Calling of witnesses (Zimbabwe)

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In Yusuf 1997 (1) ZLR 102 (H) the court stressed that a person on trial for a criminal offence must be given a full opportunity to give evidence in his defence and to call such witnesses as he may wish. This right is laid down in s 18(3)(e) of the Constitution and is a fundamental principle of natural justice. Section 18(3)(e) provides that the accused is entitled to obtain the attendance of witnesses on the same conditions as those applying to witnesses called by the prosecution. This includes the right to the subpoenaing of reluctant witnesses.

The method of securing the attendance of defence and State witnesses is the same. One way in which witnesses are notified that they are required to attend court to give their evidence is by serving them with subpoenas.

If a witness has been served with a subpoena to appear in the court named at the particular date and time and he fails to appear, he can be punished under s 237 CPEA. (The word subpoena in fact means "under punishment".)

If he decides to act under this section, the prosecutor will hand the magistrate the return of service of the subpoena or he may prove service by calling evidence on oath. He will then apply for a warrant of arrest. On the arrest of the witness, the court can enquire summarily into the reasons for his non-appearance and may fine him or imprison him if he has no valid reason for his default.

A witness can also be served with a special type of subpoena, namely a subpoena duces tecum, which requires the witness to produce a specified document or thing. If the witness disobeys this subpoena he can be dealt with under s 233 CPEA.

The court may warn a witness who is in court that he is to attend court on a particular date and a particular time. Failure by such a witness to obey the warning may be treated as contempt of court.

The police are also empowered to warn witnesses to attend court on a particular date and a particular time to testify.

See Zimbabwe Criminal Defense Manual