BHUNU J: Both accused
persons are charged with fraud as defined in section 136 of the
Criminal Law (Codification and Reform) Act [Cap
09:23]. They are
alleged to have on various occasions during the period extending from
29 March 2009 to 14 August 2009 defrauded the government of Zimbabwe
of two Billion United States Dollars.
The charge sheet is framed as follows:
“Accused are guilty of FRAUD as
defined in s136 of the Criminal Law (Codification and Reform) Act
[Cap 09:23].
In that on various separate occasions but during a period beginning
29 March 2009 to 14 August 2009 and at the ministry of Mines and
Mining Development and at Zimbabwe Mining Development Corporation's
Offices in Harare, Both accused persons and in common purpose
unlawfully and fraudulently made misrepresentations with intent to
defraud the government of Zimbabwe, that is to say, Lovemore Kurotwi
misrepresented to the Ministry of Mines and Mining Development and
Zimbabwe Mining Development Corporation that Core-mining and Mineral
Resources (Pty) Limited (a shelf company in South Africa) was a
special purpose vehicle of a company known as Benny Steinmeitz Group
Resources (BSGR) (which was supposed to be the Guarantor in a Joint
Venture Agreement between Core-Mining and ZMDC) in common purpose
with Dominic Mubaiwa who later joined in the criminal enterprise and
unlawfully prepared and entered into an unapproved and uncirculated
memorandum of Agreement between Marange Resources (Pty) Ltd signed on
24 July 2009 and later acquired a cabinet authority to proceed to
South Africa to conduct a due diligence Exercise on Co-Mining (a mere
shelf company) which both accused persons purported to be a Special
Purpose Vehicle of Benny Steimeitz Group (BSGR) thereby ending up
concluding a share holder Agreement between Zimbabwe Mining
Development Corporation and Core-Mining and Mineral Resources (Pty)
Limited instead of Benny Steinmeitz Group (BSGR) which all along had
been held out by both accused persons as the Guarantor of Core-Mining
thereby causing an actual prejudice of two Billion United States
Dollars to the Government of Zimbabwe.”
Both accused persons pleaded not guilty and thereafter proceeded to
except to the charge.
Their main complaint is that although the charge makes allegations of
misrepresentation to the Ministry of Mines and the Zimbabwe Mining
Development Corporation none of the papers indicate to which natural
person the misrepresentation was made. It was argued that both
entities being artificial persons could only act though natural
persons. It was therefore necessary to specify the natural person to
whom the misrepresentation was made otherwise the accused will be
prejudiced in their defense if they were left in the dark or to
speculate as to which natural person they are alleged to have made
the misrepresentation.
The accused's second complaint
is that although the state alleges actual prejudice of two Billion
United States Dollars it does not inform them as to how the prejudice
came about. In light of such objections the accused requested the
Court to order the delivery of the relevant particulars in terms of
section 177 of the Criminal Procedure and Evidence Act [Cap
09:07] to enable them
to prepare their defence. That section reads:
“177
Court may order delivery of particulars
(1) The court may either before or at the trial, in any case if it
thinks fit, direct that particulars be delivered to the accused of
any matter alleged in the indictment, summons or charge, and may, if
necessary, adjourn the trial for the purpose of the delivery of such
particulars.
(2) Such particulars shall be delivered to the accused or to his
legal representative without charge, and shall be entered in the
record, and the trial shall proceed in all respects as if the
indictment, summons or charge had been amended in conformity with
such particulars.
(3)….”
Section 146 of the Criminal Procedure and Evidence Act prescribes the
essentials of a valid and competent charge. It states that:
“146
Essentials of indictment summons or charge
(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.”
Thus the State is under an obligation to frame a charge among other
things so as to inform the accused person of the offence he is facing
together with the particulars or essential elements of that offence.
The section also requires the State to inform the accused of the
person against whom the offence was committed and the nature of the
property involved if any.
Failure to give such particulars would render the charge defective
and exceptiable.
It is therefore necessary to examine and see if the charge complies
with the essentials laid down in s146 of the Criminal Procedure and Evidence Act.
It is common cause that the accused were informed that the offence
they were facing is fraud committed against the Government of
Zimbabwe in the sum of two Billion United States Dollars. In short,
they are being accused of defrauding the government of Zimbabwe of
two Billion United States Dollars.
It is trite that the Government of Zimbabwe is a legal entity with
full legal persona capable of suing and being sued in its own name.
It has a separate legal existence from its officials and servants.
The government of Zimbabwe duly constituted by the Constitution of
Zimbabwe is therefore, undoubtedly a juristic person.
Halo's South African Company
Law through the cases 6th
ed 1999 defines a
juristic person as:
“a body corporate or
association other than a natural person, that is endowed by law with
the capacity to have rights and duties apart from its members.”
The State being a juristic person
ought to be treated like any other juristic person. Tett and Chadwic,
Zimbabwe Company law, 2nd
ed at p13 states that:
“The effect of a company having
separate legal personality is that it can engage in any activity and
is entitled to the same rights and remedies as any other juristic
person.”
The law therefore, makes no
distinction between the framing of charges involving natural persons
and artificial persons. Thus the government of Zimbabwe like any
other juristic person has the full locus
standi in
judicio to appear and
be heard as the complainant in any Court without being carried on the
back of any natural person. Thus, it is sufficient for the State to
allege that the misrepresentation was made to a juristic or
artificial person without naming any natural person.
It is instructive to note that s146 of the Criminal Procedure and
Evidence Act does not make it a requirement that where the
complainant is a juristic person the charge must specify the natural
person to whom the misrepresentation was made.
The failure to mention or specify the natural person to whom the
alleged misrepresentation was made cannot possibly prejudice the
accused in their defence because the state elaborated in its summary
that the misrepresentation was made to the juristic persons through
written letters which will be produced in court through named
competent witnesses including the permanent secretary in the ministry
of mines.
Written documents which the accused can interrogate speak for
themselves in the normal run of things letters disclose their author,
addressee and the communication conveyed from one party to the other.
I can therefore perceive no prejudice to the accused if they have
been provided with access to the relevant documents upon which the
alleged misrepresentations are founded.
As regards the quantum of prejudice the State elaborated that the
amount of prejudice was occasioned in one capital sum arising from
the misrepresentation. In the light of that explanation it will be
illogical to order the state to provide a non existent break down
when it alleges that the prejudice was not incurred in instalments.
The purpose of an indictment is to inform the accused of the case he
is going to meet in Court without necessarily providing the evidence
required to prove the allegations. The summary of the state case
provides a precis of the evidence upon which the state intends to
rely on in proving its case.
Viva voce
evidence, documents, exhibits and any other evidence constitute the
actual poof of the allegations against the accused as alleged in the
indictment and summarized in the outline of the state case. It is
important not to confuse one stage from the other.
Having carefully perused the charge sheet and the State's response
it appears to me that the particulars required by the accused person
in respect of the indictment are properly contained in the summary of
the state case that is yet to be read in open Court. For that reason
alone both the exception and application for further particulars
cannot succeed. Both objections are accordingly dismissed.
The Attorney-General's Office, The State legal practitioners
Mtetwa & Nyambirai, The 1st
defendant's legal practitioners
Kantor and Immerman, the 2nd
defendant's legal practitioners
