TORTURE IN ZIMBABWE, PAST AND PRESENT the defendant arising from the torture is not necessary before a civil action can be brought, but it would certainly strengthen the plaintiff’s claim.159 The legal costs of the trial generally follow the cause which means that although the court has a discretion, it will almost invariably award costs to the successful party, although usually not all costs will be recoverable. 160 There is an automatic right of appeal from the High Court to the Supreme Court. A judgment creditor can proceed to collect payment through a writ of execution served by the deputy sheriff. In the case of an order against the State, the successful plaintiff cannot attach State property,161 but a failure to pay can result in the minister responsible being held in contempt of court. Civil claims for damages normally prescribe within three years from the date when the cause of action arose. 162 Prescription is interrupted by the service of the process in which the claim is made. Claims against the police have to be brought within eight months of the cause of action arising. 163 C. Criminal Law The Criminal Procedure and Evidence Act [Chapter 9:07] contains a number of provisions which are relevant to torture survivors seeking compensation for personal injuries. The first mechanism is laid down in Sections 361-375 of Part XIX (Compensation and Restitution) of the Act. It provides that a court which has convicted a person of an offence may forthwith award compensation to any person who has suffered personal injury as a direct result of the offence. 164 However, a court will not provide compensation in respect of any personal injury where the amount of the compensation due is not readily quantifiable, or where the full extent of the convicted person’s liability to pay the compensation is not readily ascertainable, or unless the court is satisfied that the convicted person will suffer no prejudice as a result of the claim for compensation. 165 This precludes the award of damages under the actio iniuriarum, which, being sentimental damages, are by definition not readily quantifiable, while actual pecuniary loss under the Aquilian action does not present the same problem. On the other hand the restriction being threefold: the applicant must have a cause of action which he intends to pursue against the respondent; the respondent must have in his possession specific and specified documents or things which would constitute vital evidence in support of the applicant’s cause of action; finally, there must be a real and well-founded apprehension that this evidence may be hidden or destroyed by the time the case comes to the stage of discovery or trial. 159 In terms of Section 4 of the Criminal Procedure and Evidence Act [Chapter 9:07] neither a conviction nor an acquittal following on prosecution is a bar to a civil action for damages by any person who claims to have suffered any injury from the commission of the alleged offence. As to whether the evidence of a conviction can be produced in a civil trial, the former rule from the English case of Hollington v F Hewthorn & Co Ltd [1943] 2 All ER 35 (CA) that it could not, because it was not relevant, was removed by statute: Section 31 of the Civil Evidence Act [Chapter 8:01]. So where it is relevant in civil proceedings to prove that a person committed a criminal offence, the fact that he has been convicted of that offence by any court in Zimbabwe or by a military court in Zimbabwe or elsewhere is admissible in evidence for the purpose of such proof. The production of a certified copy of the court record is prima facie proof in the civil proceedings that he was convicted. 160 Costs will normally be awarded on a party and party scale. The higher legal practitioner and client scale can be awarded as a mark of the court’s strong disapproval of some aspect of the losing party’s behaviour. 161 Section 5 of the State Liabilities Act [Chapter 8:14]. 162 Prescription Act [Chapter 8:11]. 163 Section 70 of the Police Act [Chapter 11:10]. In Stambolie v Commissioner of Police 1989 (3) ZLR 287 (S) it was argued unsuccessfully that the shorter than usual three-year prescription period was unconstitutional. 164 Section 363. 165 Section 366. 34