MUSAKWA
J:
Having
been indicted on a charge of fraud or alternatively, contravening the
Precious Stones Trade Act [Cap 21:06] the accused applied to quash
the charges on the basis that they do not disclose an offence.
Having
heard arguments from respective counsels I subsequently directed they
file relevant authorities in support of their arguments. This is
because they had simply made submissions which were not supported by
any law.
In
light of the argument advanced by the accused I had initially thought
it prudent that the court awaits the outcome of the appeals the
accused noted to the Supreme Court in respect of related litigation
touching on the same subject matter.
In
view of the passage of time without the appeals having been
determined I resolved to dispose of the matter without waiting for
that outcome.
The
indictment is framed as follows:-
“That
African Consolidated Resources Private Limited whose last know
address is number 9 Birchenough Road, Alexandra Park, Harare
(hereinafter called the accused) represented by Ian Harold Harris who
is hereby cited in terms of section 385(3) of the Criminal Procedure
and Evidence Act [Cap 9;07] is guilty of the crime of: FRAUD In that
on a date unknown to the prosecutor but during the period extending
from April 2006 and June 2006 and at the Mining Commissioner's
Office in Mutare African Consolidated Resources Private Limited
misrepresented to the Ministry of Mines and Mining Development, that
Heavy Stuff Investments, Olibile Investments (Pvt) Ltd and Possession
Investment Services Limited were companies qualified to obtain Mining
Claims thereby causing prejudice to the Ministry of Mines and Mining
Development by unlawfully obtaining Certificates of Registration in
terms of the attached schedule hereto referred to as Annexure “A”
when in actual fact the accused person knew that the said purported
companies had not yet been duly incorporated as companies.
Alternatively
POSSESSING PRECIOUS STONES WITHOUT A LICENCE OR PERMIT IN
CONTRAVENTION OF SECTION 3(1) AS READ WITH SECTION 3(2) OF THE
PRECIOUS STONES TRADE ACT [CHAPTER 21:06].
In
that on the 15th January 2007 and at number 9 Birchenough Road,
Alexander (sic) Park, Harare, the accused person, African
Consolidated Resources unlawfully possessed 129,031.87 carats of
diamonds without a valid licence or a permit.
Or
Alternatively UNLAWFULLY DEALING IN PRECIOUS STONES IN CONTRAVENTION
OF SECTION 3(1) AS READ WITH SECTION 3(2) OF THE PRECIOUS STONES
TRADE ACT [CHAPTER 21:06].
In
that on a date to the prosecutor unknown but between April 2006 and
23 September 2006 the accused, African Consolidated Resources
unlawfully dealt in precious stones. That is to say the accused
person purchased diamonds from illegal artisanal miners in Marange
South near the village of Chiyadzwa in Mutare.
Or
Alternatively CONTRAVENING SECTION 6(1) AS READ WITH SECTION 6(2a)(a)
OF THE PRECIOUS STONES TRADE ACT [CHAPTER 21:06].
In
that between the period extending from April 2006 and January 2007
the accused person failed to enter in respect of diamonds recovered
from its mining location such details relating to the amount of
diamonds recovered during each preceding month and the amount of
diamonds held by it at the end of each preceding month in
contravention of the Act.”
At
the hearing the accused's counsel filed an exception to the charge,
the basis of which I will revert to shortly.
In
light of the arguments advanced in support of the exception, it is
pertinent to summarise the facts alleged against the accused.
The
summary of State case alleges that the accused is a mineral
exploration company. Sometime in April 2006 the accused sought to
obtain diamond mining claims in Marange in favour of non existing
companies, namely Heavy Staff Investments Company, Olibile
Investments (Pvt) Ltd. And Possession Investment Services Limited.
These companies were only registered after they had obtained
certificates of registration of mining claims from the Ministry of
Mines and Mining Development.
Possession
Investment Services Limited obtained the certificates of registration
of mining claims on 4th and 19th April 2006 as well as on 1 June and
1 July 2006. As of those dates the company was non existent as it was
only registered on 19 July 2006.
On
the other hand Heavy Staff Investments Company obtained certificates
of registration of mining claims on 19 April 2006 and 1 June 2006.
The company was subsequently incorporated on 19 July 2006.
Olibile
Investments (Pvt) Ltd obtained certificates of registration of mining
claims on 10 April 2006. It was subsequently incorporated on 21 July
2006.
After
securing mining licences through these misrepresentations of the
legal status of the companies the accused is alleged to have failed
to keep records of diamonds recovered from the mining claims.
Following
several enquiries from the Ministry of Mines and Mining Development
concerning its activities at the mining location, the accused claimed
that no mining was taking place. To the contrary, mining activities
were taking place and the accused was also purchasing diamonds from
illegal miners. Upon cancellation of the mining permits the accused
maintained that no mining activity ever took place. However, upon a
search being conducted the accused was found in possession of
diamonds that had been mined and purchased without being accounted
for.
The
State has lined up nine State witnesses to testify in the matter.
The
accused filed a written application in which it excepted to the
indictment in terms of section 178 of the Criminal Procedure and
Evidence Act [Cap 9:07]. It was contended that the indictment is
likely to prejudice and embarrass the accused. This is because the
accused is involved in civil litigation on the same subject matter
that has been criminalised.
In
support of the application the applicant annexed two judgments by
HUNGWE J and another judgment by the Supreme Court.
In
HC6411/07 the accused sought a declaratory order on the validity of
mining claims that were issued to its subsidiaries, Heavy Staff
Investments Company, Olibile Investments (Pvt) Limited and Possession
Investment Services Limited. The order granted by HUNGWE J on 24
September was to the following effect;
“1.
The African Consolidated Resources P/L claims issued to the third,
fourth, fifth and sixth applicants within the area previously covered
by Extension Prospecting Order 1523 held by Kimberlitic Searches P/L
are valid and have remained valid since the date they were originally
pegged.
2.
The right granted to the third respondent by virtue of the Special
Grant shall not apply in respect of the African Consolidated
Resources P/L claims area as indicated on annexure “B” to the
papers. In that regard it is hereby ordered that third respondent
cease its prospecting and diamond mining activities in the said area.
IT
IS FURTHER ORDERED AS FOLLOWS;
3.
That second respondent return to the applicants' possession the
129,400 carats of diamonds seized from applicants' offices in
Harare on 15 January 2007.
4.
The second respondent return to the applicants all diamonds acquired
by second respondent from the African Consolidated claims area using
the register kept by the second respondent in compliance with the
Kimberley Process Certification Scheme.
5.
That fourth respondent be and is hereby ordered to direct Police to
cease interfering with the applicants 'prospecting and mining
activities.
6.
That first, second and third respondents pay applicants' costs on a
legal practitioner and client scale, the one paying the other to be
absolved.
7.
Any appeal noted against this order shall not suspend the operation
of the order.”
Zimbabwe
Mining Development Corporation and Minerals Marketing Corporation
filed a chamber application with the Supreme Court wherein they
sought the setting aside of the order by HUNGWE J.
In
setting aside the order by HUNGWE J the Chief Justice in his judgment
in SC 1/10 also ordered that the diamonds in contention be
surrendered to the Reserve Bank of Zimbabwe for safekeeping pending
the outcome of the appeal noted to the Supreme Court.
Whilst
allowing Zimbabwe Mining Development Corporation and Minerals
Marketing Corporation to remain in occupation of the disputed claims
the Chief Justice ordered that they cease all mining operations.
In
a subsequent judgment delivered by HUNGWE J on 6 September 2010, the
order granted on 24 September 2009 was set aside.
In
setting aside the earlier order HUNGWE J held that African
Consolidated Resources and others never acquired any rights as, Heavy
Staff Investments Company, Olibile Investments (Pvt) Limited and
Possession Investment Services Limited did not exist when the Mining
Commissioner purported to issue them mining rights. In addition,
HUNGWE J also held that the applicants had misled the court when they
claimed to have acquired mining rights. The effect of the order of 6
September 2010 was to dismiss the application by the applicants.
The
accused noted an appeal against the decision of 6 September 2010 and
the appeal is yet to be determined.
In
essence, the accused contends that by virtue of having noted an
appeal, the status quo ante was restored. Hence the earlier order of
24 September 2009 prevails.
It
is the accused contention that until the appeals before the Supreme
Court are determined, it will be prejudiced or embarrassed in its
defence to the criminal charges as follows-
“(a)
If the appeal against the Recession Judgment is upheld then the
Accused will be entitled to raise the defence of claim of right, the
claim companies being the valid holders of the claims;
(b)
If both the appeal against the Recession Judgment and the claim in
case no. HC6411/07 are dismissed, then the Accused will be entitled
to raise the defence of lack of mensrea, in that at all times it had
the bona fide belief that the claim companies had been validly
incorporated at the time of registration of the claims, and that
title to the claims was valid at the time of possession of the
diamonds.”
In
its opposing submissions the State argued that a motion to quash an
indictment can only be made where the charge preferred is imprecise
and ambiguous, hence where it embarrasses or prejudices an accused
person in the formulation of a defence. Reference was made to S v
Smith 1975 (2) RLR 77 (A).
Mr
Mutangadura also argued in his submissions that a charge can also be
quashed where it fails to disclose an offence. He made an analogy of
a civil claim which discloses no cause of action. Reference was also
made to the cases of R v Mahlatse 1949 (4) S.A. 455; R v Mlothswa
1968 (2) RLR 172.
The
State also contends that the multiplicity of counts is permissible in
terms of section 145 of the Criminal Procedure and Evidence Act.
Section
178 of the Procedure and Evidence Act provides that-
“(1)
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.
(2)
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.
(3)
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.”
The
essential requirements of an indictment or charge are set out in
section 146 as follows -
“(1)
Subject to this Act and except as otherwise provided in any other
enactment, each count of the indictment, summons or charge shall set
forth the offence with which the accused is charged in such manner,
and with such particulars as to the alleged time and place of
committing the offence and the person, if any, against whom and the
property, if any, in respect of which the offence is alleged to have
been committed, as may be reasonably sufficient to inform the accused
of the nature of the charge.
(2)
Subject to this Act and except as otherwise provided in any other
enactment, the following provisions shall apply to criminal
proceedings in any court, that is to say —
(a)
the description of any offence in the words of any enactment creating
the offence, or in similar words, shall be sufficient; and
(b)
any exception, exemption, proviso, excuse or qualification, whether
it does or does not accompany in the same section the description of
the offence in the enactment creating the offence, may be proved by
the accused, but need not be specified or negatived in the
indictment, summons or charge, and, if so specified or negatived, no
proof in relation to the matter so specified or negatived shall be
required on the part of the prosecution.
(3)
Where any of the particulars referred to in this section are unknown
to the prosecutor, it shall be sufficient to state that fact in the
indictment, summons or charge.
(4)
Where a person is charged with a crime listed in the first column of
the Second Schedule to the Criminal Law Code, it shall be sufficient
to charge him or her with that crime by its name only.
(5)
No indictment, summons or charge alleging the commission of a crime
mentioned in subsection (4) shall be held to be defective on account
of a failure to mention the section of the Criminal Law Code under
which the crime is set forth.”
It
is clear from the application made on behalf of the accused that the
issue is not about formal defects in the indictment. There is also no
question about the indictment not disclosing any offences. It is
about the accused contending that it will not properly plead to the
charges because it awaits the Supreme Court's determination of its
appeal relating to the same subject matter.
In
this respect, some of the authorities cited by respective counsel are
not germane to the issue at hand.
In
my view, the first issue to determine is what is excepiable under
section 178.
In
my respectful view, an exception can be raised when a charge
discloses no offence or when there are imperfections in the way the
charge is drafted. That is why, in terms of section 178(2) the court
may order that the charge be amended.
The
crucial question before me is whether a criminal prosecution can be
instituted from the same facts giving rise to a civil suit. In other
words, is it impermissible to have a parallel process where the
conduct of an accused person gives rise to both criminal prosecution
and civil litigation?
It
is trite that the burden of proof in a civil case rests on a balance
of probabilities and is lower than that in a criminal trial. In
respect of a criminal trial the degree of proof is beyond a
reasonable doubt. In this respect see section 18 of the Code.
The
Code also provides for various defences and mitigating factors which
an accused may raise. These are provided for under Chapter XIV. The
important thing to note is that these are general defences as section
214 states that -
“The
defences and mitigating factors which an accused may successfully
raise are not limited to those set out in this Chapter.”
In
the present matter I do not see how the applicant is prejudiced or
embarrassed in the conduct of its defence to the charges.
There
is no question of the charges lacking clarity by way of omission of
some essential averments. There is no question of the accused being
charged with a non-existent offence.
The
accused, in challenging the indictment has postulated on what may or
may not be its possible defences. From the argument raised by the
accused, it seems to raise a claim of right and lack of intention.
That means that the accused is able to plead to the indictment.
In
my view, prejudice or embarrassment must relate to an accused's
inability to formulate a defence on account of imperfections in the
charge and accompanying facts. If the indictment and facts are well
understood there can be no prejudice or embarrassment. In this
respect see R v Van Meerdervoort 1957 (2) S.A. 23 (SR).
That
out of the same set of facts civil litigation and criminal
prosecution has arisen cannot be a ground for excepting to an
indictment.
By
way of analogy, out of the same conduct may arise a criminal charge
and disciplinary/misconduct proceedings. The same conduct may further
spawn a delictual suit. In the event that an accused in such a
situation faces a delictual suit or disciplinary proceedings first
and is subsequently charged with a crime arising from the same
conduct, can they claim they are unable to defend themselves because
a decision is awaited in the other matters?
The
remedy for the accused may well have been to seek a stay of
proceedings whilst awaiting the outcome of the appeals. However, that
is not the issue before me.
Accordingly,
the exception is hereby dismissed.
Venturas
& Samukange, accused's legal practitioners
Attorney-General's
Office, legal practitioners for the State
