MASHAVIDZE v A-G & ANOR 2012 (2) ZLR 120 (H)

Flynote

Criminal procedure — trial — conduct of — cross-examination of prosecution witness — defence counsel not in court for examination-in-chief — whether allowed to conduct cross-examination

Headnote

The applicant was appearing in the regional court on a charge of rape, to which he had pleaded not guilty. At the trial, his chosen legal practitioner, M, did not initially appear. Instead, another lawyer from the same firm, K, appeared in court. He introduced himself to the court as defence counsel for the applicant and advised the court that he was doing so in his representative capacity for M, who was to join the proceedings at a later stage. K said he was to record the complainant's evidence-in-chief and begin cross-examination, and that M was going to join the proceedings and continue with the cross-examination of the complainant. After K had finished cross-examining the complainant he handed over to M, who had by then joined the proceedings, so that he could also cross-examine the complainant. The prosecutor informed the court that he had no objection to this procedure, but the magistrate not only did not allow M to continue, he ordered M to leave the court. The applicant sought an order for trial de novo before another magistrate.

Held, that the prosecutor's concession was completely erroneous and misleading. The procedure that M, with the support of the prosecutor, was attempting to adopt was not only wrong but was also absurd. He wanted to take over cross-examination of a witness whose testimony was given in his absence. The trial magistrate was entirely correct in refusing to allow him to do so. A legal practitioner may not walk into a court room where proceedings are in progress and take over cross-examination of a witness whose evidence-in-chief was given during his absence. in his absence. He does not know what the witness said. This is common sense. What M attempted to do was grossly improper.