Work Related Learning Report

MIDLANDS STATE UNIVERSITY
FACULTY OF LAW
WORK RELATED LEARNING REPORT (AUGUST 2014- MAY 2015)

BY
VUSUMUZI BHEBHE
REGISTRATION NUMBER: R114055G
WORK RELATED LEARNING CO-ORDINATOR: Ms F. Chakauya
This Work Related Learning Report is submitted in partial fulfilment of the requirements of the
Bachelor of Laws Honours Degree
© May 2015
i
INSTITUTIONS OF WORK RELATED LEARNING
PUBLIC: FILABUSI MAGISTATES COURT

P.O. BOX 4
FILABUSI
ZIMBABWE
PRIVATE: SAWYER & MKUSHI LEGAL PRACTITIONERS

11TH FLOOR, SOCIAL SECURITY CENTRE
CORNER SAM NUJOMA STREET/ JULIUS NYERERE WAY
P.O BOX 3312
HARARE
ZIMBABWE
ii
ACKNOWLEDGEMENTS
I THANK AND EXALT THE NAME OF THE LORD JESUS CHRIST FOR LEADING ME
THIS FAR, I CONTINUE TO HOPE FOR A BETTER TOMORROW BECAUSE OF HIS
UNMERITED FAVOUR.
I would like to express my profound gratitude to the Midlands State University, Faculty of Law
lecturers who have taught me and laid a solid foundation for my penultimate year on work
related learning. And I would also want to extend my gratitude to the Ministry of Justice, the
Judicial Service Commission as well as the Prosecutor General’s Office for their invaluable
contributions to the success of my penultimate year.
I am also indebted to Mr H.P Mkushi and all other lawyers at Sawyer & Mkushi Legal
Practitioners for their patience in nurturing me, special mention is given to Ms Rachel Chibaya
who remains my source of inspiration and mentor. In the same vein, I would also want to
express my gratitude to Esq M. Moyo, the Filabusi Resident Magistrate for the warm welcome
he gave me during my work related learning at the Filabusi Magistrates Court.
My uncle Qinisani Phambili Bhebe, may God bless you for being my pillar of strength and my
grandfather Mr T.M.B Bhebhe I thank you for your advice and moral support, my work related
learning was possible because of you.
I ONCE AGAIN THANK MY ALPHA AND OMEGA, MY LORD JESUS CHRIST WHO
HAS AUTHORED MY LIFE WHICH REMAINS A GREAT MYSTERY OF SUCCESS.
iii
WORK RELATED LEARNING REPORT APPROVAL
This report is approved as a true detailed document of the in- depth study of the nature and
objectives of the private and Public sector based on experience of the reporter
P.O BOX 4, FILABUSI.
SIGNED ....
THE PROSECUTOR IN CHARGE
P.O BOX 4, FILABUSI
SIGNED
SAWYER & MKUSHI 11TH FLOOR, SOCIAL SECURITY CENTRE, Cnr. Sam
Nujoma/J.Nyerere Way Harare
iv
OVERVIEW OF THE WORK RELATED LEARNING
The work related learning of the author commenced in August 2014 and ended in May 2015.
During this period the author was attached in both the public sector and the private sector. The
1st phase of the work related learning, which was done in the public sector, ran for six months
commencing on the 4th of August 2014 to the 28th of January 2015. Internship in the public
sector was divided into two phases. The first phase was with the Judicial Service Commission
and the second phase being with the Office of the Prosecutor General of Zimbabwe. At the
Judicial Service Commission, the author worked in the offices of the Clerk of Court; i.e. Clerk
of Court Criminal, Clerk of Court Civil, the Magistrate and the Accounting Assistant. At the
Office of the Prosecutor General, the author conducted prosecution at the Filabusi Magistrates
Court.
The 2nd phase of the work related learning, which was done in the private sector, ran for four
months, commencing on the 2nd of February 2015 to the 29th of May 2015. The author did this
part of the work related learning at Sawyer & Mkushi Legal Practitioners, Harare, Zimbabwe.
v
TABLE OF CONTENTS
TOPIC……………………………………………………………………………….PAGE (S)
Cover page……………………………………………………………………………………...i
Institutions of Work Related Learning…………………………………………………………ii
Acknowledgements…………………………………………………………………………...iii
Approval Form………………………………………………………………………………..iv
Overview of the Work Related Learning………………………………………………………v
Chapter One: Clerk of Court Criminal Division
Introduction……………………………………………………………………………………1
Duties performed by the author in this office………………………………………………1-12
What the author expected from this office…………………………………………………….12
Relevance of duties to degree program……………………………………………………12-13
Personal development…………………………………………………………………….13-14
Professional development…………………………………………………………………….14
Handling Conflict between personal/organization objects……………………………………14
Conclusion and Recommendations……………………………………………………….14-15
Chapter Two: Clerk of Court Civil Division
Introduction…………………………………………………………………………………..16
Duties performed by the author in this office……………………………………………...16-26
Professional and Personal development………………………………………………………27
Handling Conflict between personal/organization objects………………………………..27-28
Conclusion and Recommendations…………………………………………………………...28
Chapter Three: Public Prosecutor’s Office
Introduction…………………………………………………………………………………..29
Set Down office…………………………………………………………………………...30-33
The Court Room…………………………………………………………………………..33-37
Professional development…………………………………………………………………….38
Personal development…………………………………………………………………….38-39
Conclusion and Recommendations……………………………………………………….39-40
vi
Chapter Four: Clerk of Court-Accounting Assistant/Finance Office
Introduction…………………………………………………………………………………..41
Duties performed by the author in this office……………………………………………...41-44
Handling Conflict between personal/organization objects…………………………………...44
Chapter Five: Magisterial
Introduction…………………………………………………………………………………..46
Criminal Division…………………………………………………………………………46-49
Civil Division……………………………………………………………………………..50-51
Administrative role of the resident magistrate…………………………………………….51-52
Chapter Six: The private practice at Sawyer & Mkushi Legal Practitioners
Background and historical development……………………………………………………...54
Mission……………………………………………………………………………………….54
Confidentiality note……………………………………………………………………….54-55
Nature of the industry………………………………………………………………………...55
Service Market………………………………………………………………………………..55
Organizational Structure……………………………………………………………………...56
Relationship between the firm and the society………………………………………………..57
Expectations of the author…………………………………………………………………….57
Duties performed by the author at the firm………………………………………………..57-61
Handling Conflict between personal/organization objects……………………………………61
Relevance of duties to degree program……………………………………………………….61
vii
Chapter Seven: Re-Entry
Introduction…………………………………………………………………………………..64
Ethical Evaluation…………………………………………………………………………….64
Critical Thinking……………………………………………………………………………...64
Interpersonal Skills…………………………………………………………………………...64
Managing information………………………………………………………………………..64
viii
Vusumuzi Bhebhe (the author) at the Harare High Court of Zimbabwe
ix
From left to right: Mr Tafireyi (Prosecutor), the author, Mr Ndingwa (Prosecutor)
The author with the following Filabusi court officials: Mr J Chikuruwo, Mr B Moyo, Ms S
Mdizo Mr S Nkomo and Ma Tshuma.
x
Vusumuzi Bhebhe with Mr H.P Mkushi in Borrowdale, Harare.
Esquire M Moyo to the left (the author’s supervisor at Filbusi Mag Court) with his wife, Mrs
Moyo
xi
Vusumuzi Bhebhe with friend and collegue Joshua John Chirambwe (wearing a Chelsea shirt)
and Honour Tadiwa Mkushi (standing with Joshua), and Chido Mhaka (immediate right of the
author, seated) Joyce “jojo” Mkushi (the extreme right of the author, seated)
xii
Vusumuzi Bhebhe with Mr R Mkushi and Jojo in the middle.
xiii
Ms R Chibaya, the author’s supervisor at Sawyer & Mkushi
xiv
From left to right: Ethel, Vusi, Alice, Josh and Mr Muchero- fellow workers at Sawyer &
Mkushi
xv
CHAPTER ONE
CLERK OF COURT CRIMINAL DIVISION
INTRODUCTION
The author was assigned to the office of the clerk of court criminal division for one month. The
author will therefore outline the duties that he performed in this office and how these were
relevant to his Law Degree. This office operates with a group of patrons ranging from
prosecutors, magistrates, accused persons and their counsels, office orderlies and prison
officers, among others. The office of clerk of court in general is provided for in terms of section
2 of the Magistrates Court Act (here in after referred to as the MCA) (Chapter 7:10). Any
person who occupies this office has numerous duties that are pertinent to the administration of
justice. What is also clear from the reading of the MCA is that there exists a superior
subordinate relationship between the Magistrate and the Clerk of Court in that it is the former
who would in most cases instruct the latter on what he or she should be doing. The narration
of duties below will highlight the instructions the author was given by both the Magistrate and
the clerk of court criminal division of the Filabusi Magistrates Court and a synopsis of how
those instructions were executed in different assignments that were discharged by the author.
DUTIES PERFOMED BY THE AUTHOR WHILST IN THIS OFFICE

Opening of new records:
The clerk of court taught the author how records are opened. This is one of the most important
roles of the clerk of court criminal division. The author was also afforded with the opportunity
to open records whilst under supervision and as the month progressed he could open the records
without any supervision.
Dockets will be brought by members of the Police Force which will be presented to the clerk
of court. The police officer who brings the dockets is known as the court orderly who will be
doing so in accordance with the instructions of the Public Prosecutors. The Clerk should only
open the record provided there is an instruction to do so from the Prosecutors which is written
at the top right hand corner of the docket cover.
The docket itself has various documents attached to it which include the docket cover known
as ZRP Form 66, charge sheets, state outlines, a warned and cautioned statement, police diary
log and some relevant annexures like medical reports. Of importance to the clerk are the charge
sheets and the state outlines.
The clerks’ role would then be to endorse the name of the accused person, the Criminal Record
Number (here in after called the CR number) and station, Criminal Record Book Number (here
in after called the CRB number), charge and date of first appearance in the Criminal Record
-1-
Book. The same details would also be written by the clerk on the case’s record cover. The
opening of the record is essentially the allocation of a CRB number to the case by the clerk of
court following chronologically the entries of previous cases in the Criminal Record Book (here
in after called the CRB).
The author managed to open numerous records the number of which cannot be practically
remembered. The CRB number must also be entered on the docket cover (ZRP Form 66) and
on every copy of the charge sheet as well as state outlines forming part of the docket. Where
there is more than one accused person in a case, each of them must be given a separate CRB
number although only one record cover is made out with all names of accused persons.
The clerk is then supposed to remove a single copy of the charge sheet and a single copy of the
state outline and put them in the case record which will be handed to the magistrate to peruse
before entering into court to preside over that matter. So all these matters should be recorded
in the court roll for the day.
Court Roll:
A court roll is simply a record compiled by the clerk of the matters that will be presided over
by the magistrate on that particular date. At the Filabusi Magistrates Court this was a book
indicating the names of the accused persons to appear in court as well as the CRB numbers of
their cases.
The Prosecutors also compiled their court roll which would be given to the clerk of court as
well, there were two copies, one was to be filed and the other was to be placed on the notice
board just outside the court room for the benefit of the members of the public. As a clerk the
author had to check in the filing cabinet first for cases that were already in the system
(remanded) and record them in the court roll. The new records opened would then be added to
the list of cases already on the roll (those already in the system- remanded cases).
Making Entries:
On receipt of records from court, the Clerk of Court must immediately make all the necessary
entries on the outcome of the matter into the CRB. Warrants of arrest, committal Remand and
Liberations should be made out where necessary with the similar entries being made into the
CRB.
The author also made entries which included recording the remand date if the matter was not
completed on that day. He would then file the case in the filing cabinet as there is no separate
room for that since the Filabusi Magistrates court is a small centre.
The author also recorded cases with prison terms and completed the warrants of committal
which would be signed by the magistrate and stamped, as well as recording in the Community
Service Register those that were sentenced to perform community service as well as giving
-2-
them community service forms which would be completed by the public institution supervisor
indicating the hours that the convicted person would have worked.
Filing:
As already stated above, the Filabusi Magistrates court is a small centre which did not have a
filing room but had filing cabinets. On their return the records from court must be filed away
in the filing cabinets with copies of warrants of arrest attached in the record and the originals
being sent to the relevant police station.
All records and court process must be filed timeously. Any delays may lead to loss of
documents. The author was informed that remand records were to be prioritised compared to
other records. There were different filing cabinets for the remand cases and the completed
matters which were not subject to review or scrutiny. Those which were to be sent for scrutiny
or review will be dealt with in the successive subheadings.
Preparation of records for Scrutiny or Review:

a) Review
In terms of section 57 (1) of the MCA the High Court has automatic jurisdiction to review
criminal proceedings in the Magistrates Court whenever any person has been imprisoned for
any period in excess of twelve months or has been sentenced to a fine in excess of US $ 300
(three hundred united states dollars). This only applies in relation to unrepresented accused
persons. The Filabusi Magistrates Court review cases were sent to the Bulawayo High Court.
Where corporal punishment has been imposed the record is also sent for review. 1 Where a
sentence of direct community service is imposed the matter is referred to the High Court as
well for review.
The clerk of the court must forward to the registrar of the High Court, not later than one week
after the determination of the case, the record of the proceedings in the case, together with such
remarks, if any, as the magistrate may desire to append.2 The author was taught how to arrange
the record in preparation for the review. If it is a plea, the following order should be followed
(i) mitigation (ii) reasons for sentence (iii) charge sheet (iv) state outline (v) record of
proceedings (vi) attachments or annexures such as affidavits (vii) notice of seizure. If the matter
was subjected to a trial the following order should be followed when arranging the documents
(i) judgment (ii) mitigation (iii) reasons for sentence (iv) charge sheet (v) state outline (vi)
record of proceedings (vii) attachments (vii) notice of seizure.
1
Justice Esther Muremba has recently declared in the case of S v Willard Chokuramba HH-718-14 that corporal punishment is now
unconstitutional, the decision however is subject to confirmation by the Constitutional Court.
2
Magistrates Court Act (Chapter 7: 10) section 57 (1).
-3-
b) Scrutiny
Where the Magistrate sentences an unrepresented accused person to imprisonment in excess of
three months but not exceeding twelve months or to a fine of US $ 100 but not exceeding US
$ 300, the clerk of the court shall forward to a regional magistrate, not later than one week next
after the determination of the case, the record of the proceedings in the case together with such
remarks, if any, as the magistrate may desire to append.3 The author was also taught how to
arrange the record in preparation for the scrutiny. If it is a plea, the following order should be
followed (i) mitigation (ii) reasons for sentence (iii) charge sheet (iv) state outline (v) record
of proceedings (vi) attachments or annexures such as affidavits (vii) notice of seizure. If the
matter was subjected to a trial the following order should be followed when arranging the
documents (i) judgment (ii) mitigation (iii) reasons for sentence (iv) charge sheet (v) state
outline (vi) record of proceedings (vii) attachments (vii) notice of seizure.
The author had the opportunity to prepare many records which were sent to Gwanda Regional
Magistrate for scrutiny. The author did so by following the order or arrangement of documents
as stated supra.
c) The Response to Scrutiny or Review

A decision of the Magistrate can either be confirmed or altered by the regional magistrate or
the judge. The author was then informed by the magistrate that when the cases are sent to the
judge for review or regional magistrate for scrutiny, the judge or the regional magistrate may
respond through a letter and the magistrate must then respond timeously to that letter. The
author was also shown one response titled “White Paper” or a review minute coming from a
reviewed matter where the reviewing judge had altered the sentence of the Magistrate. This
new decision from the judge would have to be enforced by the reading to the accused person
of the new sentence and the clerk must also update his or her CRB.
d) Review and Scrutiny Registers

There was a Review Register and a Scrutiny Register at the Filabusi Magistrates Court. Before
a case is even sent for review or scrutiny, it must be allocated a review or scrutiny number
following the sequence in the respective register. These records will show the whereabouts of
the records. When the review or scrutiny number has been endorsed and the record is ready to
be dispatched, the clerk must first submit such record to the magistrate for his or her signature.
When the record is returned from the High Court or Regional Magistrate, the clerk records
results in the CRB. The details are also entered into the scrutiny or review register. The clerk
will then submit the record to the magistrate in charge. Thereafter the record is sent to the Trial
3
Magistrates Court Act (Chapter 7: 10) section 58.
-4-
Magistrate and from the Trial Magistrate it is then sent for checking which shall be discussed
infra. After checking the record will then be filed.
Checking of the returned scrutinized or reviewed cases:

Checking is not restricted to the scrutinized and reviewed cases by the Magistrate. The author
was informed that the clerk must only submit cases for checking if the sentence imposed and
confirmed has been fulfilled. For example in relation to a sentence to perform community
service, the convicted person must have done all the hours and tendered proof to that effect to
the clerk of court. However for a sentence of imprisonment, a warrant of committal is sufficient
proof that the case has been completed and is ready for checking.
The author had the opportunity to send records for checking ranging from those that had been
scrutinized, reviewed and confirmed to those that had completed their community service as
well as those that had warrants of committal to prison issued. The Magistrate endorsed also in
the relevant registers the words “checked” as proof that the cases were ready for filing.
Preparation of records for Appeals:
-5-
Appeals against the decision of the Magistrate lie with the High Court in terms of section 40
of the MCA. Where an appeal has been noted, the clerk of court must receive notice of appeal
with a stamp from the High Court. There after the clerk must extract the record from the filing
cabinet.
The clerk must then record details like the name of the convict, charge, date of noting an appeal
in the Appeals Register and send the record to the Magistrate who dealt with the case for him
or her to comment on the notice of appeal in line with Rule 24 of the Supreme Court
(Magistrates Court) (Criminal Appeals) Statutory Instrument 504 of 1979. The clerk will also
check whether the appeal has been noted timeously which is within ten days of passing of
sentence.4 Here the author assisted the Clerk of court and the Magistrate at Filabusi Magistrates
Court who used to believe it was fourteen days including weekends. The author had to refer
the two court officials to the provisions of the Supreme Court (Magistrates Court) (Criminal
Appeals) Statutory Instrument 504 of 1979 Rule 3A which provides that a Saturday, Sunday
or public holiday shall not be reckoned.
After obtaining the Magistrate’s comments the record must be taken to the typist for a transcript
of the record of proceedings and six copies. The typist responsible for the records at the Filabusi
Magistrates Court was stationed in Gwanda, most of the times the author and the magistrate
had to type these records since the typists claimed to be swamped with a lot of work. This
assisted the author in understanding the appeal process better.
The original and four copies are sent to the High Court. One copy is retained for the appellant’s
legal practitioners who shall pay the costs of the transcript.5 The last copy is filed in the court
record cover and the record cover is filed in the office.
The author was also introduced to the arrangement of documents making the record to be sent
to the High Court. On top was the outer cover written criminal appeal and the following
documents followed (i) Index (ii) Notice of Appeal (iii) Magistrate’s comments (iv) Judgment
and sentence (or sentence only in pleas) (v) Charge sheet (vi) Record of proceedings (vii) State
outline (not applicable in pleas) (viii) Defence outline (not applicable in pleas) (ix) Magistrate’s
note (on original only) (x) List of exhibits (xi) Exhibits (documentary) (xii) Previous
convictions (if applicable)(xiii) Warrants (xiv) Addresses.
The role of the clerk does not end in relation to an appeal matter with the transmission of the
record to the Registrar of the High Court. Upon receipt of the record from appeal, the clerk
must record the results in the CRB and have the record checked and then he or she must file it.
If the appeal is dismissed when appellant is out on bail pending appeal and the appellant does
not surrender himself to the clerk of court within the prescribed time, the clerk causes a warrant
for his arrest to be issued. Where the sentence is reduced, the clerk requests for the prisoner to
be brought to court to be informed about the alteration. If the fine has also been reduced by the
appellate court after it had already been paid then a refund should be paid. The clerk also
records the reduced sentence and where a sentence has been set aside the clerk records it in the
CRB.
4
Supreme Court (Magistrates Court) (Criminal Appeals) Statutory Instrument 504 of 1979 Rule 22 (1).
5
Ibid Rule 24.
-6-
Notification of conviction of a driver:
The author was informed that when an accused is convicted and sentenced for contravening
certain sections of the Road Traffic Act (Chapter 13:11), and his or her licence is to be endorsed
with particulars of the offence or the driver’s licence is to be cancelled the following should
happen:-
Where the licence is to be endorsed or cancelled the clerk receives the licence and fills in an
appropriate form titled “Notification of conviction of a driver” which form together with the
licence is submitted to the Central Vehicle Registration (here in after called the CVR). The
duplicate of the form is filed in the record. Where the licence is not produced within seven days
from date of order, the clerk is to write out a warrant of arrest against the offender and
immediately refer it to the relevant magistrate.
The CVR will send to the clerk an “Acknowledgment Notification of Convicting of a driver”
which must be attached to the “Notification of conviction of a driver” filed in the record already
by the clerk. The author only dealt with a single case of such nature. This was a driver who
was charged with culpable homicide and convicted on his own plea. The magistrate then
prohibited him from driving for some months in line with section 64 of the Road Traffic Act
(Chapter 13:11) (here in after called the RTA).
Issuing warrants of arrest:

Issuance of warrants of arrest could be necessitated by numerous reasons, for instance it could
be that someone has failed to comply with a court order, for instance, to pay a fine, to comply
with a restitution order, to complete community service, and also in respect of those who would
have defaulted court. Also, in respect of accused persons remanded in custody, warrants of
committal should be issued. This also applies to an accused person who has been admitted to
bail if, before then, he or she was in custody. A warrant of liberation has to be issued. The
warrant is then sent to a magistrate for signing and only then can it be said that a warrant has
been issued thus, ready for collection by police officers for the person to be arrested or by
prison officers for the person to be committed to prison or to be liberated from same.
Issuing warrants of committal:

In respect of accused persons remanded in custody, warrants of committal were issued. The
warrant was then sent to a magistrate for signing and only then could it be said that a warrant
had been so issued, it would then be ready for collection by the prison officials. A warrant of
liberation had to be issued where an accused person who had been admitted to bail was in
custody or where a convicted person had served his full prison term. Caution was to be
exercised lest an undeserving person was liberated or an innocent person was committed.
-7-
Issuing court extracts:
This entails extracting the outcome of any matter from the CRB, writing it on the court extract
form, stamping it and giving to the interested party who would have shown his interest in the
matter in the first place.
When an accused is brought to court, it is the duty of the Prosecutor to ensure that the accused
does not have any Previous Convictions (here in after called PC’s). If any PC’s are found in
the C.R.B the clerk makes a copy of that particular CRB entry and gives it to the Prosecutor
who will present it in court as evidence or just before the magistrates decides on the sentence
in other words the PCs act as a point of aggravation against the accused person.
-8-
Mental Patients:
The author also processed a case of a potential mental patient. The accused person was charged
with stock theft and suddenly decided to be mute. The magistrate suspected some mental
disability though it turned out later that he had no disability. This case assisted the author in
understanding the role of the clerk in relation to such matters.
When the clerk of court receives a record from the court endorsed on it by a magistrate in terms
of section 26 or 27 of the Mental Health Act (Chapter 15:12) (here in after called the MHA),
he or she should first enter the information in the mental health register.
The clerk must then write to prison where the accused is being detained to have him examined
by two doctors in terms of the MHA. On receipt of the reports from two doctors, the clerk of
court must then attach the medical reports in the record and then send them to the magistrate
for him to commit the accused to a mental hospital. On receipt of the record from the magistrate
indicating that the accused has been committed to a mental hospital for treatment, the clerk
must then prepare committal papers consisting of the following:-
(i) Report of the magistrate (form MH 12)
(ii) medical certificate for admission to an institution (form MH5)
(iii) reception order (form MH 4)
(iv) committal order (form MH 18)
(v) certifying minute (that copies are true and correct copies of the originals)
(vi) charge sheet
(vii) witness statements
(viii) summary of the facts
(ix) statements from relatives indicating the accused’s mental history
(x) A letter to the superintendent of the mental hospital where the accused is to be
detained to receive treatment. The copies of the letter are to be sent to the Attorney-
General, secretary for health, the prison and the district administrator in whose area
the accused is resident.
All these are only applicable to orders made under sections 26 and 27 of the MHA.
A different procedure exists where a person has been found guilty but insane. The author was
not privileged to process such a case but the magistrate and the clerk of court explained how
the clerk is to deal with such a scenario.
The clerk will receive a record from the court indicating that the accused has been found guilty
but insane. It will also be written on the back of the charge sheet “special verdict in terms of
section 28 (1) of the MHA” and will indicate which institution accused should be detained.
On receipt of the special verdict, the clerk has to record this in the CRB and then have six
copies of the record of the proceedings made in the normal review order. The clerk must also
-9-
complete committal documents consisting of committal order form MH 21, a covering letter to
the Attorney-General, a covering letter to the superintendent of the mental institution where
the prisoner is to be detained, a covering letter to the secretary for justice, officer in charge of
prison and to the District Administrator in whose area the person is resident. The committal
order must be attached to the record of proceedings and also a certifying minute certifying that
copies are true and correct copies of the originals. The clerk must also submit the committal
documents to the Reviewing Judge, the secretary for justice, Attorney-General, superintendent
of the mental institution, the officer in charge of the prison where the prisoner is currently
detained and to the District Administrator of the area where the prisoner is currently detained
and to the District Administrator of the area where the prisoner is resident. Once the clerk has
dispatched the committal documents to the respective offices, the matter ends.
- 10 -
Preparation of statistical returns:
The clerk of court must compile the monthly statistical returns every 15th day of the month
which would be forwarded to the magistrate to certify them and then the clerk would forward
them to the provincial offices in Gwanda which will be further forwarded to the chief
magistrate.
The author prepared the statistics for the month of August with the assistance of the Filabusi
magistrates’ court clerk- criminal division. The statistics would be showing the cases brought
forward (which are the cases that were already in the system and not completed), cases received
(refers to new cases that came into the system), cases that were completed as well as pending
cases (records still active at station after subtracting the completed cases).
There are some matters that are deemed to be completed which include:-
(i) Where further remand is refused.
(ii) Where a warrant of arrest is issued.
(iii) Where a retrial is ordered.
So essentially a case is completed or deemed to be completed where the court cannot do
anything more about it, such as, where the accused has been convicted or remand is refused or
where the accused has defaulted and a warrant of arrest has been issued.
An example of a table showing such statistics is illustrated below:
Court Station Cases Cases Total cases Completed Pending
brought received cases cases
forward
Filabusi 5 10 15 10 5
So the method of calculating pending cases is (cases brought forward + cases received = total
cases – completed cases = pending cases).
The standing rule is that the magisterial month runs from the 16th day each current month to
the 15th day of the following month.
- 11 -
WHAT THE AUTHOR EXPECTED FROM THIS OFFICE
To fully understand the role of the clerk of court criminal department
To understand how the clerk of court interacts with prison officials and members of the
police in discharging his or her duties
To understand how criminal records are opened
To know which documents are necessary for the magistrate to read before presiding
over a matter
Understand how records are prepared for scrutiny and review
To understand the procedure the courts take into account when faced with a person with
mental or intellectual disabilities as the author is also writing a thesis on this subject.
The author is of the opinion that all his expectations in this office were met.
- 12 -
THE RELEVANCE OF THE DUTIES PERFOMED IN THIS OFFICE TO THE
AUTHOR’S LAW DEGREE
The duties of the author in the clerk of court criminal office assisted him in knowing the
procedures in relation to criminal matters. The modules that the author did which were a
foundation that enabled easy understanding of the concepts are Criminal Law and Criminal
Procedure.
The author had the opportunity to understand procedures for example in relation to those that
are found guilty but insane. The clerk and the magistrate explained in greater detail the
procedures involved. This would assist the author even in practice in the event that he meets a
client with mental or intellectual disability.
Knowledge of the importance and functions of warrants of arrest and of committal were
important to the author. In the Criminal Procedure class, the author did not fully understand
how warrants of arrest are issued, the period of work related learning has therefore been
beneficial in that the author now understands fully how warrants are issued and their effects.
The author was not aware of a warrant of committal, it was a new thing that the author was
confronted with whilst in this office. The same holds in relation to a warrant of liberation, it
was a new thing to the author and now the author fully understands their purpose.
- 13 -
PERSONAL AND PROFFESSIONAL DEVELOPMENT WHILST IN THE OFFICE
OF THE CLERK CRIMINAL
Personal development:
When the author started the Work Related Learning (here in after called the WRL), he had like
every human being strengths and weaknesses. The weaknesses included poor interpersonal
skills since the author was generally reclusive.
The author developed good interpersonal skills and was able to work as a team with other clerks
and court officials to the extent that he was given a shirt as a present before leaving the Filabusi
Magistrates Court for Harare.
The author learnt how to interact with clients at the court as they would inquire about various
things.
The author was also able to build a rapport with all officials at the court and even the prison
officials as well as police officers. Empathy as an attribute was developed. The author worked
with breadwinners of families and was able to understand what they felt and why they felt the
way they did. The author also developed his tact and diplomatic skills. Reference is made to
the rules issue where the magistrate and the clerk were reckoning weekends as part of the days
to be counted in appeals. The author found a way of asserting his views with tact and diplomacy
to maintain the existing good relations.
Professional development:
There were various professional attributes that the author was able to develop which include
inter alia:-
Decision making where the author was assigned to various tasks which required him to
be judicious or sagacious.
Time management, the author learnt that diarizing is the most important part of time
management. To diarize is simply to note an appointment in a diary. All things to be
done in a day must be listed in the diary attending to urgent cases as well as important
cases.
Problem solving, the author was exposed to problems which he inevitably had to assist
the clerk in solving.
Communication skills of the author were developed through the various interactions
with fellow court officials and clients.
Work life-balance, the author was for the first time exposed to the demands of the work
place and the needs at home. The author weathered the storm with consummate skill
and tenacity.
- 14 -
HANDLING CONFLICT BETWEEN PERSONAL/ORGANISATIONAL OBJECTS.
The conflict whilst in this office ranged from zero to none at all, conflict was experienced in
the clerk of court civil division as well as the accounting assistant’s office as will be highlighted
and elucidated in the subsequent chapters.
CONCLUSION AND RECOMMENDATIONS
The author felt that the clerk of court’s office was short-staffed and the clerk of court
was overwhelmed as he was the only one manning this office.
The Criminal Record Books should also be computerised which will enable the clerks
to quickly click the search engine on their computers and find the Previous Convictions
of all people that would have been arraigned and convicted by the magistrates courts.
The clerk of court criminal was sharing a single office with the other clerks and the
desk was always clattered, there is need for the Judicial Service Commission (here in
after called the JSC) to construct or rent new offices specifically for the clerk of court
criminal.
There is also need to have a separate filing room for the records like the bigger centres
for the safety of these records.
The JSC must come up with a statutory instrument to give direction to the clerks such
that there is uniformity in the way they discharge their duties.
CHAPTER TWO
- 15 -
CLERK OF COURT CIVIL DIVISION
INTRODUCTION
The office of clerk of court is provided for in section 2 of the MCA (Chapter 7:10). The duties
of the clerk of court in the civil court (division) include the following (i) keeping custody of all
court records (ii) numbering every case filed of record consecutively for each year (iii) opening
a file for each new case (iv) ensuring that all subsequent documents in the same case bear the
same number (v) filing all subsequent documents (vi) issuing all process of the court. Issuing
process is defined as signing and stamping the documents 6 (vii) upon payment of the
appropriate fee to cause a record to be transcribed, furnish a copy of the record and permit
inspection or making of copies of any record in his or her presence. Any subsequent reference
to a clerk of court in this chapter must therefore be taken by the reader to refer to the clerk of
court civil division unless so specified.
DUTIES PERFOMED BY THE AUTHOR WHILST IN THIS OFFICE

Custody of court records:
The author was informed by the clerk of court civil division that he would be the custodian of
all civil court records and as such remained accountable for missing court records. This shows
that a clerk must be able to exercise due diligence in discharging his or her mandate. The clerk
is therefore called upon to keep up to date record movement through the registers.
Issuing summons:
The clerk of court receives summons from legal practitioners, organisations and individual
litigants commonly referred to as self-actors. Most of the magistrates’ courts have the
prescribed form of summons which may be used by the self-actors. The clerk of court must
then check the summons for the following information:- (i) names and addresses given (ii) if
the claim is properly framed to disclose the cause of action (iii) that the amount claimed is
within the jurisdiction of the court (iv) that the cause of action arose in the area of the
jurisdiction of the court. “The proper legal meaning of the expression `cause of action' is the
entire set of facts which gives rise to an enforceable claim and includes every act which is
material to be proved to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff
must set out in his declaration in order to disclose a cause of action. Such cause of action does
not `arise' or `accrue' until the occurrence of the last of such facts and consequently the last of
such facts is sometimes loosely spoken of as the cause of action.''7 (v) to ensure that there is a
revenue stamp attached on the original summons (vi) that the correct day of appearance to
defend has been stated. If defendant resides within the court’s jurisdiction 7 days and if
defendant resides outside the court’s jurisdiction then 14 days as required in terms of Order 10
6
Judicial Services Commission Clerks of Court Training Manual at page 2.
7
Per Watermeyer J Abrahamse & Sons v SA Railways and Harbours 1933 CPD.
- 16 -
Rule 1 of the Magistrates Court (Civil) Rules, 1980 (vii) that costs shown do not exceed the
permitted costs (viii) that all copies of the summons are legible. The clerk must also write down
the case number on the top right hand corner of the original summons and on all copies, sign
and date stamp them as well as the revenue stamp and file original summons bearing revenue
stamp and hand copies to the plaintiff. The author had the opportunity to receive many
summonses endorsing the case number, sign, date stamp as well as revenue stamp them upon
payment of the appropriate fee.
Default Judgments:
The clerk of court must perform such duties in relation to default judgments as instructed by
the magistrate. Circular number 11 of 2011 issued by the Chief Magistrate had an effect of
directing that all applications for default judgments should be dealt with by the Magistrate and
not the clerk of court. When the clerk of court receives the application for default judgment he
or she must (i) arrange the papers in numerical order and according to year (ii) uplift the original
summons from where they are filed and marry the summons with the default judgment
application (iii) check for proof of service and date when service was effected from the return
of service (iv) calculate the total costs and compare them with the costs on the default judgment
(v) add principal claim. Costs and interests or commission (vii) take record to magistrate for
default judgment to be entered (viii) once that is done, file the original and give the other copies
to the litigant. The author dealt with a lot of applications for default judgments at the Filabusi
Magistrates Court.
Applications in general:
The clerk of court receives applications from legal practitioners, organisations and individual
litigants. Once the clerk receives the applications either on notice or ex parte, he or she will
then write down the case number on the top right hand corner of the original notice and
application and also on all copies, sign and date stamp them as well as the revenue stamp and
file original notice and application bearing revenue stamp and hand copies to the applicant. If
it is an ex parte application, the date of the hearing will be endorsed by the clerk. It is important
for the clerk to ensure that all the required fees in relation to the application must be paid and
a copy of the receipt is filed in the case file as well. The author dealt with some ex parte
applications even though some of them were dismissed by the court, the author also dealt with
opposed applications which were presided over by the magistrate. The author would then
record the decision of the magistrate in an appropriate register.
Domestic Violence matters:
- 17 -
The author received complaints from man and women who were being abused by their spouses.
In such circumstances the clerk of court is required to listen to the complainants as they narrate
their problems in order to advise them on subsequent steps to be taken. The clerk of court must
then be satisfied that the violence reported by the complainant is a domestic one taking into
account of the provisions of section 3 of the Domestic Violence Act (Chapter 5:16) (here in
after called the DVA). It is also a logical assumption that identification of parties must assist
the clerk in deciding whether the violence is domestic using the affinity that exists between the
parties. So essentially the following DVA requirements can be identified (i) the complainant
must be falling within any of the definitions of such as provided for in terms of section 2 of the
DVA (ii) the conduct of the respondent must satisfy any of the forms of domestic violence
provided for in terms of section 3 of the DVA. These requirements, in the opinion of the
author, should be regarded as conjunctive.
The clerk if satisfied that the above criteria has been met will then ask the complainant to
complete three affidavits which should be commissioned. Once the clerk is satisfied that the
affidavits are in order that is to say they indicate the acts of violence perpetrated by the
respondent and also call upon the court to grant the applicant a protection order, the clerk will
then be required to give the complainant or applicant a prescribed form known as DV 3 form
(which must be completed in triplicate) which is in terms of the Domestic Violence
Regulations, 2008 also known as Statutory Instrument 92 of 2008 (here in after called the DVA
Regulations). The clerk would have to endorse the appropriate case number on the DV 3 forms
(which number would be obtained from the Domestic Violence Act register), allocate a return
day which is the day that the hearing will be conducted to be attended by both complainant and
respondent. The author noted with grave concern that section 9 of the DVA was not being
complied with by the clerk of court at Filabusi. It is clear that when there is a prima facie case
of domestic violence, an interim protection order form number DV 6 in terms of the DVA
regulations had to be completed and issued to afford protection of the complainant from the
day of lodging the complainant to the return day.
The clerk was to file one copy of the completed DV 3 form with an affidavit attached to it and
then give one copy and affidavit to the applicant and then the remaining one to the police
officers for service. Service of documents is effected by the police free of charge to assist
victims of domestic violence in rural areas who would ordinarily not be able to afford the
services of the messenger of court. The author assisted so many complainants in relation to
domestic violence and assisted the clerk of court by coming with the above criteria in order to
distinguish perfect cases for a protection order and that of a peace order. After the magistrate
has granted the protection order, the clerk will be required to complete form DV 7 which is the
protection order itself. This order will then be given to the complainant to keep and will be
used when the respondent breaches any of the terms of the order.
- 18 -
Peace Order applications:
There were people who also came with complaints of violence and threatened violence against
them. The author had to assist them in making applications for a peace order if they fell outside
the criteria set out above in relation to protection orders. What can be deduced from this fact is
that where there are allegations that a respondent is disturbing the peace of the applicant and
the identified complainant does not fall within the definition of a complainant in the DVA then
such case would be a perfect case for a peace order. Complainants had to complete three
affidavits detailing the conduct of the respondent, indicate they were seeking a peace order
from the court and have them commissioned. The clerk would then complete a prescribed form
in terms of the Criminal Procedure & Evidence Act (Chapter 9:07) (here in after called the CP
& EA) calling upon the respondent to appear in court on the stated day. The peace orders are
provided for in terms of section 388 (3) (a) of the CP & EA. The clerk of court must also
allocate the case number after entering the details of the case in the Peace Orders register. After
the inquiry and the subsequent order by the magistrate, the clerk would also be required to enter
the details of the order in the file and ensure that the required recognizance has been tendered
by the respondent.
Maintenance cases:
a) Applications
When clients came intending to apply for maintenance, the author as clerk of court, would first
advise the client to open a bank account, if such was not available, into which the maintenance
moneys would be deposited. The author would then give the client Complaint on Oath forms
to complete which is form M1 in terms of Maintenance (General) Regulation, 1988 also known
as Statutory Instrument 114 of 1988. Upon bringing the Complaint on Oath forms, then the
author would then fill a summons for maintenance which is form M2 in terms of the
Maintenance Regulations referred to supra. The author would then give the matter a case
number using the maintenance register and open a record after giving a hearing date for the
matter. A copy of a summons and the complaint on oath would be retained for the record; one
copy of summons would be given to the complainant and the other two copies of the summons
together with one copy of the Complainant on Oath form would be given to the complainant to
give to the police to serve them on the respondent of which one copy thereof will be returned
as return of service.
This procedure is done usually to self-actors since they would not be in a position to make their
own applications. To those who were represented by legal practitioners, the author would only
issue the maintenance summons and attach them to the application that would have been
brought by the legal practitioner.
b) Maintenance Defaulters
It is a criminal offence for a party not to comply with a maintenance order. It is prudent for the
respondent not to take the law into his or her own hands and apply for variation of the order or
discharge. When there is an allegation by the applicant that the respondent has defaulted in
paying maintenance, the clerk will ask the applicant to tender a bank statement showing the
- 19 -
default. Once the clerk is satisfied that there has been default, he or she will ask the applicant
to complete an affidavit and have it commissioned detailing the total amount owed. The clerk
will then complete and issue a certificate of defaulters in terms of section 23 (6) (b) of the
Maintenance Act (Chapter 5:09) and attach the bank statement and the affidavit. These
documents will be used by the prosecutors in prosecuting the respondent, so the applicant
would have to go with the certificate of defaulters and the attached affidavit and bank statement
to the police station.
Applications for guardianship of minors:

The magistrates court can also preside over matters concerning juveniles sitting as a children’s
court. The clerk of court will be acting as a clerk of a children’s court as stated in terms of
section 2 of the Children’s Act (Chapter 5:06). The author had the privilege of dealing with
two cases of application for guardianship by grandparents who all testified to the effect that the
parents of the minor children were all deceased. As the clerk of the children’s court the author
had to satisfy himself that there was sufficient proof that indeed the parents of the minor
children were deceased. Upon receipt of the application for guardianship in terms of section 9
(2) of the Guardianship of minors Act (Chapter 5:08), the clerk must enter the details of the
applicant in an appropriate register, at Filabusi magistrates court it was titled “Juveniles
Register”. The case number will be allocated, a case file opened and completed. A clear reading
of section 9 (1) shows that the magistrates court can entertain an application for guardianship
provided the minor children has no natural guardian, where such exists, the High Court would
have jurisdiction.
The clerk must also ensure that the application is properly before the court and then publish in
the Gazette and a local newspaper a notice showing the applicant’s name as well as the set date
for the inquiry.8 The practice at the Filabusi magistrates court was for the applicant to do the
publishing which is contrary to the peremptory provisions of the Guardianship of Minors Act.
After the decision by the magistrate granting the applicant the guardianship, the clerk has to
issue the person so appointed with a letter of appointment.9 The clerk must then within seven
days submit the record of the proceedings in the matter to the Registrar of the High Court. The
decisions of the magistrates should be confirmed by the High Court in relation to guardian ship
as well as placing of children in institutions or orphanages. The confirmation is based upon
section 9 (1) of the Guardianship of Minors Act which states that the High Court is the upper
guardian of all minor children in Zimbabwe. The author had to assist in relation to an
application by the probation officer for the placement of a certain child in an institution in terms
of section 20 (1) of the Children’s Act (Chapter 5:06). The author as the clerk of court had to
send the record for review to the Bulawayo High Court.
8
Section 9 (3) of the Guardianship of minors Act (Chapter 5:08).
9
Ibid section 9 (5).
- 20 -
Sudden Death matters:
The clerk would receive sudden death dockets (SDD) from the police. The clerk is supposed
to enter the relevant details in the Sudden Death Register and allocate a case number. The clerk
will end his or her role by sending the dockets to the magistrate for his or her own verdict.
Administration of Estates:
The author also had to carry on duties in relation to registration of deceased estates. This
required the background knowledge of the Administration of Estates Act (Chapter 6:01) which
the author had. The role of the clerk is to first ask from the applicant whether there was a will
written by the deceased or not. Once the applicant states that there was a will, the clerk would
then advise the applicant to go to the High Court. The magistrates court can only register and
administer an estate governed by customary law and where there is no valid will. The clerk
would then inform the applicant to produce a death certificate or burial order, marriage
certificate (which must be in terms of the Customary Marriages Act Chapter 5:07) (here in
called the CMA). The applicant must tender at least two affidavits from the relatives confirming
the existence of an unregistered customary law marriage. It is therefore clear that once the clerk
establishes that the deceased was married under the Marriage Act (Chapter 5:11) he or she must
advise the applicant to approach the High Court.
The clerk would also have a role in consultation with the magistrate in relation to the
subsequent steps to be taken by the applicant. The magistrate as the Master will be informing
the clerk on what to do especially on the case cover. The clerk will also have allocated a case
number which he or she obtains from the appropriate register. At the Filabusi magistrates court
there was the Deceased Estates Register for that purpose. The clerk would go as far as
explaining to the applicant what the magistrate had directed to be done be it advertising, filing
of the inventory as an executor or filing of the estate administration and distribution accounts.
In all the procedures the clerk must also ensure that all relevant fees must be paid by the
applicant and when an executor is appointed, the clerk subject to the instructions of the
magistrate must then draft and issue the letters of administration which must be signed by the
magistrate and stamped. Not every estate should be administered under Letters of
Administration, section 32 of the Administration of Estates Act (Chapter 6:01) provides for
administration of small estates. These estates can be summarily wound up under a certificate
of authority. The formal appointment of executor is dispensed with.
- 21 -
Enforcement of court orders:
There are two categories of court orders: orders ad pecuniam solvendam (orders to pay a sum
of money) and orders ad factum praestandum (orders to do or abstain from doing a particular
act, or to deliver a thing). Orders ad factum praestandum are enforced by way of imprisonment
for contempt, whereas orders ad pecuniam solvendam are enforced by execution against
property or garnishee proceedings.10
a) Garnishee order in terms of Order 29 of the Magistrates Court Civil Rules:
The clerk receives a garnishee order application together with an affidavit. The clerk of court
must then satisfy him or herself that the affidavit complies with the Order 29 of the Magistrates
Court Civil rules. The clerk must also ensure that there is a certificate of earnings. The clerk
must then give the date of confirmation and also give the applicant some copies and retain the
original copies. The author was confronted by applicants who did not want their defaulting ex
partners who had defaulted in paying maintenance to be prosecuted. The author would then
advise that since the defaulting parties were gainfully employed, it was prudent for the women
to apply for garnishee orders.
b) Warrant of execution against property:

When the clerk of court receives a warrant of execution he or she must check if the judgment
was given, add figure of principal claim, costs of suit and the interest or commission. He or she
must then date stamp and sign the warrant as well as file the original and return copies to the
litigant. The author had the opportunity to deal with many warrants of execution.
c) Summons for civil imprisonment in terms of Order 28 of the Magistrates Court Civil
Rules:
The clerk of court receives summons for civil imprisonment and must immediately uplift the
relevant file. The clerk must also check whether there was any other enforcement. If there is
nothing, all documents in respect of the enforcement should be given to the clerk who must
also check the costs. The clerk of court must then date stamp and sign the summons and retain
the original copy and give other copies to the applicant. The date of hearing must then be set.
Preparation of record for civil appeals:
Once notice and security have been lodged, the clerk must send the file to the typists for six
copies of the transcript and or judgment. The file must then be sent to the magistrate for reasons
of judgment. The clerk must then prepare the index. The pleadings in the record must be
arranged in chronological order. It must be remembered that two copies of the appeal record
for the attorney will not contain a judgment given in court. If it has already been handed down,
the copies must be certified with the clause- less judgment already handed down. Exhibits may
be photocopied as well. The appellant must also pay the required fees for the preparation of the
10
per Chinhengo J in Trans Makgadikgadi Investments (Pty) Ltd v Magwadza 2007 (1) BLR 777 (HC).
- 22 -
record. All stages of the preparation should be entered into the appeal register. When paginating
the appeal, the index and the exhibits must not be paginated.
There were many appeals that were noted at the Filabusi Magistrates Court. The author was
not in agreement with the view of the magistrate in relation to the effect of noting an appeal.
The magistrate was and is still of the view that an appeal does not automatically suspend the
execution of a judgment but the appellant would be required to apply for stay of execution
pending the determination of the appeal. The author was of the view that an appeal noted has
an effect of automatically suspending the execution of a judgment and the judgment creditor
or respondent is the one who was actually supposed to make an application for execution
pending the determination of an appeal.
Section 40 (3) of the Magistrates Court Act (Chapter 7:10) provides that:-
Where an appeal has been noted the court may direct either that the judgment shall be carried
into execution or that execution thereof shall be suspended pending the decision upon the
appeal or application.
The case of Longman Zimbabwe (Pvt) Ltd v Midzi and Ors 2008 (1) ZLR 198 (S) has put to
bed the debate on whether the noting of an appeal against a lower court such as the Magistrates
Court has the effect of suspending the judgment. Garwe JA held that 1: The power of the court
to order execution of its own judgment despite the noting of an appeal is founded in the
common law doctrine of inherent jurisdiction. 2. It is trite that only superior courts enjoy
inherent jurisdiction (High Court and Supreme Court). 3. Courts created by statute do not have
inherent jurisdiction. Inferior courts, tribunals or other authorities have no power to order
suspension of their orders or judgments and that the noting of an appeal against their judgments
or orders does not have the effect of suspending operation of their judgments or orders.
PREPARATION OF STATISTICAL RETURNS BY THE CLERK OF COURT CIVIL
DIVISION
These statistics will slightly be different from the criminal ones in that the cases will be divided
into various sub-headings such as civil general law, deceased estates, maintenance, peace
orders, custody and guardianship, applications as well domestic violence cases. The gender of
the parties involved was also supposed to be supplied by the clerk as well as whether they were
persons with disabilities or not. The author was able to do the statistics for the months with the
guidance of the clerk of court civil division Filabusi Magistrates Court.
- 23 -
THE RELEVANCE OF THE DUTIES PERFOMED IN THIS OFFICE BY THE
AUTHOR TO THE AUTHOR’S LAW DEGREE
The author’s knowledge of the court’s procedure in applications and summons
procedures was further developed since the theory had been done by the author in Civil
Procedure and Advanced Civil Procedure modules.
The author then understood the proper application and construction of the Magistrates
Court Civil rules which he had learnt in Civil Procedure module.
The author was able to appreciate the procedures in relation to registration as well as
administration of estates which is part of the law of succession.
The author was able to develop the practical understanding of how domestic violence
cases are dealt with since he had done the theory in Gender and the Law module.
The author developed his communication skills in all the conversations with the clients
which was a proper foundation for interviewing clients in private practice work related
learning and the future.
The author had the opportunity to witness as well as understand how court orders are
enforced since he had learnt the theory in Civil Procedure Module.
- 24 -
PROFFESSIONAL AND PERSONAL DEVELOPMENT
The author’s problem solving skills were further augmented as he was exposed to
many problems being faced by the clients which he was able to address.
The author’s knowledge of the procedures in applications and summons was also
augmented.
Communication skills of the author were developed through the interaction with
the clients.
The author further developed good interpersonal skills as he worked harmoniously
with other court officials.
The author was again able to balance the demands of the work place and his social
life.
- 25 -
HANDLING CONFLICT BETWEEN PERSONAL/ORGANISATIONAL OBJECTS.
The conflicts became noticeable when the author was working in the clerk of court civil
division. There were times when the author was assigned to do none-legal duties like carrying
stationary from the delivery van. The author felt that this had nothing to do with practical
experience in the legal field. However to avoid being at loggerheads with the superiors the
author treated these as duties which were ancillary or incidental to the job. Once the author had
taken that view, he no longer viewed it as a conflict, but part and parcel of the job.
- 26 -
The clerk of court civil was sharing a single office with other clerks and the author
felt that there is need for the JSC to construct or rent a new office specifically for
the clerk of court civil division.
The clerk must follow the proper procedures in applications for guardianship and
be the one to advertise rather than direct applicants to do so.
The clerk of court civil division office was short-staffed and the clerk was
overwhelmed as he was the only one manning this office, the presence of the
author therefore provided a necessary respite to him. Accordingly the author
strongly recommends the JSC to appoint another clerk to assist or at least an
assistant.
In typing records of appeal, these had to be sent to Gwanda and the author is of
the opinion that there must be typists stationed at the Filabusi Magistrates Court
as well for convenience and efficiency.
The clerk of court is strongly recommended to make use of form DV 6 (interim
protection order) as a rule nisi to provide the necessary protection of victims
pending the finalization of the domestic violence cases.
The author is of the opinion that sudden death cases involve communication with
the prosecution and as such falls under the role of the clerk of court criminal
division. The author therefore strongly recommends that the processing of these
dockets must be done by the clerk of court criminal division not the clerk of court
civil.
The author is of the opinion that the court must comply with the common law
principle which states that the noting of an appeal automatically suspends the
execution of judgments.
- 27 -
- 28 -
CHAPTER THREE
PUBLIC PROSECUTOR’S OFFICE
INTRODUCTION
Section 258 of the Constitution of Zimbabwe Amendment (No. 20) of 2013 establishes the
National Prosecuting Authority which is responsible for instituting and undertaking criminal
prosecutions on behalf of the State. The head of the National Prosecuting Authority (here in
after called the NPA) is the Prosecutor General currently Mr Johannes Tomana. 11 The NPA is
also governed by the National Prosecuting Authority Act (Chapter 7:20) (here in called the
NPA Act) which was assented to by His Excellency the President of Zimbabwe, President R.G.
Mugabe and came into force on Friday the 2nd of January 2015.
The office of the Prosecutor has been explained by the courts to have certain characteristics
which include being non-partisan as well as being detached from the cases the prosecutor deals
with.12 Gubbay CJ had this to say about the office in the case of Smyth v Ushewokunze and
Anor:
“That the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before the
court what the State considers to be credible evidence relevant to what is alleged to be a crime.
The prosecutor has a duty to see that all available legal proof of the facts is presented: it should
be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role
of the prosecutor excludes any notion of winning or losing; his function is a matter of public
duty than which in civil life there can be none charged with greater personal responsibility. It
is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the
justness of judicial proceedings. The duty of the prosecutor, to place before the court all
material essential for the investigation of the truth, is justified on the ground that the
prosecution has all the resources of the State, including finances, the police and vital
information, at its disposal. But it is not for the prosecutor to involve himself in the
investigations.”13
At the Filabusi Magistrates Court, the author was exposed to two offices within the office of
the area Public Prosecutor namely the set down office and the court room. The area Public
Prosecutor, Mr Jethro Mada informed the author that the set down office is the engine of the
prosecution as it is mainly preparation for what will happen in the court room. The author had
to apply for authority to prosecute at the Prosecutor General’s office to enable him to assume
duties as such, the authority was granted only for six months.
11
Constitution of Zimbabwe Amendment (No. 20) of 2013 section 259 (1).
12
J. R Rowland Prosecutors Handbook (1992) at page 1.
13
1997 (2) ZLR 544 SC.
- 29 -
SET DOWN OFFICE
The summary of duties carried out by the author whilst in the set down office were:
a) To check all the dockets brought for prosecution by the police and to see if they were
properly drafted.
b) To interview witnesses.
c) To set the matters down for trial.
d) Once the matter has been set down, to prepare summons for accused persons and
subpoenas for witnesses to attend court or to instruct the police to do that.
The prosecutor’s first involvement with a criminal case is usually when he or she receives an
application for initial remand or a completed docket from the police (this was the Officer in
Charge crime at the ZRP Filabusi). Application for remand meant that the prosecutor had to be
satisfied that (i) there was enough evidence to prove a prima facie case and (ii) whether it was
in the public interest for the accused to be remanded rather than being summoned.
Receipt of completed dockets:

The author was taught that once a docket is received from the police, the prosecutor must satisfy
himself or herself that there is an instruction to prosecute from the Officer in Charge Crime.
The prosecutor must then record into the Criminal Docket Book and allocate a Prosecutor’s
Reference Number. It is therefore imperative to briefly describe the documents that make up a
docket in order to understand what the Prosecutor does in checking that docket. The docket
has:
1. ZRP Form 66 which is the docket cover and it gives details of the accused, the
complainant (the proper term would have been to say the victim because in criminal
matters the complainant is the state- the injured party) and other important details.
2. The Investigation Diary which shows the steps in the investigation of the case ending
with a summary of the case together with the observations of the police. The diary is
titled “Police Diary Log” and is also known as “Form 11”. This is the document that
will be used for communication between the Prosecutor and the Officer in charge crime.
The instruction to prosecute will be endorsed on this document and also when a
prosecutor is of the opinion that there should be further investigations, he communicates
through this document to the officer.
3. The statements of the witnesses, it is from these that the prosecutor will prosecute.
Those statements should contain all relevant facts of the case.
4. The documentary exhibits such as forged cheques and obscene publication.
5. The warned and cautioned statement which is made by the accused in response to the
charge.
6. The Charge sheet drafted by the police officers.
- 30 -
7. The state outline.
8. A file of miscellaneous papers at the back of the docket.
Of all these documents, the prosecutor should normally be concerned with statements of the
witnesses, documentary exhibits and the warned and cautioned statement. The prosecutor must
check that firstly it has been referred to him or her by the Member in charge or the officer in
charge crime. The next stage was to check the charge and verify whether the sections were
cited correctly and as well as ascertaining whether the charge preferred is the proper one and
all ingredients of the offence were fulfilled by the accused’s conduct. Prosecutors have the
discretion as to what offence to charge and also make sure that the accused is charged with a
more serious offence rather than a lesser charge.
Deciding how to proceed:

After the prosecutor has read the docket, he should decide what to do next. The author was
informed that there are three possible actions that the prosecutor may undertake which are:
(i) If he or she is satisfied that a prima facie case has been made out against the accused
on the stated charge, he or she would have to proceed to trial.
(ii) If he or she feels it would be safe to include one or more alternative charges to
enable him or her to obtain a conviction on the facts disclosed, he or she would need
to do so.
(iii) If he or she feels that the docket requires further investigation, in this case he or she
should return the docket to the police station concerned with a detailed note in the
diary log of the points which require further investigations.
(iv) If he or she feels that no case has been made out against the accused on one or more
of the charges, he or she must decline to prosecute on the charge or charges or refer
the docket to the senior public prosecutor for his or her opinion. The prosecutor
must have set out the reasons for declining to prosecute.
(v) Where there are several accused persons, the prosecutor may feel that the case has
been made out against some of them. In such cases he or she should decline to
prosecute those against whom no case has been made out and give reasons as well.
- 31 -
Setting down matters for trial:
This particular duty was more relevant in testing the organizational skills of the author. Once
an accused person had been remanded in the Remand Court the docket was sent back to the
Set-down Office for setting down of the matter for trial. It is in this office that the author had
to ensure that a matter was tried within the shortest period as possible in compliance with
Section 50 (6) of the Constitution of Zimbabwe which enshrines the right of an accused person
to be tried within a reasonable time. In the set-down office, the author would use a Court Roll
Register, to assign trial dates.
Witnesses’ expenses:
The prosecutor also has the responsibility of ensuring that all state witnesses who would have
incurred expenses in travelling to court to testify should be paid. There were prescribed forms
that the author had to complete and send together with the witness’ subpoena to the Accounting
Assistant who would then pay the witnesses. The nitty-gritties of this aspect have been dealt
with under the experiences of the author in the accounting assistant’s office.
Interviews:
The author was informed that non-expert witnesses are not usually supposed to be interviewed
to avoid coaching the witness. The author had the opportunity to interview few witnesses who
were usually rape victims to ascertain whether they still remembered what had actually
happened. This was so because sometimes the trauma they experience might cause them to
forget. The prosecutor would read or allow them to read their testimony in order to refresh their
memory. With an expert witness, an interview would assist in clearing up technical matters
which the prosecutor might not have been privileged to know.
Securing the court attendance of accused persons and witnesses:

Once the matter is set down for trial, it is imperative that accused persons are summoned to
attend court and witnesses are subpoenaed to come and testify at the trial. The accused may be
remanded in or out of custody such that there would be no need to summon him or her.
Summons matters usually arises when the prosecutor feels that there is no need for the accused
to be remanded. In summation the author was exposed to three ways in which the attendance
of accused persons may be secured which are: (i) arrest (ii) remand and (iii) summons. The
author was afforded the opportunity to summon accused persons as well as subpoena witnesses
in several cases that he dealt with. This would simply be done by giving a subpoena or a
summons to be signed which showed that the party knew the date he or she was expected to
attend court. Non-attendance when one has been subpoenaed or summoned has grave
consequences which will be discussed infra.
- 32 -
THE COURT ROOM
In the set down office, the prosecutor will be preparing to appear in a court. The prosecutor
compiles the court roll which consists of the list of cases to be heard in court. This was a smaller
centre and so the prosecutor had to prepare the court roll. The prosecutor must arrange his
matters giving priority to remands, then cases for sentencing, cases for judgment, possible plea
matters and trials. The remands are presented first to avoid unnecessary detention of accused
persons.
a) Accused person in default:
This happens when the accused person is called to enter the dock and the prosecutor realises
that the accused has defaulted. The court orderly will then call the name of the accused person
three times outside and indicate to the court that the accused is in default. The prosecutor will
then apply for a warrant of arrest to be issued against the accused person. The magistrate will
then issue the warrant of arrest. The author had to apply for a warrant of arrest in relation to an
accused person who had been summoned and defaulted. As the prosecutor, the magistrate
requested for the summons which had been signed by the accused person. Once the author had
tendered such summons, the magistrate was satisfied that the accused had signed the summons
and issued a warrant of arrest.
b) Witness in default:
The procedure in relation to a witness who has defaulted is the same with that taken when an
accused person is in default. In one trial, the author had asked for a certain witness to be called,
the witness was called three times by the court orderly and was nowhere to be found. The
author had to apply for a warrant of arrest to be issued, the magistrate then asked the author to
tender a subpoena which had been signed by the witness. Once the court was satisfied, a warrant
of arrest was issued.
c) Extension of time to pay:

The author also dealt with matters for extension of time to pay either a fine or compensation.
The prosecutor would only introduce the accused and inform the court that he was coming for
extension of time to pay. The magistrate would then be left to ask questions to the accused and
make his or her own findings. Such findings will be dealt with in the subsequent chapters.
d) Remands:
The author was informed that remand cases should always be dealt with at the beginning of
each court session, this was so because Filabusi unlike large centres did not have a separate
remand court. The prosecutor must be fully aware of the reasons for a remand and all this
information must be obtained from the investigating officer. The reasons for the remand should
be as detailed as possible. The more common reasons for remanding cases are: (i) the police
require more time to complete investigations, (ii) difficulty in subpoenaing witnesses and (iii)
awaiting the Prosecutor General’s authority to prosecute. In terms of section 165 of the CP &
- 33 -
EA the length of a remand should not be in excess of fourteen days. The procedure for a remand
is as follows:-
The prosecutor ushers in the magistrate and informs the members of the gallery
to sit down after the bow.
He or she will then greet the magistrate, ask the court to preside over a matter
citing its title for example S v Langa and then inform the court that the accused
who will be in the dock will be coming for his or her initial appearance.
The magistrate then asks the accused if he or she has any complaints against
the police, and then ask the state to put the charge to the accused person.
Once the charge has been put, the magistrate will ask the accused how he or
she pleads and if not guilty the magistrate may ask the state if it’s ready for
trial. If the state is not ready and wants the case to be remanded, the magistrate
may even ask why it was not a summons matter as opposed to a remand and
the prosecutor must justify.
The author dealt with a case involving having sexual intercourse with a minor which was
remanded to a later day. The reasons preferred involved the fact that the police needed to
complete their investigations.
e) The accused person pleading guilty:

The author was tasked to prosecute some accused persons who had indicated they were
pleading guilty in their warned and cautioned statements. The procedure is that the prosecutor
ushers in the magistrate, greets him and informs the court on the matter that the prosecutor
would want the court to entertain as well as indicating whether the accused is coming for trial,
initial appearance or even indicate that it’s a possible plea matter. The next stage the magistrate
will direct that the charge be put. Once the charge is read to the accused the magistrate will
then ask how the accused pleads. If the accused pleads guilty and the court feels that the offence
is not minor the magistrate will proceed in terms of section 271 (2) (b) of the Criminal
Procedure and Evidence Act (9:07) (here in called the CP&EA).
The facts will always be read to the accused, the prosecutor is the one who puts the charge as
well as reading the state outline to the accused. Further explanation of this procedure in terms
of section 271 (2) (b) will be explained in the following chapters. It must be noted that before
the accused is sentenced, the prosecutor must rise and indicate to the court whether the accused
is a first offender or has previous convictions.
There was a time when accused person entered a limited plea where it was alleged he had stolen
so many goods, the accused denied stealing some of the listed items after the facts had been
- 34 -
read to him. The magistrate then asked the author whether he accepted the limited plea or he
would want to prove the theft of the listed items the accused had claimed he had not stolen.
The author after consulting with the other prosecutors accepted the limited plea. It also happens
that the accused may plead to a lesser charge, again the prosecutor will be asked whether he or
she wishes to proceed to trial or accept the plea to a lesser charge.
f) Trials:
The author was privileged to witness as well as participate in some trials. The author learnt the
procedures to be followed when an accused is defended and when the accused is not defended
by any lawyer. The author participated in prosecuting assault cases and defaulting in paying
maintenance. This is an example of the procedure followed during a defended matter:-
The prosecutor begins by ushering the magistrate in, that is to say he or she tells
members of the gallery to rise and will also inform them to sit down after taking
a bow
The prosecutor greets the magistrate and introduces the matter that the court
should entertain or preside over and state that the accused is coming for trial
The Defence counsel will then rise and introduces himself or herself stating that
he or she will be representing the accused person. NB As a courteous gesture he
or she must have met the magistrate whilst he or she is still in chambers.
The prosecutor will then put the charge to the accused and the interpreter will
be doing his or her job if there is need
The accused will be asked by the magistrate how he or she pleads, and will state
his or her plea
The Defence counsel will then rise and state that it is in accordance with his
instructions
Then the state will outline its case or sometimes the facts reading can be
dispensed with
State will then open its case by calling into the court its first witness, the other
witnesses in the intervening time will be outside the court room
The witness will be subjected to examination in chief by the Prosecutor where
essentially the prosecutor must allow the witness to narrate his or her testimony
guiding the witness of course to restrict the testimony to relevant information.
Leading questions should generally not be asked but there is an exception
thereto. Leading questions are those questions which suggest the answer to the
witness. The exception is that leading questions may be used to elicit
introductory or undisputed matter because they save time. The examples of
questions used by the author were for example Q Confirm you reside at Amazon
A village or Q Confirm you are employed at Cover supermarket
- 35 -
Once the Prosecutor has indicated that he or she has no further questions the
Defence counsel will rise to conduct his or her cross examination. The author
noted that leading questions were asked and this is permissible.
Once the defence counsel indicates that he or she has no further questions, the
magistrate will direct the prosecutor to re-exam, no new issues may be raised
except challenging issues raised in cross-examination.
After the re-examination, once the prosecutor has no other witnesses to call, the
state will close its case, Defence will then be called to open its case and go
through the procedure of exam in chief, then cross examination of defence
witnesses by the state, then re-exam. The defence counsel will also close the
defence case once there are no more witnesses to call.
g) Bail applications:
Prosecutors have the right to refuse bail or have it granted. The prosecutors, when refusing bail
usually have to show good reasons why they are refusing bail and usually they prove that the
accused has a propensity to commit further crimes or the accused has no fixed abode. However,
when a Magistrate refuses to deny the accused bail, the prosecutor can invoke section 121 of
the Criminal Procedure and Evidence Act which suspends such denial for seven days. The
author witnessed many bail applications where the lawyers would make their applications first
and then the prosecutors would either oppose bail or accept it.
- 36 -
PERSONAL AND PROFFESSIONAL DEVELOPMENT WHILST IN THE OFFICE
OF THE PUBLIC PROSECUTOR
Professional development:
The author’s communication skills were developed. These include the listening, verbal
and writing. The author had to present oral arguments in court as well as examining and
cross examining witnesses.
The author’s analytical and research skills were developed as well. The author had to
prepare for the cases, read on the elements to be elicited from an accused person through
cross examination.
The author was ignorant of court procedure but now knows the procedure through the
presentations made when appearing on behalf of the state in court.
The author was also taught how to elicit relevant evidence from the witnesses.
Time management was also another attribute that the author developed in the
Prosecutor’s office. It was also important to plan and diarize as well as prioritize matters
that were urgent or important.
Team work skills were also developed. At the university assignments are mostly
individual but here the author had to work with other prosecutors as a team. The author
would write notes and pass them to the prosecutor cross examining defence witnesses
which showed that he became a team player.
Planning and organizing was an important attribute developed by the author, the court
roll was the foundation of this planning in relation to what would happen in court.
Remands were prioritized to avoid over detention of some accused persons at court.
Ability to multi-task was another quality that was developed. The author had to research
on many aspects of the criminal law and at the same time peruse through the dockets
paying particular attention to detail and correcting some sentences which did not make
any sense.
The author became self-motivated, as he was able to work with little or no supervision.
Personal development:
Interpersonal abilities were further developed, the author was able to relate well with
fellow prosecutors and other officials at court.
The author developed multicultural sensitivity awareness of the Ndebele and Tonga
culture since these are the people the author was exposed to.
- 37 -
The author strongly recommends the NPA to disengage all security officers within its
ranks that is to say the use of police prosecutors for example. The author is of the
opinion that this compromises the right to fair trial which is non-derogable in terms of
section 86 (3) (e) of the Constitution. The problem is that the same investigating officer
who has developed an opinion over the matter is employed to prosecute the accused.
The author believes the reasons used by the courts to preclude judges who preside over
Pre Trial Conferences to preside over the subsequent trials should be applied in this
matter as well.14
The prosecutors, not the police should be the ones to be responsible for the drafting of
the charge sheet and the state outlines, the author noted that the prosecutors have been
reduced to spectators who should then act based on what the police dictate.
Prosecutors because of collegiality did not properly attend to allegations of assault by
accused persons who stated that police officers assaulted them when effecting arrests.
The author feels that more should be done by the prosecutors to protect the accused
persons from police brutality which has become an egregious culture in Zimbabwe.
The author appreciates the procedure taken by the court in allowing minor children to
testify in the absence of the members of the gallery but however feels that more should
be done for example by setting up separate rooms for them and making use of some
televisions together with intermediaries in such a Victim Friendly Court.
The Prosecution in Filabusi had no library to talk about, this is a cause for concern and
the Prosecutor General is encouraged to intervene.
The author also noted with grave concern that the prosecutors were not given enough
time to peruse the dockets as most of the times there were tardy submissions of such
dockets whilst the accused was in detention. The prosecutor would be forced to comply
with the 48 hours without properly scrutinizing the docket.
The author encourages Zimbabwe’s justice system to acquire cutting edge machinery
to conduct polygraph testing which should as well not be regarded as conclusive unless
it is corroborated to establish guilt in the absence of expert evidence to establish
cogency of such evidence.15
The author also appreciates subpoenaing of witnesses and the travelling allowances
they are given but feels that sometimes the money is not enough and it would be
advisable to accept testimony via video conferencing that is essentially dispensing with
physical presence of the witness. Inspiration is drawn from the case of Alcatel India v
Koshika Telecom Ltd & Ors.16
14
The full Constitutional Court bench of nine judges on the 14th of January reserved judgment in an application made by the Zimbabwe Law
Officers Association.
15
DHL Supply Chain (Pty) Ltd v De Beer No and Ors [2014] 9 BLLR (LAC).
16
2004 Arb. LR 107 (Delhi High Court, India).
- 38 -
- 39 -
- 40 -
- 41 -
CHAPTER FOUR
CLERK OF COURT- ACCOUNTING ASSISTANT/ FINANCE OFFICE
INTRODUCTION
The author was assigned to this office to learn how all the monies deposited with the court are
processed until they are deposited in the proper bank accounts. The author was assisted by the
background he now has in accounting when he did Accounting for Legal Practitioners Module.
TIME TO PAY SHEETS

The author was introduced to these documents called “time to pay sheets”. These were designed
to assist those that would have been ordered to pay some money to the court such as fines to
pay in instalments in the event that they did not have the amounts due and payable at that time
of the court order. The time to pay sheet captures details such as the CRB number, name and
surname of the person to pay the amount and his or her signature. The sheet must be signed by
the person or the person convicted and ordered to pay a fine. There was also a time to pay
register which would allocate numbers to the time to pay sheets and would have details showing
the amounts paid by the person or debtor and the dates the amount was paid.
FINES
Once a person was sentenced to pay a fine, the person was supposed to report to the accounting
assistant’s office. The accounting assistant would then take the case file to satisfy himself or
herself as to the amount the person was supposed to pay. In the event that the convict did not
have the said amount, the time to pay sheet would be completed and filed whilst the time to
pay register would be updated. If the person or debtor had the money, the proper receipt book
would be written by the accounting assistant and the convict issued with a receipt. Once a
receipt was issued, the accounting assistant would then update the Temporary Deposit (TD)
Cashbook.
PEACE ORDER MONIES
When a person has a peace order issued against him or her, he or she is required to pay
recognisance or money to the court which will be forfeited if he or she breaches the conditions
of that peace order. These funds will be transmitted to the Guardian’s Fund which is owned by
the High Court. This is the same procedure in relation to bail money.
WITNESS EXPENSES
The accounting assistant is also responsible for paying all the witnesses called by the state
provided they were not impeached by the state during the trial. At the Filabusi Magistrates
Court there was a witness expenses receipt book and the receipts are titled “Bill of Witness
- 42 -
Expenses”. After witnesses have been paid the accounting assistant must then indicate the
transaction in the IMPREST cash book.
STATUS OF WITNESS EXPENSES SCHEDULE

This schedule was prepared every fortnight and would be forwarded to Gwanda. The author
was taught that firstly one would need to check the IMPREST Book for the vouchers recorded.
The IMPREST cashbook shows in its columns to whom the witnesses’ expenses were paid, the
receipt number and the amount paid. The columns of the IMPREST book indicated the amount
brought forward which is below or equivalent to the authorised floating figure. The
Magistrate would need to examine the cited vouchers before signing the schedule.
THE FINES AND THE MISCELLANEOUS RECEIPT BOOK AND HOW THEY ARE
DEALT WITH
As already stated there was the fines receipt book as well as a miscellaneous receipt book at
the Filabusi Magistrates Court. There were two miscellaneous receipt books one for Rands and
the other for United States Dollars, the author was informed that it is always important to
separate currencies in receipt books. The same existed in relation to Fines receipt books. All
other monies other than the fines are receipted in the miscellaneous receipt books. The author
had the opportunity to receipt payment of the master’s fees and some payments in relation to
matrimonial matters. For every amount either in the miscellaneous or the fines receipt book
50% of the amount will be going to the Judicial Service Commission (JSC) account and the
other 50% in the Temporary Deposit (TD) Revenue Account. The allocations to the TD
Revenue and the JSC accounts will be indicated on the receipt.
PREPARATIONS FOR BANKING AND THE BANKING PROCESS

The author was informed that the monies received must be deposited in the respective bank
accounts.
Firstly the author was told that before the money is banked, the process of mastering must be
done. This involves taking either the Fines or Miscellaneous Masters Receipt Book and
entering details. The details in the Masters receipt book will be obtained from the Fines receipt
book or the miscellaneous receipt book, taking note of the last receipt that was mastered and
going to the next receipt until the last one, totalling the amount from the receipt book and
indicating such total in the masters receipt book as well as the relevant receipt numbers which
make up that total. In the master receipt book a breakdown of the monies will be indicated for
example indicating that the amount of money came from Z69J Fines from the police and the
other amount from the Judicial Fines. It must also be indicated in the master’s receipt book that
50% was deposited in the TD Revenue and the other 50% in the JSC account.
- 43 -
Details are then entered in the TD Revenue indicating the 50 % from the Fines and the 50 %
from the miscellaneous receipt books. The deposit number as well as the date of the deposit
must be indicated in the TD Revenue. The master receipt number must also be indicated in the
TD Revenue. The same procedure is done in the Sub-Collectors Cash Book Exchequer Account
which is money due to the JSC. The Temporary Deposit (TD) Cash book must be updated as
well. The accounting assistant will then submit to the resident magistrate the receipt
books, TD Revenue, TD Cash book as well as all the deposit slips.
BANK RECONCILIATION
Bank reconciliation simply involves comparison between the cash book and a bank statement
so as to update the cash books such that the bank account balance is equivalent to the cash book
balance.17 This is necessitated by the fact that there may be items paid into or out of the court’s
bank accounts which have not been recorded in the cash books and there may also be items
entered into the cash books that have not yet been entered in the bank’s records of the account.18
The first step is to collect bank statements from the banks which would show all the transactions
pertaining to the bank accounts. The following cash books are reconciled (i) TD Cash (ii) TD
Revenue (iii) IMPREST cash book. All these books had the US$ and Rands columns. The bank
reconciliation statements would then be typed and the one who prepares must sign and hand
over to another official to check who in turn hands the same over to the resident magistrate
who must certify it. The Reconciliations were conducted at the provincial offices in Gwanda.
For the TD cashbook there must be an extract which will be compiled. It will be titled as an
example “Filabusi Magistrates Court TD Cash Book and Extract Reconciliation as at 30
November 2014”. The extract will show the cashbook balance as well as the bank balance and
indicate any differences. There should be no differences on these amounts. In conclusion the
extract is done only for the TD Cashbook.
HANDLING CONFLICT BETWEEN PERSONAL AND ORGANISATIONAL

OBJECTIVES
The author was exposed to a situation where he was expected to be in the accounting assistant’s
office which he believed was not necessary. The author managed to overcome this by
consulting with his supervisor the resident magistrate who assisted him in understanding that
in the event the author becomes a magistrate, he would need to be conversant with what
happens in the accounting assistant’s office.
17
F Wood & A Sangster Frank Wood’s Business Accounting 10th (ed) page 351.
18
Ibid.
- 44 -
PERSONAL AND PROFFESSIONAL DEVELOPMENT
The author did not develop many skills in this department except that it was a period
of refreshing his memory in relation to accounting principles he had done in
Accounting for Legal Practitioners module.
In terms of personal development, the most important aspect learnt was accountability
for every transaction.

The author is of the opinion that the reconciliation process done at the Gwanda offices
is demeaning and dehumanising, if possible must be decentralized such that the clerks
can reconcile the accounts at their respective stations.
The author believes that the accounting assistant at Filabusi must be assisted with a
computer with the necessary accompanying hardware and software as well as
accessories to enable him to do his accounting expeditiously.
The Banking must be improved to the extent that if possible it must be done weekly in
order to plug possible fiscal leakages.
All the above mentioned cash books should also be electronic and hard copies should
only be there as backup or better still use of CDs as back up for the security of the data
is encouraged.
It would also assist if the accounting assistant would have a separate office for himself
to be constructed or rented to enable him to manage his books without fear of having
them misplaced by other clerks.
- 45 -
CHAPTER FIVE
MAGISTERIAL
INTRODUCTION
In the magisterial role, the author was assisting the magistrate in civil cases, the criminal cases
as well as the administrative issues. In criminal matters, magistrates can be divided into four
classes:- ordinary magistrates, senior magistrates, provincial magistrates and regional
magistrates.19 The author’s magistrate was an ordinary magistrate and so other matters like
rape had to be referred to Gwanda. For purposes of civil cases, the Magistrates Court has the
same jurisdiction regardless of the seniority of the magistrate presiding over the matter. 20 In
other words, in civil matters, unlike criminal cases, there is no division of magistrates into the
four classes of ordinary magistrate, senior magistrate, provincial magistrate and regional
magistrate.21 A Magistrates Court has jurisdiction to apply both customary law and general law
in its determination of civil cases.22
CRIMINAL DIVISION
The function of magistrates is more than acting as mere umpires in a game who are there to see
that neither side commits fouls. They must direct and control the trial according to recognised
rules and procedures and ensure that justice is not only done but is manifestly seen to be done.23
The Magistrates Court like other courts is a court of record as provided for in section 5 (1) of
the MCA (Chapter 7:10) and so the author was informed by the magistrate that when one
presides over the matter, one must record everything that will be presented by both the state
and the defence in court. The author dealt with the following matters: (i) accused persons who
were pleading guilty to the charges (ii) remands (iii) trials. In the following subtitles, the author
will focus on the role of the magistrate only.
Pleas:
When an accused person pleads guilty to the charge, the magistrate will decide on whether to
proceed in terms of section 271 (2) (a) or (b) of the Criminal Procedure and Evidence Act (CP
& EA) (Chapter 9: 07). If the court considers that the offence merits nothing more than a fine
of level three it may adopt the procedure set out in section 271 (2)(a) and without further ado
convict the accused of the crime and impose the appropriate sentence.
19
L Madhuku An Introduction to Zimbabwean Law (2010) at page 62.
20
Ibid 70.
21
Ibid.
22
Ibid.
23
G Feltoe Magistrates’ Handbook for criminal cases at page 2.
- 46 -
If the court considers the offence committed by the accused to be serious that is to say it
warrants a severe sentence, the court will follow the procedure set out in terms of section 271
(2) (b) of the CP&EA (Chapter 9:07). Here the author noticed that the magistrate was eliciting
whether the accused understood and admitted to all the essential elements of the particular
offence. The author had the opportunity to preside over a number of cases where accused
persons were pleading guilty to the charges.
Remands:
In relation to remands, the author was taught that the magistrate must ask the prosecutor to give
proper reasons for a remand and why the matter was not brought as a summons matter. Section
165 of the CP & EA stipulates that the remand must not be in excess of fourteen days. The
procedure is one initiated by the prosecutor and the magistrate will only come in to ask the
prosecutor to justify the application and the magistrate will then grant the application for
remand or even reject it. The author had the opportunity to preside over a remand case which
was a represented matter, the defence counsel then made an application for bail which was
granted as the prosecution was not opposing bail.
Trials:
The author had the opportunity to preside over trials together with the magistrate in a number
of represented and unrepresented matters. Again in trials the prosecutor initiates the
proceedings but the magistrate will interject where he or she feels the rules are not being
properly respected without necessarily descending into the arena. The magistrate will be
directing the proceedings giving the opportunity first to the state to call its witnesses as well as
the defence to do the same. The magistrate will be the one directing the prosecution or defence
to prosecute the defence or state witnesses. The magistrate will also request from the
prosecution and defence closing submissions before pronouncing the verdict.
Judgment writing:
The author was taught how to write proper judgments. The author was also directed to read a
circular by the Deputy Chief Justice which outlined how judgments should be written. In a
criminal matter it is always advisable to set out the charge by quoting it verbatim or as it
morefully appears on the charge sheet.24 The next stage is process of discovery where the
elements of an offence in dispute are to be established for example; Did X intend to steal. In
stage three the magistrate or judge discovers which facts are admitted concentrating on those
that are relevant to the determination. This is a basic principle in criminal or civil judgments
which is making findings of fact. One must first decide which facts are admitted or not in
dispute (common cause facts). The next stage involves evaluating the evidence regarding facts
in dispute. The stage involves summarising the evidence presented by the prosecution and the
defence on disputed facts. The judge or magistrate must concentrate on vital legal issues and
24
L Malaba (DCJ) Judgment Writing Circular No 7 of 2014.
- 47 -
make findings of fact on facts in dispute that is deciding which versions of the evidence the
court accepts and why.
The next stage is explanation of the relevant law or legal principles applicable to the case or
facts. The following stage is the application of the law to the facts found as proved and reasons
for the decision must be given. The test established by the learned Malaba DCJ is couched as
follows: whether or not the facts of the conduct found proved fall completely or partially within
or outside the definition of the legal facts.25 The next stage is deciding whether there is proof
of guilt beyond reasonable doubt. If the verdict is guilty, the factors considered in mitigation
must be highlighted.
The civil trial judgments are slightly different from the criminal ones. The structure of civil
judgments must have (i) the introduction (ii) statement of issues (iii) description of material
facts (iv) application of the law to the facts (v) conclusion ant the necessary orders.
The author had the opportunity of writing a total of eight criminal cases judgments and three
civil cases judgments which were then read by the magistrate. The magistrate was pleased with
the work done by the author.
Sentencing:
A sentence has been defined by Professor Terblanche as the order of court which finalises the
criminal case against the offender.26 It therefore follows that sentencing is the action by an
official criminal court of imposing a sentence on a convicted offender. 27 The author was
directed by the magistrate to read a booklet written by the national sentencing committee in
order to appreciate what exactly is considered before sentencing. The factors to be considered
when sentencing include the personal circumstances of the convicted person and the crime
itself or the circumstances under which it was committed as well as other relevant factors.28
Personal circumstances such as age, sex, marital status and dependents, employed or
unemployed are all taken into consideration. Other factors like indications of contrition,
previous convictions, aggravating circumstances are equally considered before someone is
sentenced. The effect of the crime on the victim, motive as well as prevalence are taken into
consideration before a judge or magistrate imposes a sentence.
The author was also afforded with the opportunity to preside over the matters with the
magistrate, write judgments convicting as well as imposing appropriate sentences ranging from
fines, community service as well as imprisonment.
25
Ibid.
26
S.S. Terblanche Sentencing (2008) at page 2.
27
Ibid.
28
National Sentencing Committee Sentencing Questionnaire: Explanatory notes (1999) pages 1-3.
- 48 -
CIVIL DIVISION
Action procedure:
There were civil trials that the magistrate presided over with the author. Here the burden of
proof was on the plaintiff whose role was to prove his or her case on a balance of probabilities.
The magistrate and the author would record the evidence from the witnesses called by the
parties and make decisions. After the trials the author would also be allowed to write his own
judgments following the structure already discussed supra. The author learnt a lot as well in
the Pre-Trial Conferences (here in called PTCs) that the magistrate presided over. The PTCs
would be used to define the issues and reach agreement where possible on issues such as length
of trial, the number of witnesses as well as exhibits.29
Applications:
The magistrate had to preside over a lot of applications and the author was privileged to preside
with him a number of these applications. There were applications on notice and those that were
ex parte. In the applications the author and the magistrate would carefully read the notices of
the parties, the affidavits as well as the heads of argument and making a decision on whether
to dismiss or grant the applications. If there were issues that the magistrate would want to be
addressed by the parties, they had to be noted down. Before the decision was read by the
magistrate, parties were allowed in terms of Order 22 Rule 4 of the Magistrates Court (Civil)
Rules, 1980 to give their viva voce evidence which would also be considered in arriving at the
court’s decision. There were other frequent applications such as those for peace orders as well
as protection orders which the magistrate presided over in the author’s presence. In these
applications the magistrate would take an active role in questioning the parties since they were
all self-actors.
Maintenance Court:
The author also had the opportunity to sit in the maintenance court even though he did not
assist the magistrate in making any decision. The author learnt how the magistrate would
proceed with the maintenance hearings as they were done in his chambers. The magistrate and
the author would go through the file before the matter was presided over, the document which
was read by the magistrate was mainly the complaint on oath known as form M1 in the
Maintenance (General) Regulations, 1988 also known as Statutory Instrument 114 of 1988.
Every magistrates court is a maintenance court by virtue of section 3 of the Maintenance Act
(Chapter 5:09). The magistrate at Filabusi would play an active role in making an inquiry into
all matters in line with section 5 of the Maintenance Act. This was essentially an inquisitorial
procedure in which the magistrate was taking an active role in ascertaining facts from the
parties as opposed to being an independent umpire.30
29
30
- 49 -
Registration of Marriages:
The magistrate also presided over the solemnization of marriages both under the Marriages Act
(Chapter 5:11) and Customary Marriages Act (Chapter 5:07). The author was only allowed to
sit-in and follow proceedings. The magistrate began by explaining to the parties the types of
marriages available and then call on them to choose the one they would prefer either the civil
marriage or the customary one under the respective stated Acts above. The magistrate would
make sure that the parties would have paid the required fees to enable him to solemnize their
marriage. In the magistrate’s explanations, he would also inform the parties that should they
wish to divorce those married under Chapter 5:11 would go to the High Court but those married
under Chapter 5:07 would be able to do so at the magistrates court.
ADMINISTRATIVE ROLE OF A RESIDENT MAGISTRATE

There is a distinction between a resident magistrate and a trial magistrate. The title resident
magistrate denotes an administrative role as opposed to a trial magistrate which is in relation
to presiding over matters. The administrative role of the magistrate includes being the
supervisor of every clerk. Every magistrate is obliged to be capable of performing all the roles
that a clerk of court can perform in terms of Order 3 Rule 3 of the Magistrates Court Civil
Rules. The accounting assistant must have all his books checked by the magistrate who will
indicate that he or she has checked and affix his or her signature. The resident magistrate was
also responsible for checking the registers of other clerks such as the clerk of court criminal
division and clerk of court civil division. The magistrate would also conduct prison visits and
the police cell visits to inspect whether they were hygienic and habitable. The author had the
opportunity to accompany the magistrate on one of the visits made and was taught to compile
a report which is required by the JSC. The magistrate also presided over judicial service
commission task force meetings which mainly focussed on discussing the justice service
delivery. Chiefs, police officers, prosecutors, probation officers and doctors from the district
hospital were all supposed to attend or send their representatives or proxies in their stead. The
author was afforded with the opportunity to record the minutes in one of the meetings.
- 50 -
PERSONAL AND PROFESSIONAL DEVELOPMENT
Interpersonal abilities were further developed as the author was able to relate well with
other court officials and parties and clients
Ability to multi-task was further developed as the author had to deal with civil, criminal
as well as administrative issues
The author learnt to be attentive to detail as well as taking notes whilst the parties were
making their presentations in court
The author understood better the procedure of solemnizing marriages
The author understood better both criminal court procedure and civil court procedure
The author was taught to write judgments as well as understanding the factors to be
considered when sentencing convicted persons
The author was exposed to the complexities of administration of courts when he
assisted the resident magistrate
- 51 -
THE RELEVANCE OF THE DUTIES PERFOMED IN THIS OFFICE BY THE
AUTHOR TO THE AUTHOR’S LAW DEGREE
The procedure learnt in criminal procedure module by the author was now applied
in reality
The trite concepts of criminal law learnt in criminal law module by the author were
applied in practical cases
The author was taught important concepts like avoiding descending into the arena
which would assist the author should he decide to be a magistrate or a judge.
- 52 -
There is only one magistrate at the Filabusi Magistrates Court, there is need for
at least two magistrates to avoid the problem of fatigue
There is need for the construction of new court which would also have a
separate victim friendly room with necessary cameras to assist children and
other vulnerable witnesses
The JSC should procure more books for the magistrates court library at Filabusi
to assist the magistrate when researching
- 53 -
CHAPTER SIX
THE PRIVATE PRACTICE AT SAWYER & MKUSHI LEGAL PRACTITIONERS
Background and Historical Development of the Law Firm:

The law firm was founded by two partners in June 1975 Messrs Sawyer and Mkushi. The firm
has developed into a formidable practice through the invaluable contributions of the partners,
professional assistants and other supporting staff. The firm currently has the following
partners:- Mr H.P Mkushi (the senior and founding partner), Mr D.M Foroma, Mr O. Mtero,
Mr J.R. Tsivama and Ms N.G. Maphosa. The firm currently has the following graduate-
qualified professional assistants:- Mr F. Siyakurima, Mr G. Maseko, Mr R. Nembo, Mr A.
Chagonda, Ms R. Chibaya and Ms T. Manhanzva. The firm has developed in the following
areas of practice over the years:- Commercial & Corporate Law, Banking & Financial Services,
Collections & Insolvency, Project Legal Consultancy, Notarial & Conveyancing, Family &
Private Law, Civil & Criminal Litigation, Labour Law, Insurance Law, Tax Law, Investment
Domain Law, Mergers & Acquisitions. From the foregoing, it is clear that Sawyer & Mkushi
Legal Practitioners is carefully structured and staffed to meet the demands of contemporary
commercial and general legal practice. The firm handles all aspects of legal work in Zimbabwe,
Africa and the whole world.31
Mission (quoted ipsissima verba):

Our mission is to provide the highest standard of professional legal service in the most efficient
cost effective manner.32
Confidentiality note:
The private sector has strict policies about confidentiality. This is in sharp contrast with the
public sector where court records and proceedings are public records. The author was advised
by Mr Foroma that the information in the files was confidential and had to be kept as such. He
was further advised that confidentiality goes further than legal practitioner-client privilege.
Anything that would be protected by legal practitioner and client privilege under the law of
evidence must be kept confidential, but even communications which are not privileged must
be kept confidential unless the client consents to their being disclosed. Confidentiality extends
to any information gained while acting for one’s client, whether gained from the client himself
or from any other source. Even information that has become an open secret (for example a sale
of immovable property whose details are documented in the Deeds Registry) must not be
divulged without the client’s consent. Gossiping about matters in hand, even if the client is not
named, is not permissible. The author will therefore not describe the matters in the files he
31
http//www.sawyerandmkushi.co.zw.
32
Ibid.
- 54 -
worked on with sufficient detail to avoid disclosing such privileged and confidential
information.
Nature of the Industry:

The legal fraternity is mainly centred on providing services to private individuals and juristic
persons. The industry is full of ruthless competition as it depends upon the ability of a particular
firm to outdo the others in order to expand its client base. Harare is generally a litigious society
which then assists the firm in growing as the lawyers at the firm are committed to their work.
This has resulted in the firm being regarded as one of the best law firms in Zimbabwe.
Service Market of the law firm:

Sawyer & Mkushi Legal Practitioners offers its legal services not only to the local community
but throughout the nation. The law firm also renders its services to its clients across the borders.
The law firm also offers its services to corporate and government institutions. The law firm
does not offer free services. The legal fees comply with the Law Society’s tariff. Some of the
services which the firm offers include but not limited to the following:- Commercial &
Corporate Law, Banking & Financial Services, Collections & Insolvency, Project Legal
Consultancy, Notarial & Conveyancing, Family & Private Law, Civil & Criminal Litigation,
Labour Law, Insurance Law, Tax Law, Investment Domain Law, Mergers & Acquisitions. The
firm represents private individuals as well as companies.
- 55 -
Organizational Structure:
Senior Partner- Mr H.P Mkushi
Managing Partner- Mr D.M. Foroma
Other Partners- Mr O. Mtero

Mr J.R. Tsivama
Ms N.G Maphosa
Professional Assistants- Mr F. Siyakurima

Mr G.A Chagonda
Mr G. Maseko
Mr R. S Nembo
Ms R. Chibaya
Ms T. Manhanzva
OTHER STAFF- including ACCOUNTANTS, SECRETARIES &CLERKS.
N.B. Those in blue are the legal practitioners and those in orange are the non-legal staff.
- 56 -
The relationship between the law firm and the society:
The society invests its trust and faith in legal practitioners because of the confidentiality already
discussed in this chapter. It would therefore be the legal practitioner’s duty to also be faithful
to clients, serve the course of justice and demonstrate personal and professional integrity.
The firm always endeavours to maintain high ethical standards and to serve the interests of the
public. The law firm tries by all means possible to keep good ties with the public, the
surrounding law firms and even with the courts. This is achieved as the firm is in a cordial
relationship with the community. The law firm members of staff treat the public, clients, and
other colleagues in the profession and court officials with unparalleled reverence and
veneration. The law firm also participates in important community events through attending
the events, offering pledges and donations.
Expectations of the author:
The author expected to learn in all the departments of the law firm including knowing how the
accountants do their work. However the author could not exhaust all the departments firstly
due to time, four months would not be capable of meeting such an expectation and secondly
the firm had its own objectives about the author’s presence at the law firm so he had to
subordinate his objectives to those of the law firm.
Participation of the author at the law firm:

a) Researching
The author spent most of his time at the law firm in the library researching on behalf of the
lawyers. The research included reading statutes such as the Wills Act (Chapter 6:06) before
drafting wills, researching on what a client can do when an original notarial deed of trust is
lost, researching on case law in relation to various matters such as amending summons, bail,
disposal of shelf companies, summary judgment cases. In summation, there were so many
issues that the author had to research on and it would be impractical to list all of them. The
author also made sure that before he could draft any document such as wills, pleadings, bill of
costs, he would research and where possible find precedents from the lawyers or appropriate
textbooks.
In relation to other matters that were researched on, the author was then required to write legal
opinions and then submit them to the legal practitioners. A legal opinion basically follows the
FILAC formulae the author was taught at the law faculty. F- stands for the facts, sometimes it
might not be necessary to repeat the facts since it is the instructing lawyer who would have
supplied such facts. I- stands for issues, the author must highlight the issues to be determined.
L- stands for Law applicable, that is to say the author must then highlight the law applicable
be it Acts of parliament or the case law or even authoritative texts. A- stands for application of
the law to the facts, this is when the author reconciles the facts and the law cited under the law
- 57 -
applicable. C- stands for conclusion, this is where the author would highlight that in his opinion
there are prospects of success in such a matter.
b) Interviewing clients
The author had an opportunity to interview clients together with Ms Chibaya. This was mainly
receiving further instructions from the client to enable us to draft the necessary documents such
as the plea. The author learnt in various interviews that clients may be obsessed and want things
that are not permissible in terms of our law. The author was told by Ms Chibaya that it is the
lawyer’s duty to advise the client accordingly. For example in a certain divorce case where our
client was the defendant, he was insisting that he did not want to maintain the children and so
we had to advise him that a parent who does not have custody of the children must pay
maintenance for the general upkeep of the minor children.
c) Drafting Legal documents

The author drafted many documents but will list the documents that he considered were
important to him and what he learnt about drafting such documents. Letters responding to
clients or other legal practitioners, court applications, pleadings, pre-trial documents, discovery
documents, wills, deeds of transfer, heads of argument, bill of costs and notarial deeds of trust
were amongst the documents drafted by the author. The following documents were considered
important by the author as he had never drafted such at the law faculty whilst doing clinical
and practical skills module:-
(i) Will
The author drafted many wills at the firm. Most of wills used as precedents by the author
followed a loose structure which included the following clauses:- revocation, appointment of
executors, appointment of legatees and hears, testamentary trusts where beneficiaries will be
minors, limited interests and massing, charitable bequests, guardianship of minors, exclusion
from community of property, exclusion of an insolvent heir, exclusion from collation and
disposition or donation of remains. The author was informed by Ms Chibaya that all the wishes
of the testator must be captured in the will.
- 58 -
(ii) Notarial Deed of Trust
There is no standard form of a deed of trust but the following points were noted by and
instructions received from the lawyers by the author as he drafted numerous deeds of trust:-
Parties must clearly divided into three groups in the preamble namely
founders, trustees and beneficiaries.
The founder’s intention to set up the trust and the specific purpose of
the trust must be clearly stated.
It must be stated that the estate of the founder will be separated from
the trust assets.
Trust assets must be clearly circumscribed.
The trustee must be explicitly accept her appointment as such.
The beneficiaries must clearly be circumscribed.
The functions or duties of the trustees must be clearly circumscribed.
Conditions for amendment and termination of trust must be laid down
clearly.
(iii) Notice of Taxation and Bill of Costs

The author had to draft the notice of taxation and the bill of costs which would be taxed at the
magistrates court. The author was taught how to do this by Mr Chagonda who indicated that
the parties on the notice of taxation will be cited as plaintiff and defendant as they appear on
other documents such as a summons. The title, “notice of taxation” must also be indicated as
well as indicating that the Bill of Costs attached will be taxed on a specified date and at
specified time. When drafting the Bill of Costs itself, the parties will be cited as they appear on
the notice. The bill of costs indicates the cost of the services of rendered by the legal
practitioner. The fees and the disbursements will be indicated on the bill, in different columns.
Taking instructions, drafting documents and appearing in court are some of the items that will
be appearing on the bill of costs.
d) Attending Pre-Trial conferences

The author had the privilege of attending Pre-Trial Conferences and one such case was with
Ms Chibaya to observe how the conference is conducted. This helped the author in that he now
knows that a lawyer must be able to negotiate as much as possible in order to try and obtain an
out of court settlement or eliminate issues for determination at the trial. The parties would need
to draft a deed of settlement capturing the issues they have agreed on which would be presented
to a judge. Nowadays the parties are supposed to have a round table before attending the proper
PTC.
- 59 -
e) Attending court
The author attended court sessions at the magistrates court both civil and criminal, the Labour
Court, Harare High Court both criminal and civil (matters on the unopposed roll and the
opposed matters), the Supreme Court and the Constitutional Court. The author accompanied
Mr Tsivama, Mr Mtero, Ms Maphosa, Mr Chagonda, Mr Maseko and Ms Chibaya to court.
The author learnt a lot during these sessions ranging from the proper dressing, courtesy to the
court and colleagues, court procedures in chamber appearances as well as open court and the
proper arrangement such that they will be in order.
f) Taxation
The author was informed by Mr Chagonda that the need for taxation arises in two
circumstances, firstly to recover from the debtor or other party and secondly to recover costs
from the client who would be insisting that the fees charged by the lawyer are exorbitant. The
author would go to the taxing officer’s officer with the relevant files. The client who would be
insisting the fees were exorbitant would also attend the hearing. The process would start by the
author making representations before the taxing officer justifying the fees charged on a
particular item and the respondent (client) would then make representations justifying why he
or she believed the fees charged were unreasonably high. The taxing officer would then amend
the bill of costs if the parties agreed on a certain figure or would then confirm with the official
tariff and amend to put the figures provided for in terms of the tariff. The author would then
indicate the new subtotal on the bill of costs, calculate the disbursements, tax-off and the value
added tax (VAT).
Handling conflict between personal/ organizational objects:

The author had set objects to learn what happens in every department of the law that the law
firm dealt with. The firm on the other hand had its set objectives which did not allow the author
to pursue his own objects. The author followed the instructions of the lawyers with scrupulous
exactness. So the author handled the conflict by jettisoning his objectives or rather
subordinating them to the law firm’s set objectives.
- 60 -
Relevance of the assignments performed by the author to his law degree:
Researching and writing legal opinions developed the skills the author had acquired
when researching for assignments and the moot court competitions at the law faculty.
Drafting legal documents and letters perfected the drafting skills acquired in
Conveyancing module and Clinical and Practical Skills module at the university.
The drafting of the heads of argument for the lawyers assisted the author in applying
what he had learnt at the university to real cases.
Attending court helped the author in appreciating the practical side of the law, this was
an invaluable and relevant foundation for future private practice.
Attending court helped the author in understanding court procedures learnt in the Civil
Procedure module, Advanced Civil Procedure module and Criminal Procedure module
at the law faculty.
Court etiquette was also learnt through court attendance.
Personal and Professional Development:

a) Personal Development
Interpersonal abilities were further developed as the author would relate well
with the lawyers, other law firm staff and clients.
Ability to multi-task was further developed as the author would be given work
to do by many lawyers simultaneously.
The author learnt to be attentive to detail as well as taking notes when
interviewing clients or receiving instructions from the lawyers.
The author further developed multicultural sensitivity awareness through
interactions with Shanas, Ndebeles and foreigners who were either clients or
members of staff at the firm.
The author was able to again balance the demands of the workplace and his
social life.
- 61 -
b) Professional Development
The author’s drafting skills were developed through drafting several documents.
The author’s researching skills were further developed as the author had to
research for the authors.
Analytical skills of the author were developed through the examination of facts
and drafting heads of argument.
Court etiquette was also learnt by the author through court attendance.
Communication skills were developed as the author would interact with clients
and would sometimes present his opinion viva voce before the lawyers.
Advocacy skills of the author were developed through his observation when
advocates were presenting their cases at the Supreme Court and the
Constitutional Court.
Decision making skills were further developed for example the author would
decide on the line of argument in cases he drafted the heads of argument.
Legal ethics were learnt in practice for example the importance of
confidentiality (a duty to the client).
- 62 -
Conclusion and Recommendations:
The author is pleased with the level of professionalism and due diligence of the lawyers at the
firm as well as other supporting members of staff. The author would however urge the law firm
to invest in the library as it is the pond in which lawyers should always swim in order to concoct
the best arguments. The library should be computerised, new books bought and electronic
cataloguing done. Internet access in the library should not be restricted as online research is the
bedrock of modern day research.
- 63 -
CHAPTER SEVEN
RE-ENTRY
Introduction
The author will surely be a person with different needs and capabilities when he enters the final
year of his degree program. The author has specifically developed in the following broad
categories:-
Ethical evaluation:
The author is now aware of the ethical issues in personal and professional behaviour expected
of him as a legal practitioner and believes doing Ethics module will add on to this practical
knowledge.
Critical thinking:
The author is now able to think critically, that is to quickly identify key issues in given facts
and to address them.
Interpersonal skills:
At the workplace the author was seen as a good team player and believes this would be proved
when he starts his final year. The author enjoyed learning new things and he interacted well
with clients and all officials at the Magistrates Court and the law firm.
Managing Information:
The author has become thorough and methodical gathering information. The author’s analytical
skills of the information are developed to the extent that he no longer takes things at face value
but he now questions and evaluates information to get to the bottom of the problem. The author
is now able to use information technology effectively as reflected in all the online researches
the author conducted.
-------------------------------------------------THE END---------------------------------------------------
- 64 -
- 65 -

Work Related Learning Report

Transféré par

Informations du document

Titre original

Copyright

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Work Related Learning Report

Transféré par

Droits d'auteur :

MIDLANDS STATE UNIVERSITY

WORK RELATED LEARNING REPORT (AUGUST 2014- MAY 2015)

PUBLIC: FILABUSI MAGISTATES COURT

PRIVATE: SAWYER & MKUSHI LEGAL PRACTITIONERS

P.O BOX 4, FILABUSI.

DUTIES PERFOMED BY THE AUTHOR WHILST IN THIS OFFICE

Preparation of records for Scrutiny or Review:

c) The Response to Scrutiny or Review

d) Review and Scrutiny Registers

Checking of the returned scrutinized or reviewed cases:

Preparation of records for Appeals:

Issuing warrants of arrest:

Issuing warrants of committal:

DUTIES PERFOMED BY THE AUTHOR WHILST IN THIS OFFICE

Domestic Violence matters:

Applications for guardianship of minors:

b) Warrant of execution against property:

Receipt of completed dockets:

Deciding how to proceed:

Securing the court attendance of accused persons and witnesses:

c) Extension of time to pay:

e) The accused person pleading guilty:

TIME TO PAY SHEETS

STATUS OF WITNESS EXPENSES SCHEDULE

PREPARATIONS FOR BANKING AND THE BANKING PROCESS

HANDLING CONFLICT BETWEEN PERSONAL AND ORGANISATIONAL

CONCLUSION AND RECOMMENDATIONS

ADMINISTRATIVE ROLE OF A RESIDENT MAGISTRATE

Background and Historical Development of the Law Firm:

Mission (quoted ipsissima verba):

Nature of the Industry:

Service Market of the law firm:

Senior Partner- Mr H.P Mkushi

Managing Partner- Mr D.M. Foroma

Other Partners- Mr O. Mtero

Professional Assistants- Mr F. Siyakurima

OTHER STAFF- including ACCOUNTANTS, SECRETARIES &CLERKS.

Participation of the author at the law firm:

c) Drafting Legal documents

(iii) Notice of Taxation and Bill of Costs

d) Attending Pre-Trial conferences

Handling conflict between personal/ organizational objects:

Personal and Professional Development:

Vous aimerez peut-être aussi