Machipisa v Nduna N.O and Another (89 of 2023) [2023] ZWSC 47 (18 September 2023)

Judgment No SC 89/23 Civil Appeal No SC 354/22

REPORTABLE

(89) FUNNY MACHIPISA v

(1) NGONI NDUNA N.O

(2) THE NATIONAL PROSECUTING AUTHORITY SUPREME COURT OF ZIMBABWE, UCHENA JA, MATHONSI JA & CHATUKUTA JA HARARE: 21 OCTOBER 2022 & 18 SEPTEMBER 2023 L. Madhuku, for the appellant L. Chitanda, for the respondents UCHENA JA: This is an appeal against the whole judgment of the High Court Harare dated 6 July 2022 dismissing the appellant’s application for the review of the first respondent’s refusal to find the appellant not guilty in spite of his having upheld the appellant’s exception taken together with the plea in terms of s 180 (4) of the Criminal Procedure and Evidence Act [Chapter 9.07] (the Act). BACKGROUND FACTS The facts giving rise to this appeal are as follows. The appellant is employed by the City of Harare (“the city council”) as Deputy Director of Housing and Community Services and was at the time of the alleged commission of the offence the Acting Director of Housing and Community Services when the incumbent was attending a week-long workshop in Kadoma. In June 2021, he was arraigned before the first respondent facing a charge of “criminal abuse of Judgment No SC 89/23 Civil Appeal No SC 354/22

duty as a public officer, in contravention of s 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]” (the Criminal Law Code). The allegations levelled against him are that he irregularly and fraudulently allocated non-existent stands to various persons who had applied for stands to the city council but were not yet due for allocation of stands and some who were not on the City Council’s waiting list. The first objection taken by way of exception, was taken with the consent of the parties in terms of s 170 (2) of the Act. At that stage the appellant only objected and did not plead to the charge. It enabled the first respondent to order the second respondent to amend the charge in terms of s 170 (3) of the Act to which it added an alternative charge of fraud. The amended charges, were read to the appellant who pleaded and excepted to them, in terms of s 180 (4) of the Act.

In his exception, the appellant pointed out certain irregularities in the amended charges such as the failure to specify how he showed favour to the persons he allocated the nonexistent stands to.

The first respondent upheld the exception. It ordered that the trial should proceed on the basis of the charge he ordered the prosecution to amend and prefer against the appellant in terms of s 170 (3) of the Act. The appellant demanded a verdict of not guilty and an acquittal. His counsel contended that after his exception was upheld, he was entitled to a verdict of not guilty and an acquittal as his plea remained hanging in the air pending the charge the first respondent had ordered the second respondent to amend. Judgment No SC 89/23 Civil Appeal No SC 354/22

In his submissions on the appellant’s demand to be found not guilty and acquitted, the State’s counsel conceded that the appellant was indeed entitled to a verdict of not guilty. In his ruling, the first respondent refused to return a verdict of not guilty, as demanded by the appellant, notwithstanding the concession made by the prosecution. He, ruled that: “Section 170 (3) of the Code provides what happens where an exception has been made it (sic) is stated that: ‘(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared.’ In the event of an exception being upheld, the indictment shall be amended and the trial shall proceed as if no such defect had appeared.” (emphasis added)

Aggrieved by the first respondent’s refusal to return a verdict of not guilty, the appellant filed an application for review in the court a quo. The basis of his application is stated in his notice of application, which partly reads as follows: “Illegality: The decision by the first respondent [in State v Funny Machipisa ACC 158/20] not to return a verdict of “Not guilty” after upholding the applicant’s exception, which exception had been taken in terms of s 180 (4) of the Criminal Procedure and Evidence Act [Chapter: 9:07], is illegal as a contravention of s 180 (6) of the Criminal Procedure and Evidence Act [ Chapter 9:07 ]. The applicant was entitled, as of right, to a “Not guilty” verdict once an exception which he had taken after pleading “Not guilty” had been upheld.” SUBMISSIONS MADE IN THE COURT A QUO Submissions made by the appellant In moving for a not-guilty verdict, Mr Madhuku for the applicant, argued that the first respondent’s decision was tainted by either “gross irregularity” or by being “clearly wrong.” Judgment No SC 89/23 Civil Appeal No SC 354/22

He contended that the not-guilty plea which he tendered inevitably ought to have been followed by a not-guilty verdict. It could not “hang in the air waiting for an amended charge.” He submitted that s 180 (6) of the Act provides that any person who has pleaded is entitled to a verdict. He therefore submitted that the first respondent’s decision violated that provision and, as such, constituted a gross irregularity. The applicant’s counsel further contended that s 180 (6) should be read together with s 8 (b) of the Act, which makes an acquittal mandatory whenever charges are withdrawn after a plea. The second respondent’s submissions In countering the appellant’s averments, Mr Muziwi for the second respondent contended that there was no irregularity in the first respondent’s decision. He submitted that the first respondent acted in accordance with the law. He further submitted that the first respondent has the discretion to direct the prosecution to amend the charge, among other options. Mr Muziwi further contended that an order to amend a charge is an interlocutory

Ruling

It is a ruling made in the course of on-going, uncompleted proceedings, which superior courts do not interfere with except in exceptional circumstances where it would have been established that the lower court committed a gross irregularity or was clearly wrong. He further argued that no gross irregularity had been proven in respect of the manner in which the trial court conducted the proceedings, warranting interference by the court a quo. Judgment No SC 89/23 Civil Appeal No SC 354/22

In spite of his earlier resistance to the application for review, counsel for the second respondent subsequently changed course and conceded that the first respondent erred and his decision should be set aside on review. DETERMINATION OF THE COURT A QUO After hearing counsel, the court a quo held that it could not interfere with unterminated proceedings, as there was no justification for such intervention. It did not agree with the submissions of the applicant’s and second respondent’s counsel that the first respondent erred in refusing to find the appellant not guilty. In arriving at its decision that the trial court had correctly applied the law, the court a quo said: “In casu, the pertinent question is, does the first respondent’s decision fall into the exceptional category reflecting gross irregularity? We think not. An examination of the first respondent’s ruling shows that he took guidance from the applicable law. To begin with, he exercised the discretion provided for in s 171 of the Criminal Procedure and Evidence Act, where an accused person decides to both plead and except to the charge. Section 171 reads: ‘(1) When the accused excepts only and does not plead any plea, the court shall proceed to hear and determine the matter forthwith and if the exception is overruled, he shall be called upon to plead to the indictment, summons or charge.

(2) When the accused pleads and excepts, together it shall be in the discretion of the court whether the plea or exception shall be first disposed of.’

The first respondent exercised his discretion in terms of subsection (2) and dealt with the exception first. What was he then going to do with the plea of not guilty, which had been tendered together with the exception? The first respondent was guided by s 170 (3), which allows amendment of the indictment summons or charge provided such amendment does not prejudice the accused in his defence. Judgment No SC 89/23 Civil Appeal No SC 354/22

This section provides as follows: ‘(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared.’ A significant aspect of the first respondent’s ruling is the distinction he draws between the upholding of an exception and the quashing of the charge. These are different courses of action provided for in s 170 (1). The accused either excepts to the charge, or”-- (emphasis added)

It further dealt with situations where a superior court can interfere with unterminated proceedings. It stated that the test for intervening in unterminated proceedings is high as repeatedly emphasized by case law. It found no gross irregularity in the first respondent’s ruling and dismissed the application before it. Aggrieved, the appellant noted the present appeal on the following grounds.

Grounds of Appeal

The appellant’s grounds of appeal read as follows:

1. The court a quo improperly exercised its discretion and misdirected itself in finding that there was no gross irregularity in the first respondent’s refusal to return a verdict of “Not guilty” after upholding the appellant’s exception to the charge, which exception had been taken in terms of s 180 (4) of the Criminal Procedure and Evidence Act [Chapter 9:07].

2. The court a quo erred in law and misdirected itself in not finding that the first respondent’s refusal to return a verdict of “Not guilty” after upholding the appellant’s exception to the charge, which exception had been taken in terms of s 180 (4) of the Criminal Procedure Judgment No SC 89/23 Civil Appeal No SC 354/22

and Evidence Act [Chapter 9:07], was so clearly wrong as to warrant its review before the termination of proceedings. SUBMISSIONS MADE BEFORE THIS COURT Appellant’s submissions Mr Madhuku for the appellant submitted that both parties agreed before the trial court that the appellant was entitled to a verdict of not guilty after the exception was upheld. It was further submitted that the first respondent refused to return a verdict of not guilty, notwithstanding the concession made by the second respondent, resulting in the appellant’s application for review before the court a quo. He submitted that in terms of s 180 (6) of the Act, any person who has pleaded to a charge is entitled to a verdict and that after upholding the exception, the trial court ought to have returned a verdict of “not guilty” as had been pleaded. He further submitted that the court a quo was not clear in its approach to reviewing unterminated proceedings in that it should have first asked itself whether the appellant established the grounds of review. He also argued that if review grounds exist, it ought to have questioned the degree to which the grounds of review had been established. He submitted that the court a quo did not render a decision on this issue. He further submitted that if one pleads not guilty, and the charge is thrown out, one remains not guilty and proceedings should come to an end at that stage. He argued that the trial court had no authority to amend the charge in view of the fact that, the exception was taken together with the plea in terms of s 180 (4) of the Act. Judgment No SC 89/23 Civil Appeal No SC 354/22

Mr Madhuku also contended that s 171 (2) of the Act gives the court discretion on what it can dispose of first when an accused person pleads and excepts at the same time. He submitted that the court a quo has jurisdiction to review unterminated proceedings and the court ought to take a two-staged approach in such circumstances, which are:

1. It must ask itself has the appellant established, the grounds of review.

2. If the grounds for review exist it should ask itself a second question, have the grounds been established to the required degree? In respect of the above questions, Mr Madhuku argued that the court a quo erred when it held that there was no irregularity in the proceedings before the first respondent. He further emphasised that if one pleads not guilty and the charge is thrown out, one remains not guilty at that stage. He argued that proceedings should come to an end at that stage and that the state should start a fresh action. He argued that the first respondent had no authority to order an amendment after the exception had been taken together with the plea. He argued that a plea of ‘not guilty’ cannot hang in the air. He contended that the discretion must be exercised in a way that disposes of the matter. Submissions by the second respondent Conversely, Ms Chitanda for the second respondent, submitted that there was no gross misdirection as the court a quo exercised its discretion judiciously. She submitted that since the appellant pleaded and excepted to the charges at the same time, s 171(2) of the Criminal Procedure and Evidence Act allows the court, discretion on which to dispose of first between the plea and the exception. She further submitted that the discretion was properly Judgment No SC 89/23 Civil Appeal No SC 354/22

exercised in moving for an amendment of the charge in terms of s 170 (3) after upholding the exception.

STAY OF PROCEEDINGS IN THE TRIAL COURT At the end of their submissions, the parties applied for the stay of proceedings in the magistrates’ court until judgment in this case is handed down. We agreed with the parties and ordered that the proceedings before the trial court be stayed pending the determination of this appeal.