In
my view, the concept of a prima facie case is one of those legal
concepts that are easier to recognize than to define.
The
concept eludes definition not only due to the fact that it deals with
subjective measures of the cogency of evidence presented before a
trier of fact, but also because the term ...
In
my view, the concept of a prima facie case is one of those legal
concepts that are easier to recognize than to define.
The
concept eludes definition not only due to the fact that it deals with
subjective measures of the cogency of evidence presented before a
trier of fact, but also because the term is used loosely in both
civil and criminal proceedings without a distinction having been
attempted.
It
appears to me that in civil cases, our courts have adopted the
attitude that for interim protection by the court in the form of an
interdict pending the determination of some other suit between the
parties, a prima facie case is established once a cause of action is
established even where the chances of the applicant to succeed in
sustaining the cause of action are open to doubt. See Bozimo
Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe
Ltd & Ors
2000 (1) ZLR 1 (HC); Cooper
v Leslie & Ors
2000 (1) ZLR 14 (HC); Charuma
Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors
2000 (1) ZLR 85 (SC).
That
a prima facie case in civil suits, for the obtaining of interim
protection, is simply the setting out of facts establishing a
possible and plausible claim against the respondent without the
evidence necessary to prove such a claim appears to me clearly from
the following remarks by CHATIKOBO J…, in Sultan
v Fryfern Enterprises (Pvt) Ltd & Anor
2000 (1) ZLR 188 (HC):
“I
have deliberately refrained from making definitive findings of fact
because it may well be that further affidavits (if any are filed for
the return date) or oral evidence may justify a different conclusion.
At this stage I am concerned only with the question whether a prima
facie case has been shown. I am satisfied it has.”
It
then appears to me that a different test is used when a prima facie
case has been established by a plaintiff in a civil trial to avoid
absolution from the instance being granted at the close of his or her
case. The test requires the establishment of more than a cause of
action. Evidence must be adduced to prove the cause of action and
must be so cogent as to enable a court to give judgment on it in
favour of the plaintiff unless it is successfully rebutted.
It
is my view that the test used to establish a cause of action at the
end of the plaintiff's case is the same used to establish a case at
the end of the prosecution case to avoid a discharge of the accused
person. It is the adducing of evidence upon which a court may convict
unless such evidence is rebutted. See Kachipare
v S
1998 (2) ZLR 271 (S). Obviously, the different burdens of proof
applicable in civil and in criminal proceedings apply in establishing
prima facie cases in both proceedings. The test however appears the
same to me.
While
it is accepted that extradition proceedings are not criminal
proceedings per se, it appears to me that the standard of when a
prima facie case has been established, as used in civil proceedings,
is not applicable in extradition proceedings for the main reason that
the powers granted to a magistrate conducting a hearing in terms of
the Extradition Act are similar to the powers of a magistrate
conducting a preparatory examination under the Criminal Procedure and
Evidence Act [Chapter 9:07] (see section 17(4) of the Extradition
Act) - a procedure that is now defunct, having been amended out of
the criminal procedure due to non-use.
I
would hazard to suggest that by specifically granting to magistrates
the powers they enjoyed when conducting the now defunct preparatory
examinations, and, by directing them to “receive evidence in the
same manner,” the legislature intended that the test to be employed
under section 17 of the Extradition Act, as to when a prima facie
case has been established, must be similar to that which was used at
preparatory examinations. I cannot envisage a situation where, having
granted magistrates powers to conduct extradition hearings as if they
were conducting preparatory examination, the legislature intended
them to use tests other than the ones used at such proceedings. If
this was its intention, it would have used specific language to that
effect or would have defined what constitutes a prima facie case for
the purposes of the section.
In
commenting on the test used at a preparatory examination, the author,
REID ROWLAND, in his book: Criminal Procedure in Zimbabwe had this to
say…,:
“At
the end of a Preparatory
Examination (PE),
the question which the magistrate has to answer is whether the
evidence put before him by the prosecution and the defence raises a
prima facie case against the accused. The magistrate does not have to
be satisfied that he would convict on that evidence. The standard of
proof that the prosecution must satisfy at a Preparatory
Examination (PE)
is thus a very low one.”
It
thus appears to me that the standard of proof required at the close
of a preparatory examination is somewhat lower that that required at
the close of a State case during a trial. It is trite that at the
close of the prosecution case the trial court must be satisfied that
it has before it evidence upon which it may convict the accused of
the offence charged. The author, REID ROWLAND has specifically opined
that such evidence is not necessary at the close of a preparatory
examination although he has used the term “prima facie case”
without attempting to define the term.
I
would further hazard that a prima facie case, for the purposes of
section 17 of the Extradition Act, is established by evidence tending
to prove the offence and linking the person whose extradition is
sought to the offence. It does not require evidence proving the guilt
of the person concerned of the charged offence.
In
this regard, I am in agreement with the submissions made by counsel
for the appellant that a magistrate can only order the extradition of
a person if such evidence is produced as would justify the committal
for trial of the person if the crime had been committed in Zimbabwe.
Thus,
the question that a court hearing a request to grant an extradition
order has to ask itself at the end of the hearing is whether it has
received such evidence as would, in its opinion, justify putting the
person concerned on trial.
At
the hearing, counsel for
the appellant directed most of his challenges against the
admissibility of certain documentary evidence that was produced by
the respondent. In this regard, he was of the view that such was
secondary evidence and was not admissible in terms of section 32 of
the Extradition Act.
It
is in this regard that I do not agree with the submissions made by
counsel for the appellant.
It
is trite that at a preparatory examination, the rules relating to the
admissibility of evidence are somewhat more relaxed than at trial.
Thus, at a preparatory examination, evidence that would constitute
hearsay evidence at the trial is admissible as affidavits are
generally admissible. Thus, the admissibility of evidence at an
extradition hearing is governed not only in terms of section 32 of
the Extradition Act but also in terms of the Criminal Procedure and
Evidence Act before the amendment.
