This is an application for leave to appeal to the Supreme Court in terms of section 44(6) of the High Court Act [Chapter 7:06].
In particular, the applicant seeks leave to appeal against the decision of the High Court handed down on 20 March 2019 in Case No.11141/18 (as Judgment No. HH229-19).
The effect of that judgment was to quash the criminal charges against the respondents in Case No. CRB P 9114-5/18, and, consequently, to order their acquittal on those charges.
The Background
The applicant herein is the Prosecutor-General. The first respondent is a company styled Intratrek Zimbabwe (Pvt) Ltd (Intratrek), while the second respondent, Wicknell Munodaani Chivayo (Chivayo), is that company's Managing Director.
The respondents were charged with two counts of fraud and two counts of contravening local exchange control requirements. All four charges emanate from an Engineering, Procurement, and Construction Contract (the Contract) entered into between Intratrek, represented therein by Wicknell Munodaani Chivayo (Chivayo), and the Zimbabwe Power Company (Pvt) Ltd (the ZPC).
The Contract, which was concluded on 23 October 2015, was for the construction of a 100 megawatt solar power generation plant in Gwanda (the Project).
The first charge alleges fraud pursuant to misrepresentation by the respondents through the submission of invoices designed to fund a feasibility study for the Project. It is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) released a total of US$2,435,654 on the strength of those invoices and that the respondents converted those funds to their own use thereby causing actual prejudice in that amount.
The second charge also alleges fraud by misrepresentation through the presentation of invoices for pre-commencement works on the Project. Again, it is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) acted upon the misrepresentation and released funds to the respondents who converted those funds to their own use thereby causing actual prejudice in the sum of US$3,188,476=80.
The third and fourth charges pertain to alleged exchange control violations.
The third charge alleges that the respondents entered into an unlawful agreement with a company resident in the United States of America involving the payment of recurring fees amounting to US$849,479 without seeking prior approval from the Exchange Control Authority. The fourth charge alleges that the respondents were granted exchange control approval to load Wicknell Munodaani Chivayo's VISA cards with funds amounting to US$849,479 to import earthmoving equipment for civil construction purposes at the Project. It is alleged that the respondents failed to provide bills of entry to the CBZ Bank as proof of receipt of the imported goods for acquittal purposes within 90 days of effecting payment.
Magistrates Court and High Court Proceedings
In Case No. CRB P 9114-5/18, before the Magistrates Court, the respondents pleaded not guilty and excepted to all four charges in terms of section 171(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].
The exception was premised on the assertion that the facts as alleged in the Charge Sheet and State Outline did not disclose any offence, whether as alleged or at all.
The learned magistrate found that the charges in question did capture the essentials expected of a charge to enable the accused persons to properly plead thereto. He accordingly dismissed the exception.
Aggrieved by that ruling, the respondents filed an application to the High Court for the review of the magistrate's decision on the ground that it was grossly unreasonable and patently contrary to law. The respondents also filed a separate application to the High Court for the stay of proceedings before the Magistrates Court pending the determination of the application for review.
The latter application was heard and determined in Case No. HC11205/18 (as Judgment No. 849-18 per MUSAKWA J) on 31 December 2018. The learned judge found that there were no formal defects in three of the four counts and that the applicants (the respondents herein) had no prospects of success on review in respect of those three counts. The third count was found to be defective. The court accordingly ordered that the criminal trial be suspended only in respect of the third count and that the trial could proceed in respect of the other three viable counts.
High Court Judgment on Review
In the judgment which the applicant seeks leave to appeal against, the High Court found that the learned magistrate had misdirected himself because he dealt with an issue that was not before him. In particular, he had been asked to adjudicate whether or not the facts alleged disclosed an offence, but, instead, decided that the charges against the respondents were properly framed and therefore disclosed an offence. The High Court held that this was a reviewable irregularity that went to the root of the matter. The court then proceeded to determine the question itself by way of considering, in great detail, the merits of the entire case against the respondents. I summarise its principal findings as follows:
(i) The payments made by the Zimbabwe Power Company (Pvt) Ltd (ZPC) were advance payments authorised by contract and this negated any intention to deceive or cause prejudice.
(ii) The Zimbabwe Power Company (Pvt) Ltd (ZPC) incurred its own loss by negligently paying the respondents before any performance bond or guarantee was put in place.
(iii) Where a contractual agreement provides effective redress, the dispute should be resolved contractually and liability should not be extended under the different remedial regime of Criminal Law.
(iv) The respondents did not commit any offence under the Exchange Control Regulations as the Guidelines in question were not made under the Exchange Control Act, and, in any event, the respondents could have sought exchange control approval after entering into the relevant contract.
(v) No criminal offence was established in relation to the non-acquittal of payments as the Authority in question was not promulgated under the Exchange Control Act and did not prescribe any offence.
(vi) Wicknell Munodaani Chivayo merely represented Intratrek Zimbabwe (Pvt) Ltd (Intratrek) in his capacity as its Managing Director and was therefore wrongly charged in his personal capacity.
(vii) To the extent that section 277(5) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) imputes vicarious liability to Wicknell Munodaani Chivayo in respect of an offence allegedly committed by Intratrek Zimbabwe (Pvt) Ltd (Intratrek), the charges in question breached the protective provisions of sections 49(1) and 56(1) of the Constitution and were therefore invalid.
(viii) On the totality of the facts and the merits, it was highly improbable that a criminal suit would succeed, and, therefore, its continuation would violate section 49(2) of the Constitution.
The learned judge concluded by reiterating that a Criminal Court does not have any jurisdiction to hear or determine any case of a civil nature as in casu.
He then set aside the learned magistrate's ruling and substituted it with an order that the exception to the charges should succeed, resulting in all of the charges being quashed and both respondents being formally acquitted....,.
As already stated, the applicant seeks leave to appeal against the judgment of the High Court in terms of section 44(6) of the High Court Act.
His intended appeal is premised on points of law and on the averment that the court acquitted the respondents on a view of the facts which could not reasonably be entertained....,.
Grounds of Appeal
The intended grounds of appeal herein, as paraphrased, aver that the learned judge a quo misdirected himself and/or erred in the following respects:
1. In finding that the facts do not disclose an offence of fraud when it was apparent from the State Outline that the respondents had misrepresented to the Zimbabwe Power Company (Pvt) Ltd (ZPC) that a total of US$1,960,125 had been paid to subcontractors when such money had not been paid and was used by the respondents for their own benefit to the prejudice of the Zimbabwe Power Company (Pvt) Ltd.
2. In failing to consider the provisions of section 278(3) of the Criminal Law Code which impute that a person's conduct can constitute both criminal and civil liability and that the State could resort to criminal redress in a matter that was not purely contractual.
3. In finding that the facts do not disclose an offence of fraud as against the second respondent where he was chargeable in his personal capacity as a director of the first respondent and there was a paper trail to show that both respondents misrepresented facts to the Zimbabwe Power Company (Pvt) Ltd (ZPC) to its prejudice and that the funds were used by both respondents for their own benefit.
4. In making a finding that effectively interfered with un-terminated proceedings where there were no exceptional circumstances to warrant such interference and where trial had commenced and evidence was being led before the Magistrates Court.
5. In finding that the facts pertaining to the fourth count do not disclose an offence of entering into an agreement without seeking prior exchange control approval.
The relief sought by the applicant, on appeal, is that the appeal should succeed and that the judgment of the court a quo be set aside and substituted with an order dismissing the exception and continuing the trial under Case No. CRB P 9114-5/18.
At the hearing of the matter, the Court noted two anomalies in the grounds of appeal.
The first relates to the first ground with reference to the total amount involved under the first and second counts, i.e. US$5,624,130=80 as opposed to US$1,960,125. The second pertains to the fifth ground of appeal which erroneously refers to the allegations contained in the third count (which count was dropped at the criminal trial) as opposed to the fourth count.
Counsel for the applicant acknowledged these anomalies and sought an amendment to the first ground to reflect the correct amount of US$5,624,130=80. She also abandoned the fifth ground and requested that it be expunged.
Counsel for the respondents did not oppose these amendments. The grounds of appeal were accordingly amended as prayed for by consent....,.
I now turn to consider the merits and prospects of success of the four remaining grounds of appeal as amended.
General Considerations
Section 44(6) of the High Court Act provides for appeals by the Prosecutor General against judgments of the High Court in the following terms:
“(6) If the Prosecutor-General is dissatisfied with the judgment of the High Court in a criminal matter, whether in the exercise of its original or appellate jurisdiction, or on review, including a review pursuant to section 57 of the Magistrates Court Act [Chapter 7:10] –
(a) On a point of law; or
(b) Because it has acquitted or quashed the conviction of the person who was the accused in the case on a view of the facts which could not reasonably be entertained;
he may, with the leave of a judge of the Supreme Court, appeal against such judgment to the Supreme Court:…,.”
The right of appeal conferred by section 44(6) of the High Court Act is essentially twofold;
(i) Either on a point of law or on a view of the facts which could not reasonably be entertained; or
(ii) On both the law and the facts.
As regards an appeal on the facts, the test is primarily an objective one, viz. is the impugned finding of fact one that is shown to be objectively unreasonable and therefore one that could not reasonably be entertained?
In taking this view, I am not oblivious to the observations of KORSAH JA in Attorney-General v Paweni Trade Corp (Pvt) Ltd & Ors 1990 (1) ZLR 24 (SC)…,.
In that case, this Court was seized with applications for leave to appeal filed by both parties together with the actual appeals noted by both parties against the findings of the trial court. In interpreting the parameters of the phrase under consideration, the learned Judge of Appeal took the view that:
“…, if there are reasonable grounds for taking certain facts into consideration, and all the facts, when taken together, point inexorably to the guilt of an accused beyond peradventure, but the trial court nonetheless acquits the accused, then the trial court has taken a view of the facts which could not reasonably be entertained. Put another way, if, on a view of the facts, the court could not have reasonably inferred the innocence of the accused, then the verdict of acquittal is perverse and the Attorney-General is entitled to attack it.”
The earlier part of this passage appears to suggest a threshold for the applicant to surmount which is somewhat higher than the objective test that I have expounded, while the later part is more in accord with that test.
In any event, the case is distinguishable on the basis that it addresses the considerations applicable in an application for leave to appeal as well as the merits of the actual appeal itself. At this stage, I am seized only with the former and not the latter. Moreover, the pertinent facts in that case had already been fully ventilated before the trial court and definitively determined by that court.
In contrast, the facts in casu have yet to be canvassed and conclusively determined by trial on evidence yet to be adduced.
For these reasons, I am inclined, in the present matter, to lean towards adopting and applying the later rather than the earlier part of the passage that I have cited.
As for the requirement of leave to appeal to be obtained before the right to appeal can be exercised, this Court is vested with an essentially gate-keeping function, viz. to allow only cases that deserve to be heard on appeal to pass muster. What this entails is an evaluation of the grounds of appeal to be relied upon and their prospects of success at the intended appeal; see Chikurunhe & Ors v Zimbabwe Financial Holdings SC10-08; Chipangura v Environmental Management Authority SC35-12.
Whether Offence of Fraud Disclosed
Counsel for the respondents submit that paragraphs 10 and 11 of the State Outline do not relate to the essential elements of fraud. In particular, there is no allegation that the purported misrepresentation was intended to deceive and operated to procure the release of funds to the prejudice of the Zimbabwe Power Company (Pvt) Ltd (ZPC), either at the time that the invoices were presented or at the time when the funds were released.
Furthermore, there is no specific allegation made against Intratrek Zimbabwe (Pvt) Ltd (Intratrek), the first respondent.
Counsel for the applicant counters that the averments in paragraphs 10 and 11 of the State Outline relate to the manner in which the offence came to light. The preceding paragraphs indicate that the respondents submitted invoices and certificates for advance payments in respect of the works to be carried out. They clearly allege an intention to deceive and cause prejudice at the time of the alleged misrepresentations. Paragraphs 10 and 11 capture what transpired thereafter when the supposed sub-contractors distanced themselves from the invoices submitted by the respondents.
I have already summarised, at the outset, the two counts of fraud as set out in the Charge Sheet.
There can be no doubt that they both allege the offence of fraud by misrepresentation through the submission of invoices for a feasibility study and pre-commencement works on the Project. Additionally, they further allege that the Zimbabwe Power Company (Pvt) Ltd (ZPC) released a total amount of US$5,624,130=80 to the respondents on the strength of those invoices and that the respondents converted those funds to their own use thereby causing actual prejudice to the Zimbabwe Power Company (Pvt) Ltd (ZPC).
It is also clearly alleged, in both counts, that in making those misrepresentations the respondents acted unlawfully and with actual or constructive intent to deceive and defraud the Zimbabwe Power Company (Pvt) Ltd (ZPC).
Turning to the State Outline, the details of the alleged fraud are elaborated as follows;
On 23 October 2015, ZPC signed the Contract with Intratek which was represented by Chivayo (paragraph 4). The Contract provided that the ZPC would advance monies for feasibility studies and pre-commencement activities (paragraph 5). Between 4 December 2015 and 22 January 2016, Chivayo submitted two invoices on the pretext of feasibility study implementation; the ZPC's Finance Director acted upon the misrepresentation and released US$2,435,650 in nine instalments and paid the same into Intratrek's CBZ bank account on the understanding that the subcontractor concerned was going to carry out the feasibility study (paragraph 6).
However, ZPC's Technical Director, Projects Manager, and suspended Managing Director indicated that they never met the sub-contractor during the supposed study period; there was also no record of the subcontractor entering Zimbabwe during the period in question (paragraph 7). Between 15 February 2016 and 25 April 2016, Chivayo submitted three invoices supported by payment release certificates, purportedly for the implementation of pre-commencement works on the Project (paragraph 8).
Again, ZPC's Finance Director acted on the misrepresentation and released total advance payments of US$3,188,476 in twelve instalments into Intratrek's CBZ bank account (paragraph 9). On 26 April 2016, the ZPC's Finance Director requested Chivayo to provide a schedule of commitment in respect of the funds released towards the implementation of the Project; Intratrek's Company Secretary misrepresented that a total of US$1,960,125 had been paid to sub-contractors, who, however, distanced themselves from the invoices submitted by Chivayo (paragraph 10).
The paper trail indicates that Chivayo used the funds meant for the feasibility study and pre-commencement works for his own personal benefit by diverting them to various individuals and companies; the funds were used to purchase vehicles and air tickets, and for the settlement of school fees and civil suits (paragraph 11). The ZPC suffered total prejudice in the sum of US$5,624,130=80 and nothing was recovered (paragraph 16).
The crime of fraud is defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23) (the Code) in the following terms:
“Any person who makes a misrepresentation –
(a) Intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and
(b) Intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;
shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially prejudicial to another person…,.”
The essential elements of fraud, as defined in this provision, are trite:
(a) The making of a misrepresentation;
(b) Actual or constructive intention to deceive another person;
(c) Actual or constructive intention to cause another person to act upon the misrepresentation to his prejudice; and
(d) Resultant actual or potential prejudice to another person.
Having regard to the Charge Sheet and State Outline in casu, I have no doubt that the foregoing elements are aptly captured in those documents. These include the making of misrepresentations through the submission of false invoices, the intention to deceive and defraud the Zimbabwe Power Company (Pvt) Ltd (ZPC) through its officers and agents, the intention to cause the Zimbabwe Power Company (Pvt) Ltd's officers and agents to act upon the misrepresentation to its prejudice, and, as a consequence of such conduct and intent, causing actual prejudice to the Zimbabwe Power Company (Pvt) Ltd (ZPC) in the not insignificant amount of US$5,624,130=80.
All of these allegations, if proved, would undoubtedly constitute the offence of fraud.
In the premises, I take the view that the learned judge a quo misdirected himself in finding that the facts alleged in the Charge Sheet, as read with the State Outline, do not disclose an offence. Consequently, he erred by upholding the exception to the charges of fraud levelled against the respondents, quashing those charges, and acquitting the respondents, on a view of the facts that could not reasonably be entertained. At the same time, he erred in law in his mis-appreciation of the essential components of the crime of fraud and their application to the facts before him. On a proper view of those facts, he could not reasonably have inferred the innocence of the respondents.
It follows that the first ground of appeal is meritorious and enjoys sound prospects of success on appeal.
Concurrent Criminal and Civil Proceedings
Counsel for the applicant submits that the court a quo misdirected itself at law by confining itself to the civil aspects of the transactions forming the subject matter of the charges of fraud preferred against the respondents. In this respect, it failed to consider the provisions of section 278 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) which provides that there is nothing to preclude a criminal prosecution where a contract is involved.
Counsel for the respondents accept that neither criminal nor civil proceedings constitute a bar to either, but contend that section 278 of the Criminal Law (Codification and Reform) Act is essentially concerned with disciplinary proceedings.
My reading of section 278 of the Criminal Law (Codification and Reform) Act (the Code) is that it certainly is not restricted to disciplinary proceedings. Admittedly, section 278(1) provides a fairly comprehensive definition of “disciplinary proceedings”. However, that does not detract from the broader ambit of the substantive provisions contained in subsections (2) and (3) which state as follows:
“(2) A conviction or acquittal in respect of any crime shall not bar civil or disciplinary proceedings in relation to any conduct constituting the crime at the instance of any person who has suffered loss or injury in consequence of the conduct or at the instance of the relevant disciplinary authority, as the case may be.
(3) Civil or disciplinary proceedings, in relation to any conduct that constitutes a crime may, without prejudice to the prosecution of any criminal proceedings in respect of the same conduct, be instituted at any time before or after the commencement of such criminal proceedings.”
These provisions make it clear that the concept of double jeopardy does not extend to criminal and civil proceedings which might be instituted in respect of the same conduct or causa. They also make it clear that such criminal and civil proceedings may be instituted at any time, whether before, after, or concurrently with one another.
More significantly, for present purposes, the institution of civil proceedings or availability of civil remedies cannot prejudice or preclude criminal proceedings in respect of the conduct giving rise to civil liability.
That this position is trite is evidenced by the paucity of judicial precedent on the subject.
Nevertheless, there is at least one decision in our jurisdiction wherein the governing principle is lucidly articulated. In S v African Consolidated Resources (Pvt) Ltd 2013 (1) ZLR 392 (H), the question posed by the court was: “whether a criminal prosecution could be instituted from the same facts giving rise to a civil suit and whether it was impermissible to have a parallel process where the conduct of an accused person gives rise to both criminal prosecution and civil litigation.”
MUSAKWA J answered his own enquiry…, as follows:
“That out of the same set of facts civil litigation and criminal prosecution has [sic] 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 action may further spawn a delictual suit.”
It is abundantly clear that the findings of the court a quo pertaining to the charges of fraud against the respondents and the context in which they arose militate against the statutory and common law principles governing concurrent criminal and civil proceedings.
The following are the pertinent misconceived findings of the court;
(i) The first is that, because the payments made by the Zimbabwe Power Company (Pvt) Ltd (ZPC) to the respondents were advance payments authorised by contract, this negates any intention to deceive or cause prejudice to the Zimbabwe Power Company (Pvt) Ltd (ZPC).
(ii) The second is that, where a contract is capable of providing effective redress, the courts cannot extend liability under a different remedial regime of the criminal law as this would be contrary to public policy.
(iii) The third, and most outlandish, is that a Criminal Court does not have jurisdiction to hear or determine any matter involving a contract.
(iv) The fourth and final, pursuant upon the third, is that the instant case is a purely civil matter to be resolved contractually by enforcing the dispute resolution provisions of the Contract.
I am of the firm view that the learned judge a quo misdirected himself at law in making the foregoing findings, and, consequently, holding that the State could not resort to the institution of criminal proceedings in circumstances where the facts alleged, if proven, clearly demonstrated the commission of fraud by the respondents.
In the event, I am satisfied that the second ground of appeal has excellent prospects of success on appeal.
Charges of Fraud against Second Respondent
As regards the charges against Chivayo, the court a quo found that he merely represented Intratrek Zimbabwe (Pvt) Ltd (Intratrek) in his capacity as its Managing Director. It was not alleged that he did anything pursuant to the Contract in his personal capacity and he was therefore wrongly charged in that capacity.
The court also found that, to the extent that section 277(5) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) imputes vicarious criminal liability to the director of a company in respect of an offence committed by the company, it breaches the protective provisions of sections 49(1) and 56(1) of the Constitution and is accordingly invalid.
As for the Constitutional dimension alluded to by the court a quo, the overall effect of section 277 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Criminal Law Code) is that the conduct of a director is imputable to the company and, vice versa, the conduct of a company is imputable to each of its directors. Thus, a director can be held vicariously criminally liable to be prosecuted and punished personally for the crime of the company, unless he proves that he took no part in the alleged criminal conduct.
Counsel for the respondents submit that the whole of section 277 of the Criminal Law (Codification and Reform) Act is unconstitutional, as was held by the learned judge a quo. They rely for this proposition upon the decision in S v Coetzee 1997 (3) SA 527 (CC) wherein the Constitutional Court declared section 245 of the South African Criminal Procedure Act to be invalid for infringing the presumption of innocence.
In this regard, I would simply observe that the provision struck down is materially different from our section 277, and, therefore, the decision in S v Coetzee 1997 (3) SA 527 (CC) is not particularly germane to the situation in casu.
In any event, I do not think that the impugned provision and its constitutionality or otherwise are relevant at all to the circumstances of this case. More to the point, I am unable to accept the argument advanced by counsel for the respondents that the facts alleged relate only to the contractual obligations and conduct of Intratrek Zimbabwe (Pvt) Ltd (Intratrek) and not to the conduct of Wicknell Munodaani Chivayo in his personal capacity.
The two charges of fraud allege that both Intratrek Zimbabwe (Pvt) Ltd and Wicknell Munodaani Chivayo, or one of them, with intent to deceive and defraud the Zimbabwe Power Company (Pvt) Ltd (ZPC), made representations to the ZPC's Finance Director through the presentation of invoices designed to fund the feasibility study and pre-commencement works on the Project. The charges further allege that, instead of implementing the Project, both Intratrek and Chivayo, or one of them, converted the funds released to them to their own use, thereby causing actual prejudice to the Zimbabwe Power Company (Pvt) Ltd (ZPC).
The third and fourth charges, pertaining to exchange control violations, also clearly implicate both Intratrek Zimbabwe (Pvt) Ltd and Wicknell Munodaani Chivayo, or one of them, with having contravened the relevant exchange control requirements in question.
Turning to the State Outline, paragraph 2 states that “accused (1)” is Intratrek, while paragraph 3 makes it clear that “accused (2)” is “accused 1's Managing Director being charged in his personal capacity.”
Paragraphs 6, 8 and 9 allege that “the accused” submitted five separate invoices during the relevant period and that the ZPC's Finance Director acted upon the alleged misrepresentation and released the requisite advance payments in 21 different instalments into “accused 1's” CBZ bank account.
In paragraph 10, it is stated that ZPC's Finance Director requested “the accused” to provide a schedule of commitment in respect of the funds released by the ZPC. It is then alleged that “the accused, again, through his Company Secretary” misrepresented that a certain sum had been paid to subcontractors.
In paragraph 11, it is alleged that “accused” used the funds meant for feasibility study and pre-commencement works “for his own personal benefit” by diverting them to purchase vehicles and air tickets and for the settlement of school fees and civil suits.
Paragraphs 12 to 14 pertain to the alleged exchange control violations. They refer, variously, to the alleged conduct of “the accused”, “the accused person” and “the accused persons.”
Finally, paragraph 16 asserts that the ZPC suffered total prejudice of US$5,624,130=80 and that nothing was recovered.
In my view, the Charge Sheet, taken together with the State Outline, make it abundantly clear that there is no question of any vicarious liability being imputed to Wicknell Munodaani Chivayo in respect of the conduct of Intratrek Zimbabwe (Pvt) Ltd. On the contrary, he is specifically charged, in his personal capacity, for specific acts and misrepresentations attributed to him either individually or jointly with Intratrek, and not merely in his representative capacity as the Managing Director of Intratrek.
In the premises, I am satisfied that the learned judge a quo misdirected himself in finding that the facts, as alleged, did not disclose the offence of fraud as against Wicknell Munodaani Chivayo and that there was no basis for charging him in his personal capacity.
Accordingly, the third ground of appeal also holds high prospects of success.
Interference with Unterminated Proceedings
The nub of the fourth ground of appeal is that the court a quo erred in interfering with un-terminated proceedings in the Magistrates Court where there were no exceptional circumstances to warrant such interference.
It is common cause that proceedings in the Magistrates Court had already commenced in respect of three of the four counts preferred against the respondents. One witness had already testified on behalf of the State, and, on the following date of hearing, the public prosecutor was to proceed to lead evidence from the next witness.
Counsel for the respondents object that this ground of appeal was not raised in the court a quo.
Furthermore, they contend that the State had conceded that the court was entitled to interfere if it were to be found, as it was, that the learned magistrate had erred and misdirected himself in dealing with the respondents' exception to the charges. Consequently, so it is argued, the applicant cannot ground an appeal on a point that was conceded.
Counsel for the applicant accepts that the court a quo had to deal specifically with the exception raised and dismissed in the Magistrates Court. However, the applicant did not concede that this went to the root of the matter. What the applicant did was to accept, simply, that the court a quo could set aside the learned magistrate's decision on the exception, as having been erroneously arrived at on the wrong basis. But, the State specifically did not concede that the court a quo was then at large to acquit the respondents on all the charges against them.
I am unable to discern anything in the judgment a quo to controvert the applicant's position as presented by counsel for the applicant. I accordingly propose to deal with the fourth ground of appeal on the basis that it is properly before me.
The principles governing interference by a superior court with the proceedings of a subordinate court are well established.
In South Africa, the position was aptly enunciated in Walhaus & Ors v Additional Magistrate, Johannesburg & Anor 1959 (3) SA 113 (AD). In the present context, it is instructive to cite in extenso the relevant passages from that judgment, at 119D-120E, per OGILVIE THOMPSON JA:
“If, as appellants contend, the magistrate erred in dismissing their exception and objection to the charge, his error was that, in the performance of his statutory functions, he gave a wrong decision. The normal remedy against a wrong decision of that kind is to appeal after conviction.
The practical effect of entertaining applicant's position would be to bring the magistrate's decision under appeal at the present, unconcluded, stage of the criminal proceedings against them in the Magistrate's Court. No statutory provision exists directly sanctioning such a course….,.
It is true that, by virtue of its inherent power to restrain illegalities in inferior courts, the Supreme Court may, in a proper case, grant relief, by way of review, interdict or mandamus, against the decision of a Magistrates Court given before conviction….,. This, however, is a power which is to be sparingly exercised. It is impracticable to attempt any precise definition of the ambit of this power; for each case must depend upon its own circumstances.
The learned authors of GARDINER and LANSDOWN (6th ed., Vol. I p. 750) state:
'While a superior court, on review or appeal, will be slow to exercise any power, whether by mandamus or otherwise, upon the unterminated course of proceedings in a court below, it certainly has the power to do so, and will do so in rare cases where grave injustice might otherwise result or justice might not, by other means, be attained….,. In general, however, it will hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the court below, and to the fact that redress by means of review or appeal would ordinarily be available.'
In my judgment, that statement correctly reflects the position in relation to un-concluded criminal proceedings in the Magistrate's Courts….,. [The] prejudice inherent in an accused's being obliged to proceed to trial, and possible conviction, in a Magistrates Court before he is accorded an opportunity of testing, in the Supreme Court, the correctness of the magistrate's decision overruling a preliminary, and perhaps fundamental contention raised by the accused, does not per se necessarily justify the Supreme Court in granting relief before conviction.
See also Ismail & Ors v Additional Magistrate, Wynberg & Anor 1963 SA 1 (AD), where the same sentiments were echoed by STEYN CJ, at 5G-6A.”
The position in our jurisdiction is no different and has been adopted by our courts for exactly the same reasons; see Levy v Benatar 1987 (1) ZLR 120 (SC)…,; Ndhlovu v Regional Magistrate, Eastern Division & Anor 1989 (1) ZLR 264 (HC)…,. See also Lee-Waverly John v The State & Anor HH117-14…, where it was observed that the High Court should only interfere where actual and permanent prejudice will be occasioned to the accused.
Turning to the judgment a quo, it is evident that the learned judge did not consider the impact of his decision on the proceedings in the Magistrates Court. He found, quite correctly, that the learned magistrate had mis-apprehended the question before him and had adjudicated the exception raised by the respondents on the wrong footing.
The learned judge should then have taken the salutary route of remitting the matter to the court below to determine the exception on the correct basis, and, thereafter, to continue and conclude the proceedings accordingly.
Instead, having erroneously found that the misdirection went to the root of the matter, the learned judge then proceeded to determine the merits of the entire matter, by allowing the exception, quashing all of the charges against the respondents and acquitting both of them - without the benefit of all the evidence that would have been adduced in the Magistrates Court.
Very significantly, there was nothing to suggest that the respondents would suffer any permanent prejudice from the continuation of the proceedings in the lower court or that “grave injustice might otherwise result” or that “justice might not, by other means, be attained” by dint of such continuation.
As I have indicated earlier, the trial in the court below had already commenced and one witness had already testified on behalf of the State with the next witness to follow.
In short, the learned judge a quo erred at law in interfering with un-terminated criminal proceedings in the absence of exceptional circumstances warranting such intervention.
It follows, in my view, that the fourth and final ground of appeal also holds sufficient prospects of success on appeal.
Disposition
To conclude, I am satisfied that all of the grounds of appeal in this matter, as amended, carry good prospects of success at the intended appeal before this Court. The application for leave to appeal accordingly succeeds and it is ordered as follows:
1. The application for leave to appeal to this Court be and is hereby granted.
2. The applicant shall file and serve his Notice of Appeal within ten days of the date of this order.
3. Each party shall bear its own costs.
