This is an application for leave to appeal to the Supreme Court in terms of section 44(6) of the High Court Act [Chapter 7:06].In particular, the applicant seeks leave to appeal against the decision of the High Court handed down on 20 March 2019 in Case No.11141/18 (as Judgment No. ...
This is an application for leave to appeal to the Supreme Court in terms of section 44(6) of the High Court Act [Chapter 7:06].
In particular, the applicant seeks leave to appeal against the decision of the High Court handed down on 20 March 2019 in Case No.11141/18 (as Judgment No. HH229-19).
The effect of that judgment was to quash the criminal charges against the respondents in Case No. CRB P 9114-5/18, and, consequently, to order their acquittal on those charges.
The Background
The applicant herein is the Prosecutor-General. The first respondent is a company styled Intratrek Zimbabwe (Pvt) Ltd (Intratrek), while the second respondent, Wicknell Munodaani Chivayo (Chivayo), is that company's Managing Director.
The respondents were charged with two counts of fraud and two counts of contravening local exchange control requirements. All four charges emanate from an Engineering, Procurement, and Construction Contract (the Contract) entered into between Intratrek, represented therein by Wicknell Munodaani Chivayo (Chivayo), and the Zimbabwe Power Company (Pvt) Ltd (the ZPC).
The Contract, which was concluded on 23 October 2015, was for the construction of a 100 megawatt solar power generation plant in Gwanda (the Project).
The first charge alleges fraud pursuant to misrepresentation by the respondents through the submission of invoices designed to fund a feasibility study for the Project. It is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) released a total of US$2,435,654 on the strength of those invoices and that the respondents converted those funds to their own use thereby causing actual prejudice in that amount.
The second charge also alleges fraud by misrepresentation through the presentation of invoices for pre-commencement works on the Project. Again, it is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) acted upon the misrepresentation and released funds to the respondents who converted those funds to their own use thereby causing actual prejudice in the sum of US$3,188,476=80.
The third and fourth charges pertain to alleged exchange control violations.
The third charge alleges that the respondents entered into an unlawful agreement with a company resident in the United States of America involving the payment of recurring fees amounting to US$849,479 without seeking prior approval from the Exchange Control Authority. The fourth charge alleges that the respondents were granted exchange control approval to load Wicknell Munodaani Chivayo's VISA cards with funds amounting to US$849,479 to import earthmoving equipment for civil construction purposes at the Project. It is alleged that the respondents failed to provide bills of entry to the CBZ Bank as proof of receipt of the imported goods for acquittal purposes within 90 days of effecting payment.
Magistrates Court and High Court Proceedings
In Case No. CRB P 9114-5/18, before the Magistrates Court, the respondents pleaded not guilty and excepted to all four charges in terms of section 171(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].
The exception was premised on the assertion that the facts as alleged in the Charge Sheet and State Outline did not disclose any offence, whether as alleged or at all.
The learned magistrate found that the charges in question did capture the essentials expected of a charge to enable the accused persons to properly plead thereto. He accordingly dismissed the exception.
Aggrieved by that ruling, the respondents filed an application to the High Court for the review of the magistrate's decision on the ground that it was grossly unreasonable and patently contrary to law. The respondents also filed a separate application to the High Court for the stay of proceedings before the Magistrates Court pending the determination of the application for review.
The latter application was heard and determined in Case No. HC11205/18 (as Judgment No. 849-18 per MUSAKWA J) on 31 December 2018. The learned judge found that there were no formal defects in three of the four counts and that the applicants (the respondents herein) had no prospects of success on review in respect of those three counts. The third count was found to be defective. The court accordingly ordered that the criminal trial be suspended only in respect of the third count and that the trial could proceed in respect of the other three viable counts.
High Court Judgment on Review
In the judgment which the applicant seeks leave to appeal against, the High Court found that the learned magistrate had misdirected himself because he dealt with an issue that was not before him. In particular, he had been asked to adjudicate whether or not the facts alleged disclosed an offence, but, instead, decided that the charges against the respondents were properly framed and therefore disclosed an offence. The High Court held that this was a reviewable irregularity that went to the root of the matter. The court then proceeded to determine the question itself by way of considering, in great detail, the merits of the entire case against the respondents. I summarise its principal findings as follows:
(i) The payments made by the Zimbabwe Power Company (Pvt) Ltd (ZPC) were advance payments authorised by contract and this negated any intention to deceive or cause prejudice.
(ii) The Zimbabwe Power Company (Pvt) Ltd (ZPC) incurred its own loss by negligently paying the respondents before any performance bond or guarantee was put in place.
(iii) Where a contractual agreement provides effective redress, the dispute should be resolved contractually and liability should not be extended under the different remedial regime of Criminal Law.
(iv) The respondents did not commit any offence under the Exchange Control Regulations as the Guidelines in question were not made under the Exchange Control Act, and, in any event, the respondents could have sought exchange control approval after entering into the relevant contract.
(v) No criminal offence was established in relation to the non-acquittal of payments as the Authority in question was not promulgated under the Exchange Control Act and did not prescribe any offence.
(vi) Wicknell Munodaani Chivayo (Chivayo) merely represented Intratrek Zimbabwe (Pvt) Ltd (Intratrek) in his capacity as its Managing Director and was therefore wrongly charged in his personal capacity.
(vii) To the extent that section 277(5) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) imputes vicarious liability to Wicknell Munodaani Chivayo in respect of an offence allegedly committed by Intratrek Zimbabwe (Pvt) Ltd, the charges in question breached the protective provisions of sections 49(1) and 56(1) of the Constitution and were therefore invalid.
(viii) On the totality of the facts and the merits, it was highly improbable that a criminal suit would succeed, and, therefore, its continuation would violate section 49(2) of the Constitution.
The learned judge concluded by reiterating that a Criminal Court does not have any jurisdiction to hear or determine any case of a civil nature as in casu. He then set aside the learned magistrate's ruling and substituted it with an order that the exception to the charges should succeed, resulting in all of the charges being quashed and both respondents being formally acquitted....,.
As already stated, the applicant seeks leave to appeal against the judgment of the High Court in terms of section 44(6) of the High Court Act.
His intended appeal is premised on points of law and on the averment that the court acquitted the respondents on a view of the facts which could not reasonably be entertained....,.
Grounds of Appeal
The intended grounds of appeal herein, as paraphrased, aver that the learned judge a quo misdirected himself and/or erred in the following respects:
1. In finding that the facts do not disclose an offence of fraud when it was apparent from the State Outline that the respondents had misrepresented to the Zimbabwe Power Company (Pvt) Ltd (ZPC) that a total of US$1,960,125 had been paid to subcontractors when such money had not been paid and was used by the respondents for their own benefit to the prejudice of the Zimbabwe Power Company (Pvt) Ltd.
2. In failing to consider the provisions of section 278(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Criminal Law Code) which impute that a person's conduct can constitute both criminal and civil liability and that the State could resort to criminal redress in a matter that was not purely contractual.
3. In finding that the facts do not disclose an offence of fraud as against the second respondent where he was chargeable in his personal capacity as a director of the first respondent and there was a paper trail to show that both respondents misrepresented facts to the Zimbabwe Power Company (Pvt) Ltd to its prejudice and that the funds were used by both respondents for their own benefit.
4. In making a finding that effectively interfered with un-terminated proceedings where there were no exceptional circumstances to warrant such interference and where trial had commenced and evidence was being led before the Magistrates Court.
5. In finding that the facts pertaining to the fourth count do not disclose an offence of entering into an agreement without seeking prior exchange control approval.
The relief sought by the applicant, on appeal, is that the appeal should succeed and that the judgment of the court a quo be set aside and substituted with an order dismissing the exception and continuing the trial under Case No. CRB P 9114-5/18....,.
General Considerations
Section 44(6) of the High Court Act provides for appeals by the Prosecutor General against judgments of the High Court in the following terms:
“(6) If the Prosecutor-General is dissatisfied with the judgment of the High Court in a criminal matter, whether in the exercise of its original or appellate jurisdiction, or on review, including a review pursuant to section 57 of the Magistrates Court Act [Chapter 7:10] –
(a) On a point of law; or
(b) Because it has acquitted or quashed the conviction of the person who was the accused in the case on a view of the facts which could not reasonably be entertained;
he may, with the leave of a judge of the Supreme Court, appeal against such judgment to the Supreme Court:…,.”
The right of appeal conferred by section 44(6) of the High Court Act is essentially twofold;
(i) Either on a point of law or on a view of the facts which could not reasonably be entertained; or
(ii) On both the law and the facts.
As regards an appeal on the facts, the test is primarily an objective one, viz. is the impugned finding of fact one that is shown to be objectively unreasonable and therefore one that could not reasonably be entertained?
In taking this view, I am not oblivious to the observations of KORSAH JA in Attorney-General v Paweni Trade Corp (Pvt) Ltd & Ors 1990 (1) ZLR 24 (SC)…,.
In that case, this Court was seized with applications for leave to appeal filed by both parties together with the actual appeals noted by both parties against the findings of the trial court. In interpreting the parameters of the phrase under consideration, the learned Judge of Appeal took the view that:
“…, if there are reasonable grounds for taking certain facts into consideration, and all the facts, when taken together, point inexorably to the guilt of an accused beyond peradventure, but the trial court nonetheless acquits the accused, then, the trial court has taken a view of the facts which could not reasonably be entertained. Put another way, if, on a view of the facts, the court could not have reasonably inferred the innocence of the accused, then, the verdict of acquittal is perverse and the Attorney-General is entitled to attack it.”
The earlier part of this passage appears to suggest a threshold for the applicant to surmount which is somewhat higher than the objective test that I have expounded, while the later part is more in accord with that test.
In any event, the case is distinguishable on the basis that it addresses the considerations applicable in an application for leave to appeal as well as the merits of the actual appeal itself. At this stage, I am seized only with the former and not the latter. Moreover, the pertinent facts in that case had already been fully ventilated before the trial court and definitively determined by that court.
In contrast, the facts in casu have yet to be canvassed and conclusively determined by trial on evidence yet to be adduced.
For these reasons, I am inclined, in the present matter, to lean towards adopting and applying the later rather than the earlier part of the passage that I have cited.
As for the requirement of leave to appeal to be obtained before the right to appeal can be exercised, this Court is vested with an essentially gate-keeping function, viz. to allow only cases that deserve to be heard on appeal to pass muster. What this entails is an evaluation of the grounds of appeal to be relied upon and their prospects of success at the intended appeal; see Chikurunhe & Ors v Zimbabwe Financial Holdings SC10-08; Chipangura v Environmental Management Authority SC35-12.
