238 Service of subpoena to secure attendance of witness residing outside jurisdiction of court (1) In this section— “proper officer” includes the Sheriff, a deputy sheriff, messenger or deputy messenger or any other officer who by any enactment is charged with the duty of serving subpoenas to witnesses in criminal cases. (2) When a subpoena to give evidence in a criminal case has been issued out of any court and it appears that the person whose attendance is thereby required resides or is for the time being in a province or, as the case may be, regional division outside the area of jurisdiction of that court, the subpoena shall be delivered to the proper officer within that province or, as the case may be, regional division and shall be served by him as soon as possible on such person: Provided that— (i) the necessary expenses to be incurred by the person subpoenaed in going to and returning from the court whereout the subpoena was issued, and his detention at the place whereat and for the purpose for which his attendance is required, shall be tendered to him with the subpoena; (ii) if the subpoena is not sued out by the State, a sum sufficient to cover the expenses of serving the subpoena shall be lodged with the registrar or clerk of the court by the person suing out the subpoena. (3) If any person who has been served in terms of subsection (2) with a subpoena and to whom has been te ndered the expenses referred to in that subsection fails, without lawful excuse, to attend at the time and place mentioned in the subpoena, a magistrate of the province or, as the case may be, regional division within which that person resides or is for the time being may issue a warrant for the arrest of that person, who shall be liable to be dealt with in the same manner as he might have been dealt with if he had failed to attend without lawful excuse, when served with a subpoena to attend a like court in the area wherein he resides or is for the time being. (4) The return to the proper officer showing that service of the subpoena has been duly effected, together with a certificate under the hand of the registrar or clerk of the court that the person whose attendance was required by the subpoena failed to attend when called upon, and has established no lawful excuse for the nonattendance, shall be sufficient proof of the non-attendance for the purpose of dealing with that person under subsection (3). 239 Payment of expenses of persons attending court (1) Subject to this section, any court or magistrate may order the payment of an allo wance, in accordance with a prescribed tariff, to any person attending a trial or other criminal proceedings: Provided that an allowance shall be paid to a witness for the accused, or a person accompanying such a witness, only in such circumstances as may be prescribed. [Subsection amended by section 28 of Act 9 of 2006.] (2) Any allowance paid in terms of subsection (1) shall be paid out of moneys appropriated for the purpose by Act of Parliament. B. Evidence on commission 240 Taking evidence on commission (1) When in the course of a trial or other criminal proceedings it appears to a judge or magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which in the circumstances of the case would be unreasonable, such judge or magistrate may dispense with the attendance of such witness and may issue a commission to any magistrate or, where the witness is outside Zimbabwe, to any fit and proper person outside Zimbabwe, authorizing such magistrate or person to take the evidence of such witness: Provided that— (i) the specific fact or facts with regard to which the evidence of the witness is required shall be set out, and the judge or magistrate may confine the examination of the witness to those facts; (ii) when the commission is issued at the request of the prosecutor, the judge or magistrate shall, unless the accused states that he does not wish to be represented, direct as a condition of the issue of the commission that the expense necessary to the representation of the accused at the examination of the witness shall be paid by the prosecution in such amount or at such rate as may seem reasonable to the judge or magistrate granting the commission. [Subsection amended by section 28 of Act 9 of 2006.] (2) The witness, before giving his evidence, shall make an oath or affirmation before the commissioner by whom he is to be examined that in the whole of his deposition he will tell the truth, the whole truth and nothing but the truth, and the evidence of such witness shall be taken down in writing by the commissioner and read over to him. (3) Where the person appointed as commissioner and the witness to be examined are outside Zimbabwe, they shall be entitled to be paid out of moneys appropriated for the purpose by Act of Parliament such fee as may be approved by the Minister responsible for finance.