UCHENA
JA:
This is an appeal against the whole judgment of the High Court Harare
dated 6 July 2022 dismissing the appellant's application for the
review of the first respondent's refusal to find the appellant not
guilty in spite of his having upheld the appellant's exception
taken together with the plea in terms of section 180(4) of the
Criminal Procedure and Evidence Act [Chapter
9.07]
(the Act).
BACKGROUND
FACTS
The
facts giving rise to this appeal are as follows:
The
appellant is employed by the City of Harare (“the city council”)
as Deputy Director of Housing and Community Services and was at the
time of the alleged commission of the offence the Acting Director of
Housing and Community Services when the incumbent was attending a
week-long workshop in Kadoma.
In
June 2021, he was arraigned before the first respondent facing a
charge of “criminal abuse of duty as a public officer, in
contravention of section 174 of the Criminal Law (Codification and
Reform) Act [Chapter
9:23]”
(the Criminal Law Code).
The
allegations levelled against him are that he irregularly and
fraudulently allocated non-existent stands to various persons who had
applied for stands to the city council but were not yet due for
allocation of stands and some who were not on the City Council's
waiting list.
The
first objection taken by way of exception, was taken with the consent
of the parties in terms of section 170(2) of the Act. At that stage
the appellant only objected and did not plead to the charge.
It
enabled the first respondent to order the second respondent to amend
the charge in terms of section 170(3) of the Act to which it added an
alternative charge of fraud.
The
amended charges, were read to the appellant who pleaded and excepted
to them, in terms of section 180(4) of the Act.
In
his exception, the appellant pointed out certain irregularities in
the amended charges such as the failure to specify how he showed
favour to the persons he allocated the non-existent stands to.
The
first respondent upheld the exception.
It
ordered that the trial should proceed on the basis of the charge he
ordered the prosecution to amend and prefer against the appellant in
terms of section 170(3) of the Act.
The
appellant demanded a verdict of not guilty and an acquittal.
His
counsel contended that after his exception was upheld, he was
entitled to a verdict of not guilty and an acquittal as his plea
remained hanging in the air pending the charge the first respondent
had ordered the second respondent to amend.
In
his submissions on the appellant's demand to be found not guilty
and acquitted, the State's counsel conceded that the appellant was
indeed entitled to a verdict of not guilty.
In
his ruling, the first respondent refused to return a verdict of not
guilty, as demanded by the appellant, notwithstanding the concession
made by the prosecution. He, ruled that:
“Section
170(3) of the Code provides what happens where an exception has been
made it (sic) is stated that:
'(3)
Any
court before which any
objection is taken in terms of subsection (1) or (2) may,
if
it is thought necessary and the accused is not prejudiced as to his
defence, cause the indictment, summons or charge to be forthwith
amended in the requisite particular by some officer of the court or
other person, and thereupon the trial shall proceed as if no such
defect had appeared.'
In
the event of an exception being upheld, the indictment shall be
amended and the trial shall proceed as if no such defect had
appeared.” (emphasis added)
Aggrieved
by the first respondent's refusal to return a verdict of not
guilty, the appellant filed an application for review in the court a
quo.
The basis of his application is stated in his notice of application,
which partly reads as follows:
“Illegality:
The decision by the first respondent [in State
v Funny Machipisa
ACC158/20] not to return a verdict of 'Not guilty' after
upholding the applicant's exception, which exception had been taken
in terms of section 180(4) of the Criminal Procedure and Evidence Act
[Chapter:
9:07],
is illegal as a contravention of section 180(6) of the Criminal
Procedure and Evidence Act [Chapter
9:07].
The applicant was entitled, as of right, to a 'Not guilty'
verdict once an exception which he had taken after pleading 'Not
guilty' had been upheld.”
SUBMISSIONS
MADE IN THE COURT A
QUO
Submissions
made by the appellant
In
moving for a not-guilty verdict, Mr Madhuku
for the applicant, argued that the first respondent's decision was
tainted by either 'gross irregularity' or by being 'clearly
wrong.' He contended that the not-guilty plea which he tendered
inevitably ought to have been followed by a not-guilty verdict. It
could not “hang in the air waiting for an amended charge.”
He
submitted that section 180(6) of the Act provides that any person who
has pleaded is entitled to a verdict. He therefore submitted that the
first respondent's decision violated that provision and, as such,
constituted a gross irregularity.
The
applicant's counsel further contended that section 180(6) should be
read together with section 8(b) of the Act, which makes an acquittal
mandatory whenever charges are withdrawn after a plea.
The
second respondent's submissions
In
countering the appellant's averments, Mr Muziwi
for the second respondent contended that there was no irregularity in
the first respondent's decision. He submitted that the first
respondent acted in accordance with the law. He further submitted
that the first respondent has the discretion to direct the
prosecution to amend the charge, among other options.
Mr
Muziwi
further contended that an order to amend a charge is an interlocutory
ruling.
It
is a ruling made in the course of on-going, uncompleted proceedings,
which superior courts do not interfere with except in exceptional
circumstances where it would have been established that the lower
court committed a gross irregularity or was clearly wrong. He further
argued that no gross irregularity had been proven in respect of the
manner in which the trial court conducted the proceedings, warranting
interference by the court a
quo.
In
spite of his earlier resistance to the application for review,
counsel for the second respondent subsequently changed course and
conceded that the first respondent erred and his decision should be
set aside on review.
DETERMINATION
OF THE COURT A
QUO
After
hearing counsel, the court a
quo
held that it could not interfere with unterminated proceedings, as
there was no justification for such intervention. It did not agree
with the submissions of the applicant's and second respondent's
counsel that the first respondent erred in refusing to find the
appellant not guilty.
In
arriving at its decision that the trial court had correctly applied
the law, the court a quo
said:
“In
casu,
the pertinent question is, does the first respondent's decision
fall into the exceptional category reflecting gross irregularity? We
think not.
An
examination of the first respondent's ruling shows that he took
guidance from the applicable law. To begin with, he exercised the
discretion provided for in section 171 of the Criminal Procedure and
Evidence Act, where an accused person decides to both plead and
except to the charge. Section 171 reads:
'(1)
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.
(2)
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.'
---
The
first respondent exercised his discretion in terms of subsection (2)
and dealt with the exception first. What
was he then going to do with the plea of not guilty, which had been
tendered together with the exception?
The
first respondent was guided by section 170(3), which allows amendment
of the indictment summons or charge
provided such amendment does not prejudice the accused in his
defence.
This
section provides as follows:
'(3)
Any
court before
which any objection is taken in terms of subsection (1) or (2) may,
if
it is thought necessary and the accused is not prejudiced as to his
defence, cause the indictment, summons or charge to be forthwith
amended in the requisite particular by some officer of the court or
other person, and thereupon the trial shall proceed as if no such
defect had appeared.'
A
significant aspect of the first respondent's ruling is the
distinction he draws between the upholding of an exception and the
quashing of the charge. These are different courses of action
provided for in section 170(1). The accused either excepts to the
charge, or”-- (emphasis added)
It
further dealt with situations where a superior court can interfere
with unterminated proceedings. It stated that the test for
intervening in unterminated proceedings is high as repeatedly
emphasized by case law. It found no gross irregularity in the first
respondent's ruling and dismissed the application before it.
Aggrieved,
the appellant noted the present appeal on the following grounds.
GROUNDS
OF APPEAL
The
appellant's grounds of appeal read as follows:
“1.
The court a
quo
improperly exercised its discretion and misdirected itself in finding
that there was no gross irregularity in the first respondent's
refusal to return a verdict of 'Not guilty' after upholding the
appellant's exception to the charge, which exception had been taken
in terms of section 180(4) of the Criminal Procedure and Evidence Act
[Chapter
9:07].
2. The
court a
quo
erred in law and misdirected itself in not finding that the first
respondent's refusal to return a verdict of 'Not guilty' after
upholding the appellant's exception to the charge, which exception
had been taken in terms of section 180(4) of the Criminal Procedure
and Evidence Act [Chapter
9:07],
was so clearly wrong as to warrant its review before the termination
of proceedings.”
SUBMISSIONS
MADE BEFORE THIS COURT
Appellant's
submissions
Mr
Madhuku
for
the appellant submitted that both parties
agreed
before the trial court that the appellant was entitled to a verdict
of not guilty after the exception was upheld. It was further
submitted that the first respondent refused to return a verdict of
not guilty, notwithstanding the concession made by the second
respondent, resulting in the appellant's application for review
before the court a
quo.
He
submitted that in terms of section 180(6) of the Act, any person who
has pleaded to a charge is entitled to a verdict and that after
upholding the exception, the trial court ought to have returned a
verdict of 'not guilty' as had been pleaded. He further submitted
that the court a
quo
was not clear in its approach to reviewing unterminated proceedings
in that it should have first asked itself whether the appellant
established the grounds of review.
He
also argued that if review grounds exist, it ought to have questioned
the degree to which the grounds of review had been established. He
submitted that the court a
quo
did not render a decision on this issue.
He
further submitted that if one pleads not guilty, and the charge is
thrown out, one remains not guilty and proceedings should come to an
end at that stage.
He
argued that the trial court had no authority to amend the charge in
view of the fact that, the exception was taken together with the plea
in terms of section 180(4) of the Act.
Mr
Madhuku
also
contended that section 171(2) of the Act gives the court discretion
on what it can dispose of first when an accused person pleads and
excepts at the same time.
He
submitted that the court a
quo
has jurisdiction to review unterminated proceedings and the court
ought to take a two-staged approach in such circumstances, which are:
1.
It must ask itself has the appellant established, the grounds of
review.
2.
If the grounds for review exist it should ask itself a second
question, have the grounds been established to the required degree?
In
respect of the above questions, Mr Madhuku
argued
that the court a
quo
erred when it held that there was no irregularity in the proceedings
before the first respondent.
He
further emphasised that if one pleads not guilty and the charge is
thrown out, one remains not guilty at that stage. He argued that
proceedings should come to an end at that stage and that the state
should start a fresh action.
He
argued that the first respondent had no authority to order an
amendment after the exception had been taken together with the plea.
He argued that a plea of 'not guilty' cannot hang in the air. He
contended that the discretion must be exercised in a way that
disposes of the matter.
Submissions
by the second respondent
Conversely,
Ms
Chitanda
for the second respondent, submitted that there was no gross
misdirection as the court a
quo
exercised its discretion judiciously. She submitted that since the
appellant pleaded and excepted to the charges at the same time,
section 171(2) of the Criminal Procedure and Evidence Act allows the
court, discretion on which to dispose of first between the plea and
the exception. She further submitted that the discretion was properly
exercised in moving for an amendment of the charge in terms of
section 170(3) after upholding the exception.
STAY
OF PROCEEDINGS IN THE TRIAL COURT
At
the end of their submissions, the parties applied for the stay of
proceedings in the magistrates court until judgment in this case is
handed down. We agreed with the parties and ordered that the
proceedings before the trial court be stayed pending the
determination of this appeal.
SUPPLEMENTARY
HEADS
During
the preparation of this judgment it became apparent to the court that
there was need to give the parties an opportunity to make submissions
on the interpretation of section 170(2) and (3) of the Act on the
issue of whether or not it was competent for the first respondent to
order the amendment of the charge when the appellant had pleaded and
excepted in terms of section 180(4) of the Act.
The
need arose as this Court has to determine whether or not the first
respondent could lawfully invoke the provisions of section 170(3) of
the Act, after upholding the appellant's exception taken together
with the plea of not guilty in terms of section 180(4) of the Act.
That
issue had not been adequately covered by the parties at the hearing
of the appeal.
Appellant's
supplementary heads
In
his supplementary heads Mr Madhuku
for
the appellant submitted that section 170(2) does not, arise because
it only deals with objections and not exceptions. He further
submitted, that the appellant pleaded and excepted in terms, of
section 180(4). He submitted that section 170 has a very restricted
scope as it only applies to objections that attack “formal defects
apparent on the face of the charge”.
He
submitted that what the appellant raised were not formal defects
apparent on the face of the charge, but were objections which went to
the root of the charge.
He
stressed that the exception the appellant raised in terms of section
180(1) of the Act was an attack on the ground that the charge did not
disclose the offence in question.
Second
respondent's supplementary heads
In
her supplementary heads Ms Chitanda
for the second respondent confirmed that the appellant pleaded and
excepted in terms, of section 180(4) of the Act. Contrary to her
earlier concession in para 7 and 9 of her supplementary heads, the
second respondent's counsel argued that the appellant wrongfully
pleaded and excepted to the charge in terms of section 170(2) of the
Act. She, on that basis, prayed for the dismissal of the appellant's
appeal.
ISSUES
FOR DETERMINATION
The
issues which fall for determination are:
1.
Whether or not in view of the provisions of section 170(3), it is
competent for a Magistrate, after taking a plea and an exception at
the same time, other than in terms of section 170(2) and upholding
the exception to thereafter order the prosecution to amend the charge
in terms of section 170(3) of the Act.
2.
Whether in view of the provisions of section 180(1) the appellant
could competently except and plead in terms of section 180(4) of the
Act.
3.
Whether or not the court
a
quo
erred in finding that there was no gross irregularity or illegality,
in the first respondent's upholding of the appellant's exception
and plea together and ordering the 2nd
respondent to amend the charge in terms of section 170(3) of the Act.
THE
LAW
The
first and second issues which arise for determination in this case
call for the interpretation of the legal framework governing
objections and exceptions taken to charges by accused persons in
terms of section 170(2) and (3), 171(1) and (2) and section 180(1)
and (4) of the Act.
Objections
and exceptions are provided for by section 170(1) to (3), section
171(1) and (2), and section 180(1) and (4) of the Act.
Section
170(1) to (3) provides for objections by way of exceptions as
follows:
“(1) Any
objection
to
an indictment
for any formal defect apparent on the face thereof shall be taken by
exception or by application to quash such indictment before the
accused has pleaded, but not afterwards.
(2) Any
objection
to
a summons or charge for
any formal defect apparent on the face thereof which
is to be tried by a magistrates court shall be taken by exception
before the accused has pleaded, but not afterwards.
(3)
Any
court before
which any objection is taken in terms of subsection (1) or (2) may,
if it is thought necessary and the accused is not prejudiced as to
his defence, cause
the indictment, summons or charge to be forthwith amended in
the requisite particular by some officer of the court or other
person, and thereupon the trial shall proceed as if no such defect
had appeared.”
(emphasis
added)
Section
170(1) applies to objections in the High Court. It does not apply to
the Magistrate's Court. The Magistrates Court is excluded by the
use of the word “indictment” which only applies to the High
Court.
Section
136 of the Act confines an indictment to the High Court as follows:
“(1)
When a person charged with an offence has been committed for trial or
sentence and it is intended to prosecute him before the High Court,
the
charge shall
be in writing in a document called an indictment.”
(emphasis added)
Section
170(2) which applies to objections in the Magistrates Court does not
allow an accused person to plead and except at the same time. It only
allows the accused to except to the charge before he pleads to it.
It
is therefore incompetent for an accused to plead and except to a
charge in terms of section 170(2).
Section
170(3) can only be invoked when an objection has been taken in terms
of section 170(1) or (2) of the Act. When no objection has been
taken in terms of section 170(1) or (2) a court cannot invoke the
provisions of section 170(3).
The
use of the words “Any court before
which any objection is taken in terms of subsection (1) or (2) may”
limits the court's authority to order an amendment of a charge or
indictment to situations where an objection in terms of an exception
would have been made in terms of section 170(1) or (2). That
authority cannot be exercised without it first having been triggered
by the provisions of section 170(1) or (2).
Section
171 reads:
“(1)
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.
(2)
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.”
In
terms of section 171(2) a court can exercise its discretion on which
to dispose of first, the exception or the plea. After determining the
exception first and upholding it, a court cannot exercise its
discretion in terms of section 170(3) of the Act,
because section 170(3) can only be resorted to after determining an
objection in terms of either section 170(1) or (2).
Section
180(1), (4) and (6) provides as follows:
“(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 cognizable by the court.
(2)
-----
(3)
-----
(4)
The accused may plead and except together.
(5)
----
(6)
Any person who has been called upon to plead to any indictment,
summons or charge shall,
except as is otherwise provided in this Act or in any other
enactment, be entitled to demand that he be either acquitted
or found guilty by
the judge or magistrate before whom he pleaded:” (emphasis added)
Section
180(1) provides that an accused shall either plead to or except to a
charge on the ground that it does not disclose, any offence
cognisable by the court. This means an accused who has been served
with a copy of the indictment, summons or charge, shall either plead
or except the charge on the ground that it does not disclose any
offence cognisable by the court.
The
use of the word “shall” and as emphasised by the use of the word
“either” in the same sentence means an accused who excepts
because the charge is not cognisable by the court can only except. He
cannot except and plead at the same time.
He
can only take one of the two options provided by section 180(1).
Section
180(4) allows an accused to plead and except together. It however
does so permissively by using the word “may” as opposed to the
mandatory provisions of section 180(1) which provides that an
accused shall either plead or except to the charge.
It
must also be stated that the use of the word “may” in section
180(4) cannot be read to give a right contrary to the mandatory
provisions of section 180(1).
A
plea of not guilty or guilty in terms of section 180(2) can only be
entered by an accused who accepts that the charge discloses an
offence cognisable by the court. If the accused believes that the
charge is not cognisable by the court he does not plead to it. He
should except to it.
Section
180(6) entitles an accused who has pleaded, except as is otherwise
provided in this Act or in any other enactment to demand that he be
either acquitted or be found guilty by the judge or magistrate before
whom he pleaded.
The
use of the words “except
as is otherwise provided in this Act or in any other enactment be
entitled”
means an accused can only demand and be granted a verdict if there is
no other provision in this Act or any other enactment on which the
trial can proceed bearing in mind the circumstances of each case.
The
prosecution can in response agree or disagree with the accused's
demand. If it disagrees it must point out the law which provides for
the procedure in terms of this Act or any other enactment in terms of
which the court must act in determining whether or not to grant the
accused's demand for a verdict. In the absence of such procedure
which applies in the circumstances of an accused in terms of this Act
or any other enactment the accused will be entitled to a verdict.
It
must be stressed that if there is no justification for granting a
verdict the court should order that the trial must proceed.
The
third issue depends on the correct application of the law on when
superior courts can review and interfere with unterminated
proceedings.
It
is now trite that superior courts will not lightly interfere with
unterminated proceedings brought on review before them. They can only
do so in exceptional circumstances where the trial court's
proceedings will have been affected by gross irregularities which
irredeemably vitiates the proceedings. Unterminated proceedings can
also be reviewed and set aside if the interlocutory order of the
trial court is clearly wrong.
In
the case of Attorney
General v Makamba
2005 (2) ZLR 54 (S) at 648D Malaba JA (as he then was) said:
“The
general rule is that a superior court should intervene in uncompleted
proceedings in the lower courts only in exceptional circumstances of
proven gross irregularity vitiating the proceedings and giving rise
to a miscarriage of justice which cannot be redressed by any other
means or where the interlocutory decision is clearly wrong as to
seriously prejudice the rights of the litigant”.
In
the case of Prosecutor
General of Zimbabwe v Intratek Zimbabwe (Pvt) Ltd, Wicknell Munodaani
Chivayo and L. Ncube
SC67/20 Makarau JA (as she then was) dealing with the same issue at
p8 of the cyclostyled judgment said:
“Thus,
put conversely, the general rule is that superior courts must wait
for the completion of the proceedings in the lower court before
interfering with any interlocutory decision made during the
proceedings. The exception to the rule is that only in rare or
exceptional circumstances where the gross irregularity complained of
goes to the root of the proceedings, vitiating the proceedings
irreparably, may superior courts interfere with on-going
proceedings”.
It
must be stressed that if there is a gross irregularity it must be one
which goes to the root of the proceedings and has the effect of
vitiating the proceedings irreparably. This means the proceedings
cannot be procedurally continued with/without the intervention of the
superior court because the irregularity will have irreparably
vitiated them.
There
may however be situations where only part of the proceedings will
have been irredeemably vitiated by irregularities and another part
for an example the earlier proceedings remains untainted by the
irregularities.
In
such circumstances a superior court can set aside the later part
which will have been irredeemably vitiated by irregularities and
order the trial to proceed from the untainted part.
APPLICATION
OF THE LAW TO THE FACTS
1.
Whether or not in view of the provisions of section 170(3), it is
competent for a Magistrate, after taking a plea and an exception at
the same time, other than in terms of section 170(2) and upholding
the exception to thereafter order the prosecution to amend the charge
in terms of section 170(3) of the Act
The
first objection/exception on the basis of which the original charge
was amended was with the consent of the parties. The charge was
correctly amended because the parties had consented to an objection
being taken before plea in terms of section 170(2) of the Act.
It
entitled the first respondent to lawfully order the amendment of the
charge in terms of section 170(3) of the Act.
After
the charge had been amended, the appellant pleaded not guilty and
excepted to it.
The
exception and plea, were allegedly taken in terms of section 180(4)
of the Act.
As
already explained under the analysis of the law section 170(3) does
not apply to circumstances other than when an objection will have
been taken before the court in terms of section 170(1) and (2) of the
Act.
This
issue is answered by the law.
The
court a
quo
therefore erred when it held that the first respondent correctly
ordered the prosecution to amend the charge in terms of section
170(3) of the Act.
2.
Whether in view of the provisions of section 180(1) the appellant
could competently except and plead in terms of section 180(4) of the
Act
The
appellant, allegedly excepted and pleaded in terms of section 180(4)
of the Act.
I
say allegedly because the appellant took the exception and plea on
the basis that the charge did not disclose an offence cognizable by
the court. That places the appellant's exception under the
provisions of section 180(1).
In
para 6 of his supplementary heads Mr Madhuku
said:
“In
this case, it was an exception as the attack was on the ground that
the charge did not disclose the offence in question. This sort of
exception is permitted by section 180(1) of the Criminal Procedure
and Evidence Act [Chapter
9:07]”.
Once
it is established that such an exception falls under section 180(1)
it cannot be taken together with the plea.
The
appellant's exception and plea together in circumstances where the
exception should have been taken in terms of section 180(1) is
incompetent because they were made contrary to the provisions of the
law.
3.
Whether or not the court
a
quo
erred in finding that there was no gross irregularity or illegality,
in the first respondent's upholding of the appellant's exception
and plea together and ordering the second respondent to amend the
charge in terms of section 170(3) of the Act
It
has already been established, that the decision of the trial court in
refusing to find the appellant not guilty was based on its reliance
on the mistaken belief that section 170(3) authorised it to order the
prosecution to amend the charge and proceed with the trial on the
charge which was still to be amended, even though the appellant had
allegedly pleaded and excepted in terms of section 180(4) of the
Act.
As
has already been established the first respondent erroneously upheld
the appellant's exception and plea. He should in view of the
provisions of section 180(1) not have allowed the appellant to plead
and except at the same time.
It
also erroneously ordered the second respondent to amend the charge in
terms of section 170(3) of the Act.
In
its judgment the court a
quo
relied on section 170(3) in finding that the first respondent had
authority to order the second respondent to amend the charge and that
the trial was to proceed on the charge which was still to be amended.
It
is clear that both the trial court and the court a
quo
did
not realise, that section 170(3) could not be invoked, as the
appellant had not pleaded and excepted in terms of section 170(1) or
(2)) of the Act.
As
explained under the analysis of the law, section 170(3) does not
authorize the court to order an amendment of the charge in cases
other than those in which an objection by way of an exception would
have been upheld in terms of subsections (1) or (2) of section 170 of
the Act.
It
is therefore clear that the first respondent's interlocutory orders
upholding the exception which had been made together with the plea
contrary to the provisions of section 180(1) and ordering the
amendment of the charge are wrong and should not have been upheld by
the court
a quo.
This
Court must determine whether or not the irregularities which occurred
in the proceedings before the first respondent irredeemably vitiated
the whole proceedings.
We
are satisfied that they have that effect on the proceedings from the
appellant's exception and plea onwards. We are also satisfied that
the interlocutory decisions of the court a
quo
after
the appellant's exception and plea are clearly wrong. We however
are cognisant of the fact that the errors were induced by the
appellant's incompetent excepting and pleading together, contrary
to the provisions of section 180(1) of the Act.
Whatever
is done contrary to the provisions of the law is a nullity.
There
is therefore, need to set aside, parts of the proceedings which are a
nullity, and order the trial to continue in respect of the valid
parts of the proceedings.
Proceedings
and decisions of a court of law are validated by their being
conducted or made in terms of the law. Proceedings and decisions made
contrary to the provisions of the law are clearly wrong and are a
nullity which must be set aside on review or appeal.
DISPOSITION
The
proceedings before the first respondent from the taking of the
exception and plea together are irredeemably irregular and the court
a
quo's
decisions
after that stage of the proceedings are clearly wrong and must be set
aside because they are contrary to the provisions of the law.
This
is however a case which warrants ordering the trial court and the
parties back to the stage they were at before the incompetent
exception and pleading were taken together and the erroneous orders
which followed thereafter.
The
appellant's exception and plea must be set aside to enable the
appellant to correctly plead or except. The erroneous orders of the
first respondent must also be set aside.
In
view of the fact that this appeal arises from proceedings of a
criminal trial each party shall bear its own costs.
It
is therefore ordered as follows:
1.
The appeal partially succeeds with each party bearing its own costs.
2.
The judgment of the court a
quo
be and is hereby set aside and is substituted as follows:
“2.1.
The proceedings in the court a
quo
from the accused's exception and plea and the trial court's
upholding of the exception and order that the prosecution amend the
charge in terms of section 170(3) of the Act be and are hereby set
aside.
2.2.1
The case is remitted to the trial court for the trial to continue
from the stage when the accused was invited to plead to the charge in
terms of the law.
MATHONSI
JA: I
agree
CHATUKUTA
JA: I
agree
Lovemore
Madhuku Lawyers,
applicant's legal practitioners
The
Prosecutor General, 1st
and 2nd
respondent's legal practitioners
