SECTION 4 – JURISDICTION

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Place of trial

 

An ordinary, senior or provincial magistrate may normally only try offences committed within his or her province and a regional magistrate may only try cases within his or her regional division.

 

This, however, is subject to numerous exceptions and qualifications. In terms of s 56 MCA a case may be tried by a court which has jurisdiction to try cases in that province or regional division:

 

  • if the offence was committed within five kilometres of the boundary of that province or regional division;
  • if the offence was committed on any vehicle, including a train, during a journey which passed through that province or regional division or within five kilometres thereof;
  • if any act or omission or event which is an element of the offence takes place in that province or regional division;
  • if the offence was commenced or completed in that province or regional division;
  • in cases of theft or receiving or obtaining property unlawfully, if X has or has had any of the property in his possession in that province or division;
  • persons charged with counselling or procuring crimes or as accessories (after the fact) may be tried by any court having jurisdiction to try principal offenders;
  • in respect of statutory offences which the legislature has laid down may be tried extra-territorially, a court in a province or regional division may try the case even t
  • in cases where offences have been committed in several jurisdictions, these may be tried in any of such jurisdictions;
  • when a court has remanded a person in custody for trial before another court, the prisoner must be transmitted forthwith to the prison of the province where he or she is to be tried;
  • provided X consents to this, the Attorney-General may cause X to be tried for the offence in the court of any province or regional division.

Crimes triable

 

No magistrate may try treason, murder or statutory offences attracting the death penalty: s 49(1) MCA. A magistrate may try any other crime but only a regional court can try a rape case. : s 49(2) MCA.

 

A magistrate can try any crime other than those listed but only a regional court can try rape cases However, a magistrates courts other than the regional court only has jurisdiction in respect of rape cases on remittal by the Prosecutor-Generalof a case for trial or sentence in such court or on summary trial where the person charged is under 18 and the Attorney-General has authorized such trial.)

 

Maximum penalties

 

In terms of s 50 MCA, in summary trials and on remittal from the Prosecutor-Generalthe maximum sentences which may be imposed by the different grades of magistrates are as follows:

 

Grade of magistrate

Maximum sentencing jurisdiction

Regional

10 years or fine up to level 12, whether on summary trial or remittal by AG

Provincial

 5 years or fine up to level 10, whether on summary trial or remittal by AG

Senior

 4 years or fine up to level 9, whether on summary trial or remittal by AG

Ordinary

On summary trial 2 years or fine up to level 7

On remittal by AG under increased jurisdiction given in s 50, 4 years or fine up to level 9

 

 

In all cases where imprisonment may be imposed, it may be imposed with or without labour.

Increased jurisdiction

 

Under s 51 MCA these jurisdictional limits are increased in certain circumstances.

 

Grade of magistrate

Offences

Maximum sentencing jurisdiction

Regional magistrate

Public violence, malicious damage to property or attempt to commit these crimes  or robbery or attempted robbery in aggravating circumstances

(aggravating that X or his accomplice had firearm or dangerous weapon, that X killed a person or inflicted or threatened to inflict grievous bodily harm)

12 years or fine up to level 13

Regional magistrate whether on summary trial or remittal from AG

Sexual offences (rape, aggravated indecent assault, sexual intercourse of performing indecent acts with young person, bestiality, sexual intercourse within the prohibited degree of relationship or complicity in sexual crimes)

Jurisdiction to impose the penalties prescribed for these offences in CLRA.

Regional magistrate whether on summary trial or remittal from AG

Deliberate infection of another with sexually-transmitted disease or deliberate transmission of HIV

Jurisdiction to impose penalties prescribed for these offences on CLRA

Ordinary, senior & provincial magistrate whether on summary trial or remittal from AG

Dangerous drug offences in Chapter VII of CLCA

10 years or fine up to level 12

Ordinary, senior & provincial magistrates whether on summary trials & remittal from AG.

Public violence, malicious damage to property or attempts to commit these crimes.

7 years or to fine up to level 11

Ordinary, senior, provincial and regional magistrates

Theft, stock theft and unlawful entry into premises

20 years or fine up to level 14

 

In various other statutes magistrates are given increased sentencing jurisdiction.

Crimes committed extra- territorially

 

Section 5 of CLCA provides that a court can try any crime either in terms of CLCA or any other enactment if the crime or an essential element of the crime was committed:

  • wholly inside Zimbabwe;
  • partly outside Zimbabwe if the conduct that completed the crime took place inside Zimbabwe;
  • wholly or partly outside Zimbabwe if the crime is a crime against the public security in Zimbabwe or against the safety of the State of Zimbabwe or the crime has produced or was intended to produce a harmful effect in Zimbabwe or the accused realized there was a real risk that it might produce such an effect.

 

Section 5(2) provides that any other enactment providing for extra-territorial effect will continue to apply. For instance, there are various offences under the Exchange Control Act [Chapter 22:05] which can be committed extraterritorially.

 

For the position under the common law see Mharapara 1985 (2) ZLR 211 (S) and Kapurira S-110-92

 

Accused illegally brought into jurisdiction

 

This a complex issue. If this issue arises in a case in the magistrates court, the magistrate should refer to case of Beahan 1991 (2) ZLR 98 (S) where this matter is dealt with. If X has been kidnapped from the foreign State, thereby violating the sovereignty of that State, jurisdiction will not be assured.  But the court will have jurisdiction if X is surrendered by the foreign State in contravention of the municipal law of the State of refuge. 

 

In Chinanzvavana & Ors v AG 2010 (2) ZLR 43 (H) the applicants had been arrested and detained. They alleged that they has been unlawfully deprived of their liberty, had been subjected to inhuman and degrading treatment in custody and had been kidnapped by state security agents inside the country, which kidnapping had been condoned by the police. The court ruled that under the constitution everyone is entitled to protection of the law. Where the accused are brought before the court after illegal arrest and detention the court must consider whether it should decline jurisdiction. The cases dealing with situations where the accused have been kidnapped outside the country and brought before the court provided some guidance in this regard.