Postponement of Cases (Zimbabwe)
Instructions have been given to magistrates that they should hear in open court all applications for postponement of cases before they have commenced. (The same applies to postponement or adjournment of cases after they have commenced.) The prosecutor or X's legal representative must explain to the court why a postponement or further remand is being sought. The court must be satisfied that the reason provided is a genuine one and that the postponement is necessary. The reasons for the postponements must be recorded. Where there is doubt about the genuineness of the reason for the requested postponement, the matter can be stood down and, if necessary, the matter can be referred to the Senior Public Prosecutor or to the senior prosecutor at the station.
This procedure is designed to ensure that there is a written record of who applied for the postponement and why. Disputes can arise months later between the defence and prosecution as to who was to blame for the delay in finalising the case. These disputes can be easily resolved by checking the records of the case. This will ensure that X will not escape proper punishment where the defence and not the State was responsible for the prolonged delay in finalising the case.
Defence lawyers should also take written notes about what is said when cases are postponed because sometimes court records are inadequate or missing.
When cases are postponed witnesses in attendance can be brought into court and warned by the court to come back on the new trial date so as to avoid having to serve fresh subpoenas on them.
Postponed cases are supposed to be given priority over all other cases set down for that date. The more often the case has been postponed, the greater the priority which it must be accorded. (This is mostly based on the Chief-Magistrate's Circular No.17 of 1990 and the Attorney-General's Circular No.5 of 1991).
Unfortunately it not infrequently happens that pro deo cases are assigned only a very short time before the cases are due to be heard. It is the duty of the lawyer assigned such a case to ensure that he has adequate time to prepare the case by way of interviewing his client and witnesses and drafting a defence outline. If he is left with inadequate time to prepare properly, he is duty bound to apply for a postponement of the case so that he can have an adequate amount of time for preparation. Even if his own dilatoriness is the reason why he has been left with inadequate time for preparation, he is obliged to apply for a postponement and to explain honestly to the court why it is that he is unable to proceed with the case. It is improper and completely unfair to his client for the lawyer to go ahead with the case when he is inadequately prepared. Another situation which arises is where a senior partner in a law firm hands a criminal case over to a legal assistant at the last moment because the senior has double dated himself and instructs the legal assistant to go and appear in the case. The legal assistant must apply for a postponement where he does not have enough time to prepare to argue the case even though this may be against his instructions from his senior. The client must not be prejudiced by the disorganisation of the senior. It should be noted that in terms of s 18(3) of the Constitution it is provided that every person charged with a criminal offence shall be given adequate time and facilities for the preparation of his defence.