PAWENI & ANOTHER v ATTORNEY-GENERAL 1984 (2) ZLR 39 (S)

Flynote

Criminal procedure — appeal — from decision of High Court — lies as of right in a criminal case — "criminal case" — what is — trial — right of accused to counsel of his own choice — limits on — Constitution of Zimbabwe 1980 — s 18(3) (d) — postponement of trial — D further charges pending against accused — whether trial should be postponed.

Headnote

In terms of s 44(1) of the High Court of Zimbabwe Act 1981, there is an absolute right of appeal to the Supreme Court against a ruling of the High Court in "a criminal case or matter". The test, whether a matter is a criminal one, is whether the matter is one the direct outcome of which may be trial of the person concerned and his possible punishment for an alleged offence by a court of competent jurisdiction. Thus, a ruling in motion proceedings, where application was made for a postponement of a criminal trial, was a criminal case or matter and the applicant had a right of appeal to the Supreme Court. A further consequence of this finding was that an award of costs would be incompetent.

Anaccused person is, by virtue of s 18(3)(d) of the Constitution of Zimbabwe 1980, permitted to defend himself in a criminal case either in person or at his own expense by a legal representative of his own choice. This right is not, however, absolute: it does not mean that if, for one reason or another, it is not convenient for the legal practitioner selected by the accused to conduct the case on the date set down for the hearing, the Court has no option but to order that the proceedings be held in abeyance pending his availability. What is protected is the right of the accused to resist having a legal practitioner foisted upon him. He is entitled to choose whomever he wishes, but if his prime choice is unavailable, he must look elsewhere.

It is a well-established and salutary practice of our courts that, in general, the prosecutor should join in one indictment all charges he intends to prefer against an accused which arise out of the same alleged course of conduct. It would be an abuse if he were to bring up one charge after another based on the same incident in order to make fresh attempts to break down the defence. Another consideration would be the loss of public confidence in the courts if the accused were to be acquitted by one court and convicted by another on substantially similar issues of fact. Other reasons for the practice are: the unnecessary and time-consuming, as well as inconvenient, repetition caused by holding separate trials; and the considerable difficulty imposed on the courts in later trials of assessing an appropriate sentence. Where, therefore, it appears likely that the prosecutor does intend to prefer further charges, the court should, unless there is some special feature of the case which would render a single trial involving several counts prejudicial or embarrassing to the accused, exercise its discretion in favour of a stay of the trial.