SRGN No. 452 of 1964

High Court (Criminal Procedure) Rules 1964

SI 97/1974; RGNs 452/1964, 665/1964, 197/1970, 34/1974, 457/1974, 1141/1975, 645/1977.

ARRANGEMENT OF RULES

Rule

1    Title.

PART I

PROCESS

3. Notice of indictment.
5. Indictment and notice of trial.
6. Service of indictment, notice of trial and summons.
7. Short notice.
9. Who serves subpoenas.
10. Service and endorsement of subpoenas.
11. Period of notice for attendance as witness.
12. Effect of subpoenas.
13. Postponement of trials.
14. Process for private prosecution.

PART II

JURIES 15. – 34. [Repealed].

PART III

RECORDS

35. What is to be recorded.
36. Shorthand writer’s oath.
37. Filing of shorthand records.
38. Transcribing recordsand certifying transcripts.
39. Certified transcripts deemed correct record.
40. Supply of transcripts to other persons.

PART IV

SHERIFF

41. [Repealed].

42..   Fees for execution of Crown or court process.

43. [Repealed].

PART V

GENERAL

44. Commencement of sittings.
45. Change of venue.
46. Prisoner in dock.
47. Oaths of interpreter and assessor.
48. Numbering of exhibits.
49. Passing of death sentence.
50. Criminal record books.
51. Deviation from rules not fatal.

PART VI

FORMS

52. Forms prescribed for rules and Act.

IT is hereby notified that His Excellency the Governor has been pleased, in terms of section 405 of the

Criminal Procedure and Evidence Act [Chapter 31], to approve the following rules made by the Chief Justice and a judge of the General Division by virtue of the powers conferred upon them by that section:—

                                                                                                     1.   Title

These rules may be cited as the High Court (Criminal Procedure) Rules, 1964.

[Rule amended by s.i 97 of 1994]

2. Definitions

In these rules, unless inconsistent with the context— “chief clerk” means the chief clerk to the Attorney-General;

“registrar” means the registrar of the High Court or any deputy or assistant registrar appointed in terms of subsection (1) of section 56 of the High Court Act [Chapter 7:06], and, for the purposes of Part II and Part V shall include any judge’s clerk or court usher acting on behalf of such registrar;

[Definition amended by RGN 645 of 1977]

“sheriff” includes any additional or assistant sheriff appointed in terms of subsection (1) of section 55 of the

High Court Act [Chapter 7:06], and any deputy sheriff appointed in terms of subsection (3) of that section;

[Definition amended by RGN 645 of 1977]

“subpoena” means the process sued out of the office of the registrar in terms of rule 8; “summons” means the writ sued out of the office of the registrar in terms of rule 4; “swear” includes make a solemn affirmation.

PART I

PROCESS

3. Notice of indictment

(1) Whenever the Attorney-General has decided to indict any person for trial before the High Court he shall— (a) issue a notice informing the magistrate of his decision to indict;

(b) issue a notice informing the accused of his decision to indict and of the nature of the charge which it is intended to bring against him.

• The notice issued in terms of paragraph (b) of subrule (1) shall be served on the accused by the magistrate or by some other person on the directions of the magistrate.
• ….

[Subrule repealed by RGN 457 of 1974]

• Where the accused is not an African, the magistrate shall investigate or cause to be investigated the accused’s arrangements for his defence in accordance with the provisions appearing on the reverse of the notice issued in terms of paragraph (b) of subrule (1) and once the return of service and the section of the form relating to the accused’s defence have been completed, the magistrate shall return the original of the notice to the Attorney- General.

[Subrule amended by RGN 665 of 1964 and RGN 457 of 1974]

• Where the accused is an African, the magistrate, after ensuring that the return of service is completed in terms of subrule (2), shall send the original of the notice to the district commissioner within whose district the accused is detained or, if the accused is on bail, to the district commissioner within whose district is situated the place at which the accused will accept service of process.

[Subrule substituted by RGN 665 of 1964]

• On receipt of the notice, such district commissioner shall make inquiries into the arrangements which have been made or need to be made for the accused’s defence, shall complete the section of the notice relating to the accused’s defence and shall then send the notice to the District Commissioner, Bulawayo, if the trial is to take place at Bulawayo or Gweru, and otherwise to the District Commissioner, Harare.

[Subruule substituted by RGN 665 of 1964]

(6A) The District Commissioner, Bulawayo or Harare, shall note in his records the information passed to him in terms of subrule (6) and shall immediately send the notice back to the Attorney-General.

[Subrule inserted by RGN 665 of 1964]

• ….

[Subrule repealed by RGN 645 of 1977J

4. Summons

The process of summoning an accused to answer any indictment preferred against him shall be by writ sued out of the office of the registrar by the chief clerk and directed to the sheriff.

5. Indictment and notice of trial

• The chief clerk shall deliver or cause to he delivered to the sheriff, together with the summons, a copy of the indictment preferred against the accused and a notice of trial.
• The notice of trial shall specify the date of commencement of the trial and the place at which the trial will be held. [Subrule substituted by RGN 645 of 1977]
• If there are more than one accused, the chief clerk shall deliver or cause to be delivered to the sheriff as many copies of the indictment and notice of trial as there are accused.

6. Service of indictment, notice of trial and summons

• The sheriff shall serve a copy of the indictment and the notice of trial on the accused in person and shall explain the nature and effect of each of these documents to the accused. The sheriff shall also exhibit the summons to the accused and explain to him the nature and effect thereof.
• The sheriff shall enquire of the accused whether he wishes to call any witnesses in his defence and, if he does so wish, the sheriff shall endeavour to discover the names and residential and business addresses of such witnesses and what arrangements, if any, have been made to secure their attendance at court.
• The sheriff shall endorse upon the summons the fact that he has complied with the requirements of subrule

(1) and the results of his enquiries in terms of subrule (2) and shall return the summons to the registrar forthwith.

(4) The registrar shall inform the court orderly of the names and addresses of any defence witnesses referred to on the summons as endorsed by the sheriff and shall subpoena such witnesses as it is necessary for him to subpoena in terms of subsection (3) of section 229 of the Act.

[Subrule amended by RGN 645 of 1977]

7. Short notice

Notwithstanding the provisions of section 382 of the Act, any accused may consent to the commencement of his trial after the lapse of a period of less than ten days from the date of service upon him of the notice of trial and a copy of the indictment.

[Rule amended by RGN 645 of 1977]

8. Subpoenas

• The process for compelling the attendance of any person to give evidence or to produce any books, papers or documents in any criminal ease may be taken out of the office of the registrar by the chief clerk.
• The chief clerk shall deliver or cause to be delivered to the sheriff a general subpoena listing all or any number of witnesses in any particular case together with copies of the subpoena for cacti witness:

Provided that the copies of the subpoena need not bear the names and addresses of all the witnesses mentioned on the general subpoena and may bear only the name and address of the witness upon whom each copy is served.

• Notwithstanding the provisions of subrules (1) and (2), if the High Court is sitting at any place other than Harare, witnesses may be subpoenaed by process taken out of the court of the magistrate at the place where the High Court is sitting by counsel appearing for the State or by the accused or his counsel. Such process may be in the form used to subpoena witnesses in the magistrates court.

[Subrule amended by RGN 197 of 1970 and RGN 645 of 1977]

• Should the accused wish to subpoena any witness, he or his legal practitioner may do so in the manner prescribed in subrules (1), (2) and (3).

9. Who serves subpoenas

• Where the witness is resident within the area under the jurisdiction of the local authority within which the court is situate, the sheriff shall serve the subpoena.
• Where a witness is not resident as described in subrule (1), or where the sheriff is unable to locate a witness, the sheriff shall—
• deliver the relevant subpoena to a police officer of or above the rank of section officer; or
• send the relevant subpoena by registered post to the member in charge of a police station in the area of which the address for service is situated or where the witness is believed to be; and the police officer concerned shall serve the subpoena himself or cause some other police officer to serve it.

10. Service and endorsement of subpoenas

• The person serving the subpoena shall exhibit the general subpoena to the person upon whom it is served, shall hand to such person a copy of the subpoena and shall explain the nature and effect of the subpoena to that person.
• The subpoena shall be served on the witness either personally or by handing a copy thereof to some person whose apparent age is not less than sixteen years and who apparently resides or is employed at the witness’s residence or place of business.
• If the person to be served with the subpoena keeps his residence or place of business closed, so preventing the service of the subpoena in the manner required by subrules (1) and (2), it shall be sufficient to affix a copy thereof to the outer or principal door of such residence or place of business.
• If a witness has given security for his appearance to give evidence at any trial in accordance with the provisions of subsection (1) of section 234 of the Act, the subpoena may be served on him either in person or by being affixed to the principal door of the place specified in his recognizance as that at which the subpoena may be served.

[Subrule amended by RGN 645 of 1977]

• The person serving any subpoena shall endorse on or annex to the general subpoena a return of the manner of the service of the subpoena on each witness, and shall return the subpoena to the registrar so endorsed.
• If, within four days of the commencement of the case in respect of which a witness is required, the registrar has not received notification of the service of a subpoena on the witness, he shall inform the court orderly accordingly.

[Subrule substituted by RGN 645 of 1977]

11. Period of notice for attendance as witness

No witness shall be bound to attend court before a period of forty-eight hours has elapsed from the time at which he is first served with a subpoena:

Provided that should any person be served with a subpoena requiring his attendance at court at some time before the date of such service or at a time within forty-eight hours of such service, he shall, nevertheless attend court as soon as reasonably possible after receiving the subpoena and in any case within forty-eight hours of such receipt.

12. Effect of subpoenas

• Notwithstanding that any witness has been subpoenaed for a particular day and subject to the provisions of section 231 of the Act, such witness shall not be bound to attend court on that day if he has been excused attendance at court by or on behalf of the court orderly:

Provided that where any witness is so excused he shall inform the court orderly of the address at which, and means by which, he may most conveniently be contacted and thereafter such witness shall not leave such address for more than twenty-four hours at a time without the consent of the court orderly.

[Subrule amended by RGN 645 of 1977]

• Any witness who has been excused attendance in accordance with subrule (1) shall nevertheless be bound to attend court at any future time prior to the determination of the case in respect of which he has been subpoenaed on being instructed so to do by or on behalf of the court orderly provided that he is given reasonable notice of the necessity for him to attend court and of the time at which he is required to attend.