S v KUROTWI & ANOR (3) 2011 (1) ZLR 251 (H)

Flynote

Criminal procedure “ charge “ amendment or withdrawal of “ prosecutor's right to amend or withdraw charge after accused has been committed for trial “ leave of court required

Headnote

â–· The accused were committed for trial along with three others, the charges against whom had been withdrawn before plea. The State intended to use the three others as State witnesses against the accused and applied to amend the original charge before plea to incorporate this development.

Held, that the effect of s 137 of the Criminal Procedure and Evidence Act ^ε [Chapter 9:07] is that, once the High Court is seized with the matter pending before it, all procedures relating to the trial of the accused are firmly under the direction and control of the court. Accordingly, although the State is dominus litis, it would have to apply for an order for the withdrawal of charges against the accused's co-accused before plea. It would be grossly irregular for the State to simply drop charges against ^ε the accused's co-accused without first obtaining a court order to that effect. The situation cannot be different when it comes to the amendment of the charge before plea. Once an accused person has been served with an indictment and committed to the High Court for trial he is entitled, as of right, to demand that he be tried on that charge. The State is not at large, at that stage, to alter, amend or substitute the charge without the ^ε court's permission.

Held, further, that generally speaking, a party is entitled to make an amendment at any time before judgment, provided there is no prejudice to the other party. Here there was no prejudice to the accused which could not be cured by an adjournment to enable them to prepare their defence in light ^η of the intended application.