Constable Muchangani F. C. 990720 T V THE Trial Officer (Superintendent Horeka) & THE Commissioner General OF Police

### Preamble
1
HB 95/20
HC 1593/17
---------


CONSTABLE MUCHANGANI F. C. 990720 T

Versus

THE TRIAL OFFICER (SUPERINTENDENT HOREKA)

And

THE COMMISSIONER GENERAL OF POLICE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 19 JULY 2019 & 25 JUNE 2020

Application for Review

N. Mugiya for the applicant

L. Dube, for the respondents

TAKUVA J:	This is an application for review of trial proceedings presided over by the 1st respondent against the applicant.  The relief sought is couched thus:-

“1.	The trial proceedings against the applicant presided over by the 1st respondent be and is hereby set aside.

2.	The prosecution of the applicant in terms of the Police Act in particular the allegations forming the subject of this case be permanently stayed.

3.	The respondents be ordered to pay costs of suit on a client and attorney scale.”

Background facts

The applicant was arraigned before a single officer for contravening paragraph 11 of the Schedule to the Police Act Chapter 11:10 as read with section 29 and 34 of the said Act, i.e.   “Without good or sufficient cause, disobeying or refusing or omitting or neglecting to carry out any lawful order.”  In that upon or about the 21st of December 2016 the defaulter being a member of the Police Service, omitted to declare ZAR100 note serial number GH 6720028D at 280km peg Masvingo – Beitbridge road where there was a security road block.

The material facts as outlined in the precis are as follows:

The applicant at the material time was a member of the Police Service stationed at Beitbridge Urban.  On 21st December 2016 she was part of a road block team headed by Sergeant M. Matsvaire carrying out traffic enforcement duties at the 280km peg along the Masvingo – Beitbridge road.  The road block site was visited by a team of police officers from PGHQ Internal Investigators.  Since it was dark Sergeant Mwaleya instructed the outgoing team to move to where there was sufficient lighting from a generator flood light.  The team moved to that place where applicant was observed removing her hand from the left trouser pocket and throwing an object to the ground.  She was instructed by Sergeant Tafirenyika to pick the item up but she declined.  Upon picking up the item, Sergeant Tafirenyika unrolled it and discovered that it was a ZAR100 note serial number GH6720028D.  Applicant had not declared this amount in the declaration register.  Further, the Z69J receipts and cash on hand tallied showing that this amount was not part of the cash lawfully collected at the road block site.  Applicant was informed that she had committed an offence under the Police Act.

Applicant pleaded not guilty to the charge and the above facts were put to her.  Shortly thereafter, the defence counsel sprang to his feet and confidently excepted to the charge in terms of s180 (4) of the Criminal Procedure and Evidence Act Chapter 9:07.  According to the record of proceedings the reasons for excepting are given as:

The charge is fatally defective in that it does not disclose an offence.  It is also meaningless.  The charge does not state the order that was disobeyed, whose order it is, how and who gave the applicant that order.  This was put as the crux of the matter.

The charge is grossly confusing in that it has “no cause of action because” on paragraph 7 of the synopsis it is alleged that the defaulter declared nothing and that is a declaration and to suggest that the defaulter did not declare anything is wrong.”  (my emphasis)  The correct charge of the applicant on the facts should have been contravening paragraph 31 of the Police Act which reads; “knowingly making a false entry in an official book … or willfully omitting to make any entry therein which it is his duty to have is entered.”

It is apparent from the state’s fatal omission that “it could be hiding a particular circular somewhere or there is an order by the defaulter’s superior that she has breached which order has not been disclosed now that is called material non disclosure which simply means concealing material information which goes to the root of or heart of the charge.”

The defaulter was not entitled to guard a security guard as written.  She is not entitled to obey an unlawful order at law.  Accordingly, the defaulter “cannot be charged where the unlawful element of the charge cannot exist.”  (my emphasis)

Given the above, the charge embarrasses the Commissioner General of Police and he will be furious that his police were deployed to guard a security guard.

In terms of section 180 (6) of the Criminal Procedure and Evidence Act, the provisions of section 202 or 203 will not apply because there are “no omissions in the charge but embarrassing disclosures.”  (my emphasis)

The application was opposed by the state on the grounds that the charge is sufficient in that it alleges a certain element of “failing to obey a lawful order by failing to declare”.  The prosecutor further alleged that the charge sheet in the record might have been planted to cause confusion.  He also contended that the “correct” charge sheet which he had, was the one served on the applicant and she signed it.  This is the charge that was read to the applicant, it is the one that she pleaded to.

In his reply, Mr Mugiya for the applicant made a stunning revelation which I hereby reproduce verbatim for maximum appreciation.

“I want to demonstrate that the Public Prosecutor is being dishonest to this court.

The charge, he claims to be the correct charge was allegedly served on the defaulter on 23 February 2016.  He then decided to amend the charge since it was a wrong charge and save to what he said to the court on 16 January 2017 he then served the defaulter with the correct charge through Sergeant Deza force number 054921W entry 06 dated 16 January 2017 on the evening diary …”  (my emphasis)

After hearing argument, the court a quo dismissed the exception and ordered the trial to proceed.  The court’s reason was that the applicant pleaded to the correct charge put to her by the state.  The charge had been amended prior to it being put to the applicant in court.  Applicant’s counsel requested for the record of proceedings in order to refer the matter to the Constitutional Court.

Instead, the applicant approached this court on review.  The grounds for review are listed as:

“1.	The trial proceedings presided over by the 1st respondent against the applicant are pregnant with gross procedural irregularities in that:

The 1st respondent dismally failed to give reasons for his decision to dismiss the exception raised by the applicant.

That 1st respondent allowed the trial prosecutor to change the charge which applicant had already pleaded to without the trial prosecutor formally making an application for such.”  (my emphasis)

In terms of s27 (1) of the High Court Act this court has jurisdiction to entertain an application for review.  The section provides:

“Subject to this Act or any other law, the grounds upon which any proceedings or decision may be brought on review before the High Court shall be;

Absence of jurisdiction on the part of the court, tribunal or authority concerned;

Interest in the cause, bias, malice, or corruption on the part of the presiding officer

Gross irregularity in the proceedings or decision.”

In terms of s180 (1) of the Criminal Procedure and Evidence Act, Chapter 9:07 an accused may except to a charge on the ground that, “it does not disclose an offence cognizable by the court.”  In casu the applicant chose to plead and except at the same time.  The issue is whether or not the charge does not disclose any offence.  Applicant argues it does not.  She maintains in paragraph 13 of her heads of argument that, “The charges (sic) preferred against applicant are meaningless and incapable of being pleaded upon as they are vague, confused and confusing.  The charges alleged that the applicant disobeyed a lawful order but does not state the purported lawful order, its nature, and person who gave the order or the date on which the order was given to applicant…”   (my emphasis)

This argument in my view has no merit as it does not prove that the charge does not disclose of any offence.  It does disclose of any offence whose nature is disobedience and its object is a lawful order.  The “what”, “who” and “when” are all questions of evidence to be led during the trial.  By analogy, the applicant is arguing that on a charge of “failing to obey a stop sign” the state must allege in the charge sheet when it was erected by who and why it was erected.  In my view, the defence in casu prematurely delivered a presumptuous or preemptive strike.  The charge as framed discloses an offence.

Going back to the 1st ground of review as I must, the 1st respondent actually gave reasons for dismissing the exception.  The applicant seems to be oscillating between “no reasons” and “no good reasons” were given.  It is not the duty of this court to deliberate on whether or not the reasons given were bad.  The applicant’s contention is that the irregularity she complains about is that no reasons were given for the decision.  Unfortunately, the record of proceedings shows that indeed reasons were given.  It is the absence of reasons that is an irregularity – Makombi & Ors HH-120-80; Musero HH-151-86 and S v Mrawa and Anor 1991 (1) ZLR 142 SC.

Section 68 (2) of the Constitution provides that, “any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for that conduct.”  (my emphasis)  In casu, the applicant was furnished with the entire record of proceedings that includes the trial officer’s ruling with his reasons.  Therefore section 68 supra has no application.

The second ground is that the trial officer allowed the prosecution to amend its charge after applicant had pleaded.  The charge she claims to have pleaded to contains the words “where there was a security guard.”  (my emphasis)  In paragraph 10 of her founding affidavit she stated, “The 1st respondent then told me that he was postponing the matter to the 16th day of June 2017 for continuation of trial and that he will be using the new charge which I did not plead on.  I attach hereto the copy of the new charge sheet as annexure “D”.  There is no annexure D in the record.  However, the 1st respondent attached a charge sheet he referred to as the correct charge that was put to the applicant during the proceedings.  That charge sheet which he also labeled annexure A is on page 16 of the record of proceedings.  The only difference between this charge sheet and the one filed by applicant (page 6) of the record is that the former contains the words “where there was a security road block.”  If there are any other differences that applicant has not mentioned them in her papers.  I take it this is the sole difference between the two charge sheets.

Applicant’s contention which has been repeated ad infinitum is that the prosecutor was allowed to amend the charge after the exception had been argued.  Assuming this was the correct position why would the prosecutor not amend the whole charge to cure the alleged defects relating to the circular as raised by the application?  If the allegation is that the prosecutor did so then this alleged new charge remains a mystery as it was never produced.  While the applicant described the charge as “confused and confusing”, I find that it is her case that is frivolous and vexatious.  She has not been candid with the court in respect of what amendments if any were made after she pleaded and the effects thereof.  Her prevarication on these charges is calculated to hoodwink this court.

In this regard, I agree with the trial officer’s explanation of the drama in his opposing affidavit.  He stated the following:  “The charge that was put to the applicant was the one contained in the charge sheet that was served to her on 23 December 2016.  The charge clearly reads that the applicant was at a security road block and not at a security guard.  See the charge sheet annexed thereto as annexure “A”.  I was only sown the one whose last part reads, “where there was a security guard” when the applicant made her exception.  Ironically, that charge sheet which she then annexed as annexure “A” in her court application does not show the number, rank, name and signature of the person who purportedly served her.  It is clear that it was cooked in order to mislead the court.”

What is telling is that both the state and the defence agree that at some stage prior to the plea the charge was amended and served on the applicant on 16 January 2017.  In order to fully appreciate what happened it is necessary to outline the chronological sequence of events prior to the commencement of the trial.

1.	Trial was scheduled to commence on 8 February 2017 but was postponed at the applicant’s instance after she indicated that her lawyer was “committed in Harare”.  She also said her lawyer’s request was for the matter to be moved to 1 March 2017.

2.	The State did not oppose that application and the matter was postponed to the 1st March 2017.

3.	On 1 March 2017 one Gwineth Drawo a legal practitioner then with Mutuso, Taruvinga and Mhiribhidi Legal Practitioners appeared for the applicant.  She applied for a postponement on the ground that Mr Mugiya could not make it to Beitbridge because of the floods that swept away Nkankezi River Bridge.

Again, the State representative did not oppose the application agreeing that applicant has a right to legal representation.  The matter was then postponed to the 6th of April 2017.

4.	On 6 April 2017 trial did not commence due to non-availability of the trial officer who had to attend a funeral.

Trial finally started on 5 May 2017.  Mr Mugiya who this time around could safely cross the Nkankezi River attended and filed an exception.  For 5 months the matter was before the trial officer while the docket changed hands from one prosecutor to the other.  This is the period when the charges were amended and applicant served with the amended charge and she signed for it.  One wonders what was there to amend after applicant’s plea?  Was it the reference to “security guard?”  If so surely did this mislead or confuse anyone?  I do not think so.

In any event I find that the charge was amended before applicant pleaded to it.  The amendment had been brought to the attention of the applicant who acknowledged whatever amendments were made by the prosecutor.  In that regard I find that the 1st respondent did not commit any irregularity never mind a gross irregularity.

This whole application amounts to what Shakespeare referred to as “much ado about nothing”.  The grounds for review have no merit at all.  It appears to me that the idea was to delay the inevitable.

Accordingly, the application is dismissed with costs.

Mugiya, Macharaga Law Chambers, applicant’s legal practitioners

Attorney General’s Office, Civil Division, respondents’ legal practitioners