Month: April 2021

Right to Bail

Right to Bail

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Did you know that an accused person is entitled to bail as a matter of right, a constitutional right? Bail is a way of allowing a person who has been remanded for trial at a later date to remain at liberty until his or her trial date. In terms of Section 50 (1)(d) of the Constitution any person who is arrested must be released unconditionally or on reasonable conditions pending a charge or trial unless there are compelling reasons justifying their continued detention. The High Court [1]ruled that the old position where the onus or duty was on the accused person to show on a balance of probabilities why it was in the best interest of justice that he or she should be freed on bail ,is no longer applicable.

The Constitution ,2013 made the right to bail a constitutional right hence the onus or burden of proof shifted from the accused person to the State(prosecutor) who should establish compelling reasons why an arrested person should be denied and remain in custody pending trial. Where the State fails to show compelling reasons an arrested person is entitled to, as of right, to be released either unconditionally or on reasonable conditions pending trial.

Compelling reasons justifying refusal of bail(detention)

As highlighted above it is the duty of the State to show reasons why an accused person can be denied bail. The compelling reasons includes the following

  • That the accused (suspect)person is likely to abscond trial
  • That the accused (suspect) is likely to interfere with the evidence e.g. by intimidating witnesses
  • That the accused(suspect) is likely to commit further crimes if released

In determining the application, the court must balance the interests of justice against the right of the accused to bail. Bail can be granted by way of depositing a sum of money or by surrendering title deeds of an immovable property. The essential condition of bail is that the accused must attend court at the appointed dates and places until the proceedings against him or her are over. The court may include other conditions which are ordering the accused to surrender his or her passport, reporting to a police station at regular intervals and prohibition against his or her communication with witnesses for the prosecution. Bail conditions can be amended or withdrawn by the court if new facts are brought to the attention of the court. In the event that the accused person breaches the bail conditions the court can order the person to be committed to prison and if accused absconds trial a warrant of arrest will be issued against him or her and the bail deposit will be forfeited to the State.

This article is for general information purposes only, legal advice and legal representation should be sought in a bail application matter.

[1] The case of Munsaka vs The State HB-55-16

Intellectual Property Law

Principles of Intellectual Property Law

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Intellectual property is a category of property that includes intangible creations of the human intellect or mind. Intellectual property law is a branch of law that regulates intellectual property rights, registration and enforcement. Intellectual property rights which are recognised by the law include copyright, trade marks, patents, industrial designs, geographical indications, plant breeders rights and integrated circuit lay-out designs. These I.P rights require registration before they can be protected and enforced against third parties. Registration of intellectual property can be done through the Zimbabwe Intellectual Property Office(ZIPO) or African Regional Intellectual Property Organisation (ARIPO) or Madrid International Trademark System (Madrid System. There are principles that governs intellectual property and are as follows.

Principle of Territoriality

Intellectual property rights are territorial meaning a sovereign state has jurisdiction and can deal with issues that occur within its borders. Intellectual property rights are not universal but are limited in their effect to the territory of the sovereign under the laws of which they have been granted. All intellectual property rights are of national character unless their scope extends to encompass a whole region, having been granted in such form. Since territorially rights are independent from one another they can be owned by different persons.

Principle of National Treatment

This entails that members of the International I.P Treaties shall accord to the nationals of other members treatment not less favourable than it accords to its own nationals with regard to the protection of intellectual property.

Principle of Priority

This principle is applicable to intellectual property rights which are protected through registration. It provides that the person who is the first to register their intellectual property rights will have priority over any subsequent claimant to a similar or identical right.

Principle of Independence of Protection

Protection is independent of the existence of protection in the country of origin of the work (principle of independence of protection). If, however, a Contracting state provides for a longer term of protection than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection maybe denied once protection in the country of origin ceases.

Principle of Most Favoured Nation

With regard to the protection of I.P, any advantage, favour, privilege or immunity granted by a member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other members.

This article is for general information purposes only , legal advice must be sought in relation to any aspect of the law.

Death certificate

Important Documents You Need To Know About

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The Registrar General is responsible for registering all births and deaths in Zimbabwe as well as issuing birth and death certificates. This article shall focus on the requirements for obtaining a burial order and a death certificate.

Burial Order

A burial order is an important document. A family representative or an authorized undertaker can obtain a burial order for the deceased. The following are required when obtaining a burial order depending on the circumstances of death.

(a) Burial order for a person who has died in a health institution after 24 hours

  • National identity document or valid passport of a close relative
  • Deceased’s national identity document, valid passport or child health care card if deceased is a minor without birth certificate
  • Notice of death forms (BD11 forms) completed by health information assistance or clerks
  • Medical certificate confirming cause of death (BD12 forms), if a person dies in a private medical institution it shall be completed by a medical doctor

(b) Burial Order for a person who has died at home or in a health institution after 24 hours

  • National Identity document or valid passport of a close relative
  • Deceased’s national identity document, valid passport or child health card if deceased is minor with no birth certificate
  • Notice of death forms(BD11) forms completed by Police Officers
  • Form 231 (application for post mortem)

Death Certificate

This is issued by the Registrar General. The following are required

(a)  Registration of death that occurred in hospital

  • Deceased person’s national identity document
  • Death registration form (BD11) duly completed by the hospital or any other prescribed informant
  • A police application for post mortem examination (form 231) duly completed by a pathologist where applicable
  • A medical certificate of the cause of death (form BD12) issued by the doctor who last attended the deceased.
  • Marriage certificate where applicable

(b) Registration of death that occurred outside of hospital

  • Deceased person’s identity document
  • Two competent witnesses (18 years & above) with national identity documents, who were present at time of death or burial
  • A letter from the chief, village head or headman or councillor confirming that the deceased dies in his or her area
  • Clinic document or treatment documentation where possible

This article contains information for general information purposes only, legal advice must be sought in any aspect of the law.