S v NDLOVU 1997 (2) ZLR 540 (S)

Flynote

Court — judicial officer — duties — unrepresented accused — charge under statute creating presumption against accused — court's duty to explain effect of presumption and record explanation

Criminal procedure — trial — unrepresented accused — charge under statute creating presumption against accused — court's duty to explain effect of presumption and record explanation

Headnote

Where the accused in a criminal case is undefended and the charge is one under a statute which creates a presumption in favour of the State and casts an onus on the accused, the procedure to be adopted by the courts should be as follows:

• (1) the nature of the presumption or onus should be read out to the accused.
• (2) an explanation should be expressly given that the presumption or onus could be met or discharged by acceptable evidence given orally by himself or from any other source.
• (3) the manner in which the explanation was given should be recorded verbatim.

Non-compliance with this procedure means that an overseeing court has the duty to scrutinise the evidence in order to satisfy itself that the accused has not been prejudiced by the irregularity.

The appellant was charged with permitting an animal under his charge to stray onto a tarred road. The legislation created a presumption against the accused unless he proved that he had taken reasonable steps to prevent the animal from straying onto the road. The State proved the presence of the cattle on the road on question. Although the appellant elected to give evidence, the magistrate did not explain the effect of the presumption and the appellant did not give evidence on the crucial issue of whether the measures he had taken to prevent straying were reasonable. Held, that the omission by the magistrate resulted in a failure of justice and the conviction should be set aside.