The appellant and his co-accused appeared before the High Court on 6 November 2018 charged with theft of 28.5 kgs of gold valued at US$ 970,007.80 from Plumtree Police Station and, alternatively, obstructing or defeating the course of justice. The appellant pleaded not guilty and was on bail. On 27 June 2023, he allegedly failed to attend court, and a warrant for his arrest was issued. His bail was revoked and he was remanded in custody. During the trial, one of the two assessors died, and the court a quo set the proceedings aside and directed that a trial de novo be held. The appellant, still in custody, made an urgent chamber application for habeas corpus on 4 August 2025, contending that as the proceedings had been set aside, there was no legal basis for his continued detention. The court a quo dismissed the application on 13 August 2023, holding that the charges remained extant and the appellant should remain in custody unless granted bail in terms of section 8 of the High Court Act. The court also ordered that the first respondent indict the appellant for trial on 3 November 2025.
The appeal succeeded in part. Paragraph 1 of the order of the court a quo (dismissing the application for habeas corpus) was upheld. Paragraph 2 of the order (directing the first respondent to indict the appellant for trial on 3 November 2025) was set aside. No order as to costs.
Where criminal trial proceedings in the High Court are set aside due to the death or incapacity of an assessor in terms of section 8 of the High Court Act [Chapter 7:06], and the accused person is in custody (not on bail) at the time of such termination, the accused shall remain in custody unless subsequently granted bail, and the charges remain extant pending a trial de novo. Section 8(3)(b) does not require the court to issue a fresh order for detention; the accused's custodial status continues by operation of law. A valid and extant warrant of arrest issued by a competent court provides lawful authority for the continued detention of an accused person under section 70(1) of the Prisons and Correctional Services Act. The proviso to section 8(3)(b) conferring discretion on a judge to release an accused on bail does not make the granting of bail mandatory and does not operate mero motu without an application for bail.
The court observed that the appellant's status changed from being on bail to being in custody when the warrant of arrest was issued following his alleged failure to attend court on 27 June 2023. But for the warrant of arrest, the appellant would have remained on bail when the proceedings were terminated and would have remained on bail after termination of proceedings. The court also commented that the attack on the second respondent (prison authorities) was ill-conceived as they were merely acting in compliance with a valid warrant of arrest and had no authority to release the appellant without a court order or warrant of liberation. The court noted that reliance on section 70(1) of the Prisons Act seeks to establish unlawful detention by prison authorities, but such reliance was misplaced where detention was based on a valid warrant. The court affirmed the principle from Nzara & 3 Ors v Kashumba N.O & 3 Ors 2018 (1) ZLR 194(S) that a court can only grant orders that have been sought and cannot act on a frolic of its own.
This case clarifies the legal position regarding the detention of an accused person when criminal trial proceedings are set aside due to the death or incapacity of an assessor under section 8 of the High Court Act [Chapter 7:06]. It establishes that where an accused person is in custody (as opposed to being on bail) at the time proceedings are terminated due to such circumstances, the accused shall remain in custody unless granted bail, and the charges remain extant pending a trial de novo. The case also confirms that a valid warrant of arrest provides lawful authority for continued detention under section 70(1) of the Prisons and Correctional Services Act. It demonstrates the application of the golden rule of statutory interpretation to criminal procedure provisions and reaffirms that courts should not grant relief on a frolic of their own without such relief being sought by the parties.