This is an application for the review of the second respondent's ruling dismissing the applicants exception to criminal charges preferred against them in the court of the Provincial Magistrate at Harare under case number CRB P9114-5/2018. The ruling was handed down on the 19th of November 2018.The first applicant is ...
This is an application for the review of the second respondent's ruling dismissing the applicants exception to criminal charges preferred against them in the court of the Provincial Magistrate at Harare under case number CRB P9114-5/2018. The ruling was handed down on the 19th of November 2018.
The first applicant is Intratrek Zimbabwe (Pvt) Ltd represented by the second applicant, Wicknel Munodaani Chivayo, as its Managing Director.
THE FACTS
The applicants were arraigned before the Magistrates Court sitting at Harare for contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] - Fraud (2 counts); contravening section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] as read with section 4.1.18 of the Foreign Exchange Guidelines to authorised dealers, ECDI of 2009; and contravening section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22:05] as read with Exchange Control Authority GR1776 of 26 April 2016.
The allegations, as appearing on the outline of the State case, were that -
“…,.
4. On the 23rd of October 2015, Zimbabwe Power Company (ZPC) signed an Engineering, Procurement and Construction Contract (EPC) with accused (1) being represented by accused (2) for the construction of 100-Megawatt Solar Power Generation Plant in Gwanda. The performance/scope of the work was guided by schedule 11 of the contract.
5. Clause 2(a) and (b) of the terms and conditions of the contract under schedule 11 stated, that, the employer's advance for feasibility study and pre-commencement activities was to be considered part of the contract advance payment. A Bank guarantee was to be provided against all payments made by ZPC towards the project implementation.
6. Subsequently, between 4 December 2015 and 22 January 2016, the accused submitted two separate invoices amounting to US$803,765=82 and US$1,631,888=81 dated 9 November 2015 and 11 January 2016, respectively, on the pretext of feasibility study implementation.
ZPC'S Finance Director, Hubert Chiwara, acted upon the misrepresentation and released the full payment of US$2,435,654 in 9 different instalments, without the requisite bank guarantee, between 4 December 2015 and 22 January 2016 on the understanding that Shanghai Electric Power Design Institute Co. Ltd was going to carry out the feasibility study.
The payments were made from ZPC'S Stanbic Bank account numbers…, and Stanbic Bank…, into accused (1)'s CBZ bank account number…,.
7. However, ZPC Technical Director, Robson Chikuri, ZPC Projects Manager, Cleopas Fambi, and the suspended ZPC Managing Director, Noah Gwariro, indicated, that, they never met sub-contractor, Shanghai Electric Power Design Institute Co. Ltd during the alleged study period. There also no record of sub-contractor's representative entering Zimbabwe during the period in question.
8. Again, between 15 February 2016 and 25 April 2016, the accused submitted 3 invoices of US$1,219,476=80 each supported by payment release certificates; being advance payment claims, purportedly for the implementation of the following works -
(i) Site establishment (basic ablutions, communication network, temporary housing, preliminary foundation for 20-megawatt power plant and water citing and borehole drilling and storage).
(ii) Access roads.
(iii) Ground clearing.
9. Similarly, Hubert Chiwara acted upon the misrepresentation and released a total advance payment of US$3,188,476=80 on 12 different instalments, without bank guarantee, into the same bank account highlighted above.
10. On 26 April 2016, Hubert Chiwara requested the accused to provide a schedule of commitment in respect of funds released by ZPC towards the implementation of the project. The accused, again, through his Company Secretary, K. Makoni, misrepresented to the Finance Director, that, a total of US$1,960,125=40 had been paid to subcontractors. The sub-contractors distanced themselves from the invoices submitted by accused.
11. The paper trail indicated, that, accused used the funds meant for feasibility study and pre-commencement works for his own person benefit by diverting them into various individual and companies who were not involved in the intended activities for which the pre-funding was intended for. Investigations established, that, the funds were used to purchase vehicles; air tickets for the girls stranded in Kuwait; school fees; settlement of civil suits.
12. Further, the accused loaded a total of US$684,150 into five different VISA cards, purportedly for the importation of earthmoving equipment from Pietznack Plant and Earth Moving Service, a company resident in Dallas in the United States of America.
13. The accused person entered into a recurring fees agreement with Pietznacle Plant & Earth moving services company based in Dallas, United States of America for the importation of earth moving equipment without seeking prior approval from Exchange Control Authority, contrary to the provisions of the said Act.
14. In violation of the Exchange Control Act, the Accused persons did not clear, with Exchange Authority, through CDI forms, within 90 days as required by the said Act.
15. The offence came to light after the ZPC Board, through its Chairperson, Engineer Stanley Kazhanje, who discovered that the payments were made without bank guarantee and he reported the matter to the police, through his letter dated 18 December 2017, for investigations.
16. ZPC suffered a total prejudice of US$5,624,130=80 and nothing was recovered.”
Upon arraignment, the applicants pleaded and excepted to the charges in terms of section 171(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] on the basis, that, the facts do not disclose an offence.
The exception was contested by the State.
On the 19th of November 2018, the court a quo dismissed the application for exception.
Dissatisfied with the court a quo's ruling dismissing the application for exception, the applicants approached this Honourable Court with the present application.
The applicants also filed an urgent chamber application for stay of criminal proceedings pending the determination of the present review application.
The urgent chamber application was filed under case number HC11205/18.
The urgent chamber application was partially dismissed on the merits, on 31 December 2018, under case number HH849-18, by MUSAKWA J, who ordered that the criminal trial had been suspended only in respect of the third Count.
Consequently, the applicants are currently undergoing trial in the Magistrates Court in respect of the other counts.
The application for review is opposed by the State....,.
RELIEF SOUGHT
The remedy that the applicants seek is that -
“1. The second respondent's ruling, of 19 November 2018, in case number CRB P9114-5/18 be and is hereby set aside.
2. The following is substituted in its place:
'In the result, the exception succeeds. The charges be and are hereby quashed. Consequent to the accused's plea, both accused be and are hereby acquitted.'”
THE SUBMISSIONS
The applicants submitted, in their heads of argument, that, the court below was duty bound to apply its mind to the question brought before it, id est, whether the facts alleged disclosed an offence.
The court a quo failed to determine the issue which was brought before it: see Makandi Tea & Coffee Estate (Pvt) Ltd v A.G & Anor HH595-15.
It went on a tangent.
It considered whether the charge was properly crafted. That was never the issue before it.
A failure to apply its mind to the question before it was a grossly unreasonable failure of the judicial function. It was not only unreasonable. It was also patently contrary to the law.
On that basis, the applicants submitted, that, the decision of the court a quo be vacated, on review, because, if the court had addressed the question that had been brought before it, it would have arrived at a decision that the facts do not disclose a criminal offence.
See also Bridges & Hulmes (Pvt) Ltd v The Magistrate, Kwekwe & Ors 1996 ZLR 189 (HC)…, where it was stated:
“Because of the wrong question of law, he directed his inquiry at matters he should not have considered, and failed to apply his mind to the matters in issue.”
The applicants further submitted, in their supplementary heads of argument, that, the second applicant should not have been charged in his personal capacity since he was acting only as a representative of the first applicant which is a legal persona.
The first respondent, on the other hand, submitted, that, it appeared the applicants purported to except to the charges in terms of both section 170 and section 180 of the Criminal Procedure and Evidence Act [Chapter 9:07,] and, thereat, lied the problem that then led the second respondent to proceed in the manner he did.
The first respondent submitted, that, the applicants should have excepted in terms of section 180 and not 171 of the Criminal Procedure and Evidence Act....,.
I need to comment on two procedural issues arising from the opposition to the exception by the prosecution:
(i) The first issue is whether or not it was proper for the exception to be filed in terms of section 171 of the Criminal Procedure and Evidence Act [Chapter 9:07] instead of section 180(4) of the same Act.
(ii) The second issue is whether it is constitutional for the court to, in terms of section 171(2) of the Criminal Procedure and Evidence Act, have a discretion to dispose first of the exception or to hold the disposal in abeyance pending the completion of the trial and then render the judgment on the exception at the end of the trial.
My conclusion on the first issue is that the prosecution is wrong to contend, that, an exception ought to be filed in terms of section 180(4) of the Criminal Procedure and Evidence Act. My justification for the conclusion is the following:
Section 171 of the Criminal Procedure and Evidence Act reads as follows:
“171 Exceptions
When the accused excepts only and does not plead any plea, the court shall proceed to hear and determine the matter forthwith; and, if the exception is overruled, he shall be called upon to plead to the indictment, summons, or charge.
When the accused pleads and excepts together, it shall be in the discretion of the court whether the plea or exception shall be first disposed of.”
Exceptions are therefore taken in terms of section 171 of the Criminal Procedure and Evidence Act. That is the first and only provision in the Criminal Procedure and Evidence Act dedicated to dealing with exceptions. They are not dealt with under section 180. To prove this point, one has to consider section 180 of the Criminal Procedure and Evidence Act.
Section 180 of the Criminal Procedure and Evidence Act provides, in part, as follows:
“180 Pleas
(1) If the accused does not object that he has not been duly served with a copy of the indictment, summons or charge or apply to have it quashed under section one hundred and seventy-eight, he shall either plead to it or except to it on the ground that it does not disclose any offence cognisable by the court.
(4) The accused may plead and except together.”
The clear conclusion which can be drawn is that pleas are made in terms of section 180 while exceptions are taken in terms of section 171 of the Criminal Procedure and Evidence Act.
The mention of the discretion to the accused person for him to plead and except at the same time is not the substantive power to make exceptions. It is a reference to an exception which would have been taken in terms of section 171 of the Criminal Procedure and Evidence Act, if it were to be taken without being combined with the plea.
The submission by the prosecution, that the exception must be dismissed because it is made in terms of the wrong section, is, accordingly, without substance.
The position is that an exception is taken in terms of section 171 and a plea in terms of section 180 of the Criminal Procedure and Evidence Act.
The possibility of combining the two is provided for in section 180(4); but, that does not supplant the specific provision in section 171(2) which shows that an accused can plead and except “together”.
The second point relates to section 171(2) of the Criminal Procedure and Evidence Act which provides, that, the court can exercise a discretion, when an accused has pleaded and excepted at the same time, as to whether to dispose of the plea or exception first.
I conclude, that, the statute's grant of discretion to the Magistrate appears unconstitutional.
The following is my justification for this conclusion:
Invariably, an accused, as in the present matter, excepts on the basis, that, the facts alleged, even if proven, do not constitute an offence.
When an accused has pleaded not guilty and has not yet provided an outline of his defence on the facts, he is entitled to a determination as to whether the facts alleged would disclose an offence as an antecedent to the commencement of a trial.
To hold otherwise would allow the prosecution of an accused person on a charge which potentially does not disclose an offence. That amounts to a violation of the constitutional rights of the accused person to a fair trial.
Section 69(1) of the Constitution provides that:
“69 Right to a fair hearing
(1) Every person accused of an offence has a right to a fair and public trial within a reasonable time before an independent and impartial court.”
Section 70(1) of the Constitution provides, in part, as follows:
“70 Rights of accused persons
(1) Any person accused of an offence has the following rights –
(a) To be presumed innocent until proven guilty;
(b) To be informed promptly of the charge, in sufficient detail, to enable them to answer to it;
…,.;
(i) To remain silent and not to testify or be compelled to give self-incriminating evidence.”
The permission granted to a Magistrate, to hear the defence on the merits, in his discretion, where an accused has pleaded and excepted at the same time does not sit well with the above constitutional provisions.
It allows for a Magistrate to hear a defence on the merits to a charge which may not disclose an offence, and, therefore, permit the self-incrimination of the accused person. It violates the right of the accused person to be promptly informed of the charge, in sufficient detail, in order for him to answer to it.
How can an accused answer to a charge when he alleges that it does not disclose an offence?
Equally, the presumption of innocence, which is cardinal in human rights jurisprudence, is violated.
The remarks of KUDYA J, in Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments HH121-06 and 2006 (2) ZLR 293 (H)…, are therefore called to mind:
“In my view, that an exception can only be properly filed before the excipient pleads to the merits of the matter. In terms of the heading of Rule 137, it is an alternative to pleading to the merits. Once the excipient pleads before the exception, he is in fact telling the other party, that, its declaration discloses a cause of action and that it is neither vague nor embarrassing. Otherwise, if it did not disclose a cause of action or was vague and embarrassing, then, the defendant would, of necessity, raise an objection, either through an exception or the other recognised ways laid out in the Rules.”
I recognise, that, the above remarks apply to civil matters which are regulated by Rule 137 of the High Court Rules 1971. There is no reason why the same rule and principle of justice should not apply in criminal matters. Moreso when the prospect of an improper conviction in criminal matters has potential consequences of incarceration for the accused person.
More safeguards must therefore be given in criminal procedure to ensure that the trial is as fair as possible.
