This
is an application for amendment of the charge in terms of section 202 of the
Criminal Procedure and Evidence Act [Chapter 9:07] which reads:
“202
Certain discrepancies between indictment and evidence may be corrected
(1)
When on the trial of any indictment, summons or charge there appears to be any
variance between the statement therein and the evidence offered in proof of
such statement, or if it appears that any words or particulars that ought to
have been inserted in the indictment, summons or charge have been omitted, or
that any words or particulars that ought to have been omitted have been
inserted, or that there is any other error in the indictment, summons or
charge, the court may at any time before judgment, if it considers that the
making of the necessary amendment in the indictment, summons or charge will not
prejudice the accused in his defence, order that the indictment, summons or
charge, whether or not it discloses an offence, be amended, so far as is
necessary, by some officer of the court or other person, both in that part
thereof where the variance, omission, insertion or error occurs and in every
other part thereof which it may become necessary to amend.
(2)
The amendment may be made on such terms, if any, as to postponing the trial as
the court thinks reasonable and the indictment, summons or charge shall
thereupon be amended in accordance with the order of the court, and after any
such amendment the trial shall proceed at the appointed time upon the amended
indictment, summons or charge in the same manner and with the same consequences
in all respects as if it had been originally in its amended form.
(3)
The fact that an indictment, summons or charge has not been amended as provided
in this section shall not, unless the court has refused to allow the amendment,
affect the validity of the proceedings thereunder.”
The
accused were indicted to the High Court for trial on a charge of fraud as
defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter
9:23] on 10 January 2011. They were initially jointly charged with three others
whose charges have since been withdrawn before plea. The State intends to use
them as State witnesses against their erstwhile co-accused persons. It has now
applied to amend the original charge before plea to incorporate this new
development with the charge and summary of the State case substantially
remaining the same.
The
main thrust of the amendment has to do with the manner in which the alleged
offence was committed and the involvement of the erstwhile co-accused persons
turned State witnesses. Whereas the State previously alleged that the two
accused persons acted in consort and common purpose with the reprieved
co-accused persons, it now wishes to allege that they acted on their own. The
rest of the application also seeks to amend the facts and the charge so as to
synchronize, align and harmonize them by removing contradictions and
ambiguities. In doing so, the charge remains basically the same.
What
the State is seeking to do in this case is diametrically different from what it
sought to do in the case of S v Shand 1994
(2) ZLR 99. In that case, it sought
to replace a charge under one section of the Act with a charge under a
different section in the same Act. In that case, the Court correctly ruled that
this was unacceptable because it was, in fact, not an amendment of the original
charge but a substitution of the original charge with a different charge -
albeit under the same Act.
Section
202 of the Criminal Procedure and Evidence Act [Chapter 9:07] was precisely
meant to facilitate the correction, alignment, synchronization and
harmonization of the facts and the charge depending on the exigencies of the
case at any given time. This is what the State intends to do in this case. Thus,
the State is perfectly entitled to effect the amendments sought provided there
is no prejudice to the other party. If, however, there should be any prejudice,
that prejudice should be capable of extinction in terms of section 202(2) of
the Criminal Procedure and Evidence Act [Chapter 9:07]. In other words, the
amendment can be made on such terms, if any, as to postponement of the trial as
the court thinks reasonable in the circumstances of the case.
This
position accords with the general rule governing amendments. In both civil
matters and criminal cases, the general rule is that amendments will always be
allowed provided there is no prejudice or injustice to the other party. That
legal position was well articulated by WATERMAYER J way back in1927 in the case
of Moolman v Estate Moolman 1927 CPD
27…, where the learned Judge remarked
that:
“The
practical rule adopted seems to be that amendments will always be allowed
unless the application to amend is mala
fide or unless such amendment would
cause an injustice to the other side which cannot be compensated by costs or in
other words the parties cannot be put back, for the purposes of justice, in the
same position they were when the pleading it is sought to amend was filed.”
In
criminal cases, the rule becomes that an amendment will always be allowed
unless the application is mala fide or unless such an amendment would cause an
injustice or prejudice to the other side which cannot be cured by a
postponement.
In
this case, there is no suggestion that the application is being brought in bad
faith. I can also perceive no prejudice or injustice that cannot be cured by a
reasonable postponement to enable the accused to amend their defenses to suit
the amended charge and facts.
That
being the case the application must succeed.
The
application to amend is accordingly allowed subject to the matter being
postponed for a period of two weeks to enable the accused to amend their
respective defenses in line with the amended charge and facts.
