THE State V Godfrey Gandawa, Shepherd Honzeri AND Nicholas Mapute

### Preamble
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HH 478-18
CRB 39/18
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THE STATE

versus

GODFREY GANDAWA

and

SHEPHERD HONZERI

and

NICHOLAS MAPUTE

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 21, 24, & 29 May 2018 and 6 July 2018

Assessors:	1. Mr Barwa

2. Mr Chimonyo

Ruling on application to quash and exception to charges

C. Chimbari with F. Zachariah, for the State

E.T Matinenga, for 1st Accused

T. Nyakunika, for 2nd Accused

N. Nkomo, for 3rd Accused

CHITAPI J: In this application, counsel for the 1st accused, Mr Matinenga filed a preliminary application to have the charges against the 1st accused quashed. Counsel for the 3rd accused subsequently advised that he had taken a cue from 1st accused’s counsel and intended to file a similar application. Before I deal with the applications, I will briefly set out the background to this trial so that the trail of proceedings is not lost.

Background

When the matter was called on 21 May, 2018, the indictment listed 5 accused persons as follows:

‘(a)	Godfrey Gandawa			-	1st Accused

(b)	Jonathan Nathanial Moyo		-	2nd Accused

(c)	Frederick Mandizvidza 		-	3rd Accused

(d)	Shephard Honzeri			-	4th Accused

(e)	Nicholas Mapute			-	5th Accused

Filed together with the indictment was the outline of the summary of the evidence of State witnesses (18 in number). Copies of the documents aforesaid would in terms of s 66 (6) of the Criminal Procedure and Evidence Act [Chapter 9:07] have been served upon each of the accused persons upon their committal for trial to the High Court by the magistrate in a procedure colloquially called “indictment of the accused”. I mention these documents because they inform the accused of the charges he must answer to and of the evidence intended to be led against him. The filing of the applications to quash which are subject of the preliminary issue raised by defence counsels arise from the manner in which the indictment served on the accused persons was framed read together with the summary of the evidence of State witnesses as aforesaid.

The 1st accused filed his motion to quash the charges against him in terms of s 178 of the Criminal Procedure & Evidence Act, on 18 May, 2018. Prior to that, the  1st accused’s legal practitioners addressed a letter dated 11 May, 2018 to the Prosecutor General in which they advised in the main as follows in para3 of their letter:

“3. Out of courtesy, we wish to advise that on 21 May, 2018, we shall be making an application to quash the charges in terms of s 178 of the criminal Procedure and Evidence Act [Chapter 9:07]”.

A copy of the letter was received by the Registrar Criminal Division of this court on

15 May, 2018 as indicated by the Registrar’s stamp franked thereon. The copy of the letter is filed of record.

In writing the letter out of courtesy as aforesaid, the 1st accused’s legal practitioner was misdirected on the procedure for applying for quashing of an indictment.

The procedure for applying to quash an indictment is set out in ss 178 and 179 of the Criminal Procedure & Evidence. For posterity I will quote the relevant sections ex-tenso and thereafter briefly highlight the shortcomings committed by the 1st accused’s legal practitioners.

“178	Application to quash indictment

The accused may, before pleading, apply to the court to quash the indictment, summons or charge on the ground that it is calculated to prejudice or embarrass him in his defence.

Upon an application in terms of subsection (1), the court may quash the indictment, summons or charge or may order it to be amended in such manner as the court thinks just or may refuse to make any order on the application.

If the accused alleges that he is wrongly named in the indictment, summons or charge, the court may on being satisfied by affidavit or otherwise of the error, order it to be amended

179	Notice of application to quash indictment and of certain pleas to be given

When the accused intends to apply to have an indictment, summons or charge quashed under section one hundred and seventy-eight or to except or to plead any of the pleas mentioned in section one hundred and eighty, except the plea of guilty or not guilty, he shall give reasonable notice, regard being had to the circumstances of each particular case, to the Prosecutor-General or his representative if the trial is before the High Court, or to the public prosecutor if the trial is before a magistrate court, or when the prosecution is a private one to the private prosecutor, stating the grounds upon which he seeks to have the indictment, summons or charge quashed or upon which he bases his exception or plea:

Provided that –

the Prosecutor-General or prosecutor, as the case may be, may waive such notice;

on good cause shown, the court may dispense with such notice or adjourn the trial to enable such notice to be given.”

I propose to address s 179 first because s 178 forms the gravamen of this application and will be dealt with in due time. It is a requirement that reasonable notice of application to quash the indictment should be given. What amounts to reasonable notice is determined by the circumstances of each case. I would think that the most important circumstance is the length of the period of notice which the accused applying to quash the indictment has had from the date of committal for trial to the date of trial. In casu, the 1st accused as with 3rd – 5th accused was committed for trial on 31 March, 2018 according to the return of service endorsed by the magistrate who presided over the committal proceedings. From that date to the trial date on 21 May, 2018 there was a period of 51 days in which the 1st accused should have prepared for his trial including deciding on and giving reasonable notice of application to quash the indictment as required.

The letter dated 11 May, 2018 was not compliant with the requirements of s 179. The giving of notice is not a courtesy issue. It is on the contrary a peremptory legislative requirement that must be complied with. The “courtesy” letter if it purported to serve as notice was further non-compliant in that it did not set out or state the grounds on which the 1st accused sought to rely upon to move the court to quash the indictment. The letter aforesaid, to the extent that, it was intended to be the notice referred to in s 179 was therefore invalid. No proper notice was therefore given. At best the 1st accused can be said to have substantially complied with s 179 on 18 May, 2018 upon the filing of the substantive application to quash the indictment prepared by Mr Matinenga.

There is ample justification as to why the legislature in its wisdom made the giving of reasonable notice of application to quash an indictment a peremptory requirement. Applications to quash an indictment are dilatory in nature in that they arrest the commencement of the trial until the preliminary application has been disposed of. The giving of reasonable notice to the Prosecutor-General allows his office adequate time to reflect on the grounds relied upon for making the application well before trial.  It may well be that the Prosecutor-General will find merit in the grounds of objection to the indictment. The Prosecutor-General will then decide on whether to proceed with the indictment, withdraw it or amend it accordingly before trial date. Where the Prosecutor-General does not agree with the grounds of objection, he gets a reasonable opportunity to file his grounds of opposition before trial date. The filing of the notice within a reasonable period, equally alerts the presiding judge as to the preliminary argument to be raised and the judge will be attuned to and prepared for such application which invariably involves an issue of law.

The proviso’s (i) and (ii) to s 179 provide that the Prosecutor General can waive the notice. Equally, the court can “on good cause shown”, dispense with the notice or postpone the trial so that the requisite notice is given as required by law. The proviso is not to be considered as being of automatic application. The dispensation which may be granted in terms thereof must in practise be invoked for good reason and is not a licence to applicants to counter mand the legislative requirement to give notice of the application.

When the matter was called, all counsels including state counsel appeared oblivious to the peremptory requirements of s 179. The submissions which they made related only to the impossibility or impracticability of the trial commencing owing to the need for the court to determine preliminary issues on quashing of the indictment and the absence of defence outlines. Mr Nyakunika for the 4th accused had not filed a defence outline and was for this reason not ready to proceed to trial. Mr Nkomo for the 5th accused submitted that on reflection and after getting the benefit of reading the application to quash filed by Mr Matinenga for the 1st accused, he stood better informed and wanted to request leave to file a similar preliminary objection. Mr Nyakunika’s submitted that his brief to represent the 4th accused was on a pro-deo basis and the Registrar had allocated the brief to him on 18 May, 2018 which date left him with inadequate time to prepare a defence outline. For his part Mr Nkomo’s failure to file a defence outline or to indicate that the 2nd accused did not intend to file such outline as he is not obliged to because of the existence of the right to silence, was in itself in breach of s 66 (8) of the Criminal Procedure & Evidence Act which provides that the cited provision provides that, where it is proposed by the accused to file a defence outline and call witnesses, the defence outline and summary of the evidence of witnesses should be filed at least 3 clear days prior to trial date. The State counsels for their part were not any better organised either. State’s lead counsel Mr Chimbari submitted that the State intended to withdraw charges before plea against 3rd accused whom the State intended to turn into a State’s witness. Counsel further indicated that he needed to amend the indictment and summary of evidence of State witnesses and in the case of the latter, by supplementing it to include the evidence of the 3rd  accused as a State witness. As regards the 2nd accused, Jonathan Nataniel Moyo, State counsel indicated that although listed as an accused, the subject had not been committed for trial and that it was proposed to remove him as accused in the indictment.

It seldom happens that a judge in the High Court has to be called to court and be presented with trial papers that are a confused mess akin to a dogs dinner or breakfast for want of a better expression. The confusion which presented itself arose from a lack of prior preparation on the part of all counsel involved in this trial. A criminal trial is not a game of hide and seek where counsel flex their muscles and skills in a show to outwit each other and thereby torpedo the smooth flow of trials. Courts have no interest and judges are unimpressed by legal practitioners who are officers of the court to whom they owe their professional duties first, engaging in conduct which in essence amounts to psychological mind games. Such kind of mind games amount to a psychology of stupidity and is inimical to the due administration of justice. Counsel should have held a pre-trial engagement and agreed the way forward instead of grandstanding before the judge in court and causing the judge to deal with an array of gallimaufry in the form of papers which the court would ultimately be called upon to abandon since an amended indictment and summary of state witness evidence was inevitably going to be prepared because of the State’s decision to withdraw the indictment against two of the listed persons as accused. Unfortunately apart from expressing its displeasure at the confusion, the court cannot dictate to State counsel on how to initiate and plan on effectively mounting a prosecution of a case. It is however suggested that counsel should before trial exchange notes and discuss admissions, preliminary issues and to generally agree on the issues of divergence and which witnesses to call. Pre-trial consultations are important to curtail proceedings. Pre-trial engagements by counsel are peremptory as a precursor to civil trial referrals and the judge is involved. Although in criminal trials,  the pre-trial consultations are no peremptory the practice should be encouraged as between the prosecution and defence because of the obvious advantages of the practice.

Going forward with the matter, charges against the 3rd accused were withdrawn before plea as requested by State counsel. The matter was postponed to 24 May, 2018 for the States to amend its papers. On 24 May, the State counsel filed an amended indictment in which the accused were now three in number. They are listed as follows:

Godfrey Gandawa – 1st accused.

Shephered Honzeri – 2nd accused

Nicholas Mapute   - 3rd accused.

The prosecutor also filed an amended summary of the evidence of State witnesses. It so turned out that following the adjournment on 21 May, 2018, counsel for 3rd accused (then cited as 5th accused in the original indictment) had on the same date filed a combined application to quash the indictment as against the 3rd accused and for separation of trials in terms of sections of 178 and 190 respectively of the Criminal Procedure & Evidence Act. State counsel filed his written response to both applications by the 1st and 3rd accused persons on 23 May, 2018. Mr Nyakunika filed the 2nd accused’s defence outline on the morning of 24 May, 2018.  The heading to his defence outline and the body of the defence outline cited 5 accused persons. The 2nd accused his client herein, is referred to as 4th accused yet there ae now 3 accused persons facing trial.

Defence counsel for 1st and 3rd accused submitted that they proposed to file written replies to the States’ response. The court in agreement with counsel directed that the replies be filed by 29 May, 2018 and adjourned the proceedings to 11 June, 2018 for argument. Counsel presented their arguments on 11 June 2018 as scheduled and I postponed my ruling to 29 June, 2018. In the course of preparing the ruling I realised that the documents filed in support of the applications still cited 5 accused persons and in that the body of the applications, references are made to accused persons who are not captured in the amended indictment. The same applied to the 4th accused’s defence outline. The un-amended papers created confusion and I considered that they must be amended to speak to the amended indictment. I arrested writing the judgment because of the confusion caused by references  to non-cited accused persons. On 29 June, 2018, I directed defence counsel to amend the defence papers accordingly and postponed the handing down of the ruling date to 6 July, 2018.

Counsel undertook to file the requisite amendments to their papers by 2 July, 2018. Counsels for 1st and 3rd accused filed their amendments as undertaken. Counsel for the 2nd accused did not file any amendment to the defence outline despite my directive and his undertaking to do the same. Even though at this stage, the preliminary applications I must determine do not take into account the defence outline of the 2nd accused, that defence outline should as filed, speak to the new indictment in order not to cause confusion. Mr Nyakunika must comply with the court’s directive to put his papers in order.

As regards the application to quash the indictment based on s 178 of the Criminal Procedure & Evidence Act, it is apparent from the clear wording of the section, that the motion to quash an indictment, summons or charge is premised on the ground that the same is “calculated to prejudice or embarrass” the accused in his defence. The rationale for this law lies in the right of an accused person to a fair trial, the presumption of innocence until proven guilty and the recognition that unless the contrary is indicated by law, no onus rests upon an accused person to prove his innocence nor to assist the State to  prove its case against the accused. The indictment, charge or summons will be quashed if it is “calculated to,” and proceeding on it as framed will adversely affect the accused’s ability to properly and effectively defend himself or herself. The onus to show that the impugned indictment is calculated to prejudice or embarrass the accused in his defence rests upon the accused and it is discharged on a balance of probabilities. Further, the court has a discretion where the accused discharges the onus aforesaid to either quash the indictment, refuse the application or order that the indictment, summons or charge should be amended in a particular manner which appears to the court to be just.

The 1st and 3rd accused’s contentions re quashing of indictment

I will first dispose of a peripheral issue of whether there is any distinction between an indictment, summons or charge. Mr Matinenga properly cited section 136 of the Criminal Procedure and Evidence which provides that a written charge in trials before the High Court is called an indictment. The important point to note is to consider the contents of the documents by whether of the three terms it is referred to. They simply embody details of the offence which an accused stands charged of and in this regard, section 139 of the Criminal Procedure and Evidence is relevant in so far as it explicitly sets out what a summons or charge in the Magistrates court should detail. Save for matters of detail the purport of an indictment, charge or summons is that the document embodies the details of the offence charged. For example in trials before the High Court the court will direct the prosecutor to put the charge to the accused as opposed to saying put the indictment to the accused. Either way, the prosecutor will read out the details of the offence charged and the accused is requested by the court to tender his or plea. Nothing therefore turns on the interchangeable use of the words and any distinctions which one may make amounts to an academic exercise in futility and does not alter the substance being that the documents embody details of the offence(s) that accused stands charged of and must answer to.

Next, the 1st and 3rd accused’s protestations that the indictment is calculated to prejudice or embarrass them in their defences will be better appreciated after interrogating the legal justification given by the state for the joinder of the accused persons in the 14 counts as set out in the indictment. Mr Chimbari submitted that the joinder of the accused is permitted and justified on the basis of the provisions of section 159 of the Criminal Procedure and Evidence Act. The section provides as follows;

“159 Joint trial of persons charged with different offences.

When it is alleged in an indictment, summons or charge that two or more persons have committed separate offences at the same time and place or at the same place and about the same time and the prosecutor informs the court that any evidence which is, in his opinion, admissible at the trial of those persons is, in his opinion, also admissible at the trial of the other person or persons, such persons may be tried jointly for those offences on that indictment, summons or charge.”

In my interpretation of the provisions of s 159, the legislation allows for a misjoinder of the accused where circumstances listed therein exist. I restate the circumstances as follows:

The indictment must allege the commission of separate offences.

The separate offences must have been committed by two or more persons.

The separate offences must have been committed at the same place and time or at the same place and about the same place. In other words whilst there can be some lapse of time between the commission of the separate offences, the place of commission of the separate offences must however remain the same.

The prosecutor must inform the court that “any evidence which is, in his opinion, admissible at the trial of these persons is also admissible at the trial of the other person or persons.” I should hasten to comment that it does not appear to me that the court has power to enquire into the justification or basis on which the prosecutor will have based or founded his or her opinion. I say so because the court cannot anticipate that the proposed evidence will not be admissible in regards the separate offences. To do so would be to prejudge the matter. Therefore, so far as the expression of opinion by the prosecutor as to the admissibility of evidence in regard to the separate offences and separate accused persons is concerned, the court cannot subject such opinion to review.

It must be understood that each count should be deemed to be a charge separate from the next one. In manner of speaking each count does in fact constitutes an indictment going by the definition of “a charge” in the High Court as defined in s 136 of the Criminal Procedure and Evidence Act. The accused persons therefore were committed by the magistrate for trial to answer to fourteen indictments.

Having stated as above, I must consider whether or not each count, charge or indictment  complies with the provisions of s 159 of the Criminal Procedure and Evidence Act regarding the factors which must be satisfied before the section can become applicable. Thus, in respect of each count, the court, must leaving out the issue of the opinion of the prosecutor as to the admissibility of evidence he might have, ask itself the following questions;

Does the charge/indictment allege the commission of two separate or distinct offences. If so, what are the separate or distinct offences?

Does the charge/indictment allege that the two distinct offences identified in (a) above were committed by two or more people and not by one person?

Does the charge/indictment, if the answer in (b) is in the affirmative, allege that the separate and distinct offences were committed at the same place and time or at the same place and about the same time.

If the charge/indictment passes or satisfies the above enquiries, then s 159 comes into play. If the enquiries are not satisfied, then the court must rule that there has been an impermissible misjoinder of the accused persons in the charge / indictment. In fact there will have been committed, a misapplication of section 159.

In the amended 14 indictments placed before the court, the charges have been grouped as follows:

(a) Counts 1 – 3

They all allege the offence of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. As evident therefrom, all the three accused persons face the same charges. It has not been alleged in any of the 3 counts that arising from the facts forming the basis of each of the charges/ indictments, separate offences were committed, what the separate offences where and which of the accused persons faces the separate offence(s). The application of s 159 therefore is misplaced in regard to the 3 counts and because the requirements  for the invocation of s 159 as l have listed are not disjunctive, a failure to establish any one of the requirements renders the proposed application of s 159 a non-sequitur.

(b) Counts 4 – 7

The counts allege a single offence, of in each count, the offence of Criminal Abuse of duty as a public officer as defined in s 174 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In counts 4, 6 and 7, the allegations relate to a contravention by 1st accused only. In count 5: the alleged contravention is by 1st and 3rd accused. The 2nd accused does not feature in any of the 4 counts and would have to take a sabbatical when these counts are dealt with. He could as well be excused from the dock inasmuch as the same would apply in relation to 3rd accused vis a vis counts 4, 6 and 7. In such a case, there is clearly an impermissible misjoinder of accused persons. This is made worse by the fact that there is no other distinct or separate offence preferred against either of the accused other than the single offence common to all of them. Whilst the alleged place of commission of the one offence charged is the same in the 4 counts, the application of s 159 fails in that there has to be alleged and charged, a separate offence committed at the same place. Regarding time, whilst the separate offence(s) could have been committed at a different time, such time must be “about the same time.” The alleged offences in counts 4 – 7 were allegedly committed over a period of 4 months on 19 October 2015; 6 November 2015; 18 December 2015 and January 2016 respectively. A period of 4 months cannot qualify to be described as “about the same time.” About the same time connotes a degree of closeness between two events occurring which happen at more or less at the same time. The quoted phrase cannot in my view be interpreted to apply to circumstances totally distant or unconnected with each other as in the 4 counts wherein the alleged acts of favouritism which constituted criminal abuse of duty were allegedly done in favour of different entities and at different times far between. I therefore hold that there was a misapplication of s 159 and resultantly, an impermissible misjoinder of the accused persons has occurred.

(c)	Count 8 – 11

The 4 counts allege a contravention of s 8 (1) (a) as read with s 8 (3) of the Money Laundering and Proceed of Crime Act [Chapter 9:24]. As with the observation which I made in regards to preceding counts, there are no two separate or distinct offences charged against one or other of the two accused, 1st and 3rd accused. An essential element or condition precedent to the invocation and application of s 159 is missing. Although there are two accused persons, without preferring a separate charge, to accompany the first mentioned charge there has been a misapplication of s 159 and a misjoinder of 2nd accused by having him participate in a trial in which he will be a bystander.

(d)	Count 12 – 14

The 3 counts allege a contravention by 1st accused only, of s 173 (1) (a) (i) of the Criminal Law (Codification & Reform) Act [Chapter 9:23] wherein it is alleged that on 3 different occasion on 18 December 2015; 12 January 2016 and 15 April 2016 respectively, he concealed from his principal, a personal interest in a transaction. Again the charges or indictments do not involve more than one person and no separate offences are charged or alleged. For the same reasons already adverted to, s 159 cannot be invoked in such circumstances. The inclusion of these charges in the same trial with preceding counts constitutes an impermissible misjoinder of other accused persons who will be stooges when the court deals with these counts.

Having made a finding that the provisions of s 159 of the Criminal Procedure & Evidence Act which the state sought to rely upon are not applicable, the question is, what should the court do? I have already set out the court’s powers in relation to applications brought under s 178 of the said Act. A motion to quash an indictment is not intended to, nor does it dispose of the indictment on the merits. The motion is intended to ensure a fair trial both to the state and the accused. Section 178 is not a gateway section to circumvent the ends of justice. Section 159 is a convenience section which is intended to advance the speedy and fair administration of justice. Its invocation is further intended to ensure that trials of accused persons who have committed different offences at the same place and at the same time or at about the same time are tried together where evidence to be adduced will be admissible in proof of the separate offences. Take for example at situation where three accused persons have committed the offence of unlawful entry, one of them steals goods and another rapes one of the occupants, the state can charge all the three of unlawful entry, one of them with the additional separate crime theft and the other with an additional separate crime of rape. The different or separate offences are then included in one indictment or charge. Section 159 is meant to cater for situations where there is overlap in evidence to be led. The purpose of s 159 can also be said to be the avoidance of a multiplicity of trials where essentially the same evidence will be led in each of the separated trials which can be avoided if there is a joinder of trials albeit the accused facing different crimes. The requirements of section of 159 must however be strictly established and followed before the joinder envisaged in s 159 can be allowed.

Going forward, I am in agreement with Mr Matinenga’s submission that the court should in considering the appropriate order to make where an application to quash the indictment, also consider the provisions of s 190 of the Criminal Procedure & Evidence Act. This approach was enunciated in Marenga v State [2015] ZASCA 28 in which the South African Court of Appeal considered the provisions of s 156 of the South African Criminal Procedure Act 51 of 1977. The aforesaid s 156 is similar in wording to our s 159. The judgment underlines the issue of discretion which the court exercises to permit a trial to continue or order a separation where the indictment is brought in terms of s 156. The court further underlined that in exercising a discretion in the interests of justice, the court should consider prejudice to both the state and the accused. The prejudice referred to is simply that no injustice should be caused to either the state or the accused. This case however was decided on the basis that the requirements of s 156 had been met.

In casu, I have ruled that the requirements of s 159 were not satisfied. I do not consider it necessary at this stage to deal with the residual issues raised by counsel for the 1st and 3rd accused concerning a splitting of charges and separation of trials. These issues can only properly be dealt with after the indictments have been revisited and the misjoinder rectified. I have considered whether or not I can make an order that the indictments be amended. Such a course is not competent because to all intents and purposes, what I find unacceptable in the first instance is the misjoinder of the accused persons in this trial. The state has misconstrued the interpretation of the word “indictment” and reasoned that bringing the 14 counts under one document has the effect of making the document a single indictment and the various counts which are in effect constituted by distinct charges, the separate offences envisaged under s 159. As a result of this error of law by the state there is a serious and impermissible misjoinder. The court cannot proceed with trial where charges are so disjointed that one or other of the accused persons becomes a non or passive participant or actor in the course of what essentially is meant to be one trial. See Dereki & Anor v S [2015] ZAECGHC 59. The misjoinder in this case vitiates the fairness of a trial and ought not to be countenanced. The State must simply put its house in order. The 1st accused for example is charged in counts in which he alone is the accused. The court can be joined in terms of s 144 and he is tried in one trial. Where he is charged with another accused, then such counts can equally be joined in one trial and so on. The count can only be placed in a position to properly decide on issues of splitting of charges and other objections if next raised once the misjoinder defect has been cured.

In the premises the proper order to make is to quash the blanketed indictment which lists the 14 counts as framed in one tried and to postpone the matter sine die or to such date as the state may if advised set for resumption of the case after putting its house in order. The State having indicated that the trial will be resumed on 5-9 November, 2018, the 3 accused have accordingly been warned to appear before the court on 5 November, 2018.

National Prosecuting Authority, State’s legal practitioners

Kantor & Immerman, 1st accused’s legal practitioners

Mupindu Legal Practitioner, 2nd accused’s legal practitioners

DNM Attorneys, 3rd accused’s legal practitioners