S v MAVINGERE 1988 (2) ZLR 318 (SC)

Flynote

Appeal — evidence on — when Supreme Court will call for further evidence to be led before it.

Criminal law — statutory offences — mens rea in — s 43 of Road Motor Transportation Act [Chapter 262] — whether mens rea required.

Criminal procedure — trial — prosecutor failing to call vital but formal evidence — duty of magistrate to do so.

Headnote

In terms of s 15 of the Supreme Court of Zimbabwe Act 1981 the Supreme Court has to power to call for evidence or for any document to be produced, if it appears to the court necessary for the determination of the case. This power may be exercised even where the evidence called for will supply a fatal deficiency in the prosecution case, such as is caused by the failure to prove a mere technicality. However, where the missing evidence is of a contentious nature, such power should be exercised sparingly. Similarly, where the prosecutor at the trial fails to call the evidence necessary to prove a mere technicality, the court can and should call the evidence itself, under the powers given to it by s 218 of the Criminal Procedure and Evidence Act [Chapter 59]. The Court accepted, without finally deciding the point, that for a contravention of s 43 of the Road Motor Transportation Act [Chapter 262] (which penalizes a refusal or failure to pay on demand a far due for carriage in public service vehicle) mens rea is required.