S v PAWENI & ANOTHER 1984 (2) ZLR 16 (H)

Flynote

Criminal procedure — trial — date of — Attorney-General setting matter c down for trial — particular legal practitioners not available on that date — whether accused deprived of right to legal representative of his own choice — Constitution of Zimbabwe 1980 — s 18(3) - choice of date — Attorney-General's discretion — whether unfettered — Criminal Procedure and Evidence Act [Chapter 59] — ss 146(1) and 151.

Headnote

Section 18 of the Constitution of Zimbabwe 1980, which is a section falling within the Declaration of Rights, provides that a person charged with a criminal offence is permitted to defend himself, at his own expense, by a legal practitioner of his own choice. However, this right is not absolute; the accused's predilection for a particular legal practitioner who happens to be unavailable on the date on which the accused's case is set down for trial does not mean that the case must be postponed until such time as that particular practitioner is available. The provisions of s 18 simply mean that the accused is entitled to a choice of not having a particular practitioner, whom he does not want, foisted on him. The accused's desire for particular counsel is only one consideration: there are others, such as the principle that cases should be brought to a conclusion with the minimum of avoidable delay. In this regard, the interests of all parties must be considered, not merely the interests of the accused. Such other factors must be considered as: how much notice of trial has been given; the complexity of the case; and the availability of other competent lawyers.

In setting down matters for trial, there is a long established practice for the Attorney-General to consult with the accused's legal practitioner about trial dates. Apart from constituting the most basic courtesy, there are sound practical reasons for the continuation of this practice. In any event, the Attorney-General's discretion as to the choice of a trial date is not unfettered. In terms of the proviso to s 146(1) of the Criminal Procedure and Evidence Act [Chapter 59], the High Court may order that the trial take place at an earlier date; and in terms of s 151 any Court before which a trial is pending may postpone the trial if it considers it necessary or expedient to do so. In other words, unless the Attorney-General acts reasonably, he may well find it difficult to satisfy a Court that it is not necessary or expedient to postpone a trial.