The
accused were indicted to the High Court for trial on a charge of fraud on 10
January 2011. They were initially jointly charged with three (3) 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charges have since been withdrawn before plea.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
development.
The
defence has, however, vigorously objected to the application being made before
plea. They insisted that the application can only be made after plea. They
argued that the original charge can only be said to be formally before the court
after the charge has been put and the accused have pleaded to the charge. It
was their argument that the court cannot amend a charge which is not formerly
before it.
It
will be remembered that on 15 February 2011, relying on the dictum in the case
of Mukuze & Another 2005 (1) ZLR 6, I held that this matter is pending
before this court in terms of section 137 of the Criminal Procedure and
Evidence Act [Chapter 9:07]. In that judgment, I had occasion to remark…., that
-
“The
natural effect of section 137 is that once the High Court is seized with the
matter pending before it, all procedures relating to the trial of the accused
are firmly under the direction and control of the Court. This explains why,
although the State is dominus litis, it had to apply for an order for the
withdrawal of charges against the accused's co-accused before plea. It would
have been grossly irregular for the State to simply drop charges against the
accused's co-accused without first obtaining a Court order to that effect.
The
situation cannot be different when it comes to the amendment of the charge
before plea.
Once an accused person has been served with an indictment and committed to the
High Court for trial he is entitled, as of right, to demand that he be tried on
that charge. The State is not at large, at that stage, to alter, amend or
substitute the charge without the Court's permission.”
In
my view it would be pretentious and devious for this Court to turn a blind eye
and hold that the original charge is not before it when at the committal
proceedings both the court and the accused received formal notice of the charge
and the court formerly took possession of the charge sheet once it was lodged
with the Registrar.
It
is trite and a matter of elementary law that generally speaking a party is
entitled to make an amendment at any time before judgment provided there is no
prejudice to the other party.
In
this case, the defence has not been able to point to any prejudice, and,
indeed, I am unable to perceive any prejudice to the accused which cannot be
cured by an adjournment to enable them to prepare their defence in light of the
intended application.
In
any case, having already ruled that the State can apply to the court for the
amendment of the charge before plea I am bound by that ruling. The court is
functus officio; it cannot revisit that issue.
In
the final analysis, the objection is unsustainable. It is accordingly ordered:
1.
That the objection be and is hereby overruled.
2. That the matter be and is hereby postponed
for 10 days to enable the defence to prepare their response to the application
for amendment of the charge before plea.
