Indictment or Charge re: Splitting of Charges

HH73-11 : JULIUS SISAR MUPATSI vs THE STATE
Ruled By: KARWI J and MAVANGIRA J

After hearing the parties in this matter we dismissed the appeal against conviction and sentence in Count 1 in its entirety and allowed the appeal against sentence in Count 2. The following are our reasons for doing so.The appellant, who is a police officer, was charged with firstly defeating or obstructing the course of justice ...

The appellant, who is a police officer, was charged with firstly defeating or obstructing the course of justice and secondly, malicious injury to property. He pleaded not guilty to both counts but was convicted after a trial….,.

The accused now appeals against both convictions and sentences.

The facts are that police details from Chivhu Police Station were driving towards Mupatsi Business Centre where they intended to go and arrest one Mabasa Phoni Mupatsi. Whilst they were on their way they were flagged down by the accused who asked for a lift to Mupatsi Business Centre. The accused called three colleagues who boarded the police vehicle with him. It was a pick-up truck and they jumped into the back of the truck. After travelling a short distance therefrom, one of the police details realized that Phoni Mabasa Mupatsi, whom they intended to arrest at the Business Centre, was one of the passengers who they had just given a lift in the vehicle.

The police stopped their vehicle.

One Sergeant Munyaradzi alighted from the vehicle and went to where Phoni Mabasa Mupatsi was seated. He identified himself to Phoni Mabasa Mupatsi, placed his hand on Phoni Mabasa Mupatsi's shoulders and told him that he was under arrest. Sergeant Munyaradzi told Constable Marufu, who had also alighted, to handcuff Phoni Mabasa Mupatsi as he was a wanted person. Constable Marufu managed to handcuff Phoni Mabasa Mupatsi's right hand. It was at this stage that the accused jumped out of the vehicle and stated that the police details were not going to take Phoni Mabasa Mupatsi with them. The accused grabbed Sergeant Munyaradzi while the other occupants came to wrestle Sergeant Munyaradzi, who was trying to handcuff Phoni Mabasa Mupatsi's other hand. Sergeant Chatikobo, who had alighted and left the engine running, was holding Phoni Mabasa Mupatsi's legs. During the scuffle, the accused shouted that they would destroy the vehicle. The accused started throwing stones towards Sergeants Chatikobo and Munyaradzi who were wrestling with Phoni Mabasa Mupatsi as they tried to handcuff him. The accused threw stones which struck Sergeant Munyaradzi on the left thigh and the left shoulder. He also threw a stone which struck the windscreen of the truck on the driver's side. The details who were trying to handcuff Phoni Mabasa Mupatsi then released him and also advised Constable Marufu, who was being attacked by two of the accused's colleagues, to retreat. The accused and his colleagues then went away with the handcuffs as well as the car keys which the accused had removed from the ignition during the scuffles.

The police thus failed to arrest Phoni Mabasa Mupatsi.

The accused was only arrested at his residence when the police returned with reinforcements.

The facts related above give rise to the two counts with which the accused was charged. The charges are that he defeated or obstructed the course of justice by making it impossible for the police to arrest Phoni Mabasa Mupatsi who was wanted by the police in connection with certain criminal allegations. Secondly, that he maliciously injured the State in its property in that he struck and damaged the police vehicle windscreen with a stone.

The question to be determined is whether there has been an improper splitting of charges.

In R v Peterson & Ors 1970 (1) RLR 49…, BEADLE CJ stated -

“In the earlier cases to which the learned judge referred with approval, two basic tests are set out. One is that where a man commits two acts, of which each, standing alone, would be criminal but does so with a single intent, and both acts are necessary to carry out that intent, then he should only be convicted of one criminal offence. Another commonly applied test, which is a useful one in certain circumstances, is that the same evidence which is essential to prove one criminal act should not be used again as essential evidence to prove another. Where the essential evidence in such cases proves two criminal acts, only one should be charged. There are, however, many instances where this test is inapplicable. This test, however, is only applicable where the evidence is essential evidence, proving an essential ingredient of the offence. The mere fact that evidence may be relevant to two separate charges has, of course, little bearing on this problem…,.”

In S v Simon 1980 ZLR 162…, DUMBUTSHENA J…, stated -

“On the evidence, as disclosed in the record, it is clear that accused held himself out as a policeman in order to induce the complainants to part with their property or money. The criminal acts thus separately charged, that is, the two counts of robbery on the one hand and the contravention of section 70(1)(a) of the Police Act on the other hand, were done with one criminal intent and constituted one continuous criminal transaction, and the evidence necessary to establish the two counts of robbery involved proving the impersonation. See R v Tarewa 1949 S.R. 158; 1949 (4) S.A. 347 (S.R.) at 348; R v Malako, 1959 (1) S.A. 569 (O.).”

In that case, DUMBUTSHENA J invited comments from the Attorney-General. He quoted the comments received from the Director of Public Prosecutions. The comments read in part:

“The approach to be used in such cases was laid down by the Appellate Division in S v Brereton 1970 (2) R.L.R. 272 (A.D.) where it was said at p277A:

'In such cases, where the accused, in pursuance of the dominant intention, commits a number of offences, the proper thing to do is to charge him with only that offence which was his dominant purpose.'”

The headnote in S v Jambani 1982 (2) ZLR 213 (HC) reads:

“It frequently occurs, during the course of criminal conduct, that several offences are committed. To charge the accused with all those offences, however, may well result in prejudice to him, since the whole of the criminal conduct imputed to him in substance only constitutes one offence. In such a situation, the correct course is to charge the accused with that offence which was his dominant purpose. This does not mean that the test of 'dominant purpose' is the only one to be applied; in some situations it may still be appropriate to charge the accused with more than one offence.”

Further still, in S v Mutawarira 1973 (1) RLR 292…, BEADLE CJ said -

“The law on the subject of splitting of charges was extensively examined by the Appellate Division of South Africa in S v Grobler & Anor 1966 (1) S.A. 507 (A.D.) and by the General Division of this court in R v Peterson & Ors 1970 (1) R.L.R. 49. Peterson's case (supra), in effect, adopted all the reasoning in Grobler's case (supra). The principle which appears from Grobler's (supra) (I quote from p.518 where WESSELS JA quotes from the judgment of KOTZE JP…, in the case of Gordon v R 1909 E.D.C. 254), is that:

'It is difficult, if not impossible, in view of the decided cases, to lay down a hard and fast rule, which will apply with justness in every instance…,.'”

WESSELS JA summed up the approach to this problem at p523 thus:

“Having regard to the genesis of the rule (which could, in my opinion, be more aptly described as a rule of practice against the duplication of convictions) I am of the opinion that it was designed to prevent a duplication of convictions in a trial where the whole of the criminal conduct imputed to the accused constitutes, in substance only, one offence which could have been properly embodied in one all-embracing charge and where such duplication results in prejudice to the accused.”

In casu, it is clear that the appellant's dominant purpose was to prevent the arrest of his brother, Phoni Mabasa Mupatsi. The police vehicle was damaged during the process of trying to achieve that dominant purpose. From a perusal of the authorities, including those cited above, it would appear that what happened in this case was therefore an improper splitting of charges.

For that reason, the conviction on the second count, of malicious injury to property cannot be allowed to stand….,.

In the result, the conviction and sentence in Count 1 are upheld while in Count 2 the conviction is quashed and the sentence set aside.

HB112-10 : MORGAN MHONDIWA vs THE STATE
Ruled By: NDOU J and KAMOCHA J

In respect of the convictions, the appellant complained that it was improper for the learned Regional Magistrate to convict him of both the main charge of rape and the alternative charge of having sexual intercourse with a young person on diverse occasions from January 2008 to October 2008. The appellant's criminal conduct could not have ...

HB112-10 : MORGAN MHONDIWA vs THE STATE
Ruled By: NDOU J and KAMOCHA J

When charges are framed in the main and alternative the accused person has an election to either plead guilty to the main count or alternative count. He can plead not guilty to both counts and may be found not guilty of both the main and alternative; but he may not be found guilty of ...

HB09-11 : THE STATE vs MPUMELELO MOYO
Ruled By: MATHONSI J and NDOU J

The rule of practice against the duplication of convictions is designed to prevent the multiplicity of convictions of an accused person where the whole of the criminal conduct imputed to him, in substance, constitutes only one offence which could be contained in a single but all embracing charge. This is meant to avoid prejudice ...

HH162-15 : THE STATE vs THOMAS BRIGHTON CHIREMBWE
Ruled By: TSANGA J and TAGU J

The accused was charged with a combined thirty counts of contravening section 131(1) and 2 (unlawful entry) and section 65 (rape) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Of the total 30 counts, 13 were counts of rape whereby after entering 10 domestic premises the accused committed the rapes. He was however convicted of ...

HH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J

I will refer to the parties as Intratrek, Chivhayo, Kazhanje, the PG, and the court a quo respectively. Where it is convenient to do so I will refer to the first three (3) parties as the applicants and the last two as the respondents or first and second respondent as may be appropriate.

Chivhayo is the Managing Director of Intratrek Zimbabwe (Pvt) Ltd. The latter is a company incorporated in terms of the laws of Zimbabwe. Kazhanje was, at the material time, the Board Chairman of the Zimbabwe Power Company (ZPC).

On 18 June 2019 they appeared before the court a quo at Harare Magistrates Court, sitting as an Anti-Corruption Court.

The applicants were facing a charge of bribery as defined in section 170(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In respect of Intratrek and Chivhayo, it was alleged that on 21 January 2016, at CBZ Bank, Kwame Nkrumah Branch, Harare the trio or one of them unlawfully gave or agreed to give or offered an agent, namely, Kazhanje then a director and Board Chairman of the Zimbabwe Power Company (Pvt) Ltd, a gift or consideration as an inducement or reward for doing or omitting to do or having done or omitted to do any act in relation to his principal's affairs or business or for showing or not showing or having shown or not shown any favour or disfavour to Intratrek and Chivhayo in relation to Kazhanje's principal's affairs or business.

In short, the charge was that Intratrek and/or Chivhayo bribed Kazhanje by transferring to him US$10,000 as an inducement or reward for facilitating or influencing the Zimbabwe Power Company (Pvt) Ltd (ZPC) Board of Directors to make decisions favourable to Chivhayo and Intratrek in relation to the contract for the Gwanda Solar Project.

As for Kazhanje, he was charged for being the receiver of the bribe.

The State Outline then set out how the offence was alleged to have been committed.

On 28 May 2019, the first and second applicants had filed a request for further particulars to the charge and the State Outline. On 11 July 2019 the Prosecutor General's representative filed a response thereto.

Section 177 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPE Act) provides that the court may order delivery of particulars to any matter alleged in a charge, summons, or indictment. It does not provide for delivery of particulars to any matter set out in the State Outline.

That is the first problem, in my view, with the request for further particulars. It is unlike in civil procedure where a request for further particulars covers both the summons and declaration/particulars of claim.

In that request, the applicants attached various annexures and sought admissions from the first respondent relative thereto. The admissions were made. In some cases, the first respondent indicated that what was sought was evidence and inferences which it would ask the court a quo to make from the evidence.

A total of twenty-eight annexures were attached to the request for further particulars. Admissions were sought touching on the identity of those documents and their place in the matter. The annexures comprised, among others, letters, contracts, and judgments of this court one of which has been overturned on appeal and the other whose appeal is pending in the Supreme Court.

Dissatisfied with what it perceived to be a reluctance to comply with some of the particulars requested, the applicants made an oral application, before the court a quo, for an order to compel delivery of those particulars.

The third applicant associated himself with both the request and the application.

The application was opposed, and dismissed. The court a quo found that what was requested was in fact evidence and therefore improper.

Next, the applicants excepted to the charge.

The submissions were these;

The third applicant argued that the defect was that the charge did not specify whether the US$10,000 was an inducement or a reward. Further, all three applicants argued that the charge, as amplified by the further particulars, did not disclose an offence.

The exceptions were based on section 170(2) and 180(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] respectively.

The court a quo dismissed the exceptions. It found no formal defect in the charge. It must have found, indeed it found, that the charge disclosed the offence of bribery. The reason is this. It found that what was requested constituted evidence. The charge, as it stood, disclosed the offence of bribery vis a vis the applicants.

The applicants are before us in an application to review the court a quo's decision.

The two grounds of review read as follows:

“1. The decision complained of is a grossly unreasonable abdication of judicial power in that the second respondent did not apply his mind to the substantive and procedural issues before him.

2. The decision complained of is patently contrary to law and determined the exception before the second respondent on an improper basis and is such that no reasonable judicial officer who had applied his mind to the facts would have reached the same decision.”

The first respondent opposed the application.

The parties filed heads of argument.

The first and second applicants made these submissions before us;

The second respondent's decision, dismissing the exception, was grossly unreasonable. The “common cause facts” show that there was no bribery. For example, it was admitted, by the first respondent, in replying to the further particulars, that the tender for the Gwanda Solar Project was awarded to Intratrek through Chivhayo by the State Procurement Board and not the Zimbabwe Power Company (Pvt) Ltd (ZPC) Board which Kazhanje chaired. The ZPC Board's mandate was to implement the contract. There was therefore no basis for the first respondent to lead other evidence at the trial speaking to bribery of third applicant because it had admitted that it was the State Procurement Board (SPB) which awarded to the applicant the tender for the Gwanda Solar Project. The offence of bribery was therefore not disclosed.

Counsel for the third applicant referred us to the South African Supreme Court of Appeal decision in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking and Advertising Standards Authority SA 459/04 where that court held it proper to have regard to documentary evidence attached to pleadings in determining an exception.

My view is our law is different.

Evidence is inadmissible in determining an exception. Evidence is adduced at trial.

Counsel for the first and second applicants argument, on common cause facts showing that the offence of bribery was not disclosed, finds no favour with me.

We rejected this argument in Mupfumira and Another v Mutevedzi and Another HH200-20.

Firstly, there are no facts to talk about at this stage. There is nothing from the applicants in the nature of facts. They have not pleaded to the charge, tendered a Defence Outline, nor has any evidence been led which would found the basis for common cause facts, if any. All there is, at this stage, are the charge and the State's allegations as set out in its Outline.

What happened a quo, in my view, is that the applicants sought to truncate the trial by resorting to a procedure foreign to our law.

Under the guise of seeking particulars to the allegations in the charge they expanded the request to cover allegations set out in the State Outline. They went further to seek admissions disguised as further particulars. The State seemed not to have initially noticed, a quo, that the applicants had sought to jump the gun. Admission of facts is a procedure available at the trial, post plea, and tendering of a Defence Outline, before the State has opened its case.

The multitude of questions contained in what was called a request for further particulars, the annexures thereto and the answers solicited were correctly disregarded by the court a quo in determining the exception. The time will come when evidence will be led, with exhibits, if any, produced in accordance with the rules of evidence.

I also take the view that the charge does not become defective by dint of characterizing the US$10,000 as either an inducement or a reward. These are alternatives speaking to the same charge of bribery.

Looked at from another perspective, counsel for the applicants, while purporting to be seeking further particulars, were actually cross examining the Prosecutor General's (PG) representative. The latter was responding, again through what was called a reply to the further particulars.

There is no law in our jurisdiction sanctioning the PG's representative to be subjected to cross-examination either pre-trial or at the trial itself, either through papers filed of record or orally.

The net effect of what was done was to delay the trial.

The court a quo dismissed the exception because it was based on what was effectively evidence improperly put before it as well as evidence sought to be prematurely placed before it. We see no merit in the application for review. We are remitting the matter to the court a quo for trial.

From the record of proceedings put before us, the applicants first appeared before that court around 18 July 2019. It appears the matter was then ready for trial. What this means is that the applicants have managed to delay the commencement of the trial by a period of one year.

Counsel for the third applicant asked us to consider a court record which was not before the court a quo. The argument birthed by that record was also not placed before that court.

We were told that the third applicant has since been convicted of contravening section 173 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) viz corruptly concealing from a principal a personal interest in a transaction. The facts and evidence were said to be the same as in the bribery charge. He submitted that there was therefore an improper splitting of charges as well as a basis for arguing that the third applicant was previously convicted of an offence arising from the same set of facts and evidence.

Section 180 of the Criminal Procedure and Evidence Act [Chapter 9:07] lists nine (9) pleas that can be pleaded to a charge. The usual ones are guilty or not guilty. But, section 180(2)(c) provides that a person can plead that he or she has already been convicted of the offence with which he is charged.

It is not necessary that I discuss whether that plea is available to the third applicant. What is important is that section 186 of the Criminal Procedure and Evidence Act provides that issues raised by a plea (except that of guilty or a plea to the jurisdiction of the court) shall be tried. The third applicant should therefore plead to the charge. The matter should be tried.

Further, whether there was a splitting of charges placing the third applicant in danger of a duplication of convictions on the same evidence is an issue which we cannot consider at this stage.

If he is convicted his remedy may be to raise that as one of his grounds of appeal.

Counsel for the third applicant referred us to a number of South African and Zimbabwean cases on this point. They include Zachariah v The State, Criminal Appeal number APP 331/01.

The application for review, in the circumstances, has no merit.

The present is not one of those rare cases where grave injustice might otherwise result or justice might not, by other means, be attained if we do not interfere in the un-terminated proceedings in the court a quo. See Prosecutor General of Zimbabwe v Intratrek Zimbabwe (Pvt) Ltd and 2 Ors SC59-19; Dombodzvuku and Anor v Sithole N.O. and Anor 2004 (2) ZLR 242 (H).

In the result, it is ordered that:

1. The application for review be and is dismissed.

2. The matter is remitted to the court a quo for the applicants to plead to the charge with the matter proceeding to trial.

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Indictment or Charge re: Splitting of Charges

HH73-11 : JULIUS SISAR MUPATSI vs THE STATE
Ruled By: KARWI J and MAVANGIRA J

HB112-10 : MORGAN MHONDIWA vs THE STATE
Ruled By: NDOU J and KAMOCHA J

HB112-10 : MORGAN MHONDIWA vs THE STATE
Ruled By: NDOU J and KAMOCHA J

HB09-11 : THE STATE vs MPUMELELO MOYO
Ruled By: MATHONSI J and NDOU J

HH162-15 : THE STATE vs THOMAS BRIGHTON CHIREMBWE
Ruled By: TSANGA J and TAGU J

HH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J

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Law Portal Zimbabwe

Indictment or Charge re: Splitting of Charges

HH73-11 : JULIUS SISAR MUPATSI vs THE STATE Ruled By: KARWI J and MAVANGIRA J

HB112-10 : MORGAN MHONDIWA vs THE STATE Ruled By: NDOU J and KAMOCHA J

HB112-10 : MORGAN MHONDIWA vs THE STATE Ruled By: NDOU J and KAMOCHA J

HB09-11 : THE STATE vs MPUMELELO MOYO Ruled By: MATHONSI J and NDOU J

HH162-15 : THE STATE vs THOMAS BRIGHTON CHIREMBWE Ruled By: TSANGA J and TAGU J

HH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O. Ruled By: CHIKOWERO J and KWENDA J

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Law Portal
Zimbabwe

HH73-11 : JULIUS SISAR MUPATSI vs THE STATE
Ruled By: KARWI J and MAVANGIRA J

HB112-10 : MORGAN MHONDIWA vs THE STATE
Ruled By: NDOU J and KAMOCHA J

HB112-10 : MORGAN MHONDIWA vs THE STATE
Ruled By: NDOU J and KAMOCHA J

HB09-11 : THE STATE vs MPUMELELO MOYO
Ruled By: MATHONSI J and NDOU J

HH162-15 : THE STATE vs THOMAS BRIGHTON CHIREMBWE
Ruled By: TSANGA J and TAGU J

HH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J