Billy Rigava and Rachel Chibaya and Johnson Shonhe and Northburga Chifamba and Charles Maponga and Gerald Gore v Estere Chivasa N.O and The State

### Preamble
1
HH 364-21
HC 351/21
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BILLY RIGAVA

and

RACHEL CHIBAYA

and

JOHNSON SHONHE

and

NORTBURGA CHIFAMBA

and

CHARLES MAPONGA

and

GERALD GORE

versus

ESTERE CHIVASA N.O

and

THE STATE

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 31 May & 9 July 2021

Opposed Criminal Review Application

T Magwaliba with S Bulanya, for the applicants

No appearance for the 1st respondent

F Kachidza, for the 2nd respondent

MUZOFA J: This is an application for review of the first respondent’s decision dismissing the applicants’ exception in a criminal trial.

The applicants are all former board members of National Pharmaceutical Company of Zimbabwe (NatPharm). The first respondent is a Regional Magistrate stationed at Harare Magistrate Court. She is cited in her official capacity. The second respondent is the State.

The applicants were arrested and charged for contravening s 174(1) (b) of the Criminal Law (Codification and Reform) Act on allegations that in the period between July 2019 and June 2020 as board members at NatPharm, they omitted to discharge their duty to terminate Nancy Sikefu’s contract of employment for the purpose of showing favour to the said Nancy to the prejudice of NatPharm. They appeared before the first respondent for trial. At the commencement of the trial the applicants excepted to the charge.

The 1st ,2nd ,3rd ,5th and 6th applicants were represented by the same legal practitioner and their exceptions were filed separately from the 4th applicant’s exception .The exceptions taken by the applicants which were substantially similar, raised the following issues, that the charge did not disclose an offence, the charge did not disclose the specific date when the offence was committed, that NatPharm being a private company the applicants were not public officers and that the charge did not state the law contravened by the applicants. An issue was also placed before the 1st respondent for determination which to my mind does not fall under the category of an exception, it was whether the Magistrate’s Court is bound by a decision of the High Court.

The essence of the applicants’ submissions before the 1st respondent was that NatPharm is a private company. Its officers are not public officers. A number of cases were referred to in support of the point taken. Further to that it was submitted that the High Court had already pronounced on the status of NatPharm that it is private company in Madzikwa v S. It was incompetent to charge the applicants under s174.The first respondent was bound by the decision. In view of that finding the charge did not disclose an offence. Further that the charge lacked specificity in setting out the date the offence was committed by referring to a period within which the offence was committed it left the applicants guessing as to the time the offence was committed, time was of essence in the charge. The additional point made in the fourth respondent’s submission is that the charge did not set out the law giving rise to their duty to terminate the employment.

The application was opposed on the basis that the charge was clear and it sufficiently captured the requirements set out in s146 of the Criminal Procedure and Evidence Act (hereinafter referred to as the CPEA). The issues raised by the applicants were evidentiary issues that can only be addressed during trial. In respect of the time the 2nd respondent relied on the provisions of s173 of the CPEA that time was not of essence in this case and expressing in as a period within which the offence took place was adequate.

The 1st respondent dismissed the exceptions taken. The court a quo considered s 146 of the CPEA which sets out the essential elements of a charge, summons or indictment. It then referred to case law on what has to be taken into account where an accused excepts to a charge. It concluded that the exceptions raise triable issues which can only be determined after considering evidence. The issues raised were possible defences. In respect of the dates it relied on s 173 of the CPEA. It found nothing excipiable. In respect of the High Court decision the court recognised the stare decisis principle that it is bound by a decision of a superior court but it was of the view that, it did not benefit from a full judgment to consider the applicability of the findings in the case before it.

Dissatisfied by the 1st respondent’s decision the applicants approached this court on review. They request this court to set aside the decision and quash the charge. I reproduce the grounds for review for ease of reference:

1st Respondent ignored a binding and directly relevant decision of the High Court in Madzikwa v The State HACC07/20 which made a finding that National Pharmaceutical Company (NatPharm) is a private company and as such no public duty arises in the conduct of its affairs by its officials or employees.

1st Respondent misdirected herself in finding that ‘time was not of essence’ in a charge which relates specifically to when an act/omission occurred in circumstances where 2nd Respondent concedes that applicants did infact do what which it is alleged they did not do.

1st Respondent erred at law in finding that a fact not contested by the parties relating to the applicant’s status as NatPharm board members required to be proved through the evidence of a witness.

The 1st Respondent grossly erred and misdirected herself by dismissing the exceptions and ordering trial to continue without considering or pronouncing her ruling on the grounds of exception raised by the 4th applicant (4th accused person a quo) despite that same were properly placed before her and submissions were made in respect of the same.

1st respondent erred at law in ordering trial to proceed when it is apparent that the factual basis on which the entire charge sheet is based are wholly false and compounded by the fact that in constructing the charge sheet, the state had withheld facts known to it directly relevant to the charge.

The submissions

In substantiating the grounds for review, Mr Magwaliba submitted that the exceptions taken were not based on s146 of the CPEA. That section provides a narrow basis for exceptions. The exceptions taken were taken on the basis that factually and legally no offence was disclosed in the charge. The reasoning was that, an extant judgment which is binding exists and has pronounced that Nat Pharm is not a public entity. Its officers therefore do not owe a public duty and cannot be charged in terms of the charge preferred. Both the factual and legal averments in the charge are incorrect at law. There was no charge that could be answered. Counsel to a great extent relied on the authorities of S v Kasukuwere & Anor and Tobacco Sales (Pvt) Ltd v Eternity Star. In addition, it was submitted that time was of essence in this case since the applicants eventually did what they were alleged to have omitted to do.

The application was opposed. It was submitted that in terms of s 146 of the CPEA, the charge was clear. The applicant could only raise an exception where the charge fell short in terms of s 146. The court a quo did not fall into error. The exceptions taken were really defences which are evidentiary issues. On the authority of   Mupfumira & Anor v Mutevedzi N.O & Anor it was argued that an exception cannot be taken on triable issues.

The law

The right to a fair trial provided in section 69(1) of the Constitution includes the right of an accused to be informed of the charge he has to face in sufficient detail to enable him to answer it in his defence. The primary purpose of a charge is to inform the accused of the allegations he has to meet, see R v Alexander and Others where the court expressed that,

‘… the purpose of a charge sheet is to inform the accused in clear and unmistakable language what the charge is or what charges are which he has to meet. It must not be framed in such a way that an accused person has to guess or puzzle out by piercing sections of the indictment or portions of sections to gather what the real charge is on which the Crown intends to lay against him.’

An exception is taken in terms of s170 of the CPEA. It is an objection to any formal defect apparent on the face of the charge. It is a tool at the disposal of an accused person for use in order to safeguard his right to be informed of a clear charge to enable him to prepare his defence. The term defects must be understood from the perspective of disabling an accused from adequately defending himself. Thus in the discourse around this issue courts have always considered if the charge had sufficiently set out the allegations against the accused person. Section 146 is always the reference point. Thus in interpreting the defects the court has concluded that an exception cannot be taken on triable issues. See Mupfumira case (supra). It can also be taken in terms of s178 of the CPEA where the charge discloses no offence or some imperfections in the drafting of the charge. See S v African Consolidated Resources (Pvt) Ltd.

At the heart of an exception is the need for the accused person to properly prepare his defence from an informed point of view. Section 146 of the CPEA provides a guide to drafters of a charge on the essential elements to be included in a charge. The charge must predominantly answer the what, where, when, how questions and must include the necessary mental element averment. Where a charge is defective for want of an essential averment it incapacitates an accused from properly preparing his defence.

In the Kasukuwere case (supra) the accused was charged under s174 of the Criminal Codification. The learned judge incisively delved into the purpose of a charge and what such a charge must disclose to enable an accused to properly prepare his defence. The towering issue therein was the failure to disclose the procedures that were flouted and a failure to allege that the accused had a duty to comply with them yet he unlawfully and intentionally negated them to show favour or disfavour to another person. The judgment must not be read to provide for any other basis to take an exception besides the requirement of the charge to adequately or sufficiently inform the accused of the charge he is facing. The court did not exercise its mind on the issue raised in this case whether an exception maybe taken where a charge sets out averments that are factually and legally incorrect.

From the above clearly an exception can only be taken where the charge does not disclose an offence to the extent that it incapacitates an accused person from properly defending himself or conducting his defence effectively. This could be a non-compliance with s 146 or be based on s 178 of the CPEA where the charge, indictment or summons is calculated to prejudice or embarrass the accused in his defence.

I shall not dwell on s 178 to explore what a potentially embarrassing or prejudicial charge involves because the applicants do not rely on it.

Analysis

I address the grounds of review as set out. The 1st, 2nd and 5th grounds for review have nothing to do with the adequacy of the charge. I suppose these are the grounds that Mr Magwaliba argued that they are not based on s 146 but are based on the law. The first issue for determination is whether an exception can be taken outside the provisions of s146 of the CPEA. As I have already stated, what underpins an exception is the requirement for the accused to properly and adequately prepare for trial. In this case I did not hear any complaint that as a result of the three grounds for review the applicants failed to adequately prepare for their defences. Infact what they raise are the defences.

An interrogation of the grounds for review as set out will demonstrate the absurdity of the point advanced for the applicants. The issues raised in the grounds for review are that NatPharm is a private company and a court order exists confirming the status of the company and that the charge was based on blatant misrepresentations. The issues raise matters of evidence. That evidence was not yet before the court yet the court was invited to make a finding on them. Even if a judgment of this court exists it did not automatically mean the applicants were exonerated. The judgment did not deal with their case. It is up to the applicants to place facts in their defence outline that demonstrate that their circumstances fell squarely in the realm of the Madzikwa case(supra). It is certainly undesirable to adduce evidence at this stage, yet the applicants even produced a letter from the then Minister to prove some point. At exception stage, the duty of the court is make sure the accused persons are well informed of what case they have to meet so that they can properly prepare their defences to ensure their right to a fair trial is realised.

The 5th ground for review suffers a still birth from its wording. To allege that the charge was based on falsehoods and that the state withheld facts known to it invariably means the court had to be favoured with what the applicant allege is the truth. This can only be done through evidence. The court will have to determine the veracity of each party’s evidence. It interrogates the evidence which must be examined by the court before a substantive decision is made.

I was urged to take a robust approach and interfere with the proceedings on the basis that, in this case it would be an exercise in futility and a waste of tax payer’s money to the prejudice of the applicants to proceed to trial were the outcome is clearly written on the wall. I do not understand the submission to advocate for a procedural shortcut and deal with evidence before the proper process of a criminal trial has taken place. It must be appreciated that compliance with the criminal procedure is as important as the substantive outcome. The applicants’ trial must be conducted in a procedurally correct manner. The applicants in essence were adducing evidence at a time when the 2nd respondent had not opened its case let alone the applicants themselves had not pleaded to the charges. There is no basis at all for applicants to seek to subvert the criminal procedure and introduce evidence before trial. It would be incompetent for a court to refer to documentary evidence before it is properly produced before it. In coming up with the set procedure in the conduct of a criminal trial the intention of the legislature was to give effect to the rights of an accused person, set a level ground for contest within a procedurally organised system. Courts must give effect to the legislative intention. Evidence must not be adduced before a trial commences. Allowing such an approach can result in a chaotic criminal procedure. I certainly agree with the 1st respondent’s findings the issues raised were triable and cannot be raised as an exception. The grounds for review are dismissed.

The 2nd ground for review is that the 1st respondent’s finding that time was not of essence was a misdirection. It was submitted that time was of essence because the 2nd respondent conceded that the alleged act of omission was later done.

I must comment on the last part of the submission that the 2nd respondent made a concession. Clearly that is evidence because the State Outline does not allude to that fact. On the substantive issue, although the 1st respondent’s finding was very cursory and inelegant in expression its gist was that the lack of particularity was not prejudicial to the applicants’ defences. The attached charge provides a period within which the applicants were alleged to have omitted to act in a certain manner. I do not agree that the applicants had to speculate when the offence is said to have taken place. This cannot be said to be a defect that disabled them from crafting their defences. The applicants would simply confine themselves to the time frame set out in the charge. There was no prejudice in the applicant’s preparation of the defence. Even before this court there was no demonstration of how the applicants would be prejudiced in their defence by the way the time was set out in the charge.

I find no misdirection on the findings by the 1st respondent.

The fourth ground for review is that the court misdirected itself by dismissing the exceptions taken by the fourth applicant without considering them.

It is a trite position of law that a court must determine all issues placed before it, a failure to do so is a misdirection. I must comment on the applicant’s heads of argument. They impugn the court’s failure to interrogate whether the applicants were public officers or not. With all due respect, the court made a clear finding on that issue that it was a triable issue therefore it was not competent to delve into those issues.

The grounds for review taken for the 4th applicant were materially similar to those raised for the other applicants. The issues raised were that the charge did not state the law in terms of which the accused owed a duty to act as public officers, that the fourth applicant is not a public officer and that the charge did not disclose an offence at law.

In my view even if the 1st respondent did not refer to the exceptions specifically as laid out by the fourth applicant, the issues raised were addressed. This is a matter of form than substance. The issue on whether the applicants were public officers was addressed. The 1st respondent considered the provisions of s146 and concluded that the charge disclosed an offence. It sufficiently informed the applicants of the criminal wrong alleged against them. This is all that was required for the applicants to prepare their defence. The substance of the grounds for review was addressed.

From the foregoing I find no misdirection to justify an interference with the proceedings before the 1st respondent.

Accordingly, the application is dismissed with costs.

Mutuso, Taruvinga & Mhiribidi, 1st, 2nd, 3rd, 5th & 6th applicants’ legal practitioners

Matsikidze Attorney-At-Law, 4th applicant’s legal practitioners

National Prosecuting Authority, 2nd respondent’s legal practitioners