The appellant appeals against the judgment of the High Court dated 9 September 2019, wherein the court a quo dismissed his appeal against conviction by the Magistrates Court on a charge of criminal abuse of office under section 174(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code).
THE FACTS
The facts in this case are generally common cause:
On 26 May 2015, the appellant and Obert Tafadzwa Charamba (the co-accused) were jointly charged with criminal abuse of office at the Beitbridge Magistrate's Court.
On 9 November 2015, they were convicted and sentenced to pay a fine of US$700, or, in default of payment, 6 months imprisonment with an additional 5 months imprisonment suspended for a period of 5 years on the appropriate conditions of future good conduct.
The appellant and the co-accused were employed by the Zimbabwe Revenue Authority (Zimra) as a Revenue Supervisor and Loss Control Officer, respectively. The appellant was stationed at the container depot at the Beitbridge border post. The co-accused was based in Harare but was on relief duties at the scanning unit at the same border post in December 2014.
On 23 December 2014, Isaac Musharu (the driver) cleared all the manual customs formalities with the help of Christian Mugwali, a Beitbridge based freight and clearing agent: the customs clearance documents comprised, consignment note, the commercial invoice, road manifest and SADC certificate of origin issued by the South African exporter, the South African bill of export, the local bill of entry, and the gate pass or release order issued on entering Zimbabwe.
Duty was paid for the consignment in the sum of US$29,303=88.
He was driving a horse (Registration Number ABZ 4226) which was drawing two trailers (Registration numbers ACE 9470 and ACE 9471). The trailers were laden with 2,514 cartons of liquor (the consignment) imported from Musina in South Africa by the local Bulawayo based Turkey Trading (Pvt) Ltd (the importer).
His last port of call was the scanning unit, where he handed over his manually cleared customs documents, inclusive of the bill of entry number C93285, to the co-accused at 11pm.
The co-accused made a cursory physical examination of the consignment.
He directed Mutero, a ZIMRA escort driver, to take the truck to the container depot. At midnight, and before the truck was driven to the container depot, the clearing agent attended at the scanning unit, at the behest of Isaac Musharu (the driver).
The co-accused referred the consignment to the container depot because the electronic clearance system had “red flagged” the importer for possible acts of smuggling previous liquor consignments into the country.
He caused this reason to be entered into the “Referred to Container Depot Register” by his subordinate, one Eric Gorondondo.
Isaac Musharu (the driver) and the clearing agent, however, assumed that the consignment was being referred to the container depot for an accentuated physical examination.
The consignment was received at the container depot by the security guards on duty.
On 24 December 2014, Isaac Musharu (the driver) and the clearing agent alleged that two of the appellant's subordinates inspected and reconciled the consignment with the commercial invoice and the bill of entry. No anomalies were found.
The consignment was not released.
Instead, the appellant, in colourful Shona prose (which Isaac Musharu (the driver) and the clearing agent understood to mean “the vehicle has been impounded”), impounded the consignment and ordered the driver to uncouple the horse from the trailers.
The driver signed the “leave the consignment in the container depot” form.
The appellant impounded the consignment in compliance with the instruction endorsed on the consignment note by the co-accused for the detention of the consignment as a lien in lieu of impending investigations of the purported smuggling activities undertaken by the importer in respect of previous liquor imports from Musina.
He, however, did not pay heed to the co-accused's suggestion to raise, in terms of section 201 of the Customs and Excise Act [Chapter 23:02], an “embargo” against the consignment.
He also rebuffed the requests, to similar effect, made on 25 and 27 December 2014, by Amkela Ndebele, the clearing agent's Bulawayo based Managing Director, to issue detention documents to the importer.
During Amkela Ndebele's second visit, on 27 December 2014, the appellant asserted:
(i) Firstly, that the consignment would be detained until the smuggling investigations were completed.
(ii) Secondly, that the investigation was being conducted by his head of station (Acting Regional Manager Mungani), head of section (Enforcement Manager Dumbu) and the Technical Manager (Chamboko).
He further demanded copies of all the customs clearance documents (pertaining to the previous liquor consignments) issued to the importer between September and December 2014, to facilitate the timeous conclusion of the investigations.
The same documents were also demanded by, and availed by the importer to the Acting Regional Manager as a condition precedent to the release of the shipment consequent to the consensual order, issued on 14 January 2015, by the Bulawayo High Court in case number HC16/15.
It was also common cause, that, the appellant did not issue any detention documents, despite demand from the importer for him to do so, until the cargo was released pursuant to the consensual order.
It was further common cause, that, the co-accused was required by the dictates of his duties to enter the reason for referring the consignment to the container depot in the electronic clearance system 'Referred to Container Depot Register' the 'Inspection Act' and if the electronic system was down, endorse the reason on the back of the driver's copy of the bill of entry.
He was further required to enter the reason for doing so into the ZIMRA electronic clearance system.
These entries, amongst other purposes, served to alert the officials at the container depot what to check for (values, tariffs, or quantities).
Likewise, the appellant was required to issue detention documents for the consignment.
He could issue a notice of seizure, a receipt of items held (RIH), or Form 45 to the importer.
In his testimony on the procedure pertaining to these documents, the Acting Regional Manager asserted that once a notice of seizure or a receipt of items held (RIH) was issued, the consignment would be carted to a warehouse for storage.
Where, however, Form 45 was issued, the consignment would be detained at the container depot until the queries raised in that form were all cleared by the importer or his clearing agent.
It was also common cause that the appellant and the co-accused were public officers.
It was further agreed, that, neither of them acted in accordance with the dictates of their respective public duties. Rather, by these indisputable omissions, they acted contrary to their respective duties as public officers.
The real issue that confronted the trial court, and the court a quo, was, therefore, whether the appellant (and his co-accused who did not appeal) had the intention to abuse his public office by disfavouring the importer when he failed in his sworn duty to issue the requisite detention documents between 24 December 2014 and 14 January 2015.
THE FINDINGS IN THE MAGISTRATES COURT
The trial court accepted the evidence adduced by the Acting Regional Manager on the procedures that the appellant and the co-accused ought to have followed in the referral of the consignment to and detention thereof at the container depot.
It found, that, the prosecution had established, beyond a reasonable doubt, that the appellant had negated his duty of not only recording the results of the physical examination in the “Inspection Register” but also of issuing the requisite detention documents to the importer.
Likewise, it found that the co-accused had acted contrary to his duties by not endorsing the reasons for referring the consignment to the container depot in the system and on the back of the bill of entry.
The trial court found that their respective conduct was prejudicial to the importer, and, accordingly, found them guilty as charged.
The trial court did not relate to the reverse onus and misconstrued the testimony of the Regional Manager.
The Regional Manager asserted, in his evidence in chief, that, he never checked into the electronic clearance system but merely checked the back of the bill of entry and the “Physical Examination Register”.
THE GROUNDS OF APPEAL A QUO
The appellant appealed to the court a quo on the following grounds of appeal:
“1. The court a quo misdirected itself in convicting the appellant when there was no evidence led, beyond a reasonable doubt, that the appellant committed the offence.
2. The court a quo erred in convicting the appellant when all the essential elements of the offence were not proved, in particular the mens rea.
3. The court a quo erred and misdirected itself in basing its conviction of the appellants on the grounds that the appellant had overall say on the issuance of detention documents when in fact evidence to the contrary had been led by the appellant and not disproved by the respondent.
4. The court a quo also misdirected itself in failure to consider the appellant's defence which was not disproved by the respondent.”
THE ARGUMENTS A QUO
The appellant argued, that, the mens rea to commit the offence had not been established.
He contended, that, the totality of the evidence led did not show that he deliberately, or even recklessly and calculatedly, utilized his position to injure the public interest by harming the co-related interests of the importer.
He argued, that, his conduct was genuinely motivated by the noble intention of protecting the public purse, which was prejudiced in the sum of US$195,000 by the previous smuggling activities of the importer.
He further argued, that, the trial court had failed to relate to his uncontroverted testimony that he acted on the instructions of the co-accused to check on the previous consignments that were purportedly smuggled into the country from Musina by the importer.
He called for previous clearance documents from the importer, which he availed to his superiors (the Enforcement Manager, the Technical Manager and the Regional Manager).
His superiors, in turn, invoked bilateral co-operation protocols with the South African Revenue Services (SARS).
The South African Revenue Services (SARS) then supplied ZIMRA with all the requisite customs clearance documents used by the importer to bring the questioned consignments into Zimbabwe.
He argued that these investigations, which commenced with the red flagging of the importer on the night of 23 December 2014, belatedly revealed the misfeasance committed by the importer.
He therefore submitted, that, had the trial court related to his version, it would have found that it passed muster the “reasonably possible true” test and acquitted him of the offence.
Per contra, the respondent contended that the abrogation of ZIMRA processes by the appellant were established.
He argued, that, the colourful prose used by the appellant in impounding the consignment, coupled with absence of detention documents, betrayed his ulterior motive to injure the public interest by harming the importer's interests.
The injured interests were identified as the loss of income that could have accrued to the importer from beer sales during the festive season, and the attendant loss incurred by the importer's failure to use its trailers during the 21 days in question.
The respondent also argued, that, the appellant's contrary assertion that he was motivated by the smuggling allegations could not reasonably rebut the presumption against him that his abridgment of the consignment detention procedures was intended to harm the importer's business interests.
The respondent, therefore, submitted that the appellant was correctly convicted by the trial court.
THE FINDINGS OF THE COURT A QUO
The court a quo made the following findings:
The appellant acted on the instruction of the co-accused to investigate the previous consignments that were alleged to have been smuggled into the country.
Notwithstanding such instruction, he was obliged to issue the requisite detention documents.
His failure, over a period of 21 days, despite the promptings of the clearing agents, established the actus reus of the offence.
His version, that he was motivated by the higher ideal of preserving public revenues, by investigating the purported previous smuggling activities of the importer, could not reasonably possibly be true because “that intention to investigate was not properly documented” nor placed before the investigating officer and the trial court.
He was, therefore, complicit with the co-accused in the unlawful detention of the consignment.
He failed to rebut the presumption that his act or omission was intended to show disfavour to the importer.
All the essential elements were, accordingly, established beyond a reasonable doubt.
In the circumstances, the court a quo confirmed the conviction and dismissed the appeal.
THE GROUNDS OF APPEAL
Aggrieved by these findings, the appellant appealed to this Court on the following grounds:
“1. The court a quo grossly erred and misdirected itself in upholding the conviction of the appellant in the absence of evidence to prove that the appellant had committed the offence.
2. The court a quo erred and grossly misdirected itself in dismissing the appeal against conviction notwithstanding the fact, that, the respondent had failed to place before the court evidence to prove the essential elements of the offence.
3. The court a quo erred and misdirected itself in upholding the conviction notwithstanding that the respondent failed to place before the court evidence to disprove the appellant's case.”
He sought the vacation of the conviction and its consequent substitution by an order upholding the appeal.
THE ISSUE
The sole issue that arises from the three grounds of appeal is whether the court a quo erred in upholding the appellant's conviction.
SUBMISSIONS BEFORE THIS COURT
Counsel for the appellant submitted, that, the court a quo erred in upholding the appellant's conviction when the totality of the evidence adduced before the trial magistrate clearly showed that the appellant did not intend to harm the importer in his business but sought to protect public revenue by recovering revenue lost through the alleged previous smuggling activities perpetrated by the importer.
She argued, that, the court a quo failed to give proper regard to the common cause facts of the investigations of the previous liquor imports that the importer was alleged to have smuggled into the country.
She contended, that, the proven existence of these investigations, which investigations constituted part of the appellant's duties, negated the finding that his failure to raise detention documents for the impounded consignment was actuated by an underlying ulterior or dishonest motive.
She, therefore, submitted that the appellant lacked the mens rea to commit the offence.
Per contra, counsel for the respondent submitted that the court a quo did not misdirect itself in upholding the conviction and dismissing the appeal.
He contended, that, the appellant acted in common purpose with the co-accused in impounding the consignment. They both flouted the Zimra procedural requirements to endorse the reasons for the referral to, and issuance of detention documents at the container depot.
He further argued, that, the fact that the appellant accepted the consignment without demur, impounded and further detained it for 21 days without issuing the requisite detention documents, demonstrated that he was acting in cahoots with the co-accused to harm the importer in his business.
He also contended, that, the appellant's failure to avail the internal investigations to the investigating officer showed that he was raising them as an afterthought to ward off his proven intention to harm the importer's interests.
He, therefore, submitted that as the respondent had overwhelmingly established all the essential elements of the offence beyond a reasonable doubt, the court a quo correctly dismissed the appeal.
ANALYSIS OF THE LAW AND FACT
What constitutes proof beyond a reasonable doubt was pronounced by DUMBUTSHENA CJ in S v Isolano 1985 (1) ZLR 62 (S)…, thus:
“In my view, the degree of proof required in a criminal case has been fulfilled. In Miller v Minister of Pensions [1947] 2 All ER 372 (KB), LORD DENNING described that degree of proof at 373H as follows:
'…, and for that purpose, the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence 'of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.'
See Hoffman and Zeffertt: South African Law of Evidence 3rd ed 409-410.”
The approach to be adopted where, as in this case, a reverse onus is prescribed by statute, was enunciated by this Court in a kindred offence of contravening section 4(a) as read with section 15(2)(e)(iii) of the repealed Prevention of Corruption Act [Chapter 9:16] in S v Chogugudza 1996 (2) ZLR 28 (S) at 42D as follows:
“The actus reus of the offence of contravening section 4(a) of the Prevention of Corruption Act having been proved by the State, it was for the appellant to displace the presumption by satisfying the trial court that his purpose of showing favour was legitimate; that, in doing what he did, he had acted with an innocent state of mind.
It was not for him to establish that his evidence on this aspect was necessarily true; only that, on a preponderance of probabilities, it was true: see S v Ndlovu 1983 (4) SA 507 (ZS) at 510D-G; Miller v Minister of Pensions [1947] 2 All ER 372 (KBD) at 374A-B.”
The Court had earlier on emphasized at 34E that:
“The plain language of section 15(2)(e) mandates that the presumption will stand unless proof to the contrary is adduced by the public officer, who is the accused. It is a presumption rebuttable at his instance. It imposes a legal burden upon him which must be discharged on a balance of probabilities. It is not discharged merely by raising a reasonable doubt.”
The relevant provisions under which the appellant was charged provide that:
“174 Criminal abuse of duty as public officer
(1) If a public officer, in the exercise of his or her functions as such, intentionally -
(a) Does anything that is contrary to or inconsistent with his or her duty as a public officer; or
(b) Omits to do anything which it is his or her duty as a public officer to do;
for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both.
(2) If it is proved, in any prosecution for criminal abuse of duty as a public officer, that a public officer, in breach of his or her duty as such, did or omitted to do anything to the favour or prejudice of any person, it shall be presumed, unless the contrary is proved, that he or she did or omitted to do the thing for the purpose of showing favour or disfavour, as the case may be, to that person.”…,.
The key word found in subsection (1) of section 174 of the Criminal Law (Codification and Reform) Act is “intentionally”.
It constitutes the mens rea of the offence of criminal abuse of office.
It further demonstrates, that, the presumptive proof reposed in subsection (2) does not create a strict liability offence.
The onus to establish, beyond a reasonable doubt, the actus reus of the offence, which is prescribed in the opening words and in paragraphs (a) and (b) of section 174(1) of the Criminal Law (Codification and Reform) Act, lies on the State.
The presumptive proof casts a legal onus on the accused person to show, on a balance of probabilities, that he did not have the intention of favouring or prejudicing any person impacted by his act or omission.
Thus, the actus reus, which must be established by the State, is that:
(a) The accused person is a public officer;
(b) Who, in the course of his or her duties or functions;
(c) By commission or omission, breached his or her duties or functions.
In its wisdom, the legislature cast the legal burden of disproving intention, on a balance of probabilities, on an accused person: see S v Chogugudza 1996 (2) ZLR 28 (S)…,.
Now 'intentionally' is a synonym of 'wilfully' which in the context of the English provision equivalent to our section 174(1) was defined by LORD BUNGHAM in R v G [2003] UK HL 50 to mean “deliberately doing something which is wrong, knowing it to be wrong, or with reckless indifference as to whether it is wrong or not.”
The nature and scope of the intention cast on the accused person has best been described in two foreign cases cited by TSANGA J in S v Taranhike & Ors 2018 (1) ZLR 399 (H)…,.
The first is the English case of R v Dytham [1979] 2 QB 722, in which the Court stated that:
“The neglect must be wilful and not merely inadvertent, and it must be culpable in the sense, that, it is without reasonable excuse or justification; the misconduct must be calculated to injure the public interest so as to call for condemnation and punishment.”
The second is the Australian case of Northern Territory Australia v Mengel (1995) CLR 307, which held that:
“It is the absence of an honest attempt to perform the functions of the public office that constitutes abuse of office. Misfeasance in public office consists of a purported exercise of some power or authority by a pubic officer otherwise than in an honest attempt to perform functions of his or her office whereby loss is caused to the plaintiff. Malice, knowledge, and reckless indifference are the states of mind that stamp on a purported but invalid exercise of the power the character of abuse or misfeasance in public office. If the impugned conduct then causes injury, the cause of action is complete.”
It is against this backdrop that the sole issue for determination in this appeal falls to be decided.
It is however trite, that, an Appeal Court may only interfere with a subordinate court's factual findings or the exercise of its judicial discretion on established grounds of irrationality or in circumstances where that court has misdirected itself on the facts by failing to appreciate the import of the fact or by making a finding that is contrary to the evidence actually presented: see RBZ v Granger & Anor SC44-15…,.
At p161 of the appeal record, the court a quo dismissed the appellant's investigation version and his appeal thus:
“From his evidence, the appellant said he engaged his superiors and they agreed to send someone to South Africa to investigate the importer. If this was indeed the case, at least the investigating officer should have been favoured with this information. No evidence was placed before the court about this investigation. In any event, the appellant was seized with the matter, obviously he had access to all the documentation in respect of the truck, save for the reasons for impounding it. The appellant was well aware of the non-documentation and was complicit in the unlawful detention of the truck.
The issue that arises is whether his conduct was just an oversight or the conduct constitutes an abuse calculated to disadvantage the truck owner.
There was evidence of the abusive conduct of the appellant towards the truck owner and the clearing agents.
This kind of offence is sometimes difficult to connect the dots, because the public official would just sit on work in order to induce a consideration.
In this case, the appellant could not possibly take over an investigation of an impounded truck when in the first place the truck was not properly impounded.
The Magistrates reasons for convicting the appellant are very clear.
The inconsistencies highlighted by the appellant are of no consequence, they do not go to the substance of the conviction.”
Section 174(2) of the Criminal Law (Codification and Reform) Act required the appellant to lead evidence of his state of mind at the time he impounded the goods.
He asserted the common cause fact, that, no instructions for a search, examination, and clearance were ever relayed to the container depot by the co-accused. He testified that no physical examination of the consignment was ever carried out at the container depot.
His version was confirmed by two common cause facts:
(i) The first was that there was no record of such an examination in the inspection register held at the container depot.
(ii) The second was that one of his subordinates, who was alleged by Isaac Musharu (the driver) and the clearing agent to have searched the consignment at the container depot, denied ever doing so in his statement to the police.
The appellant's version on this aspect was controverted by Isaac Musharu (the driver) and the clearing agent who said the examination was held on 24 December 2014.
These two State witnesses contradicted each other in a material respect.
Isaac Musharu (the driver) stated that the examination commenced at “around 4pm”. The clearing agent stated that it took place between 10am and 2pm.
A further complication in the State evidence was that the Bulawayo based clearing agent testified, that, these two witnesses, contrary to their respective evidence, had told him that a minimum of four (4) searches had been conducted at the container depot on that day.
The court a quo held that these discrepancies “were of no consequence, they did not go to the substance of the conviction.”
In my view, the discrepancies were material in that they confirmed the truthfulness of the appellant's version and discredited the contrary version of the State's witnesses.
The discrepancies, contrary to the finding a quo, also went to the root of the conviction.
The appellant was convicted for detaining the consignment without probable cause and without issuing the requisite detention documents.
The absence of probable cause was premised on the fact, that, he continued to detain the consignment after it had purportedly been cleared by the physical examination.
The trial court and the court a quo then ascribed an ulterior motive to harm the importer's interests to his failure to proffer such a probable cause.
Counsel for the appellant contended, that, the appellant established, on a balance of probabilities, that he did not have the requisite intention to harm the importer in his business. On the other hand, counsel for the respondent made the contrary contention, that, as the appellant had failed to proffer any reasonable justification for his admitted failure to issue the requisite detention documents, the conviction was un-impeachable.
The justification proffered by the appellant was that he detained the consignment pursuant to the instruction endorsed on the consignment note by the co-accused for him to investigate the smuggling allegations that had been raised against the importer in the electronic clearance system.
Counsel for the appellant argued, that, the uncontroverted testimony of the co-accused to the same effect negated the ulterior motive ascribed to the accused by the trial court and confirmed by the court a quo.
The uncontroverted testimony of the co-accused, which both the trial court and the court a quo did not interrogate, was that he referred the consignment to the container depot for investigation after the importer had been red flagged for smuggling by the electronic clearance system.
