provided that he can give evidence under oath that he

made the writing.

For example — In Cape Coast Exploration Ltd. v.
Scholtz, 1933 A.D., a communication written by a public
official was allowed to be used to refresh his memory, after
he had given evidence under oath that the communication
was framed by him, despite the fact that he did not
remember at the time of giving evidence what facts were
contained in the communication.
B. The writing itself does not become documentary evidence.
In other words, it cannot be put in as evidence per se (in
itself) and it can serve no purpose, other than to refresh x^_
the memory of the witness.
C. The document may have been written by the witness him-
self, or by another person. In the event of the document
having been drawn up by another, the witness must have
read the document at the time when the facts were still
fresh in his memory and must be able to say that he knew
the facts stated in the document to be correct.
r Example 1 — In Mann v. R., 1931 S.W.A., a witness was
not permitted to refresh his memory from entries made
by his bookkeeper on his instructions because he had not
also read and verified them afterwards.
Example 2 — On the other hand, in R. v. O'Linn, 1960 (1)
1
S.A., a traffic officer was allowed to refer to a note which
another officer had made at his dictation, although there
/ was no evidence that he had afterwards verified the writing.
The distinction between these two cases is the fact that in
| Mann's case it does not appear that the book-keeper was
given more than general instructions on what he was to
I record, whereas in O'Linn's case the note was actually
/ dictated. It would appear that our courts, if there was a
J conflict between these two cases, would give preference to
\ the decision in O'Linn's case. Thus, if the person who
made the document swears that he wrote down exactly
what the witness told him, there is no reason why the
latter should not be able to refer to the record of his own
oral statement.
In conclusion, it should also be noted that the witness may
not refer to copies of documents, unless these copies are
duplicates of the original documents or unless the originals
have been destroyed or lost.
D. The writing must not have been drawn up post litem
motam (after legal action has been commenced) for the
specific purpose of giving evidence.
E. In cross-examination, the opposing party is entitled to
refer to those portions of the document which actually
relate to the matters in dispute, but not to other matter
contained within the same document.
If the witness, however, refuses to produce the document
in cross-examination on the ground of priviledge (to be
discussed later), he may not refresh his memory by referr-
ing to that document.
For example — InR.v. Wilken, 1939 E.D.L.D., a police-
man made use of certain notes to refresh his memory
under cross-examination and handed in these notes under
cross-examination. The court held that these notes were
admissible, not as evidence corroborating the witness, but
for the purpose of testing the notes under examination and
the credibility of the witness.
50
 F. An exceptional case arises where an expert witness is being
examined. In such an instance, he is permitted to refer to
books on his subject, despite the fact that the books
were neither written by himself, nor were they written at
the time of the event in question.
(t^Where the witness is declared hostile
I. Where a witness is declared hostile, he may be cross-examined
by the party calling him, and in such a case, leading questions
of any nature may be put to him.
n. As a general rule, a party is not allowed to cross-examine his
own witness, for cross-examination is in reality, an attack on
the witness of the opposite party and it is accepted that a party
vouches for the credibility of his witness by the act of calling
him as a witness, and cannot thereafter turn round and attack
that witness.
III. However, in exceptional cases, a witness can be declared hostile
towards the party calling him and if this occurs, he can be
cross-examined by that party. This means that inter alia
(amongst other things) he may be asked leading questions.
IV. A witness will not be declared hostile merely because he gives
answers which are adverse to the party calling him. A court will
only declare a witness hostile if his a.ciuz\_dejg£anQur in the
witness box is hostile to the party calling him. All depends,
therefore, on the demeanour or attitude of the witness, and not
the nature of the answers which he gives.
V. There is, however, another instance which is often confused
with having a witness declared hostile, and this is provided for
by section 293 of the Criminal Procedure and Evidence Act
[Chapter 59].
VI. In terms of this section, if a witness has previously made a
statement (i.e. usually a written statement made to police when
investigating the crime) which is in conflict with the evidence
that he gives in the witness box, then the party calling that wit-
ness may prove that he has made this previous fnrwristant
slatemegL This can be done, only after sufficient particulars of
the alleged previous statement, plus details of the occasion
when the statement was made, have been given to the court.
VII. The method of proving that the previous statement was in fact
made, depends upon the way in which it was made. If it was
in writing, then the written statement is produced in court. If
it was an oral statement, then it is proved by calling another
witness to testify that he heard the statement being made, and
also to testify as to its contents.
VIII. Care should be taken that the proof of previous contradictory
statements is not confused with the cross-examination of a
witness who has not really been declared hostile by the court.
In the first instance, if it is merely proved that the witness pre-
viously made a contradictory statement, it does not empower
the party who called him to cross-examine him. It merely tends
to prove that the witness is unreliable, and to strike out the
adverse testimony. In regard to the case where a witness has
been declared hostile by the court, then the position is as stated
— depends on the demeanour of the witness in the witness box
and not on the nature of the evidence which he gives.
IX. It follows from what has been said above, that the method of
declaring a witness hostile is to obtain a ruling from the court
on the point. Until the court has given such a ruling, the mere
fact that the witness's demeanour is in fact hostile is insufficient
to justify the putting of leading questions to him.
51
 3. Cross-examination
Once the party calling a witness has concluded his examination in chief, the
„ , opposite party is entitled to cross-examine that witness. The topic of the evidence
' which can be adduced in cross-examination is discussed below. Before discussing
this, however, it must be clear in your mind that cross-examination is really an
attack on the witness, and as such is subject to the following conditions:
(i) A witness may be cross-examined as soon as he is called and sworn in
(a) The rule here is that a witness may be cross-examined by the
opposing party as soon as he is called and sworn in, even if he was
not asked any questions in examination in chief.
(b) It is quite usual for the State, when satisfied that it has established
a particular point, to tender a State witness whom the State pro-
posed to call to give evidence on that point for the purpose of
cross-examination. Also, it often happens that a witness is called,
merely in order to give formal evidence (for instance, to produce
and identify a document). Once a witness has been called and
sworn in, then, despite the fact that he has not given evidence or has
only given evidence of a formal nature, he can be cross-examined
on any aspect of the case.
(ii) There are three aims of cross-examination
(a) To procure evidence from a witness which is adverse to the case
of the opposing party, thus weakening the opponent's case.
(b) To procure evidence from the witness which is favourable to the
party cross-examining him, thus strengthening this party's case.
.a-J~'. (c) To weaken or destroy the value of the witness's evidence, or to
render it valueless by attacking his credibility and showing that his
^ evidence ought not to be believed.
(ii) The scope of cross-examination is much wider than that of examination
in chief
(a) In view or the fact that one of the main aims of cross-examination
is toattack the witness, it follows that much more scope is per-
mittecTin respect of questions that may be put under cross-examina-
tion.
(b) For instance, leading questions may be put without restriction. Also,
the witness may be questioned regarding his bias, credibility, relia-
bility, truthfulness and many other matters.
(c) The questions need not be relevant to the matter in issue and can
relate to the character of the witness, his relatives, his associates, his
way of life and his previous convictions.
(iv) The court can prevent certain questions being put in cross-examination
Although the scope of cross-examination is very wide, the courts have
certain powers by which they can prevent certain questions being put
which are totally unnecessary or harassing. In the following cases the
court would probably intervene and refuse permission for the questions
to be put:
(a) Questions that go further than merely attacking the character of the
witness, and which amount to meaninele,^ nhuw
(b) Questions that do not conform with the mles regarding the admis-
sibility of evidence. For instance, hearsay evidence is no more
allowed in cross-examination than it is in evidence hi chief;
(c) Irrelevant and unnecessary questions (in the sense that they are not
put for the purpose of achieving any of the aims of cross-examina-
tion). These could be called "fishing" questions—that is,
(questions which are put without any specific object in view, in the
Jhopes that, maybe, something of advantage will emerge in favour
j of the party cross-examining the witness.
(v) A party should always cross-examine his opponent's witnesses
(a) Because a party is entitled to cross-examine his opponent's wit-
nesses, it is accepted that // a party fails to do so, he has very little
52
 quarrel with what the witness has said, and cannot very well,
thereafter, attempt to convince the court that the witness is not to
be believed. A party should, therefore, cross-examine his oponent's
witnesses in respect of all matters in regard to which he proposes to
give a different version to the court. In fact, it is standard practice
to put your case to the opposing party's witnesses, or so much of
your case as concerns that witness.
(b) A matter which would otherwise be inadmissible in evidence hi
chief, could become admissible through cross-examination because
the party calling the witness is empowered to re-examine him in
connection with any point arising from cross-examination.
(c) Thus, if a witness is asked a question in cross-examination which
has not been put to him in evidence hi chief, this would entitle the
party who called him as a witness to put any question to him
concerning that point during re-examination.
,% For example — Say the following leading question was put to a
/rState witness in cross-examination: "Didn't you meet X and didn't
you tell him this, that and the next thing?" When the prosecutor
re-examines his witness he is at liberty to ask him what X actually
said to him.
(vi) What happens in a case where two or more accused are charged jointly?
(a) In a case where two or more accused are charged jointly and the
one accused gives evidence on his own behalf, thereby incriminating
his co-accused, it is open to the latter to cross-examine him, in
order to rebut the allegations that have been made against him.
(b), such a case, and where possible, however, it would be better to
I apply for a separation of trials in order to prevent any prejudice
/ resulting to any of the accused.

4. Re-examination
r(i) The party calling the witness has the right, if his opponent cross-
J examines, to re-examine, but only on matters arising out of the cross-
v__^ examination.
(ii) Questions relating to matters that were not raised in cross-examination,
may not be asked in re-examination, except by leave of the court.
(iii) Re-examination has, therefore, a very limited object. It is subject to all
the rules governing examination in chief (such as the rule against leading
questions).
(iv) However, where a fact has been admitted under cross-examination,
that would otherwise have been inadmissible, it is then permissible to
re-examine the witness on that point.
(v) Where the court allows new matter to be introduced in the re-examina-
tion, then it is, of course, open to the opponent to cross-examine on
such new matter.
(vi) In regard to the rule that in cross-examination matters can be referred
to which are otherwise inadmissible, it must be noted that this is not
the case in respect of matters which are totally inadmissible in terms of
a statute. For instance, evidence as to the accused's character or of a
confession which he has made, is permissible only in certain circum-
stances and will not in the event of failing to comply with these statutory
provisions, be admissible in re-examination even though it is raised in
the cross-examination.
, For example — In R. v. Black, 1923 A.D.,~X. was charged with illegally
selling liquor to an African. When he cross-examined a State witness, X
referred to a certain admission made by Y, his barman, to the effect that
Y had sold the liquor. This admission was inadmissible against X, as
not having been made in his presence. The court admitted it in re-
examination by virtue of the fact that it was raised in cross-examination,
but it was held on appeal that this evidence had been wrongly admitted.
53
5. The evidence of a witness can be contradicted or rebutted
(i) Can a party rebut the evidence of his own witness?
(a) Two methods have already been discussed whereby a party can
attack his own witness:
I. by applying that he be declared a hostile witness and then
cross-examining him; and
II. by proving that a statement which a witness previously made is
contrary to the evidence which he is now giving.
(b) In addition to these methods, however, a party can also rebut the
unfavourable evidence of his own witness by calling other witnesses
to rebut or contradict his evidence, but he can call such other wit-
ness only to testify as to their version of the facts, and not merely
for the purpose of discrediting the unfavourable witness.
(ii) Can a party rebut the evidence of the opponent's witness?
(a) In criminal cases theaccused simply proceeds to rebut the evidence
given by the prosecution witness. However, the general rule is that
the prosecutor, once he has closed his case, cannot thereafter lead
evidence in rebuttal of the accused's witnesses.
(b) The need for this rule is obvious, for if it did not exist, the parties
could continue rebutting each other's evidence indefinitely and the
case would never be concluded.
(c), This rule is, however, subject to the general exception that the
prosecutor is entitled to lead rebutting evidence where new matters
are first raised by defence witnesses which the prosecutor could not
reasonably have anticipated.
(d) ^Section 163 (4) and 163 (4a) of the Criminal Procedure and Evidence
Act [Chapter 59], provide that the nature of the accused's defence
may be disclosed on a plea of Not Guilty. In any event, should the
accused omit any facts at this stage, the nature of his defence will
generally be apparent from his cross-examination of the prosecution
witnesses. However, if a particular matter does not clearly show itself
at either of these stages of the trial, and provided the prosecutor had
no knowledge of it from another source (such as from a statement
made to the police in answer to a charge), then he may lead
rebutting evidence.
(iii) Can a party rebut the replies given by the opponent's witnesses in
cross-examination?
(a) You will remember that earlier in this chapter it was pointed out
that questions can be asked in cross-examination on matters that
are not relevant to the issue, as, for instance, in regard to the
character or truthfulness of the witness. Now the question arises as
to whether the replies that the witness gives to such questions can
be rebutted.
(b) The general rule is that the answer given to such questions must be
accepted by the cross-examining party as final and that he cannot
lead evidence to rebut such answers.
For example — In R. v. Scheepers, 1933 T.P.D., X was a defence
witness and when cross-examined by the prosecutor was asked
whether or not he had been present in court when earlier evidence
had been led. He denied this. The court then allowed the prosecutor
to lead further evidence to the effect that X was in fact present in _
court during the whole trial right up until the time when he was
called to give evidence. It was held on appeal that such rebutting
evidence should not have been allowed to be led.
(c) j There are five exceptions to the above rule, where rebutting
\evidence may be led, and these are as follows:
prove previous convictions ,
Where a witness is asked in cross-examination whether he has
been previously convicted and he denies it, evidence to the
contrary can be led to prove that he had in fact been previously
54
 convicted. This rule is not applicable to an accused who elects
to give evidence, but only to other witnesses. Also it has been
held that a previous conviction can be proved, even if it is
totally irrelevant to the issue.
o prove consent in cases of rape and indecent assault
In such cases the complainant can be asked whether she has
previously had sexual intercourse, with the accused. If she
denies it, evidence to the contrary may be led. If, however,
she is asked whether she has had sexual intercourse with other
men, her reply thereto must be accepted as being final and no
evidence to the contrary may be led.
IIIjtTo prove that the witness is biased
Evidence to the contrary may be adduced to show that the
witness is biased in favour of the party calling him as a wit-
ness.
For example: In Thomas v. David, 7 C. & 6., a female domes-
tic servant of the complainant gave evidence for him and
denied in cross-examination that she was her employer's lover.
The court ruled that evidence was admissible to rebut her
denial, because the relationship between her and the com-
plainant was such that it indicated bias on her part.
IVp.To prove that the witness made a previous inconsistant state-
ment
If a witness denies that he has previously made a statement
which is contradictory to the evidence which he is now giving,
rebutting evidence is admissible to show that he did in fact
make such a statement.
o prove that the witness has a general reputation for untruth-
fulness
Rebutting evidence may be led to show that a witness has a
general reputation for not speaking the truth and that for this
reason he cannot be believed. Note that such evidence must
have a bearing on the general reputation of the witness and
not merely in respect of instances where he was untruthful.

SECTION 3

PROOF OF FACTS BY ORAL EVIDENCE

A WITNESS CAN REFUSE TO ANSWER CERTAIN QUESTIONS
1. Introduction
(i) When we discussed the competency and compellability of a witness, it
was pointed out that there exists a general rule that a competent witness
can be compelled to give evidence, to answer all questions put to him
and to produce all documents which he is required to produce,
(ii) As is the case with numerous other rules of evidence, however, there
are also a number of exceptions to this rule and these exceptions fall
into two categories—
(a)fprivilege; and
£>:^f-w (b)'L public policy.
2. A witness can refuse to answer certain questions on the ground of privilege
There are six grounds of privilege that justify a witness in refusing to answer a
question or produce a document. In some cases, the privilege is that of the witness
himself, and he may waive his privilege if he so wishes. In other cases, however, the
privilege is that of another person and may not be waived without that other
person's consent. The six different grounds of privilege are discussed below.
55
(^Questions by which a witness could be incriminated
(a) Section 271 of the Criminal Procedure and Evidence Act [Chapter
59], provides that a witness in criminal proceedings may not refuse
to answer a question relevant to the issue, if the answer has no
tendency to accuse himself, or to expose him to any penalty or
forfeiture merely on the ground that the answer may establish or
tend to establish that he owes a debt, or is otherwise subject to a
civil suit.
(b) Section 274 of the Act, however, goes on to provide that no wit-
ness in any criminal proceedings can be compelled to answer any
question which he would not be compelled to answer under English
Law, if his answer might have a tendency to expose him to any
pains, penalty, punishment, or forfeiture, or to a criminal charge, or
to degrade his character. There is a proviso to this section, to the
effect that an accused who elects to give evidence can be asked any
question in cross-examination, even if it. would tend to incrim-
inate him as to the offence with which he is charged.
(c) In simpler terms, the above legislation provides that:
I. (A witness cannot refuse to answer a question merely because it
V establishes, or tends to establish, that he owes a debt, or is
I otherwise subject to a civil suit;
II.*A witness can, however, refuse to answer a question if the
1 answer may have a tendency to expose him to any pains,
1 penalty, punishment, or forfeiture, or to a criminal charge, or
I to degrade his character, and
III. where, however, the accused elects to give evidence, he can be
asked any question in cross-examination, even if it tends to
incriminate him as to the offence with which he is charged.
(d) The following points in connection with the above rules call for
some explanation:
I. The question must involve a real danger of incrimination
"In the case of R. v. Kuyper, 1915 T.P.D., X was called as a
witness in a preparatory examination. He refused to answer
certain questions on the ground that he would thereby incrim-
inate himself of high treason or of other offences connected
with a recent rebellion. X was, in fact, protected against prose-
cution in terms of the Indemnity and Special Tribunals Act of
1915, and consequently the court ruled that he was not entitled
to claim privilege because there was no real danger that he
\would incriminate himself.
II. The incrimination must be of the nature set out in the Criminal
Procedure and Evidence Act [Chapter 59].
As shown above, the privilege relates to any question, the
answer to which tends to expose the witness to any pains,
penalty, punishment, or forfeiture, or to a criminal charge, or
to degrade his character. In addition it was shown that a
tendency to expose the witness to a civil debt or liability is
not sufficient. If, however, the civil liability to which the wit-
\^_ness may be exposed involves (for example) a forfeiture of
property, then he is entitled to the privilege.
III. The privilege is established by the witness on oath
In general, the witness states on oath that the answer is likely
to incriminate him and the court accepts his statement. He
cannot, however, claim privilege without going into the witness
box, being sworn, and having the question put to him. The
oath of the witness is, however, not necessarily conclusive, for
the court is entitled to consider whether, from the circum-
stances of the case and the nature of the evidence the witness
is called to give, there is created a reasonable ground to fear
that the witness is endangered if he is compelled to answer.
56
 IV. In certain statutory cases, privilege does not apply
A. Where the witness is indemnified
(1) Section 251 of the Criminal Procedure and Evidence
Act [Chapter 59], provides that where the prosecutor
produces a witness who, to his knowledge, is an
accomplice in the commission of the offence charged,
and this witness gives evidence to the satisfaction of
the court, he is free from all liability to prosecution
for the offence, and his discharge from liability must
be entered on the court record.
(2) Such a witness would not be discharged from liability,
however, if, when he is called as a witness, he refuses
to give evidence to the satisfaction of the court.
(3) Section 252 of the Act, goes on to provide that if an
accomplice is tried for the offence concerning which
he gave evidence, hisjevidence cannot be used against
him at his own trial, ^unless he is charged Ivhhhaving
given perjured evidence.
B. In terms of the Insolvency Act
(1) It is provided in the Insolvency Act [Chapter 303],
that in any proceedings to set aside any disposition of
t property the insolvent can be compelled to give
evidence, and cannot refuse to answer questions on
e ground of incrimination.
(2) In addition, any person or insolvent examined at
meetings of creditors in the insolvent estate, in terms
of this Act, is not entitled to claim the above privilege.
V. In Common La\v, a similar rule exists against incriminating
evidence
A. Earlier in this chapter the common law rule, "no one can
be compelled to give himself away" (nemo se ipsum
procedure cogitur) was discussed. However, this rule
does not lefefspecifically to questions asked of a witness,
but generally to any evidence incriminating oneself.
•'Example I - - In Camane v. R., 1925 AD., the police
compelled a murder accused to point out where the
/ deceased's body was buried. It was held that this evidence
must be excluded on the grounds that "no one can be
compelled to give evidence incriminating himself". It was
held that this rule applies to evidence given either before
or during the trial.
Example 2 — Likewise, in R. v. Calliswe, 1925 G.W.L.D.,
\ X was arrested on a charge of indecent assault and was
locked in a cell by a policeman. The policeman then stood
11 outside the cell and, without giving the accused any warn-
J ing, asked him a question which he answered. This enabled
X the complainant, Y, to identify X's voice as being that of
\ the man who had assaulted her. It was held that as X had
1 been trapped into producing evidence against himself, this
\ evidence was inadmissible.
B. sVarious statutes provide for exceptions to the "nemo se
ipsum prodere cogitur" rule, as where, in criminal cases,
the footprints, fingerprints and other bodily marks of an
accused can be taken against his will, yet are admissible
against him.
(ii))£)uestions that relate to professional communications (commonly known
as legal professional privilege)
(a) Section 272 of the Criminal Procedure and Evidence Act [Chapter
59], provides that no advocate, attorney, or other qualified legal
practitioner is competent to give evidence against any person who
57
 has consulted or employed him professionally, without that client's
consent, in regard to any fact which he would not be entitled to give
evidence under English Law.
(b) This rule applies to all qualified practitioners, whether they are
qualified to practice in Zimbabwe or elsewhere.
(c) There is a proviso to the above section, to the effect that the rule
does not apply to any matter connected with the commission of an
offence by the client, if such matter has come to the knowledge of
the practitioner before he was professionally employed or consulted,
in regard to the client's defence.
(d) The following points, in connection with this ground of privilege,
call for some explanation:
I. The communication need not necessarily be made with a view
to judicial proceedings
A. The communication must have been made for the purpose
of obtaining legal advice, or at least must have been con-
nected with this purpose. However, there is no need for
the legal advice to have been concerned with judicial
proceedings, whether these proceedings be in actual pro-
gress or merely contemplated.
B. Possibly a better view, however, is that privilege arises in
connection with all communications between the client and
his legal adviser so long as the communications relate to
matters within the scope of the legal adviser's professional
employment.
For example — Privilege would not apply if the legal
adviser were acting as a rent collector, but it would if he
were advising his client as to his rights in some criminal
case.
C. To establish privilege, the legal adviser/client relationship
does not have to exist at the time the communication was
made, provided the communication was made with the
intention of establishing this relationship. Also, the com-
munication must relate to the matter in connection with
which the legal adviser was consulted and this matter must
fall within the scope of the legal adviser's employment.
D. Why does this privilege or protection from disclosure of
communications passing between a legal adviser and his
client exist? Simply because it enables the client to com- ^\
municate freely with his legal adviser without fear that the
communications passing between them will be disclosed
and will thus remain confidential.
II. The communication is privileged only as long as it is in the
legal adviser's possession
A. If a document is obtained from the possession of the legal
adviser it can be produced in evidence, even though it
was improperly obtained.
B. In addition, where the opponent possesses a copy of the
document, he can produce it as secondary evidence. Here
the opponent must ask the legal practitioner whether he
has the original document in court, and if he admits this,
the opponent can then prove the contents of the document
by secondary evidence.
For example — In Williams v. Shaw, 4 E.D.C., Y sued X
for defamation. During the cross-examination of Y, X
tendered in evidence a letter written by Y to his attorney.
It was not explained how the letter had come into X's pos-
session, but apparently it had been stolen from Y's
attorney. It was held that the letter was admissible.
58
 III. Privilege only relates to communications made in the proper
course of professional employment
Thus, if a communication is made to further a criminal pur-
pose, or in regard to a matter in which the legal adviser and
the client were both interested, this would not be privileged.
For example — In Bullivant v. Attorney General of Victoria,
1901 A.C., a client consulted an attorney in regard to a fraudu-
lent means of avoiding the payment of death duty. It was held
that the communication was not privileged.
IV. The privilege is that of the client
A. The client cannot be compelled to disclose a communica-
tion made to his legal adviser, and the legal adviser is not
allowed to disclose it without the specific consent of the
client.
B. The only person who can waive the privilege is the client,
and we thus have an example of a privilege which a wit-
ness (in this instance, the legal adviser) is not allowed to
waive of his own accord.
C. The client's waiving of privilege can, however, be implied,
as, for example, where he gives a copy of a privileged
document to his opponent.
V.JThe rule is, "Once privileged, always privileged".
' A privileged communication will remain privileged, even if the
client subseuently changes his legal adviser, or if the practi-
tioner ceases to practice, or if he himself becomes interested in
the matter in question.
VI. The privilege only applies to communications to legal advisers
Privilege does not apply to communications made to other
professional persons. The courts have thus held that com-
munications made to clergymen, medical practitioners, consuls,
bankers and the like are not privileged.
that relate to communications made during a marriage (com-
monly known as marital privilege)
It should be noted that for the purpose of the sections which follow a
"husband" and "wife" is deemed to include husbands and wives who are
only married according to African Customary Law.
(a)/-Section 269 of the Criminal Procedure and Evidence Act [Chapter
I 59], provides that a husband cannot be compelled to disclose any
^ communication made to him by his wife during the marriage, and
I a wife cannot be compelled to disclose any communication made to
(^her by the husband during the marriage.
(b) vThis section goes on to provide that // the marriage is dissolved
! or annulled, neither spouse can be compelled to give evidence as to
I aSythmgwhich occurred during the subsistence of the marriage,
y which he or she could not have been compelled to testify to if the
marriage were still in existence. Note, however, that if the marriage
is brought to an end by the death oj^ one of thg^pouses, then any
communication between the spouses made during the subsistence of
the marriage is no longer privileged and the surviving widow or
widower can be compelled to testify as to this communication.
(c) Section 270 of the Act provides that no person can be compelled
to give evidence which, under the circumstances, that person's
husband or wife could not be compelled to give. This means that
a spouse may refuse to answer a question, the answer to which
would tend to incriminate the other.
(d)^The reason why marital communications are protected in this way
J is so that d^me^tic_J^jds_an^^mily_Jie^_,^^ and also
L/because it is unpleasant to ask someone to disclose family secrets.
(e) The privilege belongs to the spouse who is called to give evidence,
and if he or she wishes to waive this right, he or she may do so.
59
 (f) The privilege relates only to communications made during the
marriage, and not before or after the subsistence of the marriage.
(g)j Also, a third person overhearing the communication, or knowing
}_pf it, is not protected by the privilege.

3. A witness may not answer questions that are prohibited on the ground that
they are against public policy
Section 273 of the Criminal Procedure and Evidence Act [Chapter 59], pro-
vides that, except as provided in the Act, no witness shall be compellable or per-
mitted to disclose any fact, matter or thing or communication which under English
Law he would be prevented, on grounds of public policy and public interest, from
disclosing.
Where a question is prohibited on the ground of public policy, the Court
should intervene and prohibit the question being put at all.
^Public policy differs from privilege in two important respects—
^•"(a) the protection is absolute and cannot be waived by the witness, even if
he so wishes; and
(b) the point in question cannot be proved by secondary evidence, whereas
in the case of a witness who claims privilege, it can so be proved.
following are the grounds of public policy which prohibit certain evidence:
ifcThe identity of informers and the nature of their information
(a) In both criminal and civil proceedings, no question may be asked
and no document can be admitted by which the identity of an
informer or the nature of his information may be disclosed.
(bk There is an exception to this rule. This applies in instances where
< such evidence would, in the opinion of the Court, tend to prove
the innocence of the accused.
(c) A subsequent Court decision has since qualified this rule, however,
when it was held that the rule should not be enforced in respect
of all criminal cases, but only where it appears from the circum-
stances that a disclosure of the State's sources of information may
prejudice the administration of justice, and consequently that
public policy requires them to be kept secret.
(d) The fdllowing points, in connexion with the above rule, call for
some explanation:
IflC What is the reason for the informer rule1?
Any person who furnishes valuable information in connexion
with the commission of a crime and needs protection against
those who may suffer in consequence of the information he
divulged, ought to receive that protection in order to encourage
such information being given. The main obiect of the, informer
rule, therefore^is to remove possible deterrents to the detection
and punishment of crimd Those supplying information (and
in so doing assist in the detection and punishment of crime)
must not, therefore, be exposed to risks such as the possible
revenge of criminals and their friends.
llxWhat are the essential requirements of an informer?
Before the rvnvijggg of sac-.recy can be extended to an informer
the Court must first determine if a particular person is in fact
an "informer" within the meaning of the rule. Such a person
must, therefore, fulfil the following requirements, if he is to
be considered an "informer". However, these requirements
are not absolute and are considered by the Courts more as
guidelines,rather lhan rigid rules. In other words the protection
will not be given to an "informer" unless it is in the interests
of public policy to do so.
A. q£He must be a person who gives information of a kind
which is prejudicial to others whose hatred he may thereby
provoke.
60
 #B. He must give information to the officers of justice.
i^C: The information which he supplies must be of a kind
which is (or may be) the cause of a criminal prosecution.
(1) From this requirement it would appear that all persons
who make statements to the police, upon which the
police base a prosecution, are informers, whether or
not they intended to start such prosecution. However,
this is not so and privilege is not extended to all
such persons.
(2) The privilege is extended to those persons commonly
referred to as "squealers_'I_jvhri "tip-nff" the police
as to some forthcoming crime, rather than the
ordinary member of the public who in the course of
routine investigations makes a statement to the police,
from which a prosecution results.
(3)/Thus, a good definition of an informer is, "A person
I who voluntarily and secretly originates the proceedings
4*d instituted by giving the police information of which
| they were totally or partially unaware and between
I who and the police there exists a confidential
I relationship."
III. How does the informer operate?
A. Questions asked at a trial which tend to identify police
sources from whom information leading to the prosecution
has been obtained, are not permitted.
/ For example—If a police officer in charge of an investi-
gation were asked in Court, "Who informed you that
the weapon allegedly used in the killing was hidden in
the accused's bedroom?", such a question would not be
permitted by the Court for the answer to it might well
reveal the source of the information on. which the police
took action against the accused.
B. However, in instances where the identity of the informer
is known or admitted, there is no need for pretended

t concealment of his identity and no need, therefore, for

the privilege of secrecy.
IV. The informer rule may be relaxed where the evidence will
tend to prove the innocence of the accused
The rule may be relaxed, and question to both the identity of
the informer, and the nature of his information, may be put,
when such evidence will tend to prove the innocence of the
accused.
For example—In the case of Barnard v. Attorney-General,
1941 T.P.D., the accused requested that the informer's name
be disclosed, on the ground that it would tend to establish
his innocence. The magistrate refused this request. On appeal
it was held that it was for the judicial officer to decide whether
it was necessary or desirable that the informer's name be
disclosed to show the accused's innocence. The magistrate is
entitled to refuse if he considers it right to do so on the facts
before him.
There are two other exceptions to the informer rule
In addition to the relaxation of the informer rule (as in IV
above), the rule does not apply in the following two cases:
A. /IVhere the question is put to test the credibility of the
i witness, by comparing his evidence with the statement
Vhe has made to the police; and
B. Where the witness is being charged with a crime based
on his statement to the police—for instance, if he made
a perjured statement to the police.
61
 VI // the informer himself waives the protection, then the evidence
is admissible
Where the informer himself waives the protection by disclosing
his name or revealing the nature of the information, the
evidence then becomes admissible. Similarly, such evidence
would be admitted if the informer admits that he is such or
discloses this in some different manner.
For example—In Pijper v. Spencer's Motor Company Ltd.,
1931 W.P.D., the Court ruled that an admission made to police
by the accused, to the effect that he was the person who gave
the information to the police which gave rise to the prosecu-
tion, was admissible.
(ii) Affairs of State
(a) Affairs of State fall within the scope of the rule prohibiting certain
evidence on the ground of public policy. Thus, documents need
not be produced for inspection where an objection is made in the
form of an affidavit by the head of a public department or similar
State official, or by any reasonable official acting under instructions
(or with the consent) of such person, to the effect that the disclosure
of the information would be contrary to public policy or detrimental
to the public interest or service.
(b) Not all official correspondence is privileged as a matter of right.
An affidavit (fulfilling all of the requirements mentioned above),
made by the official during the course of his public duty, must be
produced.
(c) Who would be classified as the "head_of_j. department"? This is
decided on the circumstances of each case.
| Example 1—In R. v. Abelson, 1933 T.P.D., a Divisional Criminal
Investigation Officer refused to produce certain reports made to him
( by his detectives and produced the necessary affidavit. It was held
\ that even though the "head of department" was strictly speaking the
j Minister of the Department of Justice, the Police Officer was the
head of a department within a department, and as such was entitled
l^to claim privilege.
Example 2—However, in the case of Le Roux v. A.R.M. Pieters-
i burg, 1919 T.P.D., the Secretary of a Hospital Board refused to
i produce certain documents on the ground of privilege. Here, the
j Court rejected his objection as he was not the head of a department,
! nor was he acting on the instructions of such a person.
(d) Where the privilege arises out of State security, legislation makes
provision for this. Section 273 (A) of the Criminal Procedure and
Evidence Act [Chapter 59], provides that no person shall be
compelled or permitted to give evidence or to furnish any informa-
tion, book, or document of whatever nature, if an affidavit signed
by the appropriate Minister is produced to the Court, to the effect
that he is of the opinion that the disclosure of such evidence,
information, book or document would affect and be prejudicial to
the security of the State.
(e)r The affairs of State which would justify certain evidence being
j
' prohibited on the ground of public policy, may thus be classified
as follows—
I*, the deliberations of Parliament;
Il&State secrets and papers; and
yJII.ACommunications between public officials in the discharge of
their public duties.
(f) It should be noted, however, that letters by private persons to State
officials do not fall within the rule,
(iii) Judicial disclosures
(a) The rule here is that any person who acts in a judicial capacity
(such as a judge or magistrate) cannot be compelled to give
62
 evidence of matters that come before such person while acting in
a judicial capacity.
(b) A similar rule applies to advocates in regard to matters stated by
them when conducting a case.
(c) A person acting in a judicial capacity may, however, give evidence
on the following matters:
^1. Matters that are related or incidental to the trial—for instance,
evidence as to the escape of a prisoner.
II. In perjury cases such persons may testify that the accused
gave evidence on oath, as stated in the Court record. Also, if a
Court official was under a duty to take notes of the evidence,
then he may put in such notes. He may not, however, be
compelled to put in notes that were made merely for his own
convenience.

SECTION 4
PROOF OF FACTS BY DOCUMENTARY EVIDENCE

1. Introduction
ie(i) \We now move on to the second method of proving facts-—by documen-
\tary evidence.
(ii)/A "document" is defined as "any writing or printing which can be used
(in evidence, regardless of the material on which it is written".
2. $The best evidence rule is especially applicable to documentary evidence)
(i)i Remember that best evidence is evidence which per se (of itself)
/ indicates that there is no better evidence available regarding the question
/ in issue and is regarded by the law as the most reliable evidence'. The
/ term "best evidence" is principally used in relation to documents; the
L document itself being the best evidence of its own contents.
(ii) Briefly stated, therefore, the best evidence rule is, "When a transaction
has been reduced to, or recorded in writing, either by requirement of law
or the agreement of the parties, the writing becomes in general the
exclusive record thereof, and no evidence may be given to prove the
terms of the transaction except the document itself".
(iii) Consider further the meaning of "document" as it relates to this
let us consider further the meaning of "document" as it relates to this
rule. A "document", as stated, is itself the best evidence of its own
contents, and by the word "document" is meant the "original document".
(iv) In addition to originals in the generally accepted sense of the word, the
following points should be remembered:
hon copies-af documents are regarded f.i nrigjnalx
[A carbon copy of any document would be accepted as an original
'and where such a document must be signed before it is recognized
as being complete (for instance, a contract) even a carbon copy of
the signature appearing on the original would render the copy
^admissible.
(b) Counterfoils are n
The counterfoils of cheques and receipts are not regarded as
originals and are, therefore, inadmissible in the absence of any
circumstances justifying the admission of secondary evidence,
(c) Copies of telegrams arenot_orig
he copy of a telegram received by the addressee is not an
original and thus is not primary evidence of the contents of the
telegram. It is the original that remains in the possession of the
postal authorities that must be produced if proof thereof is
required.
r
63
.-^ Exceptions to the best evidence rule where a document may be proved by
secondary evidence
the document is in the opponent's possession iX"
(a) Where the document is in the opponent's possession or under his
T control and he fails or refuses, upon request, to produce it, then a
t copy of the document is admissible.
(b) The opponent must be given notice by the other party of the latter's
wish for the document to be produced, as this gives the opponent
an opportunity of producing the original. In criminal cases verbal
notice is considered sufficient, provided a reasonable time is allowed
for the production of the document.
e the document is in the possession of a third party ^X
(a) Where the document is in the possession of a third party or under
his control, and he refuses or fails to produce it, a subpoena can be
issued, calling on the witness to attend Court, bringing with him the
document named in the subpoena.
(b) Occasionally this method of securing the production of documents
is ineffective, as for instance, where the original is priviledged or
where the witness is outside the jurisdiction of the Court. In such
cases, secondary evidence of the document would be admissible.
(iiifcWhere the document no longer exists '~*/~
(a) Where the document has been destroyed. \pst or completely mislaid,
secondary evidence of it would be admissible.
(b) However, before such secondary evidence would be admitted, it is
essential that evidence be led that all reasonable efforts have been
made to find the document in question or that it is impossible to
produce it (as in the case where it has been destroyed).
(ivJtWhere the production of the original is impossible or is extremely
inconvenient *~^
(a) Where it is physically impossible or highly inconvenient to produce
the original document, then secondary evidence of its contents is
admissible.
• For example—Secondary evidence would be admissible in the
I following cases: where a licence or receipt has been permanently
K glued to a wall for display purposes; where an inscription actually
[forms part of a tombstone, etc.
(b) It must be noted, however, that even though secondary evidence
is permitted in such cases, the Court is at liberty to carry out an
inspection in loco and examine the "document" for itself.
(\),,Where the document merely proves a legal relationship ^"^
(a) Where it is intended to prove not the contents of a document but a
legal relationship created by it, secondary evidence of the document
is admissible.
/"For example—Where it is only sought to prove that ~K is the
. holder of a licence, secondary evidence of the licence may be
produced.
(b)Y_ However, where it is sought to actually prove the contents of a
document, it must itself be produced (unless subject to an exception).
Thus in the example above, if it was sought to prove the contents
of the licence, then the licence itself would have to be produced.
(vtyffVhere the document is equivalent to speech /v"
Where the document is drawn up in circumstances equiavlent to speech
then secondary evidence of it is admissible.
•for example—The inscription on a flag may be proved without pro-
^ucing the flag itself because such writing is regarded as an act done
lor a speech made, rather than as a document.
(vii) Where the document is a banker's book \f
Such books need not be proved by the originals and copies of entries
in such books are accepted as prima facie evidence of the facts to which
64
 the entries relate by virtue of the Criminal Procedure and Evidence Act
[Chapter 59] (see Chapter 1 of Section 9)
(viii) Where the document is a public (or official) document JU--
This topic was also discussed in Section 9 of Chapter 1 and you will
(recall that secondary evidence is admissible where the original is a
[jpublic (or official) document.^
(ix) Where the document is a legal notice ^
In some cases, the copy of a notice sent to an opponent is admissible
as evidence. This is only the case where the notice is one required by
law to be served on the person concerned—for instance, a notice to
produce a document, as explained in paragraph 3 (i) (b) of this section.
4. A document must be proved before it can be admitted as evidence
Here the rule is that a document which it is intended to produce as evidence
must be proved to show that it was signed and executed by the person by
whom it purports to have been signed and executed and to connect the docu-
ment with the parties to the proceedings.
\The following rules govern the proof of documents:
**" (iX/4 document is proved by the evidence of a witness under oath V'"
The witness proving the document may be any one of the following
persons:
(a) ^The author or signatory of the document \/
For a document to be produced by the person who wrote it or
signed it, is obviously the best way of proving the document.
For example—A medical report should be produced by the doctor
who issued it and not by the patient to whom it was issued.
(b)fi^Theparty who witnessed the document ^
The law requires certain documents to be witnessed or authenticated
by appointed persons before they are legally recognized. Such a docu-
ment can only be proved by the person who witnessed it. However,
if the document is admitted by both parties at the trial, then no
proof of the document is required. On the other hand, if the witness
is incapable of giving evidence (as where he is dead or insane) then
the rule falls away and secondary evidence of the document becomes
admissible. Also, where the document itself has become lost or
destroyed, its contents may nevertheless be proved by the attesting
witness.
(c) -^A witness who can identify the handwriting in the document
When a person denies having made a document, then the document
is proved by a witness who can identify that person's handwriting
or signature that goes to make up the document. This proof may be
furnished by—
I. aJm^dMOJ.ting_ex2ert who can give his opinion on the genuine-
ness of the writing or signature, after having first compared the
disputed document with others that are proved to have been
written by the person concerned. (See Section 3 of Chapter 1 for
an expansion on the subject of opinion evidence by hand-
writing experts.);
II. a witness who saw the document bein^signed and he can give
evidence "73 this tact, even if h e d i d not himself sign the
document as a witness;
III. vcmy_other witness who can give evidence as to the genuineness
•jJo/ the document from knowledge of the author's handwriting,
which he acquired by having seen him write on other occa-
sions, or having received or dealt with documents written
by him. He must not, however, have acquired his knowledge
for the express purpose of giving evidence at the trial.
person who has lawful custody of the document
A document may be proved by the person who has lawful custody
of it.
65
 (e) The person finding documents in the opponent's possession
A person is presumed to know the contents of books
and documents in his possession or under his control.
Thus, any documents found in a person's possession are always
evidence against him and may be proved by the person finding
them (for instance, a policeman acting under a search warrant).
(ii) Certain prove themselves
Certain documents prove themselves and are simply produced or read
out to the Court, without proof by a witness. Such documents are:
(a) ^Documents that can be judicially noticed
You will appreciate from the discussion of judicial notice hi
Section 2 of Chapter 1 that documents that are judicially noticed
need not be proved.
(b) ^Documents produced in terms of a subpoena duces_tecjjm
If a witness is subpoenaed duces tecum- (bring it with) and he is
simply called to produce a document withoTjtgiving~evidence, he
need not be sworn.
(c) Documents that may be handed in to the Court
I. We have already discussed the proof of public documents and
banker's books by means of certified extracts and copies
Such documents can simply be handed in to the Court by the
party who wishes to use them, provided that the document is
produced from the proper custody.
II. The Criminal Procedure and Evidence Act [Chapter 59], and
a number of other statutes further provide that other docu-
ments which are not public nature may also be handed in to
the Court. This is to save unnecessary inconveniences and
expense.
III. When such a document is produced, it provides either con-
clusive or prima facie proof or merely evidence of the facts
contained therein, depending on the provisions of the particular
statute in terms of which it is handed in.
IV. Hereunder is a list of such documents in respect of which
provision is made in the Criminal Procedure and Evidence
Act [Chapter 59]. The wording of section 260 is somewhat
involved, but it has been quoted in full as its provisions are
of immense importance to Police, as also are the provisions
of sections 261 and 262 of the Act which appear thereafter.
A. Affidavits relating to specialist examinations
Section 260 of the Criminal Procedure and Evidence Act
[Chapter 59], provides that:
''(!)_ In any criminal proceedings in which it is relevant
to prove any facts ascertained by an examination
or process requiring knowledge of or skill in
bacteriology, chemistry, physics, microscopy.
astronomy, mingrajpgy, anatomy, biology, haemp-
tology, histology, toxicology, physiology, ballistics.
geograrjhy or the identification of finger-prints,
palm-prints or footprints or any other science, or
any branch of those sciences, a document
purporting to be an affidavit relating to any such
examination or process and purporting to have
been made by any person qualified to carry out
such examination or process who states in that
affidavit that he ascertained any such fact by means
of any such examination or process shall, on its
mere production in those proceedings by any
person, but subject to the provisions of subsections
(7) and (8), he primq facie proof of that fact.
66
 (2) In any criminal proceedings in which it is relevant
to prove—
(a) any fact ascertained by a medical practitioner
in any examination carried out by him which
is proper to the duties of a medical practitioner;
(b) that any treatment, including the performance
of an operation, was administered by a medical
prectitipner;
(c) any opinion of a medical practitioner referred
to in paragraph (a) or (b) relating to any fact
or treatment referred to in that paragraph;
a document purporting to be an affidavit relating
to any such examination or treatment and
purporting to have been made by a person who in
that affidavit states that he is or was a medical
practitioner and in the performance of his duties
in that capacity tie carried out such examination
and ascertained such fact in such examination or
administered such treatment, and, in either case,
arrived at such opinion, if any, stated therein shall,
on its mere production in those proceedings by any
person, but subject to the provisions of subsections
(7) and (8), be prima jade proof of the facts and
of any opinion soljtated. ~
(2a) In any criminal proceedings in which it is relevant
to prove—
(a) any fact ascertained or thing done by a
registered person in the course of his duties;
(b) any opinion of a registered person relating
to any fact or thing referred to in paragraph
(a);
a document purporting to be an affidavit relating
to any such duties and purporting to have been
made by a person in that affidavit states that he is
or was a registered person and in the performance
of his duties in that capacity he ascertained such
fact or did such thing and, in either case, arrived
at such opinion, if any, stated therein shall, on its
mere production in those proceedings by any
person, but subject to the provisions of subsections
(7) and (8), be prima jade proof of the facts and
of any opinion so stated.
(3) In any criminal proceedings in which it is relevant
to prove any fact relating to—
(a) the condition, efficiency, capability, design,
dimensions or mass of any vehicle or part or
accessory thereof; or
(b) any damage alleged to have been caused to any
vehicle or part or accessory thereof; or
(c) the mass of any load alleged to have been
, carried on or in any vehicle;
a document purporting to be an affidavit made by a
person who in that affidavit states that he is or was
an inspecting officer as defined in the Road Traffic
Act, 1976, and in the performance of his official
duties in that capacity he ascertained such fact by
examining, testing, measuring or weighing such
vehicle, part, accessory or load, shall, on its mere
production in those proceedings by any person, but
subject to the provisions of subsections (7) and (8),
be prima jade proof of that fact.
67
 (4) In any criminal proceedings in which the physical
condition or identity of a deceased person or dead
body while such person or dead body was in or at a
hospital, nursing-home, ambulance or mortuary,
is relevant to the issue, a document purporting to
be an affidavit made by a person who hi that affi-
davit states that he is or was employed at or in con-
nexion with the hospital, nursing-home, ambulance
or mortuary and that in the performance of his offi-
cial duties there or in connexion therewith he
observed the physical characteristics of the deceased
person or dead body described in the affidavit, or
that while the deceased person or dead body was
under his care, such person or dead body sustained
the injuries or wounds described in the affidavit or
sustained no injuries or wounds, or that he identified
pointed out or handed over the deceased person or
dead body to another person or left the deceased
person or dead body in the care of another person,
or that the deceased person or dead body was
identified, pointed out or handed over to him or left
in his care by another person, shall, on its mere
production in those proceedings by any person, but
subject to the provisions of subsections (7) and (8),
be prima facie proof of the facts so stated.
(4a) In any criminal proceedings in which the identity
of a person since deceased or of the body of a
deceased person is relevant to the issue, a document
purporting to be an affidavit made by a person who
in that affidavit states that he knew the deceased
person in his lifetime and that he identified the
person or body to another person shall, on its mere
production in those proceedings by any person, but
subject to the provisions of subsections (7) and (8),
be prima facie proof of the facts so stated.
(5) In any criminal proceedings in which the receipt,
custody, packing, delivery or dispatch of any docu-
ment, finger-print or palm-print, article of clothing,
specimen, limb or organ or any object of whatver
nature is relevant to the issue, a document purport-
ing to be an affidavit made by a person who in that
affidavit states that in the performance of his duties
he received from, or delivered or dispatched to, a
person, institute, Ministry, department or laboratory
mentioned in the affidavit the object described in
the affidavit or packed or marked in a manner so
described, or that during the period mentioned in
the affidavit he had the custody, in the manner so
mentioned, of the object described in the affidavit
or packed or marked in the manner so described,
as the case may be, shall, on its mere production
in those proceedings by any person, but subject
to the provisions of subsections (7) and (8), be
prima facie proof of the facts so stated.
(6) In any criminal proceedings in which it is relevant
to prove that the details set out in any—
(a) consignment note executed for the purpose of
the transport of any goods by the National
Railways of Zimbabwe or the Air Zimbabwe
Corporation or any other person who carries
on the business within Zimbabwe of transport-
ing goods; or
68
—.

(b) report executed by the employee of a person

referred to in paragraph (a) revealing a dis-
crepancy between the details relating to the
goods dispatched on a consignment note
referred to in that paragraph and the goods
actualy present on arrival at the destination
specified in the consignment note:
are correct, such details may, subject to the
provisions of subsections (7) and (8), be proved
prima facie by the production by any person
of a document, purporting to be an affidavit
made by the person who executed the con-
signment note or report, in which it is stated
that the details set out in the consignment
note or report are correct in relation to the
goods described in the consignment note or
report.
(6a) In any criminal proceedings in which it is relevant
to prove that any goods were delivered to the
National Railways of Zimbabwe or the Air Zim-
babwe Corporation or any other person who carries
on the business within Zimbabwe of transporting
goods for transport by that person, a document
purporting to be an affidavit made by a person who
in that affidavit states that, on a date specified in
the affidavit, he delivered the goods or caused the
goods to be delivered to the National Railways of
Zimbabwe, the Air Zimbabwe Corporation or such
other person, as the case may be, or caused such
goods to be delivered to that person for transport
by that person shall, on its mere production in those
proceedings by any person, but subject to the
provisions of subsections (7) and (8), be prima
facie proof of the facts so stated.
(6b) In any criminal proceedings in which it is relevant
to prove—
(a) that a person or thing has or has not been
registered or licensed or that a permit,
certificate or authority has or has not been
issued in respect of any person or thing under
an enactment; or
(b) where a person or thing has been registered or
licensed or a permit, certificate or authority
has been issued in respect of any person or
thing under an enactment, any particulars of
or connected with the registration, licence,
permit, certificate or authority; or
(c) that any thing relating to the registration,
licence, permit, certificate or authority referred
to in paragraph (b), including the cancellation
or suspension thereof, has been done;
a document purporting to be an affidavit made
by a person who in that affidavit states that—
(i) he is a person upon whom the enactment
in question confers the powers or imposes
the duty to do any thing referred to in
paragraph (a); and
(ii) in that capacity, he has the custody and
control of the records relating to any
thing referred to in paragraph (a) done
by himself or any other person in the
exercise of that power or duty; and
 (iii) he has examined the records referred
to in subparagraph (ii) and ascertained—
A. that any person or thing is or is not
registered or licensed or that a permit,
certificate or authority has or has not
been issued; or
B. any particular referred to in para-
graph (b); or
C. that any thing referred to in parar
graph (c) has been done;
shall, on its mere production in those proceedings
by any person, but subject to the provisions of
subsections (7) and (8), be prima jade proof of
the facts so ascertained.
(7) An affidavit referred to in this section shall not be
admissible unless the prosecutor or the accused,
as the case may be, has received three day's notice
of its intended production or consents to its
production.
(8) The court hi which any affidavit referred to in this
section is produced in evidence may, if its own
motion or at the request of the prosecutor, or of
the accused, cause the person who made the affi-
davit or any other person whose evidence the court
considers to be necessary to give oral evidence in
the proceedings in question in relation to any state-
ment contained in the affidavit or may cause written
interrogatories to be submitted to such person for
reply, and such interrogatories or any reply thereto
purporting to be a reply from such person shall, on
their mere production in those proceedings by any
person, be admissible in evidence.
(9) Nothing in this section contained shall be deemed
to affect any provision of any enactment under
which any certificate or other document is made
admissible in evidence, and the provisions of this
section shall be deemed to be additional to, and
not in substitution of, any such provision.
(10) In subsection (2a)—
"registered jxrson" means a nurse, midwife or
medical assistant registered in terms of the
Medical, Dental and Allied Professions Act
[Chapter 224].
B. Plans, photographs and reports
Section 261 of the Act provides that:
"(1) A medical practitioner who has prepared a report
after his examination of any person or body may
read and put in such report at any preparatory
examination or trial and such report so read and
put in shall, subject to all just exceptions, be
admissible in evidence in any court.
(2) A photograph or plan relating to any matter which
relevant to the issue in any proceedings shall be
admissible in evidence at any stage of such pro-
cedings subject to the condition that—
(a) any person who is a competent and compellable
witness in such proceedings and upon whose
indications or observations such photograph or
plan was taken or prepared shall be called as
a witness either before or after such photo-
70