4—1
CHAPTER 4
PRIVATE PROSECUTIONS
Section Page
1. Who may bring private prosecution and for what offences ........................................... 4—1
2. Procedure for instituting private prosecution
(1) Attorney-General’s nolle prosequi ........................................................................ 4—2
(2) warrant of detention or summons .......................................................................... 4—3
3. Failure by prosecutor to appear ...................................................................................... 4—3
4. Attorney-General’s powers of intervention ................................................................... 4—3
5. Trial procedure ............................................................................................................... 4—4
6. Financial implications .................................................................................................... 4—4
(1) recognizances and security for costs ..................................................................... 4—4
(2) fees for issue of process ........................................................................................ 4—5
(3) costs and damages ................................................................................................. 4—5
(a) failure by private prosecutor to appear ......................................................... 4—5
(b) acquittal ......................................................................................................... 4—5
(c) conviction ...................................................................................................... 4—5
(d) scale of fees ................................................................................................... 4—5
1. WHO MAY BRING PRIVATE PROSECUTION AND FOR WHAT OFFENCES
In Zimbabwe, the vast majority of criminal prosecutions are undertaken by the State. This contrasts
strongly with the situation in England, where any person may prosecute, even if that person is not
personally affected by the alleged offence. At one time most prosecutions there were, nominally
at least, brought by individuals, but in recent years prosecution has become more centralised,
with the creation of the Crown Prosecution Service in 1985.1
A prosecution may be undertaken by any private party in limited circumstances. The party must
show:
• some substantial and peculiar interest, that is, an interest greater than that of any other
member of the public;2
1 See Emmins A Practical Approach to Criminal Procedure Chapter 2.
2 Attorney-General v van der Merwe & Bornman 1946 OPD 197 at 201.
4—2 Criminal Procedure in Zimbabwe
• in the issue of the trial;3
• arising out of some injury;4
• which he individually has suffered;
• in consequence of the commission of the offence.5
The onus is on him, if challenged, to show compliance with these requirements;6 only then does
the right to prosecute vest in him.
The injury suffered must therefore be more than is suffered by society generally.7 In Levy v
Benatar 1987 (1) ZLR 120 (S), the appellant had obtained a court order restraining the accused
from having contact with his (the appellant’s) daughter and the respondent had flouted that order.
It was held that the appellant was not entitled to bring a private prosecution for contempt of
court, since that was not an offence which caused him, individually, any injury but was one
shared with every right-thinking member of society.
Certain other persons also have the right to prosecute privately:
• a husband, in respect of offences committed against his wife,8 though the reverse does
not apply;
• the legal guardians or curators of minors or mentally disordered or defective persons, in
respect of offences committed against their wards.9 It should be noted, though, that a
guardian’s right to prosecute ceases when the minor against whom the offence was
committed reaches the age of majority, even if the offence was committed before the
minor reached that age;10
• the wife or children or, failing them, the next of kin of any deceased person, in respect of
any offence by which the death of that person was caused;11 and
• public bodies and persons on whom the right to prosecute is conferred by statute in
respect of particular offences.
2. PROCEDURE FOR INSTITUTING PRIVATE PROSECUTION
(1) ATTORNEY-GENERAL’S NOLLE PROSEQUI
The first essential for most private prosecutions is that the private prosecutor must obtain from
the Attorney-General a signed certificate that he has seen the statements or affidavits on which
the charge is based and declines to prosecute at the public instance.12 The Attorney-General is
3 That is, the acquittal or conviction and punishment of the alleged offender: Solomon v Magistrate, Pretoria & Anor
1950 (3) SA 603 (T) at 609.
4 Which would give rise to a civil remedy against the offender: Mullins & Meyer v Perlman 1917 TPD 639 at 643.
5 CP&EA s 13.
6 Levy v Benatar 1987 (1) ZLR 120 (S) at 125-6.
7 Lansdown and Campbell p 122.
8 CP&EA s 14(a). 9 CP&EA s 14(b).
10 Levy v Benatar supra. 11 CP&EA s 14(c).
12 CP&EA s 16(1).
Private prosecutions 4—3
not entitled to refuse to issue such a certificate in a case where he declines to prosecute. The
Attorney-General’s certificate is not required in those cases where the right of prosecution is
given by statute to public bodies or persons in respect of particular offences.13
(2) WARRANT OF DETENTION OR SUMMONS
There are two ways in which the accused person in a private prosecution may be brought to court.
The first situation is where the accused is in prison or on bail and a warrant for the liberation of
the accused has been issued by the Attorney-General.14 Here, the private prosecutor may apply to
the High Court or a judge thereof for a warrant for the further detention of the accused or, if he is
on bail, for his detention.15 The Attorney-General’s certificate of nolle prosequi is not required,
since his warrant for the liberation of the accused would state that the Attorney-General sees no
grounds for prosecuting the accused.
The second way in which the accused may be brought to court is by summons. Before a summons
may be issued, the private prosecutor must produce a certificate of nolle prosequi to the issuer of
process.16
No procedure exists for arresting an accused person who is at liberty.
3. FAILURE BY PROSECUTOR TO APPEAR
If the private prosecutor fails to appear on the day appointed for appearance, the charge or summons
will be dismissed. The proceedings may not be reinstituted at the instance of any private party.
However, if the court has reason to believe that the private prosecutor’s absence was caused by
circumstances beyond his control,17 it may adjourn the case.
4. ATTORNEY-GENERAL’S POWERS OF INTERVENTION
The Attorney-General has considerable powers of intervention in private prosecutions.
Even if a private prosecution is dismissed for want of prosecution, the Attorney-General or a
public prosecutor may afterwards take up the case.18 The Attorney-General or a public prosecutor
may also take over a private prosecution at any stage of the proceedings. This is done by applying
to the court for an order to stop all further proceedings. The court has no discretion to refuse to
grant such an order.19
It is not clear whether a prosecution at the public instance must be instituted de novo20 if the
Attorney-General does intervene.
13 CP&EA s 16(2). 14 Under s 10 of the CP&EA.
15 CP&EA s 15. 16 CP&EA s 16(1).
17 CP&EA s 18(1). 18 CP&EA s 18(2).
19 CP&EA s 20; Constitution s 76(4)(b); Central African Examiner (Pvt) Ltd v Howman & Ors NNO 1966 RLR 75 (G);
1966 (2) SA 1 (R).
20 Lansdown & Campbell p 130.
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Comment
While the Attorney-General’s right to intervene is unfettered, it is submitted that it would be
a highly improper exercise of that right were the Attorney-General to take over a prosecution
in order that he might withdraw the charge and frustrate the ends of justice. The right
should be exercised only where, the Attorney-General having declined to prosecute at the
public instance because he considers that there is no case to meet, the subsequent private
prosecution shows that the case actually is one which should have been prosecuted at
public expense. The fact that the Attorney-General considers that a private prosecution is
ill-advised should be irrelevant; such decisions should be a matter for the court that is
seized of the case. The court’s disapproval can be suitably marked in its award of costs.
It would appear that in England, where the DPP has a power, similar to that given to the
Zimbabwean Attorney-General, to take over a private prosecution, his discretion as to
how to deal with a case he takes over is unfettered, provided he does not act completely
unreasonably. In Attorney-General v Raymond [1982] QB 839,21 Raymond, who had been
committed for trial on certain charges, commenced private proceedings for perjury against
some of the prosecution witnesses who had testified at the committal proceedings
(equivalent to the preparatory examination in Zimbabwe). The DPP intervened and then
offered no evidence, which resulted in the alleged perjurers being acquitted. His reason
for so doing was that the proceedings were not genuinely intended to uphold the criminal
law but to hamper the proceedings against Raymond himself. The Court of Appeal held
that the question of whether to intervene and halt a private prosecution was essentially a
matter for the DPP’s discretion.
It is submitted that this decision should not be followed in Zimbabwe. In England any private
person may prosecute;22 there is no need to show a substantial and peculiar interest in the
offence. Nor is the Attorney-General’s or DPP’s nolle prosequi required. Finally, the DPP
in England, unlike the Attorney-General and DPP in Zimbabwe, is independent of the
government for the time being in power.
5. TRIAL PROCEDURE
The procedure at a private prosecution is the same as at a prosecution at the public instance,
except:
• the indictment is in the name of the private prosecutor(s);23 and
• in the matter of costs (see below).
6. FINANCIAL IMPLICATIONS
(1) RECOGNIZANCES AND SECURITY FOR COSTS
Private prosecutors (other than public bodies and persons who have the right of prosecution given
by statute) must deposit certain sums of money before taking any proceedings in pursuance of a
right of private prosecutions. These are:
21 Cited in Emmins p 11.
22 Emmins p 8.
23 CP&EA s 136(2) and (3).
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• the deposit of $100; or
• recognizances in that sum together with two sureties of $50 each; and
• security for the accused’s costs.24
(2) FEES FOR ISSUE OF PROCESS
The prescribed fees must be paid to the registrar or clerk of court before any process may be issued.25
(3) COSTS AND DAMAGES
(a) Failure by private prosecutor to appear
If a private prosceutor fails to appear, not only may the accused move for the charge to be dismissed,
he may also move that the private prosecutor and his sureties be called on their recognizances
and, if the private prosecutor still fails to appear, that the recognizances be estreated. The accused
may also apply for an order that the private prosecutor pay the costs that he (the accused) has
incurred in preparing his defence.26
(b) Acquittal
If the accused is acquitted, the court may order the whole or part of his expenses to be paid by the
party who instituted the prosecution.27 If the court considers the charge or complaint to have been
unfounded and vexatious, it shall, on the application of the accused, award such costs as it may
think fit.28
(c) Conviction
The court may, if the accused is convicted, order that the accused pay to the prosecutor the costs
and expenses of bringing the private prosecution.29 These costs may be in addition to an award of
compensation under Part XIX of the Act. If (as is usually the case) the prosecution was instituted
after the Attorney-General issued a certificate of nolle prosequi, the court may order that the
State pay the costs.30
(d) Scale of fees
Any award of costs is taxed according to the civil scale of fees.31
1 See Emmins A Practical Approach to Criminal Procedure Chapter 2.
2 Attorney-General v van der Merwe & Bornman 1946 OPD 197 at 201.
3 That is, the acquittal or conviction and punishment of the alleged offender: Solomon v Magistrate, Pretoria & Anor
1950 (3) SA 603 (T) at 609.
4 Which would give rise to a civil remedy against the offender: Mullins & Meyer v Perlman 1917 TPD 639 at 643.
24 CP&EA s 17.
25 CP&EA s 21.
26 CP&EA s 320(2); and see Chapter 16, section 2, below.
27 CP&EA s 22(1).
28 CP&EA s 22(2).
29 CP&EA s 22(3).
30 CP&EA s 22(3).
31 CP&EA s 22(4).
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5 CP&EA s 13.
6 Levy v Benatar 1987 (1) ZLR 120 (S) at 125-6.
7 Lansdown and Campbell p 122.
8 CP&EA s 14(a). 9 CP&EA s 14(b).
10 Levy v Benatar supra. 11 CP&EA s 14(c).
12 CP&EA s 16(1).
13 CP&EA s 16(2). 14 Under s 10 of the CP&EA.
15 CP&EA s 15. 16 CP&EA s 16(1).
17 CP&EA s 18(1). 18 CP&EA s 18(2).
19 CP&EA s 20; Constitution s 76(4)(b); Central African Examiner (Pvt) Ltd v Howman & Ors NNO 1966 RLR 75 (G);
1966 (2) SA 1 (R).
20 Lansdown & Campbell p 130.
21 Cited in Emmins p 11.
22 Emmins p 8.
23 CP&EA s 136(2) and (3).
24 CP&EA s 17.
25 CP&EA s 21.
26 CP&EA s 320(2); and see Chapter 16, section 2, below.
27 CP&EA s 22(1).
28 CP&EA s 22(2).
29 CP&EA s 22(3).
30 CP&EA s 22(3).
31 CP&EA s 22(4).
