BHUNU J: This is
an application for amendment of the charge in terms of s 202 of the Criminal
Procedure and Evidence Act [Cap 9:07]
which reads:
“202 Certain discrepancies between
indictment and evidence may be corrected
(1) When on the trial of any indictment,
summons or charge there appears to be any variance between the statement
therein and the evidence offered in proof of such statement, or if it appears
that any words or particulars that ought to have been inserted in the
indictment, summons or charge have been omitted, or that any words or
particulars that ought to have been omitted have been inserted, or that there
is any other error in the indictment, summons or charge, the court may at any
time before judgment, if it considers that the making of the necessary
amendment in the indictment, summons or charge will not prejudice the accused
in his defence, order that the indictment, summons or charge, whether or not it
discloses an offence, be amended, so far as is necessary, by some officer of
the court or other person, both in that part thereof where the variance,
omission, insertion or error occurs and in every other part thereof which it
may become necessary to amend.
(2) The amendment may be made on such
terms, if any, as to postponing the trial as the court thinks reasonable and
the indictment, summons or charge shall thereupon be amended in accordance with
the order of the court, and after any such amendment the trial shall proceed at
the appointed time upon the amended indictment, summons or charge in the same
manner and with the same consequences in all respects as if it had been
originally in its amended form.
(3) The fact that an indictment, summons or
charge has not been amended as provided in this section shall not, unless the
court has refused to allow the amendment, affect the validity of the
proceedings thereunder.
The accused were
indicted to the High Court for trial on a charge of fraud as defined in s 136
of the Criminal Law (Codification and Reform) Act [Cap 9:23) on 10 January
2011. They were initially jointly charged with three others whose charges have
since been withdrawn before plea. The State intends to use them as State
witnesses against their erstwhile co-accused persons. It has now applied to
amend the original charge before plea to incorporate this new development with
the charge and summary of the State case substantially remaining the same.
The main thrust of the amendment has to do with the
manner in which the alleged offence was committed and the involvement of the
erstwhile co-accused persons turned State witnesses. Whereas the State
previously alleged that the two accused persons acted in consort and common
purpose with the reprieved co-accused persons, it now wishes to allege that
they acted on their own.
The rest of the application also seeks to amend the
facts and the charge so as to synchronize, align and harmonize them by removing
contradictions and ambiguities. In doing so the charge remains basically the
same.
What the State is seeking to do in this case is
diametrically different from what it sought to do in the case of S v Shand
1994 (2) ZLR 99. In that case it
sought to replace a charge under one section of the Act with a charge under a
different section in the same Act. In that case the Court correctly ruled that
this was unacceptable because it was infact not an amendment of the original
charge but a substitution of the original charge with a different charge albeit
under the same Act.
Section 202 was precisely meant to facilitate the
correction, alignment, synchronization and harmonization of the facts and the
charge depending on the exigencies of the case at any given time. This is what
the State intends to do in this case. Thus the State is perfectly entitled to
effect the amendments sought provided there is no prejudice to the other party.
If however, there should be any prejudice that prejudice should be capable of
extinction in terms of subs (2) of the same section. In other words, the
amendment can be made on such terms, if any, as to postponement of the trial as
the court thinks reasonable in the circumstances of the case.
This position accords with the general rule governing
amendments. In both civil matters and criminal cases the general rule is that
amendments will always be allowed provided there is no prejudice or injustice
to the other party. That legal position was well articulated by WATERMAYER J
way back in1927 in the case of Moolman v Estate Moolman 1927 CPD 27 at 29
where the learned Judge remarked that:
“The practical rule adopted seems to be that amendments will always
be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the
other side which cannot be compensated by costs or in other words the parties
cannot be put back for the purposes of justice in the same position they were
when the pleading it is sought to ament was filed.”
In criminal cases the rule becomes that an amendment
will always be allowed unless the application is mala fide or unless such an amendment would cause an injustice or
prejudice to the other side which cannot be cured by a postponement.
In this case there is no suggestion that the application
is being brought in bad faith. I can also perceive no prejudice or injustice
that cannot be cured by a reasonable postponement to enable the accused to
amend their defenses to suit the amended charge and facts
That being the case the application must succeed. The
application to amend is accordingly allowed subject to the matter being
postponed for a period of two weeks to enable the accused to amend their
respective defenses in line with the amended charge and facts.
The
Attorney-General's Office, State's legal
practitioners
Mtetwa
& Nyambirai, 1st defendant's legal practitioners
Kantor
and Immerman, 2nd
defendant's legal practitioners
