The State v Sidingumuzi Ncube and Others

During a criminal trial involving ten accused persons, the state called its third witness, Lovemore Sibanda, to give oral evidence. The state advised the court that this witness was an accomplice witness, suspected of having participated in the commission of the offence. The court duly admonished the witness in terms of section 267 of the Criminal Procedure and Evidence Act. Before the witness could testify in chief, Advocate T. Mpofu for the 6th accused and Advocate S.M. Hashiti for the 2nd accused requested to conduct what they termed a 'voire dire' - a preliminary examination of the witness to test his truthfulness and to demonstrate that the witness had allegedly conspired with others to present false evidence before the court. The advocates cited various foreign authorities and argued that if no provision existed in Zimbabwean law, the court should invoke section 137 of the Criminal Procedure and Evidence Act (the court's inherent jurisdiction). The state opposed the application, arguing that the voire dire procedure was alien to Zimbabwean law and not provided for in the Criminal Procedure and Evidence Act.

• Whether the 'voire dire' procedure, as a preliminary examination of a witness before testimony in chief to test truthfulness, exists in Zimbabwean criminal procedure
• Whether the court should adopt foreign procedural concepts not expressly provided for in the Criminal Procedure and Evidence Act
• Whether section 137 of the Criminal Procedure and Evidence Act (inherent jurisdiction) authorizes the court to adopt the voire dire procedure
• Whether section 267 of the Criminal Procedure and Evidence Act adequately addresses the concerns regarding accomplice witnesses

The application to conduct a voire dire examination of the witness was dismissed. The court ordered that the matter proceed according to normal criminal procedure - with the witness testifying in chief after the section 267 warning, subject to cross-examination by defense counsel.

The voire dire procedure, as a preliminary examination of a witness before testimony in chief to test truthfulness, does not form part of Zimbabwean criminal procedure law. Section 267 of the Criminal Procedure and Evidence Act, which provides for the warning of accomplice witnesses, together with the ordinary cross-examination process, adequately addresses concerns regarding the reliability and truthfulness of accomplice witnesses. The court will not exercise its inherent jurisdiction under section 137 to import foreign procedural concepts that are not expressly provided for in the Criminal Procedure and Evidence Act, particularly where existing statutory mechanisms adequately address the concerns raised. An accomplice witness warning does not mean the witness has come to lie; it simply means the witness may have participated in the commission of the offence, and the court must be cautious in assessing such evidence.

The court observed that no witness is said to have come to lie before he has even testified, otherwise there would be no point in calling such a witness. The court noted that voire dire appears to be a French legal concept originally connected with jury trials and has been developed differently in various Commonwealth jurisdictions (United Kingdom, Cyprus, Hong Kong, Ireland, Austria, New Zealand), with some jurisdictions like Scotland not adopting it at all. The court commented that until the mid to late 1990s in Zimbabwe, accused persons and their counsel were not privy to witness statements, which necessitated strict rules about prosecutorial disclosure. The court noted that this landscape has changed, as nowadays accused persons and counsel are given state witnesses' statements and can identify departures from prior recorded statements. The court distinguished the trial within a trial (applicable to accused persons) from impeachment proceedings (applicable to witnesses who retract from earlier statements), noting that even these established Zimbabwean procedures use different terminology and have different applications than the voire dire concept.

This case clarifies that the voire dire procedure (as a preliminary examination of a witness before testimony to test truthfulness) is not part of Zimbabwean criminal procedure. It confirms that section 267 of the Criminal Procedure and Evidence Act, which provides for the warning of accomplice witnesses, together with ordinary cross-examination, constitutes the appropriate procedure for dealing with accomplice witnesses in Zimbabwe. The judgment cautions against the automatic adoption of foreign procedural concepts without clear legislative or authoritative judicial basis. It reinforces the adequacy of existing Zimbabwean criminal procedure mechanisms for testing witness credibility and reliability. The case is important for criminal practitioners in understanding the limits of the court's inherent jurisdiction and the boundaries between Zimbabwean procedure and foreign procedural concepts.