accused to supply the information referred to in subsection (6)(b); and the proceedings shall be recorded.
(11)The magistrate shall transmit a certified copy of the record made in terms of subsection (10) to the registrar of the High Court.
(12)The registrar shall transmit—(a)the document and notice lodged with him or her in terms of subsection (7); and(b)the document lodged with him or her in terms of subsection (8)(b) or a certified copy of the record transmitted in terms of subsection (11), as the case may be;to the judge who is to preside at the trial.[section substituted by section 3 of Act 9 of 2006]

67. Information provided by accused or failure of accused to mention fact relevant to his or her defence may be used as evidence against accused

(1)A document purporting to be a copy of a document referred to in section 66(8) or a certified copy of a record made in terms of subsection (10) of that section shall be received in evidence before the court upon its mere production by the prosecutor without further proof, unless it is shown that the information given by the accused was not in fact duly given:Provided that, except in so far as it amounts to an admission of any allegation made by the State, any information provided by the accused shall not be taken into account for the purpose of deciding whether the accused should be found not guilty in terms of section 198(3).
(2)If an accused has failed to mention any fact relevant to his or her defence as requested in the notice in terms of section 66(6)(b), being a fact which, in the circumstances existing at the time, he or she could reasonably have been expected to have mentioned, the court, in determining whether there is any evidence that the accused committed or whether the accused is guilty of the offence charged or any other offence of which he or she may be convicted on that charge, may draw such inferences from the failure as appear proper and the failure may, on the basis of such inferences, be treated as evidence corroborating any other evidence given against the accused.
(3)In deciding, in terms of subsection (2), whether in the circumstances existing at the time the accused could reasonably have been expected to mention any fact, the court may have regard to the document referred to in section 66(6)(a).[section substituted by section 3 of Act 9 of 2006]

68. ***

[section 68 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

69. ***

[section 69 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

70. ***

[section 70 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

71. ***

[section 71 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

72. ***

[section 72 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

73. ***

[section 73 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

74. ***

[section 74 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

75. ***

[section 75 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

76. ***

[section 76 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

77. ***

[section 77 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

78. ***

[section 78 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

79. ***

[section 79 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

80. ***

[section 80 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

81. ***

[section 81 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

82. ***

[section 82 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

83. ***

[section 83 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

84. ***

[section 84 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

85. ***

[section 85 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

86. ***

[section 86 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

87. ***

[section 87 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

88. ***

[section 88 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

89. ***

[section 89 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

90. ***

[section 90 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

91. ***

[section 91 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

92. ***

[section 92 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

93. ***

[section 93 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

94. ***

[section 94 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

95. ***

[section 95 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

96. ***

[section 96 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

97. ***

[section 97 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

98. ***

[section 98 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

99. ***

[section 99 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

100. ***

[section 100 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

101. ***

[section 101 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

102. ***

[section 102 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

103. ***

[section 103 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

104. ***

[section 104 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

105. ***

[section 105 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

106. ***

[section 106 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

107. ***

[section 107 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

108. ***

[section 108 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

109. ***

[section 109 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

110. ***

[section 110 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

111. ***

[section 111 repealed by section 3 of Act 9 of 2006 which repealed and substituted Part VII]

Part VIII – Confirmation of extra-curial statements

112. Interpretation in Part VIII

In this Part—confirmation proceedings” means confirmation proceedings in terms of section 113;expert witness” means any person whose professional, scientific or technical training gives authority to evidence given in his or her professional, scientific or technical capacity;statement” means any statement, including a confession, that is written or made orally and subsequently reduced to writing;verification proceedings” means verification proceedings in terms of section 115A.[section substituted by section 4 of Act 9 of 2006]

113. Confirmation or investigation of statement

(1)Where an accused has been brought before a magistrate, the prosecutor may apply to the magistrate for the confirmation of any statement alleged to have been made by the accused, whether in writing or orally, and reduced to writing.
(2)In an application in terms of subsection (1)—(a)the prosecutor shall produce the statement referred to in subsection (1) by handing it to the magistrate and shall inform the magistrate of the details of when, where and to whom it was made; and(b)the statement produced in terms of paragraph (a) shall be read over to the accused and the accused shall be informed of the details provided in accordance with that paragraph; and(c)the magistrate shall ask the accused whether—(i)he made the statement; and(ii)he did so freely and voluntarily without his having been unduly influenced thereto;and shall explain to him the provisions of subsection (3).[paragraph amended by section 49 of Act 2 of 2016]
(3)If the accused(a)refuses to answer any question put in terms of subsection (2); or(b)admits that—(i)he made the statement; and(ii)the statement was made freely and voluntarily without his having been unduly influenced thereto;the magistrate shall confirm the statement by endorsing upon it the word “confirmed” and his signature and the place and date of confirmation.
(4)If the accused alleges that—(a)he did not make the statement; or(b)the statement was not made freely and voluntarily without his having been unduly influenced thereto;the magistrate shall request him to give particulars sufficient to inform the State of the facts upon which he relies for his allegation and, as far as is reasonably possible, to identify those involved in the allegation and shall inform him of the provisions of section one hundred and fifteen.
(5)The magistrate may require a person who makes an allegation referred to in subsection (4) to be medically examined and may make such other investigation as he considers necessary or desirable in the circumstances.
(6)[subsection 6 repealed by section 5 of Act 9 of 2006]
(7)[subsection 7 repealed by section 5 of Act 9 of 2006]

113A. Parents or guardian of juvenile may be summoned to confirmation proceedings

(1)If confirmation proceedings are held in respect of a person under the age of eighteen years, the magistrate conducting the proceedings may, at any time during those proceedings, direct any persons to warn the parent or guardian of the person orally to attend the proceedings and to remain in attendance at them, or to serve a warning in writing upon the parent or guardian:Provided that no magistrate shall give a direction in terms of this subsection in respect of the parent or guardian of a person who is married or, in the opinion of the magistrate, is tacitly emancipated.
(2)If a parent or guardian who has been warned under subsection (1) fails to attend on the date and at the time appointed, or to remain in attendance during the confirmation proceedings on that day and on any day to which the proceedings may be adjourned, the magistrate presiding at the proceedings may issue a warrant for the apprehension of that parent or guardian and may also order him or her to pay a fine not exceeding level three or, in default of payment, to be imprisoned for a period not exceeding one month.
(3)The magistrate may, on cause shown, remit any penalty imposed under subsection (2).[section inserted by section 6 of Act 9 of 2006]

113B. Accused must be in his or her sound and sober senses

(1)Before commencing confirmation proceedings and at all times during the course thereof, the magistrate shall satisfy himself or herself that the accused is in his or her sound and sober senses, and if the magistrate is, before commencing or at any time during the course of the proceedings, satisfied that the accused is not in his or her sound and sober senses, the magistrate shall record that fact and order the accused to be kept in custody in such place for such period and under such conditions as to observation as the magistrate may think fit.
(2)An order in terms of subsection (1) shall expire at the termination of fourteen days from the date of its issue, but may, from time to time, be renewed by the magistrate for a period not exceeding fourteen days.
(3)If at the expiry of the period of the order or of any renewal thereof or before such expiry the accused is found to be in his or her sound and sober senses, the accused shall again be brought before the magistrate who shall commence or, as the case may be, continue the confirmation proceedings.[section inserted by section 6 of Act 9 of 2006]

113C. Subpoenaing of witnesses

(1)A public prosecutor who has initiated confirmation proceedings, or an accused in respect of whom those proceedings are being or are to be held, or the latter’s legal representative, may compel the attendance of any person at those proceedings to give evidence or to produce any book or document, by means of a subpoena, issued in the manner prescribed by the rules of court, at the instance of the public prosecutor or accused, as the case may be, by the clerk of the magistrate in which the proceedings are being or are to be held.
(2)If a magistrate conducting confirmation proceedings believes that any person may be able to give evidence or to produce any book or document which is relevant to the subject of the examination, he or she may direct the clerk of the magistrate court to issue, in the manner mentioned in subsection (1), a subpoena requiring such person to appear before him or her at a time mentioned therein, to give evidence or to produce any book or document.
(3)Any such subpoena shall be served in the manner prescribed by the rules of court, upon the person to whom it is addressed.
(4)A magistrate conducting confirmation proceedings may call as a witness any person in attendance, although not subpoenaed as a witness, or may recall and re-examine any person already examined as a witness.
(5)Every person subpoenaed to attend confirmation proceedings shall obey the subpoena and remain in attendance throughout the proceedings, unless excused by the magistrate conducting the proceedings.[section inserted by section 6 of Act 9 of 2006]

113D. Arrest and punishment for failure to obey subpoena or to remain in attendance

(1)If any person subpoenaed to attend confirmation proceedings without reasonable cause fails to obey the subpoena, and it appears from the return or from evidence given under oath that the subpoena was served upon the person to whom it is directed, or if any person who has attended it in obedience to a subpoena fails to remain in attendance, the magistrate conducting the proceedings may issue a warrant directing that such person be arrested and brought at a time and place stated in the warrant, or as soon thereafter as possible, before him or her or any other magistrate.
(2)When the person in question has been arrested under the said warrant, he or she may be detained thereunder before the magistrate who issued it or in any prison or lock-up or other place of detention or in the custody of the person who is in charge of him or her, with a view to securing the person’s presence as a witness at the confirmation proceedings, or such magistrate may release him or her on a recognizance, with or without sureties, for his or her appearance to give evidence as required and for his or her appearance at the inquiry mentioned in subsection (3).
(3)The magistrate may in a summary manner inquire into the said person’s failure to obey the subpoena or to remain in attendance, and unless it is proved that the said person had a reasonable excuse for such failure, the magistrate may sentence him or her to a fine not exceeding level three or to imprisonment for a period not exceeding one month or to both such fine and such imprisonment.
(4)Any person sentenced by a magistrate to a fine or imprisonment in terms of subsection (3) shall have the same right of appeal as if he or she had been convicted and sentenced by a magistrates court in a criminal trial.
(5)If a person who has entered into a recognizance for his or her appearance to give evidence at confirmation proceedings or for his or her appearance at an inquiry referred to in subsection (3) fails so to appear, he or she may, apart from the estreatment of his or her recognizance, be dealt with as if he or she had failed to obey a subpoena to attend confirmation proceedings.[section inserted by section 6 of Act 9 of 2006]

113E. When tender of witness’ expenses not necessary

No prepayment or tender of expenses shall be necessary in the case of a person who is required to give evidence at confirmation proceedings and who is also within five kilometres of the premises in which such proceedings are being held.[section inserted by section 6 of Act 9 of 2006]

113F. Witness refusing to be examined or to produce evidence may be committed

(1)Whenever any person appearing, either in obedience to a subpoena or by virtue of a warrant, or being present and being verbally required by the magistrate to give evidence at confirmation proceedings, refuses to be sworn or, having been sworn, refuses to answer such questions as are put to him or her, or refuses or fails to produce any document or thing which he or she is required to produce, without in any such case offering any just excuse for such refusal or failure, the magistrate may adjourn the proceedings for any period not exceeding eight clear days, and may in the meantime by warrant commit the person so refusing to prison unless he or she sooner consents to do what is required of him or her.
(2)If a person referred to in subsection (1), upon being brought up upon the adjourned hearing, again refuses to, do what is so required of him or her, the magistrate may, if he or she sees fit, again adjourn the proceedings, and by order commit him or her for a like period and so again from time to time until such person consents to do what is required of him or her.
(3)An appeal shall lie from any order of committal in terms of subsection (1) or (2) to the Supreme Court, which may make such order on the appeal as to it seems just.
(4)Nothing in this section shall prevent the magistrate from confirming the accused’s statement in the meantime according to any other sufficient evidence taken by him or her.
(5)No person shall be bound to produce at confirmation proceedings any document or thing not specified or otherwise sufficiently described in the subpoena unless he or she actually has it with him or her.[section inserted by section 6 of Act 9 of 2006]

114. ***

[section repealed by section 7 of Act 9 of 2006]

115. Failure to mention fact relevant to allegation may be used as evidence

If an accused alleges during the course of any criminal proceedings that a statement allegedly made by him which is tendered by the State in evidence was not made by him or was not made freely and voluntarily without his having been unduly influenced thereto and it is proved by the State that—(a)the same statement was produced in terms of subsection (2) of section one hundred and thirteen; and(b)the accused, when requested to do so in terms of subsection (4) of that section, failed to mention any fact, being a fact which, in the circumstances existing at the time, he could reasonably have been expected to have mentioned;the magistrate or the court, as the case may be, in determining whether the statement was made by the accused or is admissible, may draw such inferences from the failure as appear proper and the failure may, on the basis of such inferences, be treated as evidence corroborating any other evidence given against the accused.

115A. Verification of witnesses’ depositions in certain circumstances

(1)Where, at any time before an accused is brought to trial for an offence, a witness has made a deposition giving material information relating to the offence, and it appears to the prosecutor that—(a)the witness is dangerously ill; or(b)the evidence of the witness is given in his or her capacity as an expert witness, and that the nature of the witness’s professional commitments is such as to render it difficult to secure his or her attendance at the trial on any given day, or(c)for any other reason it may not be possible to secure the attendance of such witness at the trial;the prosecutor may, if so authorised by the Prosecutor-General, make an urgent ex parte application to a magistrate in chambers for an order to verify the deposition in terms of this section.
(2)An application in terms of subsection (1) shall be accompanied by—(a)the deposition referred to in subsection (1); and(b)a statement of the reasons why it appears to the prosecutor that it is necessary for the deposition to be verified in terms of this section.
(3)If the magistrate grants leave in terms of subsection (1), the magistrate shall, by written order delivered by hand to the accused or his or her legal representative, if any—(a)summon the accused and his or her legal representative, if any, to attend a conference to be held in private at the time and place (being a magistrates court or any other place selected by the magistrate for the purpose) specified in the order for the purpose of verifying the witness’s deposition in the presence of the magistrate, the prosecutor, the witness and any police officer concerned with the investigation of the alleged offence:Provided that—(i)the accused or his or her legal representative, if any, shall have not less than three days’ notice (including Saturdays, Sundays and public holidays) of the time and place of the conference, and(ii)the magistrate may, upon the written request of the accused or his or her legal representative, and after consultation with the prosecutor, postpone or bring forward the date of the conference,and(b)inform the accused that, in the event of failure by him or her to comply with the order, the provisions of section 255 may apply to his or her case.
(4)At a conference convened in terms of this section—(a)the prosecutor shall cause the deposition of the witness to be read over or made available to the accused, and thereupon the accused shall be entitled, personally or by his or her legal representative, if any, to cross-examine the witness, and in such case the prosecutor may re-examine the witness; and(b)the magistrate may put any question he or she sees fit to the prosecutor, the accused or his or her legal representative, or the witness.
(5)During a conference convened in terms of this section the magistrate shall make or cause to be made a record of—(a)the time and place of the conference, the names of all those who attended at the conference and the capacities in which they so attended; and(b)the examination or re-examination of the witness, if any.
(6)At the conclusion of a conference convened in terms of this section—(a)the magistrate, if he or she is satisfied that the deposition which is the subject of the verification proceedings(i)was made by a witness referred to in subsection (1)(a), (b) or (c) and(ii)may properly be admitted in criminal proceedings for the prosecution of the offence to which it relates as prima facie proof of the evidence deposed to in therein;shall verify the deposition by endorsing upon it the word “verified” and his or her signature and the place and date of verification;and(b)the magistrate and the prosecutor shall sign the record referred to in subsection (5) and, if the accused and his or her legal representative, if any, attended at the conference, the magistrate shall invite the accused or the legal representative to sign it:Provided that if the accused or his or her legal representative refuses to sign the record, the magistrate shall note that fact in the record, and the reasons for the refusal, if any are given.
(7)If the accused or his or her legal representative fails to attend a conference convened in terms of this section after having been given an opportunity to do so under subsection (3), then subsection (4)(b) and subsections (5) and (6) shall apply, with any changes that may be necessary, as if the accused or his or her legal representative were in attendance.[section inserted by section 8 of Act 9 of 2006]

115B. Proof of evidence and statements given or made at confirmation or verification proceedings and furnishing of copies thereof to accused

(1)Subject to subsection (2), in any proceedings in any court(a)a document, purporting to be the longhand record of the evidence given by a witness or of a statement or evidence made or given by the accused at confirmation or verification proceedings and purporting to have been taken down by the magistrate holding such proceedings; or(b)a document which—(i)purports to be a transcription of the original record of the evidence given by a witness or of a statement or evidence made or given by the accused at confirmation or verification proceedings and taken down in shorthand writing or by mechanical means; and(ii)purports to have been certified as correct under the hand of the person who transcribes such record;shall, upon its mere production by any person, be prima facie evidence of such statement or evidence, as the case may be, and, if the same was made or given as aforesaid through an interpreter or interpreters, of the correctness of the interpretation.
(2)Notwithstanding subsection (1), the terms of—(a)any statement produced in confirmation proceedings shall not be proved except by the production of the statement as confirmed by the magistrate in terms of section 113(3) or, where the statement is not so confirmed, by calling as a witness the person to whom the statement was made;(b)any deposition which was the subject of verification proceedings shall not be proved except by the production of the deposition as verified by the magistrate in terms of section 115A(6)(a) or, where the deposition is not so verified, by calling as a witness the person who made the deposition, unless the court, in its discretion (where the witness cannot be found after diligent search, or cannot be compelled to attend the court), allows the deposition to be read as evidence at the trial, subject to the conditions mentioned in section 255.
(3)If the accused is indicted for trial before the High Court, a copy of any of the following documents as may relate to his or her case shall be served upon the accused together with the other documents served upon him or her in terms of section 66(a)a statement confirmed in terms of section 113(3); and(b)a deposition verified in terms of section 115A(6)(a) and(c)a record referred to in subsection (1).[section inserted by section 8 of Act 9 of 2006]

Part IX – Bail

115C. Compelling reasons for denying bail and burden of proof in bail proceedings

(1)In any application, petition, motion, appeal, review or other proceeding before a court in which the grant or denial of bail or the legality of the grant or denial of bail is in issue, the grounds specified in section 117(2), being grounds upon which a court may find that it is in the interests of justice that an accused should be detained in custody until he or she is dealt with in accordance with the law, are to be considered as compelling reasons for the denial of bail by a court.
(2)Where an accused person who is in custody in respect of an offence applies to be admitted to bail—(a)before a court has convicted him or her of the offence(i)the prosecution shall bear the burden of showing, on a balance of probabilities, that there are compelling reasons justifying his or her continued detention, unless the offence in question is one specified in the Third Schedule;(ii)the accused person shall, if the offence in question is one specified in—(A)Part I of the Third Schedule, bear the burden of showing, on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail, unless the court determines that, in relation to any specific allegation made by the prosecution, the prosecution shall bear that burden;(B)Part II of the Third Schedule, bear the burden of showing, on a balance of probabilities, that exceptional circumstances exist which in the interests of justice permit his or her release on bail;(b)after he or she has been convicted of the offence, he or she shall bear the burden of showing, on a balance of probabilities, that it is in the interests of justice for him or her to be released on bail.[section inserted by section 28 of Act 2 of 2016]

116. Power to admit to bail

Subject to this section and sections 32 and 34, a person may, upon an application made in terms of section 117A, be admitted to bail or have his or her conditions of bail altered—(a)in respect of any offence, by a judge at any time after he or she has appeared in court on a charge and before sentence is imposed;(b)in respect of any offence, except an offence specified in the Third Schedule, by a magistrate within whose area of jurisdiction the accused is in custody at any time after he or she has appeared in court on a charge and before sentence is imposed:Provided that, with the personal consent of the Prosecutor-General, a magistrate may admit a person to bail or alter a person’s conditions of bail in respect of any offence;(c)if he or she is a person whose case is adjourned in terms of section 55(1) of the Magistrates Court Act [Chapter 7:10] or in respect of whom an order has been made in terms of section 351(4), by a judge or by any magistrate within whose area of jurisdiction he or she is in custody:Provided that—(i)the Prosecutor-General, in the case of any application to a judge, in terms of section 117A, or the local public prosecutor, in the case of any application to a magistrate in terms of section 117A, shall be given reasonable notice of any such application;(ii)where an application in terms of section 117A is determined by a judge or magistrate, a further application in terms of section 117A may only be made, whether to the judge or magistrate who has determined the previous application or to any other judge or magistrate, if such application is based on facts which were not placed before the judge or magistrate who determined the previous application and which have arisen or been discovered after that determination;(iii)a magistrate shall not, without the personal consent of the Prosecutor-General, admit a person to bail or alter a person’s conditions of bail in respect of an offence specified in the Third Schedule.[section substituted by section 9 of Act 9 of 2006]

117. Entitlement to bail

(1)Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed, unless the court finds that it is in the interests of justice that he or she should be detained in custody.
(2)The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established—(a)where there is a likelihood that the accused, if he or she were released on bail, will—(i)endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or(ii)not stand his or her trial or appear to receive sentence; or(iii)attempt to influence or intimidate witnesses or to conceal or destroy evidence; or(iv)undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system;or(b)where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.
(3)In considering whether the ground referred to in—(a)subsection (2)(a)(i) has been established, the court shall, where applicable, take into account the following factors, namely—(i)the degree of violence towards others implicit in the charge against the accused;(ii)any threat of violence which the accused may have made to any person;(iii)the resentment the accused is alleged to harbour against any person;(iv)any disposition of the accused to commit offences referred to in the First Schedule, as evident from his or her past conduct;(v)any evidence that the accused previously committed an offence referred to in the First Schedule while released on bail;(vi)any other factor which in the opinion of the court should be taken into account;(b)subsection (2)(a)(ii) has been established, the court shall take into account—(i)the ties of the accused to the place of trial;(ii)the existence and location of assets held by the accused;(iii)the accused’s means of travel and his or her possession of or access to travel documents;(iv)the nature and gravity of the offence or the nature and gravity of the likely penalty therefor;(v)the strength of the case for the prosecution and the corresponding incentive of the accused to flee;(vi)the efficacy of the amount or nature of the bail and enforceability of any bail conditions;(vii)any other factor which in the opinion of the court should be taken into account;(c)subsection (2)(a)(iii) has been established, the court shall take into account—(i)whether the accused is familiar with any witness or the evidence;(ii)whether any witness has made a statement;(iii)whether the investigation is completed;(iv)the accused’s relationship with any witness and the extent to which the witness may be influenced by the accused;(v)the efficacy of the amount or nature of the bail and enforceability of any bail conditions;(vi)the ease with which any evidence can be concealed or destroyed;(vii)any other factor which in the opinion of the court should be taken into account;(d)subsection (2)(a)(iv) has been established, the court shall take into account—(i)whether the accused supplied false information at arrest or during bail proceedings;(ii)whether the accused is in custody on another charge or is released on licence in terms of the Prisons Act [Chapter 7:11];(iii)any previous failure by the accused to comply with bail conditions;(iv)any other factor which in the opinion of the court should be taken into account;(e)subsection (2)(b) has been established, the court shall, where applicable, take into account the following factors, namely—(i)whether the nature of the offence and the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community where the offence was committed;(ii)whether the shock or outrage of the community where the offence was committed might lead to public disorder if the accused is released;(iii)whether the safety of the accused might be jeopardised by his or her release;(iv)whether the sense of peace and security among members of the public will be undermined or jeopardised by the release of the accused;(v)whether the release of the accused will undermine or jeopardise the public confidence in the criminal justice system;(vi)any other factor which in the opinion of the court should be taken into account.
(4)In considering any question in subsection (2) the court shall decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors, namely—(a)the period for which the accused has already been in custody since his or her arrest;(b)the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;(c)the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay;(d)any impediment in the preparation of the accused’s defence or any delay in obtaining legal representation which may be brought about by the detention of the accused;(e)the state of health of the accused;(f)any other factor which in the opinion of the court should be taken into account.
(5)Notwithstanding the fact that the prosecution does not oppose the granting of bail, the court has the duty to weigh up the personal interests of the accused against the interests of justice as contemplated in subsection (4).
(6)Notwithstanding any provision of this Act, where an accused is charged with an offence referred to in—(a)Part I of the Third Schedule, the judge or (subject to proviso (iii) to section 116) the magistrate hearing the matter shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge or magistrate that exceptional circumstances exist which in the interests of justice permit his or her release;(b)Part II of the Third Schedule, the judge or (subject to proviso (iii) to section 116) the magistrate hearing the matter shall order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge or magistrate that the interests of justice permit his or her release.
(7)Where a person has applied for bail in respect of an offence referred to in the Third Schedule—(a)the Prosecutor-General; or(b)the Minister responsible for the administration of the Public Order and Security Act [Chapter 11:17], in respect of offence referred to in paragraph 6 of Part I of the Third Schedule;may issue a certificate stating that it is intended to charge the person with the offence.
(8)If the Minister responsible for the administration of the Extradition Act [Chapter 9:08], certifies in writing that a person who has applied for bail has been extradited to Zimbabwe from a foreign country and that the Minister has given an undertaking to the government or other responsible authority of that country—(a)that the accused person will not be admitted to bail while he or she is in Zimbabwe, the judge or magistrate hearing the matter shall not admit the accused person to bail;(b)that the accused person will not be admitted to bail while he or she is in Zimbabwe except on certain conditions which the Minister shall specify in his or her certificate, the judge or magistrate hearing the matter shall not admit the accused person to bail except on those conditions:Provided that the judge or magistrate may fix further conditions, not inconsistent with the conditions specified by the Minister on the grant of bail to the accused person.
(9)A document purporting to be a certificate issued by a Minister or the Prosecutor-General in terms of subsection (7) or (8) shall be admissible in any proceedings on its production by any person as prima facie evidence of its contents.[section substituted by section 9 of Act 9 of 2006]

117A. Application for bail, bail proceedings and record thereof

(1)Subject to the proviso to section 116, an accused person may at any time apply verbally or in writing to the judge or magistrate before whom he or she is appearing to be admitted to bail immediately or may make such application in writing to a judge or magistrate.
(2)Every written application for bail shall be made in such form as may be prescribed in rules of court.
(3)Every application in terms of subsection (2) shall be disposed of without undue delay.
(4)In bail proceedings the court may—(a)postpone such proceedings;(b)subject to subsection (5), receive—(i)evidence on oath, including hearsay evidence;(ii)affidavits and written reports which may be tendered by the prosecutor, the accused or his or her legal representative;(iii)written statements made by the prosecutor, the accused or his or her legal representative;(iv)statements not on oath made by the accused;(c)require the prosecutor or the accused to adduce evidence;(d)require the prosecutor to place on record the reasons for not opposing bail.
(5)In bail proceedings the accused is compelled to inform the court whether—(a)the accused has previously been convicted of any offence; and(b)there are any charges pending against him or her and whether he or she has been released on bail in respect of those charges.
(6)Where the legal representative of an accused submits the information referred to in subsection (5) the accused shall be required by the court to declare whether he or she confirms such information.
(7)The record of the bail proceedings excluding the information referred to in subsection (5), shall form part of the record of the trial of the accused following upon such bail proceedings:Provided that if the accused elects to testify during the course of the bail proceedings the court must inform him or her that anything he or she says may be used against him or her at his or her trial and such evidence becomes admissible in any subsequent proceedings.
(8)Any accused who wilfully—(a)fails or refuses to comply with subsection (5); or(b)furnishes the court with false information required in terms of subsection (5);shall be guilty of an offence and liable to fine not exceeding level seven or to imprisonment for a period not exceeding two years or both.
(9)The court may make the release of an accused subject to conditions which, in the court’s opinion, are in the interests of justice.
(10)Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail proceedings, have access to any information, record or document relating to the offence in question, which is contained in, or forms part of, a police docket, including any information, record or document which is held by any police officer charged with the investigation in question, unless the Prosecutor-General otherwise directs:Provided that this subsection shall not be construed as denying an accused access to any information, record or document to which he or she may be entitled for the purposes of his or her trial.[section inserted by section 9 of Act 9 of 2006]

118. Conditions of recognizance

(1)Where a judge or magistrate has granted an application for bail, a recognizance shall, before the accused is admitted to bail, be taken from him or from him and one or more sureties according to the conditions fixed by the judge or magistrate, as the case may be.[section amended by section 10 of Act 9 of 2006 and by section 49 of Act 2 of 2016]
(2)The conditions of the recognizance shall be that the prisoner—(a)[paragraph repealed by section 10 of Act 9 of 2006](b)in the case of a prisoner who has been committed for trial or sentence, shall—(i)appear and undergo any further examination which the magistrate or the Prosecutor-General may consider desirable; and[subparagraph amended by section 49 of |Act 2 of 2016](ii)answer to any indictment that may be presented or charge that may be made against him in any competent court for the offence with which he is charged at any time; and(iii)attend during the hearing of the case and to receive sentence; and(iv)accept service of any summons to undergo further examination and of any such indictment or charge, notice of trial and summons thereon and any other notice under this Act at some certain and convenient place within Zimbabwe chosen by him and stated therein;(c)in the case of a prisoner whose case has been adjourned in terms of subsection (2) of section 54 of the Magistrates Court Act [Chapter 7:10], shall appear in any competent court at any time to receive sentence in that case and that he will accept service of any notice in respect thereof at some certain and convenient place within Zimbabwe chosen by him and stated therein;(d)in the case of a prisoner whose case has been adjourned in terms of subsection (1) of section 55 of the Magistrates Court Act [Chapter 7:10] or in respect of whom an order has been made in terms of subsection (5) of section three hundred and fifty-eight, shall appear in the High Court or a magistrates court, as the case may be, on the date and at the place to be notified to him by the registrar of the High Court or the clerk of the magistrates court, as the case may be, to show cause why the sentence postponed or suspended should not be imposed or brought into operation and that he will accept service of any notice in respect thereof at some certain and convenient place within Zimbabwe chosen by him and stated therein;(e)in the case of a prisoner, other than a prisoner mentioned in paragraph (c), admitted to bail when a criminal case before a magistrate is adjourned or postponed and the prisoner is remanded, shall appear at a time and place to be specified in writing and as often as may be necessary thereafter until final judgment in his case has been given to answer the charge of the offence alleged against him or the charge of any other offence which may appear to the Prosecutor-General or the local public prosecutor to have been committed by the accused.
(3)The judge or magistrate referred to in subsection (1) may require to be added to the recognizance any condition which he may think necessary or advisable in the interests of justice as to—(a)the surrender by the accused of his passport; or(b)the times and place at which, and the persons to whom, the accused shall personally present himself; or(c)the places where the accused is forbidden to go; or(d)the prohibition against communication by the accused with witnesses for the prosecution; or(e)any other matter relating to the accused’s conduct.
(4)The recognizance taken in respect of a prisoner mentioned in paragraph (b) of subsection (2) shall continue in force notwithstanding that for any reason, when the trial takes place, no verdict is then given, unless the indictment or charge is withdrawn.

119. Recognizance to be forfeited on failure of accused to appear at trial

(1)If upon the day appointed for the hearing of a case it appears by the return of the proper officer or by other sufficient proof that a copy of the indictment and notice of trial or, in case of a remittal to a magistrates court, the summons or charge or, where the case has been adjourned in terms of subsection (2) of section 54 or subsection (1) of section 55 of the Magistrates Court Act [Chapter 7:10] or an order has been made in terms of subsection (5) of section three hundred and fifty-eight, the notice prescribed in the rules of court has been duly served and the accused does not appear after he has been called by name three times in or near the court premises, the prosecutor may apply to the court for a warrant for the arrest of the accused and may also move the court that the accused and his sureties, if any, be called upon their recognizance and, in default of his appearance, that the same may be then and there declared forfeited.
(2)Any declaration of forfeiture in terms of subsection (1) shall have the effect of a judgment on the recognizance for the amounts therein named against the accused and his sureties respectively.

120. Excessive bail not to be required

(1)The amount of bail to be taken in any case shall be in the discretion of the judge or magistrate to whom the application to be admitted to bail is made:Provided that no person shall be required to give excessive bail.
(2)Notwithstanding the proviso to subsection (1), if it is established that there is a possibility that the accused, if released on bail, will not stand his or her trial or appear to receive sentence, and that possibility, though short of a likelihood, is not too remote, a court shall not release the accused on bail unless it satisfies itself that the amount or the terms of the bail or both are reasonably sufficient to deter the accused from fleeing, given the factors referred to in section 117(3)(b).[subsection inserted by section 11 of Act 9 of 2006]

121. Appeals against decisions regarding bail

(1)Subject to this section, where a judge or magistrate has admitted or refused to admit a person to bail—(a)the Prosecutor-General or the public prosecutor, within forty-eight hours of the decision; or(b)the person concerned, at any time;may appeal against the admission to or refusal to bail or the amount fixed as bail or any conditions imposed in connection with bail.[subsection substituted by section 29 of Act 2 of 2016]
(2)An appeal in terms of subsection (1) against a decision of—(a)a judge of the High Court, shall be made to a judge of the Supreme Court;(b)a magistrate, shall be made to a judge of the High Court.
(3)Where a judge or magistrate has admitted a person to bail, and an appeal is noted by the Prosecutor-General or public prosecutor under subsection (1), the decision to admit to bail remains in force unless, on the application of the Prosecutor-General or public prosecutor, the judge or magistrate is satisfied that there is a reasonable possibility that the interests of justice may be defeated by the release of the accused on bail before the decision on appeal, in which event the judge or magistrate may suspend his or her decision to admit the person to bail and order the continued detention of the person for a specified period or until the appeal is determined, whichever is the shorter period.[subsection substituted by section 29 of Act 2 of 2016]
(4)An appeal in terms of subsection (1) by the person admitted to bail or refused admission to bail shall not suspend the decision appealed against.
(5)A judge who hears an appeal in terms of this section may make such order relating to bail or any condition in connection therewith as he considers should have been made by the judge or magistrate whose decision is the subject of the appeal.
(6)Subsections 117(2) to (6) shall apply, mutatis mutandis, in relation to any appeal in terms of this section.
(7)Any order made by a judge in terms of subsection (5) shall be deemed to be the order made in terms of the appropriate section of this Part by the judge or magistrate whose decision was the subject of the appeal.
(8)There shall be no appeal to a judge of the Supreme Court from a decision or order of a judge of the High Court in terms of paragraph (b) of subsection (2), unless the decision or order relates to the admission or refusal of admission to bail of a person charged with any offence referred to in—(a)paragraph 10 of the Third Schedule; or(b)the Ninth Schedule in respect of which the Prosecutor-General has issued a certificate referred to in subsection (3b) of section thirty-two;in which event subsections (3) to (7) shall apply to such appeal.[subsection substituted by section 6 of Act 14 of 2004]
(9)This section shall apply in regard to a private prosecution as if references to the Prosecutor-General were references to the private party instituting the prosecution.[section as substituted by section 2 of Act 8 of 1997]

122. ***

[section repealed by section 2 of Act 8 of 1997]

123. Power to admit to bail pending appeal or review

(1)Subject to this section, a person may be admitted to bail or have his conditions of bail altered—(a)in the case of a person who has been convicted and sentenced or sentenced by the High Court and who applies for bail—(i)pending the determination by the Supreme Court of his appeal; or(ii)pending the determination of an application for leave to appeal or for an extension of time within which to apply for such leave;by a judge of the Supreme Court or the High Court;(b)in the case of a person who has been convicted and sentenced by a magistrates court and who applies for bail—(i)where the record of a case is required or permitted, in terms of section 57 or 58 of the Magistrates Court Act [Chapter 7:10], to be transmitted for review, pending the determination of the review; or(ii)pending the determination by the High Court of his appeal; or(iii)pending the determination of an application for leave to appeal or for an extension of time within which to apply for such leave;by a judge of the High Court or by any magistrate within whose area of jurisdiction he is in custody:[paragraph amended by section 10 of Act 9 of 1997]Provided that—(i)the Prosecutor-General, in the case of any application to a judge in terms of this subsection, or the local public prosecutor, in the case of any application to a magistrate in terms of this subsection, shall be given reasonable notice of any such application;(ii)where an application in terms of this subsection is determined by a judge or magistrate, a further application in terms of this subsection may only be made, whether to the judge or magistrate who has determined the previous application or any other judge or magistrate, if such application is based on facts which were not placed before the judge or magistrate who determined the previous application and which have arisen or been discovered after that determination.(iii)a magistrate shall not, without the consent of the Prosecutor-General, admit a person to bail or alter a person’s conditions of bail in respect of an offence specified in the Third Schedule.
(2)Sections 117 and 117A shall, with any changes that may be necessary, apply to this section.[subsection amended by section 12 of Act 9 of 2006]
(3)[subsection 3 repealed by section 12 of Act 9 of 2006]
(4)[subsection 4 repealed by section 12 of Act 9 of 2006]
(5)[subsection 5 repealed by section 12 of Act 9 of 2006]
(6)[subsection 6 repealed by section 12 of Act 9 of 2006]
(7)If a judge or magistrate refuses an application for bail referred to in subsection (1), he may—(a)direct that the person be treated as an unconvicted prisoner pending the determination of his appeal, application or review, as the case may be; or(b)postpone the payment of any fine.
(8)The time during which a person, pending the determination of an appeal, application or review, is—(a)admitted to bail; or(b)subject to any direction which the Supreme Court or High Court may give to the contrary on any appeal or review, treated as an unconvicted prisoner in terms of this section;shall not count as part of any term of imprisonment under his sentence.
(9)The term of imprisonment of a person shall be resumed or begin to run, as the case requires—(a)if such person is treated as an unconvicted prisoner in terms of this section, subject to any directions which the Supreme Court or the High Court may give to the contrary, as from the day on which the appeal, application or review is determined; or(b)if such person is admitted to bail in terms of this section, as from the day on which he is received into prison under his sentence.
(10)A recognizance shall be taken on the admission of a person to bail either from that person alone or from him and one or more sureties, in the discretion of the judge or magistrate according to the nature and circumstances of the case, and it shall be a condition of such recognizance that the person shall, upon service on or for him at some place to be mentioned in the recognizance of a notice signed by the registrar of the High Court or, where the conviction or sentence appealed against took place in a magistrates court, by the clerk of that court informing that person of the decision of the High Court or the Supreme Court, as the case may be—(a)pay the fine, if any, due by him within such time and to such person as shall be specified in the notice; or(b)surrender himself within such time and to such person as shall be specified in the notice in order to undergo any other punishment which he is liable to undergo, and the judge or magistrate may add any or all of the conditions mentioned in subsection (3) of section one hundred and eighteen which he may think necessary or advisable to impose.
(11)The provisions of section three hundred and eighty-two shall apply, mutatis mutandis, to the service of a notice referred to in subsection (10).
(12)In granting bail in terms of subsection (1) the judge or magistrate may take bail also for the cost and charge of serving the notice referred to in subsection (10), which cost and charge shall be the same as that of serving a summons in a civil case in a magistrates court against the same person at the same place.
(13)When a person has been admitted to bail in terms of subsection (1), a judge, in the case where the conviction or sentence took place in the High Court, or a magistrate in any other case, may, upon the application of the Prosecutor-General or local public prosecutor, as the case may be, and upon information being made in writing and upon oath that default has been made in any condition of the recognizance taken from such person(a)issue a warrant for the arrest of such person; and(b)issue an order calling upon him and his sureties, if any, to appear on a day and at a place specified in the order to show cause why the recognizance should not be declared forfeited; and(c)if cause to the satisfaction of the judge or magistrate, as the case may be, is not shown against any such declaration, declare the recognizance to be forfeited, and such declaration of forfeiture shall have the effect of a judgment on the recognizance for the amounts therein named against such person and his sureties, respectively.

124. ***

[section repealed by section 3 of Act 8 of 1997]

125. Insufficiency of sureties

If, through mistake, fraud or otherwise, insufficient sureties have been accepted or if they afterwards become insufficient, the judge or magistrate granting the bail may issue a warrant of arrest directing that the accused be brought before him, and may order him to find sufficient sureties, and on his failing so to do may commit him to prison.

126. Alteration of recognizances or committal of person on bail to prison

(1)Any judge or magistrate who has granted bail to a person in terms of this Part may, if he is of the opinion that it is necessary or advisable in the interests of justice that the conditions of a recognizance entered into by that person should be altered or added to or that that person should be committed to prison, order that the said conditions be altered or added to or commit the person to prison, as the case may be:Provided that—(i)if the judge or magistrate who granted bail is not available, any other judge or magistrate, as the case may be, may act in terms of this subsection;(ii)a judge or magistrate shall not act in terms of this subsection unless facts which were not before the judge or magistrate who granted bail are brought to his attention.
(2)In order to secure the presence before him of a person for the purpose of acting in terms of subsection (1), a judge or magistrate may issue a warrant for the arrest of the person and thereafter subsection (1) shall apply.
(3)The provisions of section thirty-five shall apply, mutatis mutandis, in respect of a warrant issued in terms of subsection (2).

127. Person on bail may be arrested without warrant if about to abscond or interfere with witness

(1)If a peace officer believes on reasonable grounds that a person to whom bail has been granted in terms of this Part is about to abscond for the purpose of evading justice or to interfere with the evidence against him, he may arrest the person without warrant and shall as soon as possible and in any event within forty-eight hours of the arrest, take him before a magistrate who may, upon being satisfied that the ends of justice would otherwise be defeated, commit the person to prison.
(2)A person arrested in terms of subsection (1) shall be informed at the time of the arrest by the person arresting him of the cause of the arrest.[section amended by section 30 of Act 2 of 2016]

128. Release of sureties and death of surety

(1)All or any sureties for the attendance and appearance of an accused person released on bail may at any time apply to the judge or magistrate before whom the recognizance was entered into to discharge the recognizance, either wholly or so far as relates to the applicants.
(2)On an application in terms of subsection (1), the judge or magistrate shall issue a warrant of arrest directing that the accused be brought before him.
(3)On the appearance of the accused pursuant to the warrant or on his voluntary surrender, the judge or magistrate shall direct the recognizances to be discharged, either wholly or so far as relates to the applicants, and shall call upon the accused to find other sufficient sureties, and if he fails to do so may commit him to prison.
(4)When a surety to a recognizance dies before any forfeiture has been incurred, his estate shall be discharged from all liability in respect of the recognizance, but the accused may be required to find a new surety.

129. Rendering in court

The sureties may bring the accused into the court at which he is bound to appear during any sitting thereof, and then, by leave of the court, render him in discharge of such recognizance at any time before sentence, and the accused shall be committed to a prison there to remain until discharged by due course of law but such court may admit the accused person to bail for his appearance at any time it thinks fit.

130. Sureties not discharged until sentence or discharge of accused

The pleading or conviction of any accused person released on bail in terms of this Part shall not discharge the recognizance, but the same shall be effectual for his appearance during the trial and until sentence is passed or he is discharged:Provided that the court may commit the accused to a prison upon his trial or may require new or additional sureties for his appearance for trial or sentence, as the case may be, notwithstanding such recognizance, and such commitment shall be a discharge of the sureties.

131. Deposit instead of recognizance

(1)When any person is required by any judge or magistrate to enter into recognizances, with or without sureties, under this Act, such judge or magistrate may, except in the case of a bond for good behaviour, instead of causing such recognizances to be entered into, permit him or some person on his behalf to deposit a sum of money or Government securities or other property of any description whatsoever acceptable to the Prosecutor-General to such amount as the judge or magistrate may fix.
(2)Conditions in writing shall be made in respect of any deposit in terms of subsection (1) of money, securities or property of the same nature as the conditions prescribed by this Part in respect of recognizances, and all the provisions of this Part prescribing the circumstances in which recognizances taken from the accused or an appellant, as the case may be, alone shall be forfeited, his arrest if about to abscond and remission of forfeited bail shall apply, mutatis mutandis, in respect of any such deposit of money, securities or property.

132. Admission to bail by police

(1)Except where the charge against an accused person is one of the offences specified in the Fifth Schedule, any police officer of or above the rank of assistant inspector, or a police officer of whatever rank in charge of a police station, may, at a police station and at such times as no judicial officer is available, admit to bail an accused person who makes or on whose behalf is made a deposit of such sum of money as such police officer may in the particular circumstances fix.
(2)The provisions of section one hundred and thirty-one as to conditions, forfeiture and remission of forfeited bail shall apply, mutatis mutandis, in respect of any deposit of money made under subsection (1).

133. Provision in case of default in conditions of recognizance

If it appears to the judge or magistrate who admitted the accused to bail that default has been made in any condition of the recognizance or if it appears to a judge or magistrate of the court before which an accused person has to appear in terms of any recognizance that default has been made in any condition of such recognizance, such judge or magistrate may—(a)issue an order declaring the recognizance forfeited and such order shall have the effect of a judgment on the recognizance for the amounts therein named against the person admitted to bail and his sureties respectively;(b)issue a warrant for the arrest of the person admitted to bail and afterwards, upon being satisfied that the ends of justice would otherwise be defeated, commit him when so arrested to prison until his trial.

134. Remission of bail

The Prosecutor-General may, in his discretion, remit the whole or any portion of any amount forfeited under section ninety-seven or this Part and may, where a portion of such amount has been remitted, enforce payment in part only.

135. Release of juvenile offenders without bail

(1)When a person under the age of eighteen years is accused of any offence other than treason, murder or rape, any judge, magistrate or police officer who has power under this Part to admit the said person to bail may, instead of admitting him to bail or instead of detaining him—(a)release him without bail and warn him to appear before a court or magistrate at a time and on a date then fixed by the judge, magistrate or police officer; or(b)release him without bail to the care of the person in whose custody he is and warn that person to bring him or cause him to be brought before a court or magistrate at a time and on a date then fixed as aforesaid; or(c)place him in a place of safety as defined in section 2 of the Children’s Act [Chapter 5:06] pending his appearance before a court or magistrate or until he is otherwise dealt with according to law.[paragraph amended by section 49 of Act 2 of 2016]
(2)Any person who, having been warned in terms of paragraph (b) of subsection (1), fails without reasonable excuse, the burden of proof of which shall rest upon him, to act in accordance with that warning, shall be guilty of an offence and liable to a fine not exceeding level three or, in default of payment, to imprisonment for a period not exceeding one month.[subsection amended by section 28 of Act 9 of 2006]

Part X – Indcitments, summonses and charges

A. Indictments in High Court

136. Charge in High Court to be laid in indictment

(1)When a person charged with an offence has been committed for trial or sentence and it is intended to prosecute him before the High Court, the charge shall be in writing in a document called an indictment.
(2)Where the prosecution is at the public instance, the indictment shall be in the name of the Prosecutor-General and shall be signed by the Prosecutor-General or by a member of the National Prosecuting Authority authorised by him or her.[subsection substituted by section 31 of Act 2 of 2016]
(3)When the prosecution is a private one, the indictment shall be in the name of the party at whose instance it is preferred (who must be described therein with certainty and precision) and must be signed by such private party or by his legal representative.
(4)It shall not be competent for two or more persons to prosecute in the same indictment, except in a case where two or more persons have been injured by the same offence.
(5)The service upon an accused person of any indictment, together with any notice of trial thereof, shall be made by the person and in the manner provided by rules of court.
(6)When a person under the age of eighteen years is served with an indictment and notice of trial as aforesaid, the provisions of section 113A shall apply, mutatis mutandis:Provided that where any reference is made to a direction by a magistrate, that shall be read as a reference to a direction by a judge.[subsection amended by section 49 of Act 2 of 2016]

137. When case is pending

As soon as the indictment in any criminal case brought in the High Court has been duly lodged with the registrar of that court, such case shall be deemed to be pending in that court.

138. High Court may try case wherever offence committed

Any person charged with committing an offence at any place may be tried by the High Court, wherever sitting.

B. Summonses and charges in magistrates courts

139. Lodging of charges in magistrates court

Where a public prosecutor has, by virtue of his office, determined to prosecute any person in a magistrates court for any offence within the jurisdiction of that court, he shall forthwith lodge with the clerk of the court a statement in writing of the charge against that person, describing him by his forename, surname, place of abode and occupation and setting forth shortly and distinctly the nature of the offence and the time and place at which it was committed.

140. Summons in magistrates court

(1)The clerk of the magistrates court shall, upon or after the lodging of any charge, at the request of the prosecutor, issue and deliver to the messenger of the court a summons to the person charged to appear to answer the charge, together with so many copies of the said summons as there are persons to be summoned.
(2)Except where otherwise specially provided by any enactment, the service upon an accused person of any summons or other process in a criminal case in a magistrates court shall be made by the prescribed officer, either by delivering it to the accused personally or, if he cannot conveniently be found, by leaving it for him at his place of business or most usual or last known place of abode with some inmate thereof.
(3)The service of a summons may be proved by the testimony on oath of the person effecting the service or by his affidavit or by due return of service under his hand.
(4)If, upon the day appointed for the appearance of any person to answer any charge, he fails to appear and the court is satisfied upon the return of the person required to serve the summons that he was duly summoned, the court may, on the request of the prosecutor, issue a warrant for the apprehension of the said person, and may also impose on him for his default a fine not exceeding level three or to imprisonment for a period not exceeding one month or to both such fine and such imprisonment.[subsection amended by section 4 of Act 8 of 1997 and section 4 of Act 22 of 2001]
(5)The court may, upon cause shown, remit any fine or imprisonment imposed under subsection (4).
(6)When a person under the age of eighteen years is summoned as aforesaid, the provisions of section 113A shall apply, mutatis mutandis.[subsection amended by section 49 of Act 2 of 2016]

141. Written notice to secure attendance of accused in magistrates court

(1)If a person is alleged to have committed an offence and a peace officer, on reasonable grounds, believes that a magistrates court, on convicting such accused of that offence, will impose a fine not exceeding level three, the peace officer may, whether or not the accused is in custody, hand to the accused a written notice in the form prescribed which shall—(a)give such particulars as are necessary for giving reasonable information of the allegation:Provided that it shall not be necessary to cite the provision of the enactment under which he is charged; and(b)specify the full name and address of the accused; and(c)call upon the accused to appear at a place and on a date and at a time specified in the written notice to answer a charge of having committed the offence in question; and(d)contain an endorsement to the effect that the accused may, in terms of section three hundred and fifty-six, on or before such date as may be specified, admit his guilt in respect of the offence in question and pay a fine fixed in respect thereof without appearing in court; and(e)contain a certificate under the hand of the peace officer that he has handed the original of such written notice to the accused and that he has explained to the accused the import thereof.[subsection amended by section 4 of Act 22 of 2001]
(2)If the accused is in custody, the effect of a written notice handed to him in terms of subsection (1) shall be that he be released forthwith from custody.
(3)A peace officer who hands a person a written notice in terms of subsection (1) shall forthwith forward a duplicate original of the written notice to the clerk of the court at which the accused is, in terms of the notice, called upon to appear.
(4)The provisions of subsections (4) and (5) of section one hundred and forty shall apply, mutatis mutandis, in regard to a written notice handed in terms of subsection (1) to an accused who has not, on or before the date specified in paragraph (d) of subsection (1), admitted his guilt in respect of the offence in question and paid the fine fixed in respect thereof in terms of section three hundred and fifty-six as if the written notice were a summons duly served on the person concerned.
(5)The production to the court by the prosecutor of the duplicate original referred to in subsection (3) shall be prima facie proof—(a)that the original thereof was handed to the accused; and(b)that the accused has not, on or before the date specified in paragraph (d) of subsection (1), admitted his guilt in respect of the offence in question and paid the fine fixed in respect thereof in terms of section three hundred and fifty-six.

142. Warning to appear in magistrates court

(1)Notwithstanding anything in section one hundred and forty, it shall be competent for a magistrates court to obtain the presence of any person to be charged with any offence by means of a warning to such person.
(2)In all summary trials in a magistrates court without summons, the charge shall be entered upon a form called the “Charge Sheet”, containing the name of every accused person, with the name of the offence with which he is charged and the necessary particulars thereof concisely stated.
(3)At the trial the charge drawn in terms of subsection (2) shall be read out to the person charged, who shall be called upon to plead thereto, and his plea shall be recorded thereon.
(4)The accused or his legal representative shall be entitled at all reasonable times to inspect the charge as stated on the charge sheet.
(5)When a person under the age of eighteen years has been arrested by a peace officer for the purpose of being brought before a court or has been warned to appear before a court on a charge of having committed an offence, the officer who arrested or warned the said person shall, unless otherwise directed by a magistrate, warn the parent or guardian of such person, or cause him to be warned, if he can be found within the area of jurisdiction of the court, to attend the court on the day on which and at the time at which such person is to be brought or was warned to appear before such court and to remain in attendance during the proceedings against such person in that court, and thereupon section 113A shall apply, mutatis mutandis:Provided that this subsection shall not apply in respect of a person under the age of eighteen years who is married or who appears to the officer who arrests or warns that person to be tacitly emancipated.[subsection amended by section 49 of Act 2 of 2016]

143. Charges in remitted cases

(1)When any case has been remitted by the Prosecutor-General to be dealt with by a magistrates court, the court shall, with all convenient dispatch, cause the accused to be brought before it.
(2)If the accused has been released on bail, the court shall cause a notice to be served on him stating that the case has been remitted to it to be dealt with and requiring him to appear on the day appointed for the trial.
(3)A notice in terms of subsection (2) shall be served in the same manner as a criminal summons and, if the accused does not appear as required in the notice, his bail may be estreated and he may be arrested and brought before the court as in the case of a person who has not appeared upon a criminal summons.

C. General for all courts

144. Joinder of counts

(1)Any number of counts, for any offences whatever, may be joined in the same indictment, summons or charge and where separate indictments, summonses or charges have been presented against an accused person, the court may, with the consent of the prosecutor and the accused, treat the separate indictments, summonses or charges as being a number of counts joined in the same indictment, summons or charge.[subsection amended, by repeal of proviso, by section 5 of Act 8 of 1997]
(2)When there are more counts than one in an indictment, summons or charge, they shall be numbered consecutively, and each count may be treated as a separate indictment, summons or charge.
(3)If the court thinks it conducive to the ends of justice to do so, it may direct that the accused shall be tried upon any one or more of such counts separately and such direction may be made either before or in the course of the trial.
(4)The counts in the indictment which are not then tried shall be proceeded upon in all respects as if they had been contained in a separate indictment.
(5)If it is alleged that on several different occasions on any one day or during any period any person has committed—(a)an offence against or in respect of any one person; or(b)an offence which is not an offence against or in respect of any person;the indictment, summons or charge may charge in one count that the accused committed the offence on several different occasions on that day or during that period.

145. Where doubtful what offence has been committed

If, by reason of the nature of an act or series of acts, or of any uncertainty as to the facts which can be proved, or if for any other reason whatever it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with having committed all or any of those offences, and any number of such charges may be tried at one time, or the accused may be charged in the alternative with having committed some or one of those offences.

146. Essentials of indictment, summons or charge

(1)Subject to this Act and except as otherwise provided in any other enactment, each count of the indictment, summons or charge shall set forth the offence with which the accused is charged in such manner, and with such particulars as to the alleged time and place of committing the offence and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.
(2)Subject to this Act and except as otherwise provided in any other enactment, the following provisions shall apply to criminal proceedings in any court, that is to say—(a)the description of any offence in the words of any enactment creating the offence, or in similar words, shall be sufficient; and(b)any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the enactment creating the offence, may be proved by the accused, but need not be specified or negatived in the indictment, summons or charge, and, if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the prosecution.
(3)Where any of the particulars referred to in this section are unknown to the prosecutor, it shall be sufficient to state that fact in the indictment, summons or charge.
(4)Where a person is charged with a crime listed in the first column of the Second Schedule to the Criminal Law Code, it shall be sufficient to charge him or her with that crime by its name only.[subsection inserted by section 282 of Act 23 of 2004]
(5)No indictment, summons or charge alleging the commission of a crime mentioned in subsection (4) shall be held to be defective on account of a failure to mention the section of the Criminal Law Code under which the crime is set forth.[subsection inserted by section 282 of Act 23 of 2004]

147. Sufficient to allege dates between which thefts took place

It shall be lawful in any indictment, summons or charge in respect of theft to allege that the property stated to have been stolen was taken at several different times between any two certain days named in the indictment, summons or charge, and upon such an indictment, summons or charge, proof may be given of the theft of such property upon any day or days between the two certain days aforesaid.

148. Indictment may charge general deficiency

In an indictment, summons or charge in respect of the theft of money, or in respect of the theft of any property by a person entrusted with the custody or care of such property, the accused may be charged and proceeded against for the amount of a general deficiency, notwithstanding that such general deficiency is made up of any number of specific sums of money or of any number of specific articles or of a sum of money representing the value of specific articles, the taking of which extended over any space of time.

149. Not necessary to specify particular coin or bank-note stolen

In any indictment, summons or charge in which it is necessary to make averment as to any money or any bank-note, it shall be sufficient to describe such money or bank-note simply as money, without specifying any particular coin or bank-note, and such averment, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank-note, although the particular species of coin of which such amount was composed or the particular nature of the bank-note is not proved, and in cases of money or bank-notes obtained by false pretences or by any other unlawful act, by proof that the offender obtained any coin or any bank-note or any portion of the value thereof, although such coin or bank-note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same or to any other person, and such part has been returned accordingly.

150. Indictments for giving false evidence; and making of conflicting statements on oath in judicial proceedings

(1)In an indictment, summons or charge in respect of an offence which relates to taking or administering an oath or affirmation, or to giving false testimony, or to making a false statement on solemn declaration or otherwise, or to procuring the giving of false testimony or the making of a false statement, it shall not be necessary to set forth the words of the oath or affirmation or testimony or statement, but it shall be sufficient to set forth the purport thereof or so much of the purport thereof as is material, nor shall it be necessary to allege in any such indictment, summons or charge or to prove at the trial that the false testimony or statement was material to any issue to be tried in the proceedings in connection wherewith it was given or made, or that it was to the prejudice of any person:Provided that it shall be a sufficient defence on such trial to prove that the false testimony or statement was not material to any such issue and was not to the prejudice of any person.
(2)In an indictment, summons or charge which relates to giving false testimony or procuring or attempting to procure the giving of false testimony, it shall not be necessary to allege the jurisdiction or state the nature of the authority of the court or tribunal before which or the officer before whom the false testimony was given or intended or proposed to be given.
(3)Any person who has made any statement on oath, whether orally or in writing, and thereafter on the same or another oath makes another statement, whether orally or in writing, which is in substantial conflict with any such first-mentioned statement shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.[subsection amended by section 4 of Act 22 of 2001]
(4)It shall not be necessary to allege in any indictment, summons or charge in respect of an offence in terms of subsection (3) or to establish at the trial which of the conflicting statements was false or that either statement was material to any issue to be tried in the proceedings in connection wherewith it was made, but it shall be a sufficient defence on any such trial to prove—(a)that the accused when he made each statement believed it to be true; or(b)that neither statement was material to any such issue as aforesaid; or(c)that one statement was true and that the other statement, though false, was not material to any such issue as aforesaid.
(5)Subsections (1) and (2) shall apply to any indictment, summons or charge in respect of an offence in terms of subsection (3).

151. Rules applicable to particular indictments

(1)In an indictment, summons or charge in respect of an offence relating to a testamentary instrument, it shall not be necessary to allege that the instrument is the property of any person.
(2)In an indictment, summons or charge in respect of an offence relating to anything fixed in a square, street or open place, or in a place dedicated to public use or ornament or to any thing in or taken from a public place or office, it shall not be necessary to allege that the thing in respect of which the offence was committed is the property of any person.
(3)In an indictment, summons or charge in respect of an offence relating to a document which is evidence of title to land or an interest in land, the document may be described as being evidence of the title of the person or some one of the persons having an interest in the land to which the document relates, the land or some part thereof being described in some manner sufficient to identify it.
(4)In an indictment, summons or charge in respect of the theft of anything whatsoever let to hire to the offender, the thing may be described as the property of the person who actually let it to hire.
(5)In an indictment, summons or charge against a person employed by the State regarding an offence committed in respect of anything which came into his possession by virtue of his employment, the thing in question may be described as the property of the State.[subsection amended by Act 5 of 2014 and by section 49 of Act 2 of 2016]
(6)In an indictment, summons or charge regarding an offence committed in respect of anything in the occupation or under the management of any public officer, the thing may be described as belonging to such officer without naming him.
(7)In an indictment, summons or charge regarding an offence committed in respect of any property, movable or immovable, whereof any body corporate has by law the management, control or custody, the property may be described as belonging to such body corporate.
(8)In an indictment, summons or charge regarding an offence in respect of any property, if it is uncertain to which of two or more persons the property belonged at the time when the offence was committed, the property may be described as being the property of one or other of those persons, naming each of them, but without specifying which of them, and the indictment, summons or charge shall be sustained, so far as regards the allegation of ownership, upon proof that at the time when the offence was committed the property belonged to one or other of those persons without ascertaining which of them.
(9)In an indictment, summons or charge in respect of the theft of any property, if the property was not in the physical possession of the owner thereof at the time when the theft was committed, but was in the physical possession of another person who had the custody thereof on behalf of the owner, it shall be sufficient to allege that the property was in the lawful custody or under the lawful control of that other person.
(10)In an indictment, summons or charge in which any trade mark or forged trade mark is intended to be mentioned, it shall be sufficient, without further description and without any copy or facsimile, to state that such trade mark or forged trade mark is a trade mark or forged trade mark.
(11)In an indictment, summons or charge for housebreaking or for entering any house or premises with intent to commit an offence, whether the charge is made under the Criminal Law Code or under any other enactment, the indictment, summons or charge may either state the offence which it is alleged the accused intended to commit or may aver an intent to commit an offence to the prosecutor unknown.[subsection amended by section 28 of Act 9 of 2006]
(12)In an indictment, summons or charge for robbing or theft from any grave, whether in a cemetery or burial place or not, it shall not be necessary to allege that any dead body or portion thereof or anything whatever in the grave is the property of any person.

152. Companies, firms and partnerships may be named in indictments by name, style or title

(1)In every case in which it is necessary in an indictment, summons or charge to name any company, firm or partnership, it shall be sufficient to state the name of the company or the style or title of the firm or partnership, without naming any of the officers or shareholders of the company or any of the partners in the firm or partnership and an individual trading under the style or title of a firm may be described by such style or title.
(2)It shall be sufficient where two or more persons not partners are joint owners of property to name one of such persons, adding the words “and another” or “and others”, as the case may be, and to state that the property belonged to the person so named and another or others, as the case may be.

153. Means or instrument by which act is done need not be stated

It shall not in any indictment, summons or charge be necessary to set forth the manner in which or the means or instrument by which any act is done, unless the manner, means or instrument is an essential element of the offence.

154. ***

[section repealed by section 32 of Act 2 of 2016]

155. In indictment for forgery and other cases copy of instrument not necessary

(1)In an indictment, summons or charge in respect of forging, uttering, stealing, destroying, concealing or otherwise unlawfully dealing with any instrument, it shall be sufficient to describe such instrument by any name or designation by which it is usually known or by the purport thereof, without setting out any copy or facsimile thereof or otherwise describing it or stating its value.
(2)In all other cases where it is necessary to make any averment in any indictment, summons or charge as to any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation by which it is usually known or by the purport thereof, without setting out any copy or facsimile of the whole or any part thereof, unless the wording of the instrument is an element of the offence.

156. Certain particulars not required in case of offence relating to insolvency

In an indictment, summons or charge in respect of an offence relating to an insolvent, it shall not be necessary to set forth any debt, act of insolvency, adjudication or other proceeding in any court, or any order, warrant or document made or issued out of or by the authority of any court.

157. Allegation of intent to defraud sufficient without alleging whom it is intended to defraud

(1)It shall be sufficient in any indictment, summons or charge in respect of—(a)forgery or fraud; or(b)...(c)obtaining anything by means of a fraudulent trick or device or any other fraudulent means; or(d)inducing, by means of any such trick or device or fraudulent means, the payment or delivery of any money or thing; or(e)attempting to commit or to procure the commission of any such offence;to allege that the accused did the act with intent to defraud, without alleging the intent of the accused to be to defraud any particular person.[subsection amended by section 33 of Act 2 of 2016]
(2)In the case of any offence referred to in subsection (1), it shall not be necessary to mention the owner of the property in question or to set forth the details of the trick or device.

158. Persons implicated in same offence may be charged together

(1)Any number of persons charged with committing or with procuring the commission of the same offence, although at different times, or with having, after the commission of the offence, harboured or assisted the offender, and any number of persons charged with receiving, although at different times, any property which has been obtained by means of an offence, or any part of any property so obtained, may be charged with substantive offences in the same indictment, summons or charge, and may be tried together, notwithstanding that the principal offender or the person who so obtained the property is not included in the same indictment, summons or charge or is not amenable to justice.
(2)A person who counsels or procures another to commit an offence, or who aids another person in committing an offence, or who after the commission of an offence harbours or assists the offender, may be charged in the same indictment, summons or charge with the principal offender, and may be tried with him or separately or may be indicted and tried separately, whether the principal offender has or has not been convicted or is or is not amenable to justice.

159. Joint trial of persons charged with different offences

When it is alleged in an indictment, summons or charge that two or more persons have committed separate offences at the same time and place or at the same place and about the same time and the prosecutor informs the court that any evidence which is, in his opinion, admissible at the trial of those persons is, in his opinion, also admissible at the trial of the other person or persons, such persons may be tried jointly for those offences on that indictment, summons or charge.

Part XI – Procedure before commencement of trial

A. In High Court

160. Bringing of accused persons to trial before High court

(1)Except as is otherwise expressly provided in this Act as to the postponement or adjournment of a trial, every person committed for trial or sentence whom the Prosecutor-General has decided to prosecute before the High Court shall be brought to trial on such date as may be determined by the Prosecutor-General:Provided that the High Court may, on application by the accused and on good cause shown by him, order that the trial shall take place on an earlier date than that determined by the Prosecutor-General.
(2)If a person referred to in subsection (1) is not brought to trial after the expiry of six months from the date of his committal for trial, his case shall be dismissed:Provided that any period during which such person is, through circumstances beyond the control of the Prosecutor-General, not available to stand trial shall not be included as part of the period of six months referred to in this subsection.
(3)[subsection repealed by section 13 of Act 9 of 2006]

161. Change of place of trial

(1)When an indictment has been presented against an accused person in the High Court, any judge may, upon application by or on behalf of the Prosecutor-General or by or on behalf of the accused, order that the trial shall be held at some place other than that specified in the notice of trial and at a time to be named in the order.
(2)When any order is made under subsection (1), the consequences shall be the same in all respects and with regard to all persons as if the Prosecutor-General had decided to prosecute the accused at the place named in the order and at the time specified therein, and if he has been admitted to bail—(a)the recognizances of the bail shall be deemed to extend to that time and place accordingly; and(b)the recognizances of any persons who are bound to attend as witnesses shall be deemed to extend to the same time and place.
(3)Notice of the time and place named and specified in an order in terms of subsection (1) shall be given to the persons bound by the recognizances, otherwise their recognizances shall not be forfeited.

162. When removed prisoner to be tried

Where a case has, in terms of section one hundred and sixty-one, been removed for trial elsewhere and the accused is in custody, the judge granting the order of removal shall issue a warrant directing his transmission forthwith to the prison of the area to which the case has been removed and the accused shall be tried as soon as reasonably possible on a date to be determined by the Prosecutor-General:Provided that the accused shall not be tried less than ten days after his arrival at the prison except with his consent.

B. In magistrates court

163. Accused in magistrates court to be brought for trial at once

Any person to be prosecuted on a criminal charge in a magistrates court shall be brought for trial at the next possible court day.

163A. Accused in magistrates court to be informed of section 191 rights

(1)At the commencement of any trial in a magistrates court, before the accused is called upon to plead to the summons or charge, the accused shall be informed by the magistrate of his or her right in terms of section 191 to legal or other representation in terms of that section.
(2)The magistrate shall record the fact that the accused has been given the information referred to in subsection (1), and the accused’s response to it.[section inserted by section 34 of Act 2 of 2016]

164. Persons brought before wrong court

(1)If on the trial of a person charged with any offence before any magistrates court it appears that he is not properly triable before the court, he is not by reason thereof entitled to be acquitted, but the court may at the request of the accused direct that he be tried before some proper court, and may remand him for trial accordingly.
(2)If he does not make a request in terms of subsection (1), the trial shall proceed and the verdict and judgment shall have the same effect in all respects as if the court had originally had jurisdiction to try the accused.
(3)This section shall not affect the right of the accused to plead to the jurisdiction of a court.

C. General for all courts

165. Trial of pending case may be postponed

Subject to subsection (2) of section one hundred and sixty, any court before which a criminal trial is pending may, if it is necessary or expedient, postpone the trial until such time and to such place and upon such terms as to such court may seem proper, and further postponements may, if necessary or expedient, be made from time to time:Provided that where a trial is pending before a magistrates court such trial shall not, unless the accused consents thereto, be postponed for a period exceeding fourteen days at any one time.

166. Adjournment of trial

(1)A trial may, if it is necessary or expedient, be adjourned at any period of the trial, whether evidence has or has not been given.
(2)A trial before a magistrates court shall not, unless the accused consents thereto, be adjourned for a period exceeding fourteen days but such adjournment may, if necessary, take place more than once upon sufficient cause appearing to the magistrate.

167. Accused may be admitted to bail on postponement or adjournment of trial

(1)When a trial is postponed or adjourned in terms of section one hundred and sixty-five or one hundred and sixty-six, the court may direct that the accused be detained until liberated in accordance with law or release him on bail or extend his bail if he has already been released on bail, and may extend the recognizances of the witnesses.
(2)When a trial is postponed or adjourned in terms of section one hundred and sixty-five or one hundred and sixty-six and the accused is not in custody and has not been admitted to bail, he shall be deemed to have been served with a summons to appear at the time and place to which the trial was postponed or adjourned.

167A. Unreasonable delay in bringing accused to trial

(1)A court before which criminal proceedings are pending shall investigate any delay in the completion of the proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, to the accused or his or her legal representative, to a witness or other person concerned in the proceedings, or to the public interest.
(2)In considering whether any delay is unreasonable for the purposes of subsection (1), the court shall consider all the circumstances of the case and in particular the following—(a)the extent of the delay;(b)the reasons advanced for the delay;(c)whether any person can be blamed for the delay;(d)whether the accused has raised such objections to the delay as he or she might reasonably have been expected to have raised;(e)the seriousness, extent or complexity of the charge or charges;(f)any actual or potential prejudice which the delay may have caused to the State, to the accused or his or her legal representative or to any other person concerned in the proceedings;(g)the effect of the delay on the administration of justice;(h)the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued.
(3)If after an investigation in terms of subsection (1) the court finds that—(a)the completion of the proceedings is being unduly delayed; or(b)there has been an unreasonable delay in bringing the accused to trial or in completing the trial;the court may issue such order as it considers appropriate in order to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice, including an order—(i)refusing further postponement of the proceedings;(ii)granting a postponement subject to such conditions as the court may determine;(iii)that the prosecution of the accused for the offence be permanently stayed;(iv)that the matter be referred to the appropriate authority for an administrative investigation and possible disciplinary action against any person responsible for the delay.
(4)The Prosecutor-General may appeal against an order referred to in subsection (3) (iii) as if it were an acquittal of the accused.[section inserted by section 35 of Act 2 of 2016]

168. Accused to plead to indictment, summons or charge

At the time appointed for the trial or sentence of the accused upon any indictment, summons or charge, he shall appear, and shall be informed in open court of the offence with which he is charged as set forth in the indictment, summons or charge, and shall, subject to section three hundred and fifty-six, be required to plead instantly thereto except where, there being an indictment or summons and the accused having objected so to plead, the court finds that he has not been duly served with a copy thereof.

169. Termination of bail on plea to indictment in High court

If the accused is indicted in the High Court after having been admitted to bail, his plea to the indictment shall, unless the court otherwise directs, have the effect of terminating his bail, and he shall thereupon be detained in custody until the conclusion of the trial in the same manner in every respect as if he had not been admitted to bail.

170. Objections to indictment, how and when to be made

(1)Any objection to an indictment for any formal defect apparent on the face thereof shall be taken by exception or by application to quash such indictment before the accused has pleaded, but not afterwards.
(2)Any objection to a summons or charge for any formal defect apparent on the face thereof which is to be tried by a magistrates court shall be taken by exception before the accused has pleaded, but not afterwards.
(3)Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared.

171. Exceptions

(1)When the accused excepts only and does not plead any plea, the court shall proceed to hear and determine the matter forthwith and if the exception is overruled, he shall be called upon to plead to the indictment, summons or charge.
(2)When the accused pleads and excepts together, it shall be in the discretion of the court whether the plea or exception shall be first disposed of.

172. Certain omissions or imperfections not to invalidate indictment

No indictment, summons or charge in respect of any offence shall be held insufficient—(a)for want of the averment of any matter unnecessary to be proved; or(b)because any person mentioned therein is designated by a name of office or other descriptive appellation instead of by his proper name; or(c)because of an omission to state the time at which the offence was committed in any case where time is not of the essence of the offence; or(d)because the offence is stated to have been committed on a day subsequent to the lodging of the indictment or the service of the summons or charge or, subject to section one hundred and seventy-four, on an impossible day or on a day that never happened; or(e)for want of or imperfection in the addition of any accused or any other person; or(f)for want of the statement of the value or price of any matter or thing or the amount of damage, injury or spoil in any case where the value or price or the amount of damage, injury or spoil is not of the essence of the offence.

173. Averments as to time of commission of offence

If any particular day or period is alleged in any indictment, summons or charge as the day on or period during which any act or offence was committed—(a)proof that such act or offence was committed on any other day or time not more than three months before or after the day or period stated therein shall be taken to support such allegation if time is not of the essence of the offence;(b)proof may be given that the act or offence in question was committed on a day or time more than three months before or after the day or period stated in the indictment, summons or charge, unless it is made to appear to the court before which the trial is being held that the accused is likely to be prejudiced thereby in his defence upon the merits, and if the court considers that the accused is likely to be thereby prejudiced in his defence upon the merits, it shall reject such proof and the accused shall be in the same position as if he had not pleaded.

174. Proceedings where indictment alleges offence committed on impossible day

If in any case no day is stated in the indictment, summons or charge or an impossible day or a day that never happened is stated, the accused may, at any time before pleading, apply to the High Court or any judge, or to the court in which he is indicted or charged, and such court or judge shall, upon being satisfied by affidavit or otherwise that the accused is likely to be prejudiced in his defence upon the merits unless some day or time were stated, make such order in that behalf as in the circumstances of the particular case seems just.

175. Proceedings if defence is an alibi

If in any case the defence of the accused is that commonly called an alibi, and the court before which the trial is held considers that the accused might be prejudiced in making such defence if proof were admitted that the act or offence in question was committed on some day or time other than the day or time stated in the indictment, summons or charge, then, although the day or time proposed to be proved is within a period of three months before or after the day stated in the indictment, summons or charge, the court shall reject such proof, and thereupon the same consequences shall take place as in paragraph (b) of section one hundred and seventy-three mentioned, anything in that section to the contrary notwithstanding.

176. Indictments relating to blasphemous, seditious, obscene or defamatory matters

No count for publishing a blasphemous, seditious, obscene or defamatory matter, or for selling or exhibiting any obscene book, pamphlet, newspaper or other printed or written matter, shall be open to objection or deemed insufficient on the ground that it does not set out the words thereof:Provided that the court may order that particulars shall be furnished by the prosecutor stating what passages in such book, pamphlet, newspaper, printing or writing are relied on in support of the charge.

177. Court may order delivery of particulars

(1)The court may either before or at the trial, in any case if it thinks fit, direct that particulars be delivered to the accused of any matter alleged in the indictment, summons or charge, and may, if necessary, adjourn the trial for the purpose of the delivery of such particulars.
(2)Such particulars shall be delivered to the accused or to his legal representative without charge, and shall be entered in the record, and the trial shall proceed in all respects as if the indictment, summons or charge had been amended in conformity with such particulars.
(3)[subsection repealed by section 13 of Act 9 of 2006]

178. Application to quash indictment

(1)The accused may, before pleading, apply to the court to quash the indictment, summons or charge on the ground that it is calculated to prejudice or embarrass him in his defence.
(2)Upon an application in terms of subsection (1), the court may quash the indictment, summons or charge or may order it to be amended in such manner as the court thinks just or may refuse to make any order on the application.
(3)If the accused alleges that he is wrongly named in the indictment, summons or charge, the court may, on being satisfied by affidavit or otherwise of the error, order it to be amended.

179. Notice of application to quash indictment and of certain pleas to be given

When the accused intends to apply to have an indictment, summons or charge quashed under section one hundred and seventy-eight or to except or to plead any of the pleas mentioned in section one hundred and eighty, except the plea of guilty or not guilty, he shall give reasonable notice, regard being had to the circumstances of each particular case, to the Prosecutor-General or his representative if the trial is before the High Court, or to the public prosecutor if the trial is before a magistrates court, or when the prosecution is a private one to the private prosecutor, stating the grounds upon which he seeks to have the indictment, summons or charge quashed or upon which he bases his exception or plea:Provided that—(i)the Prosecutor-General or prosecutor, as the case may be, may waive such notice;(ii)on good cause shown, the court may dispense with such notice or adjourn the trial to enable such notice to be given.

180. Pleas

(1)If the accused does not object that he has not been duly served with a copy of the indictment, summons or charge or apply to have it quashed under section one hundred and seventy-eight, he shall either plead to it or except to it on the ground that it does not disclose any offence cognizable by the court.
(2)If the accused pleads, he may plead—(a)that he is guilty of the offence charged or, with the concurrence of the prosecutor, of any other offence of which he might be convicted on the indictment, summons or charge; or(b)that he is not guilty; or(c)that he has already been convicted of the offence with which he is charged; or(d)that he has already been acquitted of the offence with which he is charged; or(e)that he has received the pardon of the President for the offence charged or is immune from liability to prosecution for the offence, whether in terms of section 267(2) or any other law; or[paragraph amended by section 36 of Act 2 of 2016](f)that the court has no jurisdiction to try him for the offence; or(g)that the prosecutor has no title to prosecute; or(h)that he or she is entitled to an order under section 167A permanently staying the prosecution on the ground that there has been an unreasonable delay in bringing him or her to trial for the offence; or[paragraph inserted by section 36 of Act 2 of 2016](i)that a court has given an order under section 167A permanently staying the prosecution of the offence.[paragraph inserted by section 36 of Act 2 of 2016]
(3)Two or more pleas may be pleaded together, except that the plea of guilty cannot be pleaded with any other plea to the same charge.
(4)The accused may plead and except together.
(5)Subject to section one hundred and eighty-eight, the accused may, together with his plea, offer an explanation of his attitude in relation to the charge or statement indicating the basis of his defence and such explanation or statement shall be recorded and shall form part of the record of the case.
(6)Any person who has been called upon to plead to any indictment, summons or charge shall, except as is otherwise provided in this Act or in any other enactment, be entitled to demand that he be either acquitted or found guilty by the judge or magistrate before whom he pleaded:Provided that—(i)where a plea of not guilty has been recorded, whether in terms of section two hundred and seventy-two or otherwise, the trial may be continued before another judge or magistrate if no evidence has been adduced;(ii)where a plea of guilty has been recorded, the trial may be continued before another judge or magistrate if no evidence has been adduced or no explanation has been given or inquiry made in terms of paragraph (b) of subsection (2) of section two hundred and seventy-one.

181. Person committed or remitted for sentence

(1)When a person has, in terms of subsection (4) of section ninety, been committed to the High Court by a magistrate for sentence, or his case has been remitted by the Prosecutor-General to a magistrates court for sentence, he shall be called upon to plead to the indictment, summons or charge in the same manner as if he had, in the case of such committal, been committed for trial, and in the case of such remittal, as if he were being tried summarily, and may plead either that he is guilty of the offence charged or, with the concurrence of the prosecutor, of any other offence of which he might be convicted on the indictment, summons or charge.
(2)If the accused pleads that he is not guilty, the court shall, upon being satisfied that he duly admitted before the magistrate that he was guilty of the offence charged and was so guilty, direct a plea of guilty to be entered or enter such plea, notwithstanding his plea of not guilty, and a plea so entered shall have the same effect as if it had been actually pleaded.
(3)If the court is not so satisfied, or if notwithstanding that the accused pleads guilty it appears upon an examination of the depositions of the witnesses that he has not in fact committed the offence charged or any other offence of which he might be convicted on the indictment, summons or charge, the plea of not guilty shall be entered and the trial shall proceed as in other cases when that plea is entered.

182. Accused refusing to plead

If the accused, when called upon to plead to an indictment, summons or charge, will not plead or answer directly thereto, the court may, if it thinks fit, order a plea of not guilty to be entered on behalf of the accused, and a plea so entered shall have the same effect as if it had been actually pleaded.

183. Truth of defamatory matter to be specially pleaded and to be proved by accused

(1)A person charged with the unlawful publication of defamatory matter who sets up as a defence that the defamatory matter is true, and that it was for the public benefit that the publication should be made, shall plead that matter specially and may plead it with any other plea, except the plea of guilty.
(2)Notice of any special plea in terms of subsection (1) shall, unless waived, be given as provided in section one hundred and seventy-nine.
(3)The onus of proving the defence referred to in subsection (1) shall lie upon the accused.

184. Statement of accused sufficient plea of former conviction or acquittal

In any plea of a former conviction or acquittal it shall be sufficient for an accused to state that he has been lawfully convicted or acquitted, as the case may be, of the offence charged.

185. Trial on plea to jurisdiction

Upon a plea to the jurisdiction of the court, the court shall proceed to satisfy itself, in such manner and upon such evidence as it thinks fit, whether it has jurisdiction or not.

186. Issues raised by plea to be tried

If the accused pleads any plea or pleas other than the plea of guilty or a plea to the jurisdiction of the court, he is, by such plea without any further form, deemed to have demanded that the issues raised by such plea or pleas shall be tried by the court.

187. Lack of jurisdiction or title to prosecute not to be raised after conviction

Where an accused is convicted of an offence, the fact that—(a)in the case of proceedings before a magistrates court, the court did not have jurisdiction to try the accused in terms of section 56 of the Magistrates Court Act [Chapter 7:10]; or(b)in the case of proceedings before any court, the prosecutor did not have title to prosecute the accused;shall not affect the validity of the conviction if the lack of such jurisdiction or title to prosecute, as the case may be, was not pleaded or raised during the proceedings and before such conviction.

188. Outline of state and defence cases

In a trial before a magistrate, if the accused pleads not guilty or a plea of not guilty is entered in terms of section one hundred and eighty-two—(a)the prosecutor shall make a statement, outlining the nature of his case and the material facts on which he relies; and(b)the accused shall be requested by the magistrate to make a statement, if he or she wishes, outlining the nature of his defence and the material facts on which he relies and, if he is not represented by a legal practitioner, his or her right to remain silent, and the consequences of exercising that right, shall be explained to him.[section amended by section 36 of Act 2 of 2016]

189. Statement made or withholding of relevant fact by accused may be used as evidence against him

(1)Any statement referred to in paragraph (b) of section one hundred and eighty-eight may—(a)be taken into account in deciding whether the accused is guilty of the offence charged or any other offence of which he may be found guilty on that charge; and(b)except in so far as it amounts to an admission of any allegation made by the State, not be taken into account for the purpose of deciding whether the accused should be found not guilty in terms of subsection (3) of section one hundred and ninety-eight.
(2)If an accused, when so requested in terms of paragraph (b) of section one hundred and eighty-eight, has failed to mention any fact relevant to his defence, being a fact which in the circumstances existing at the time, he could reasonably have been expected to have mentioned, the court, in determining whether there is any evidence that the accused committed or whether the accused is guilty of the offence charged or any other offence of which he may be convicted on that charge, may draw such inferences from the failure as appear proper and the failure may, on the basis of such inferences, be treated as evidence corroborating any other evidence given against the accused.

Part XII – Procedure after commencement of trial

A. In all courts

190. Separate trials

When two or more persons are charged in the same indictment, summons or charge, whether with the same offence or with different offences, the court may at any time during the trial on the application of the prosecutor or of any of the accused, direct that the trial of the accused or any of them shall be held separately from the trial of the other or others of them, and may abstain from giving a judgment as to any of such accused.

191. Legal representation

Every person charged with an offence may make his defence at his trial and have the witnesses examined or cross-examined—(a)by a legal practitioner representing him; or(b)in the case of an accused person under the age of sixteen years who is being tried in a magistrates court, by his natural or legal guardian; or(c)where the court considers he requires the assistance of another person and has permitted him to be so assisted, by that other person.

192. Trial of mentally disordered or defective persons

If at any time after the commencement of any criminal trial it is alleged or appears that the accused is not of sound mind, or if on such a trial the defence is set up that the accused was not criminally responsible on the ground of mental disorder or defect for the act or omission alleged to constitute the offence with which he is charged, he shall be dealt with in the manner provided by the Mental Health Act [Chapter 15:06].

193. Detention of persons who are deaf or mute or both

(1)Subject to section one hundred and ninety-two, in any criminal proceedings, if it appears to the court that the accused is unable properly to conduct his defence by reason of deafness or muteness or both, the court may, if it is satisfied, after hearing such evidence as the State may lead and such other evidence as the court may think necessary or desirable, that it is necessary in the interests of the safety of the public or for the protection of the accused that the accused should not be released from custody or should be kept in custody, as the case may be, order the accused to be kept in custody in some prison pending the decision of the President in terms of subsection (3).
(2)A certified copy of an order in terms of subsection (1) shall be transmitted by the registrar or the clerk of the court to—(a)a magistrate of the province in which the prison named in the order is situated; and(b)the Minister, who shall thereupon ascertain the decision of the President in terms of subsection (3) and notify the magistrate referred to in paragraph (a) accordingly.
(3)The President may, from time to time, give such directions as he thinks fit as to the further detention or care in an institution or other place of a person detained in terms of subsection (1) and may at any time order the discharge of that person.

194. Presence of accused

(1)Every criminal trial shall take place and the witnesses shall, except as is otherwise specifically provided by this Act or any other enactment, give their evidence viva voce in open court in the presence of the accused, unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, in which event the court may order him to be removed and direct that the trial proceed in his absence.
(2)If the accused absents himself during the trial without leave, the court may direct a warrant to be issued to arrest him and bring him before the court forthwith.
(3)The court may, at any time during the trial, order that any or every person who is to be called as a witness, other than the accused himself, shall leave the court and remain absent until he is called, and that he shall remain in court after his evidence has been given.
(4)[subsection repealed by section 6 of Act 8 of 1997]
(5)[subsection repealed by section 38 of Act 2 of 2016]
(6)[subsection repealed by section 6 of Act 8 of 1997]
(7)[subsection repealed by section 6 of Act 8 of 1997]
(8)[subsection repealed by section 6 of Act 8 of 1997]

195. Concealment of identity of juvenile on trial

(1)No person shall at any time publish by radio or television or in any document produced by printing or any other method of multiplication, the name, address, school or place of occupation or any other information likely to reveal the identity of any person under the age of eighteen years who is being or has been tried in any court on a charge of having committed any offence:Provided that, if—(a)the judge or magistrate presiding at the trial; or(b)the Minister at any time after the trial;is of the opinion that publication referred to in this subsection would in the circumstances of the particular case be just and equitable and in the public interest or in the interests of any particular person, he may consent to such publication and the consent shall be conveyed by a document signed by the judge or the registrar of the High Court or by the magistrate or the clerk of the magistrates court or by the Minister, as the case may be.
(2)Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding twelve months or to both such fine and such imprisonment.[subsection amended by section 28 of Act 9 of 2006 which incorrectly identified it as section 196(2). Law Reviser]

196. Concealment of identity of complainant and witnesses in certain cases

(1)Where an accused is charged with committing or attempting to commit—(a)any indecent act towards another person; or(b)any act for the purpose of procuring or furthering the commission of an indecent act towards or in connection with any other person; or(c)extortion or a statutory offence of demanding from any other person some advantage which is not due and, by inspiring fear in such person’s mind, compelling him to render such advantage;no person shall at any time publish by radio or television or in any document produced by printing or any other method of multiplication the name, address, place of occupation or any other information likely to reveal the identity of any person referred to in paragraph (a), (b) or (c) or of any witness unless the judge or magistrate presiding at the trial, after consulting the person concerned or, if he is a minor, his guardian, has given his consent in writing to such publication conveyed in a document signed by the judge or the registrar of the High Court or by the magistrate or the clerk of the magistrates court, as the case may be.
(2)Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.[subsection amended by section 4 of Act 22 of 2001]

197. Identity of juvenile witness not to be revealed

(1)No person shall at any time publish by radio or television or in any document produced by printing or any other method of multiplication, the name, address, school or place of occupation or any other information likely to reveal the identity of any person under the age of eighteen years who is giving or has given or will give evidence at any trial unless the judge or magistrate, after consulting the person concerned and his guardian, has given his consent to such publication conveyed in a document signed by the judge or the registrar of the High Court or by the magistrate or the clerk of the magistrates court or by the Minister, as the case may be.
(2)Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.[subsection amended by section 4 of Act 22 of 2001]

198. Conduct of trial

(1)The prosecutor may, at any trial before any evidence is given, address the court for the purpose of explaining the charge and opening the evidence intended to be adduced for the prosecution, but without comment thereon.
(2)The prosecutor—(a)shall examine the witnesses for the prosecution; and(b)may put in and read any documentary evidence which is admissible:Provided that the prosecutor may, if the accused consents, put in the documentary evidence without reading it.
(3)If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.
(4)If the Prosecutor-General is dissatisfied with a decision—(a)of a judge of the High Court in terms of subsection (3), he may with the leave of a judge of the Supreme Court appeal against the decision to the Supreme Court; or(b)of a magistrate in terms of subsection (3), he may with the leave of a judge of the High Court appeal against the decision to the High Court.[subsection as substituted by section 10 of Act 9 of 1997]
(4a)In an appeal in terms of subsection (4)—(a)the person who was the accused shall have the right at his own expense to appear in person or to be legally represented; or(b)a judge of the Supreme Court or the High Court, as the case may be, may order that the person who was the accused should be legally represented, in which event the expenses of his representation shall be defrayed out of moneys appropriated for the purpose by Act of Parliament.[subsection as inserted by section 10 of Act 9 of 1997]
(5)On an appeal by the Prosecutor-General in terms of subsection (4) the Supreme Court or the High Court, as the case may be, may—(a)confirm the decision made in terms of subsection (3); or(b)allow the appeal and—(i)remit the case to the court concerned for continuation of the trial; or(ii)remit the case to the court concerned for trial de novo before a different presiding officer;or(c)make such order or give such directions as it deems fit.[subsection amended by section 10 of Act 9 of 1997]
(6)Subject to subsection (3), at the close of the case for the prosecution the court shall—(a)ask the accused or, if he is legally represented, his legal representative whether it is intended to adduce evidence for the defence and whether the accused intends himself to give evidence; and(b)if the accused is not legally represented, inform him of the provisions of the proviso to subsection (8) and of subsection (9) and of subsection (1) of section one hundred and ninety-nine.
(7)If the accused or his legal representative states that it is intended to adduce evidence for the defence or that the accused intends himself to give evidence, he may, by himself or his legal representative, address the court for the purpose of opening the evidence intended to be adduced for the defence, but without comment thereon.
(8)Subject to Part XIVA, any witnesses called for the defence shall be examined by the accused or his legal representative and the accused, if he gives evidence himself, shall be examined by his legal representative, if any, and the accused or his legal representative shall put in and read any documentary evidence which may be admissible:Provided that no evidence shall be adduced for the defence before the accused is called to give evidence or is, in terms of subsection (9), questioned by the prosecutor or the court, unless the court in its discretion otherwise allows.[subsection amended by section 7 of Act 8 of 1997]
(9)If the accused declines to give evidence, the prosecutor and the court may nevertheless question him and, if the accused is legally represented, his legal representative may thereafter question him subject to the rules applicable to a party re-examining his own witness.

199. Refusal of accused giving evidence or being questioned to answer question without just cause may be used as evidence against him

(1)If an accused who gives evidence or is questioned in terms of subsection (7), (8) or (9), as the case may be, of section one hundred and ninety-eight refuses to answer any question, he shall be asked to give his reasons for so refusing and, if he persists in his refusal, the court, in determining whether the accused is guilty of the offence charged or any other offence of which he may be convicted on that charge, may, unless satisfied that he had just cause for so persisting, draw such inferences from the refusal as appear proper and the refusal may, on the basis of such inferences, be treated as evidence corroborating any other evidence given against the accused.
(2)For the purposes of subsection (1), an accused who refuses to answer any question shall be deemed to do so without just cause—(a)in the case of an accused giving evidence in terms of subsection (8) of section one hundred and ninety-eight, unless he is entitled in terms of this Act to refuse to answer the question on the ground of privilege;(b)in the case of an accused who is questioned in terms of subsection (9) of section one hundred and ninety-eight, unless he would be entitled in terms of this Act to refuse to answer the question on the ground of privilege if he were giving evidence on his own behalf.

200. Summing up

After all the evidence has been adduced, the prosecutor shall be entitled to address the court, summing up the whole case, and the accused, or each of the accused if more than one, shall be entitled by himself or his legal representative to address the court and if, in his address, the accused or his legal representative raises any matter of law, the prosecutor shall be entitled to reply, but only on the matter of law so raised.

201. Validity of verdict

(1)No verdict or judgment or other proceedings whatever of a court in a criminal case shall be invalid by reason of its happening on a Sunday.
(2)When by mistake a wrong judgment or sentence is delivered, the court may, before or immediately after it is recorded, amend the judgment or sentence, and it shall stand as ultimately amended.

202. Certain discrepancies between indictment and evidence may be corrected

(1)When on the trial of any indictment, summons or charge there appears to be any variance between the statement therein and the evidence offered in proof of such statement, or if it appears that any words or particulars that ought to have been inserted in the indictment, summons or charge have been omitted, or that any words or particulars that ought to have been omitted have been inserted, or that there is any other error in the indictment, summons or charge, the court may at any time before judgment, if it considers that the making of the necessary amendment in the indictment, summons or charge will not prejudice the accused in his defence, order that the indictment, summons or charge, whether or not it discloses an offence, be amended, so far as is necessary, by some officer of the court or other person, both in that part thereof where the variance, omission, insertion or error occurs and in every other part thereof which it may become necessary to amend.
(2)he amendment may be made on such terms, if any, as to postponing the trial as the court thinks reasonable and the indictment, summons or charge shall thereupon be amended in accordance with the order of the court, and after any such amendment the trial shall proceed at the appointed time upon the amended indictment, summons or charge in the same manner and with the same consequences in all respects as if it had been originally in its amended form.
(3)The fact that an indictment, summons or charge has not been amended as provided in this section shall not, unless the court has refused to allow the amendment, affect the validity of the proceedings thereunder.

203. Defect in indictment, summons or charge may be cured by evidence

When an indictment, summons or charge in respect of any offence is defective for want of the averment of any matter which is an essential ingredient of the offence, the defect shall be cured by evidence at the trial in respect of the offence proving the presence of such a matter which should have been averred, unless the want of such averment was brought to the notice of the court before judgment.

204. Verdict to be of same effect as if indictment had been originally correct

Any verdict or judgment which is given after the making of any amendment under this Act shall be of the same effect in all respects as if the indictment, summons or charge had originally been in the same form in which it was after such amendment was made.

B. In cases remitted to magistrates court

205. ***

[section 205 repealed by section 15 of Act 9 of 2006]

206. ***

[section 206 repealed by section 15 of Act 9 of 2006]

C. Verdicts possible on particular indictments, summonses and charges

207. Conviction for part of crime charged

For the avoidance of doubt it is declared that where a court finds that part but not all of the facts of an offence charged have been proved, it shall nevertheless convict the accused of that offence if the facts that are proved disclose all the essential elements of that offence.[section substituted by Act 23 of 2004]

208. ***

[section 208 repealed by Act 23 of 2004]

209. ***

[section 209 repealed by Act 23 of 2004]

210. ***

[section 210 repealed by Act 23 of 2004]

211. ***

[section 211 repealed by Act 23 of 2004]

212. ***

[section 212 repealed by Act 23 of 2004]

213. ***

[section 213 repealed by Act 23 of 2004]

214. ***

[section 214 repealed by Act 23 of 2004]

215. ***

[section 215 repealed by Act 23 of 2004]

216. ***

[section 216 repealed by Act 23 of 2004]

217. ***

[section 217 repealed by Act 23 of 2004]

218. ***

[section 218 repealed by Act 23 of 2004]

219. ***

[section 219 repealed by Act 23 of 2004]

220. ***

[section 220 repealed by Act 23 of 2004]

221. ***

[section 221 repealed by Act 23 of 2004]

222. ***

[section 222 repealed by Act 23 of 2004]

223. ***

[section 223 repealed by Act 23 of 2004]

224. ***

[section 224 repealed by Act 23 of 2004]

Part XIII – Procedure in respect of cases adjourned under section 54 of Magistrates Court Act [Chapter 7:10]

225. Powers of prosecutor-general

[heading substituted by Act 5 of 2014]Where a magistrate has adjourned a case and submitted a report to the Prosecutor-General in terms of section 54 of the Magistrates Court Act [Chapter 7:10], the Prosecutor-General may—(a)if the magistrate acted in terms of subsection (1) of that section, in writing—(i)[subparagraph repealed by section 16 of Act 9 of 2006](ii)Direct that the case be continued by such magistrate; or(iii)Where such magistrate is not a regional magistrate, direct that proceedings be commenced afresh in the court of a regional magistrate; or(b)if the magistrate acted in terms of subsection (2) of that section, in writing direct that the case—(i)be transferred to the High Court for sentence; or(ii)be continued by such magistrate.

226. Duties of magistrate

Upon the receipt of the Prosecutor-General’s direction in terms of section two hundred and twenty-five the magistrate shall cause the accused or the person convicted, as the case may be, to be informed of the Prosecutor-General’s decision and shall—(a)where the Prosecutor-General has given a direction in terms of subparagraph (i) or (ii) of paragraph (a) of that section, comply with that direction; or(b)where the Prosecutor-General has given a direction in terms of subparagraph (iii) of paragraph (a) of that section, grant a warrant committing the accused to prison, there to be detained till brought to trial before the court of a regional magistrate or till admitted to bail or liberated in due course of law; or(c)where the Prosecutor-General has given a direction in terms of subparagraph (i) of paragraph (b) of that section—(i)grant a warrant committing the person convicted to prison, there to be detained till brought before a judge for sentence or till admitted to bail or liberated in due course of law; and(ii)forthwith transmit the record of the proceedings, together with his reasons for convicting the person concerned, to the registrar of the High Court;or(d)where the Prosecutor-General has given a direction in terms of subparagraph (ii) of paragraph (b) of that section, cause the person convicted to be brought before him and pass sentence upon that person.

227. Powers of judge in respect of case transferred to High Court for sentence

(1)Upon receipt of the documents mentioned in subparagraph (ii) of paragraph (c) of section two hundred and twenty-six, the registrar of the High Court shall with all convenient speed lay them before a judge in chambers and, if the judge considers the proceedings to be in accordance with real and substantial justice, he shall cause the accused to be brought before him in open court, on a date and at a place to be notified by the registrar to the accused and to the Prosecutor-General, to receive sentence in respect of the offence of which he was convicted by the magistrate or such other offence as the judge, in the exercise of the powers conferred upon him by section (2), has substituted for such first-mentioned offence.
(2)The judge may in respect of the proceedings exercise such of the powers conferred upon the High Court by subsections (1) and (2) of section 29 of the High Court Act [Chapter 7:06], as may be appropriate.

228. Sentence by judge

When an accused is brought before a judge in terms of subsection (1) of section two hundred and twenty-seven, he shall not be called upon to plead to the charge but shall be dealt with as if he had been convicted by the High Court of the offence concerned.

Part XIV – Witnesses and evidence in criminal proceedings

A. Securing attendance of witnesses

229. Process for securing attendance of witnesses

(1)In this section—“prescribed officer” means the registrar, assistant registrar or clerk of the court or any officer prescribed by rules of court.
(2)Either party desiring to compel the attendance of any person to give evidence or to produce any books, papers or documents in any criminal case may take out of the office prescribed by rules of court the process of the court for that purpose.
(3)When the accused desires to have any witnesses subpoenaed and satisfies the prescribed officer of the court that—(a)he is unable to pay the necessary costs and fees; and(b)such witnesses are necessary and material for his defence;the prescribed officer of the court shall subpoena such witnesses.
(4)In any case where the prescribed officer of the court is not so satisfied, he shall, upon the request of the accused, refer the application to the judge or magistrate who may grant or refuse such application or may defer giving his decision until he has heard the other evidence in the case or any part thereof.

230. Service of subpoenas

Service of subpoenas in criminal cases shall be effected in the manner provided by rules of court.

231. Duty of witness to remain in attendance

Every witness duly subpoenaed to attend and give evidence at any criminal trial shall be bound to attend and to remain in attendance throughout the trial, unless excused by the court.

232. Subpoenaing of witnesses or examination of persons in attendance by court

The court(a)may at any stage subpoena any person as a witness or examine any person in attendance though not subpoenaed as a witness, or may recall and re-examine any person already examined;(b)shall subpoena and examine or recall and re-examine any