Robert Tondero Masukusa v Rumbidzai Mugwagwa N.O. and The State

### Preamble
1
HH 190/21
HC 5334/20
---------


ROBERT TENDERO MASUKUSA

versus

RUMBIDZAI MUGWAGWA N.O.

and

THE STATE

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 22 & 28 April 2021

Review Application

T.S.T Dzvetero, for the applicant

A. Muziwi, for second respondent

MUSAKWA J: This is an application for review following the trial court’s dismissal of an application for discharge at the close of the State case.

The facts are that the applicant is a former Senior Staff Officer in the Zimbabwe Republic Police. He was the Chief Staff Officer Transport and Logistics. The post entailed overseeing purchasing, repairing of motor vehicles, conducting boards of surveys and maintaining records of the Police fleet.

In November 2019 the applicant was arraigned on three counts of fraud. In the alternative he was charged with contravening s 174(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

From evidence led, a Mercedes Benz ML320 vehicle, chassis number WDC1641222A505696 was purchased by the applicant at an auction of Police vehicles on 17 January 2015 at the Cranborne Workshop. The motor vehicle was subsequently registered in the name of the applicant’s wife, Modester Masukusa. The applicant’s wife is said to be a Police Officer. The motor vehicle was serviced and repaired on three occasions by Isoquant Investments t/a ZIMOCO (hereinafter simply referred to as ZIMOCO) on 27 November, 2015, 6 January 2016 and 12 April 2016. The total bill amounting to US$7 147.56 was paid by Zimbabwe Republic Police.

When the motor vehicle went to ZIMOCO it was recorded as fleet number ZRP 404F. In actual fact the motor vehicle in question used to be Fleet number 418F. Fleet number 404F is a Mercedes Benz E300 that was allocated to Fraud Squad whose chassis number is WDB1241302A708821. It has been parked at the Chitungwiza workshop since 26 August 2014.

A former inspector, Vusumuzi Ncube confirmed taking the Mercedes ML320 vehicle on several occasions for service and repairs to ZIMOCO before and after it had been sold to the applicant. He did the same in respect of vehicles of other senior officers. He collected the motor vehicle either from the Provincial Transport Officer or Senior Staff Officer Transport Mechanical Service. He did not collect the motor vehicle directly from the applicant.

Five witnesses testified for the State. None of them ever directly interacted with the applicant in respect of the motor vehicle in question. That includes the witness from ZIMOCO who confirmed that payment was received from the Zimbabwe Republic Police.

In dismissing the application for discharge the first respondent ruled that the State proved that the motor vehicle in issue was repaired at ZIMOCO and paid for by the Zimbabwe Republic Police. The applicant was then in charge of the transport section of the Zimbabwe Republic Police. The motor vehicle had been purchased by the applicant. A prima facie case had been established. She further added that more reasons would be availed in the main judgement.

The applicant’s grounds for review are as follows:

There was procedural impropriety in the first respondent not complying with s 267(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] by failing to record the discharge of an accomplice witness who had testified for the State.

2.  The first respondent exhibited bias by disregarding the testimony of an accomplice witness when she dismissed an application for discharge at the close of the State case.

3. 	The decision by the first respondent is irrational and unreasonable such that no reasonable court applying its mind to the evidence led would have come to such conclusion.

4. 	The decision to put the applicant to his defence is illegal as it has the effect of aiding the State in its case as the evidence led by the State is manifestly unreliable.

5. 	The first respondent grossly misdirected herself in dismissing the application for discharge when it is clear that the State failed to prove a prima facie case.

Submissions Made

Mr Dzvetero submitted that from the evidence adduced from the five witnesses who were called by the State, the essential elements of fraud were not proved. Thus the court ought to have discharged the applicant in respect of that charge. The tenor of his argument also implied that the evidence for the State was discredited through cross-examination.

As regards the alternative charge, Mr Dzvetero submitted that it is also defective as its material averments hinge on misrepresentation alleged in the first count.

Mr Dzvetero did concede that s 267(2) of the Criminal Procedure and Evidence Act does not specify at what stage an accomplice witness who has testified to the satisfaction of the court should be discharged. He was also not clear why the applicant is making an issue of the non-discharge of the accomplice witness and the arrest of that witness since it is up to the witness to raise the issue.

Mr Muziwi submitted that the nature of submissions made on behalf of the applicant can only be made at the conclusion of trial and not at interlocutory stage. He however conceded that the charge of fraud was poorly framed. Nonetheless he submitted that the trial court could not discharge the applicant where the alternative charge discloses a prima facie case against the applicant.

Analysis

It has been held that superior courts should exercise the power to interfere in proceedings of lower courts only in exceptional circumstances. In this respect see Dombodzvuku and Another v Sithole N.O. and Another 2004(2) ZLR 242 (H) and A-G v Makamba 2005 (2) ZLR 54 (S).

A look at the charge of fraud that was preferred against the applicant shows that it has some deficiencies. According to s 136 of the Criminal Law (Codification and Reform) Act, it is the person to whom a misrepresentation is made who must be shown to have acted to his prejudice. The provision reads as follows:

“Any person who makes a misrepresentation

(a) intending to deceive another person or realising that there is a real risk or possibility of deceiving

another person; and

(b) intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising

that there is a real risk or possibility that another person may act upon the misrepresentation

to his or her prejudice;

shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially

prejudicial to another person, and be liable to

(i) a fine not exceeding level fourteen or not exceeding twice the value of any property obtained

by him or her as a result of the crime, whichever is the greater; or

(ii) imprisonment for a period not exceeding thirty-five years;

or both.”

The charge against the applicant alleges that he misrepresented to ZIMOCO to the prejudice of Zimbabwe Republic Police. That is a clearly convoluted charge. No evidence was led regarding how the applicant misrepresented to ZIMOCO. It is accepted that the applicant never personally took the vehicle to ZIMOCO. He never had any interaction with ZIMOCO. Even if the charge was to be amended, there still remains the aspect that the applicant never interacted with ZIMOCO directly. In any event ZIMOCO never suffered any prejudice.

Notwithstanding the deficit regarding the main charge, the applicant fundamentally overlooked s 198 (3) of the Criminal Procedure and Evidence Act. The provision reads that:

“If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”

A reading of the trial court’s ruling reflects it squarely addressed the above. A court that is faced with an application for discharge at the close of the State case must consider other permissible verdicts. It cannot restrict itself to the main charge as the applicant sought to do.

It does appear irregular that the applicant’s private motor vehicle could be serviced and repaired at the expense of the Zimbabwe Republic Police. The applicant at that time was the Chief Staff Officer Transport and Logistics. This is why the applicant has to be put to his defence. This is further heightened by s 174 (2) of the Criminal Law (Codification and Reform) Act which provides that:

“If it is proved, in any prosecution for criminal abuse of duty as a public officer, that a public officer,

in breach of his or her duty as such, did or omitted to do anything to the favour or prejudice of any person, it shall be presumed, unless the contrary is proved, that he or she did or omitted to do the thing for the purpose of showing favour or disfavour, as the case may be, to that person.”

The grounds for review relating to the accomplice witness fail in two material respects. Section 267 of the Criminal Procedure and Evidence Act provides that:

“(1) When the prosecutor at any trial informs the court that any person produced by him or her as a witness on behalf of the prosecution has, in his or her opinion, been an accomplice, either as principal or accessory, in the commission of the offence alleged in the charge, such person shall, notwithstanding anything to the contrary in this Act, be compelled to be sworn or to make affirmation as a witness and to answer any question the reply to which would tend to incriminate him or her in respect of such offence.

[Subsection substituted by section 22 of Act 9 of 2006.]

(2) If a person referred to in subsection (1) fully answers to the satisfaction of the court all such lawful questions as may be put to him, he shall, subject to subsection (3), be discharged from all liability to prosecution for the offence concerned and the court or magistrate, as the case may be, shall cause such discharge to be entered on the record of the proceedings.

(3) A discharge in terms of subsection (2) shall be of no effect and the entry thereof on the record of the proceedings shall be deleted if, when called as a witness at the trial of any person upon a charge of having committed the offence concerned, the person concerned refuses to be sworn or to make affirmation as a witness or refuses or fails to answer fully to the satisfaction of the court all such lawful questions as may be put to him.”

The applicant’s counsel has not cited any authority in support of the contention that the trial court should have ordered the accomplice witness’s discharge before conclusion of trial. There is no suggestion as to at what stage the discharge should have been entered. Was it soon after the witness had testified or at the close of State case when the court made its ruling on the application for discharge? Irrespective of that, it appears the proper time to enter discharge is at the conclusion of the proceedings, when all the evidence has been considered. A reading of the case of Sivako v Attorney-General 1999 (2) ZLR 271 (S) does not show that a discharge should be ordered soon after an accomplice witness has finished testifying.

The assertion that the accomplice witness was arrested and charged with the same charges that the applicant is facing does not advance his case in any way. The fact that the accomplice witness was not discharged and that he was charged with similar charges the applicant is facing is for that witness to contest at his trial. The applicant cannot purport to advance the accomplice witness’s cause. He has no legal basis to advance a cause for a party who is not before this court.

In the result, the application is hereby dismissed.

Antonio & Dzvetero, applicant’s legal practitioners

National Prosecuting Authority, second respondent’s legal practitioners