MUKUTU AND ANOTHER v THE STATE (SC 05 of 2026) [2026] ZWSC 3 (6 January 2026)

Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 1 REPORTABLE (05) (1) TINODA MUKUTU (2) DOMINIC MUPWASHIKE v THE STATE SUPREME COURT OF ZIMBABWE MA V ANGIRA JA, BHUNU JA & MUSAKWA JA HARARE: 16 SEPTEMBER 2025 & 6 JANUARY 2026 G.R.J. Sithole, for the appellants Ms S. Phiri, for the respondent MA V ANGIRA JA: 1. This is an appeal against the whole judgment of the High Court (the court a quo) dismissing the appellants’ appeal against both conviction and sentence rendered by the Provincial Magistrates Court, Gweru (the trial court). The trial court had found the appellants guilty of the crime of criminal abuse of duty as public officers as defined in s 174 (1)(a) of the Criminal Law (Codification and Reform) Act [ Chapter 9:23] (the Criminal Law Code) and sentenced them to two years’ imprisonment each. FACTUAL BACKGROUND 2. The appellants were senior employees of the Zvishavane Town Council (ZTC). The first appellant was employed as the Town Secretary and the second appellant as the Council Engineer. They were the first and third accused persons, respectively at their trial. Their co-accused, Nhlanhla Ngwenya, who was the second accused was the Housing Director. He was the second appellant in the court a quo but is not a participant in this appeal. Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 2 3. The appellants were each charged with criminal abuse of duty as a public officer as defined in s 174 (1) (a) of the Criminal Law Code. The allegations were that on 17 December 2019, they acted contrary to or inconsistent with their duties as public officers by failing or neglecting to follow the peremptory procurement methods stipulated in s 30 of the Procurement and Disposal of Public Assets Act [Chapter 22:23] (the Procurement Act). 4. The facts are that, on 23 May 2016, the Zvishavane Town Council concluded a partnership agreement (the 2016 agreement) with Monitor Enterprises t/a J.M Construction (Monitor Enterprises) for the servicing of twenty-seven Central Business District stands valued at US$ 2 772 258,30 which was to be completed within two years from the date of inception. The agreement was entered into following a competitive bidding process conducted in accordance with the law. Monitor Enterprises failed to fulfil its contractual obligations. Due to the breach, the Council issued a notice of cancellation to Monitor Enterprises in October 2018. 5. The appellants, without the knowledge and authorization of the ZTC, signed a new contract with the company on 17 December 2019 (the 2019 agreement), with the first appellant signing on behalf of council and the second appellant and the other co-accused, Nhlanhla Ngwenya signing as witnesses. They did so without any competitive bidding, tender process, or council resolution. The State’s case was that in doing so the appellants acted unlawfully and that their conduct was calculated to show favour to Monitor Enterprises and disfavor to other potential bidders had the tender been re-advertised. Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 3 6. The appellants pleaded not guilty to the charge and denied the allegations. They both denied that they had the requisite mens rea to act contrary to the dictates of their duties as public officers. 7. At the trial, the State first led evidence from one Kulekani Ndlovu, the Chairman of the Zvishavane Town Council. The witness explained the procedure for adopting and passing a council resolution. He gave a detailed account of the events leading to Monitor Enterprises being awarded a tender in 2016. He testified that a council resolution was required for the purposes of both terminating an existing contract and entering into a new one. He stated that the 2016 council resolution was never rescinded. He explained that although a meeting was held in 2018 to discuss the progress of the contract, no recommendations were made. The minutes of that meeting were tendered as evidence. The witness also testified that, while a council lawyer may provide advice, the cancellation of an agreement still requires a formal council resolution. 8. The second witness was one Mangororo Mazai, the Director of Housing and Community Services for Zvishavane District Council. He was tasked with advising Council and its Committees and also making notices inviting Councilors for meetings and overseeing that minutes for meetings held are kept safely. He had not seen any minutes relating to the cancellation of the 2016 agreement or the re-awarding of the tender. 9. Givemore Vhimoni, the third witness, was a Committee Officer at Zvishavane Town Council. It was his evidence that he was responsible for preparing the agenda for Council meetings, taking minutes of proceedings and preparing “the resolution minutes.” He said that there were no council minutes for the re-awarding nor cancellation of the tender for the Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 4 2016 contract. He only became aware of the 2019 contract when ZACC officials were conducting an investigation. 10. The fourth witness, one Tinashe Mago, stated that he was a Councilor with the ZTC. He stated, inter alia, that the second contract was never awarded through the Council. 11. Fortune Mandishona was the fifth witness. She was the first appellant’s personal assistant. She testified that she had no knowledge of the 2019 agreement. She stated that although she sometimes recorded minutes of meetings, she never prepared any minutes relating to Monitor Enterprises. The witness further explained that, had there been any re-awarding of a tender, she would have been aware of it because she was responsible for filing all correspondence in the Town Secretary’s office. 12. The sixth and last State witness was Clever Ruswa, the Chief Executive Officer of the Procurement Regulatory Authority. He testified that the 2019 agreement did not comply with the Procurement Act, particularly s 30. He stated that because the 2019 contract expressly indicated that the first contract had been terminated, it could not have been an addendum. In his view, the 2019 agreement was therefore a standalone contract. 13. According to the first appellant’s defence outline, after Monitor Enterprises failed to fulfil all the contractual obligations under the 2016 agreement, he sought legal advice from the Zvishavane Town Council lawyer, Ms Chigariro. The lawyer advised that the 2016 agreement be cancelled and replaced with a new contract to enable completion of the works and that there would be no need to float a fresh tender. Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 5 14. The second appellant claimed that he had only signed the contract as a witness and not as a contracting party. To his knowledge, the initial contract was never terminated and the second contract was merely an addendum or a codicil thereto. 15. During the trial the first appellant gave a different account. He claimed that the 2016 contract contained a clause permitting an extension of the agreement. He now argued that there had never been any intention to cancel the 2016 agreement and that no decision to cancel it had ever been taken. He distanced himself from the contents of his own defence outline, which had stated that the contract had in fact been cancelled. 16. The first appellant further testified that there was no need for a new council resolution, given that Monitor Enterprises had already completed 85% of the work and it was therefore prudent to allow the same company to finish the project. He also told the court that a meeting had been chaired by Ms Chigariro, during which she allegedly advised council of this position. According to him, however, the minutes of that meeting were lost due to a “mysterious computer crash,” and the handwritten minutes were also not produced by the minute taker. 17. The second appellant testified that he did not commit the offence as alleged. He stated that his role was limited to providing input on the progress of the project. He further explained that he signed the 2019 contract only as a witness and not as a contracting party. In his understanding, the second agreement was merely intended to operate as an addendum to the original 2016 contract. When asked why the 2019 agreement referred to the cancellation of the 2016 agreement, he argued that the word ‘cancel’ as used in the 2019 agreement was not Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 6 to be taken in its literal meaning. The second appellant maintained that, because the 2016 contract was still in force, there was no need to initiate a new tender process. 18. The trial court held that the wording in the 2019 agreement was clear that the 2016 contract had been cancelled. It held that the 2019 agreement was not an ‘addendum’ or a ‘management tool’ but it was a stand-alone contract. It thus found that the appellants were aware of the need for a resolution to be passed before entering into a new contract. The trial court further held that the appellants never produced the minutes which allowed for the new contract to be signed and at no point did they call the Zvishavane Town Council lawyer to attest to the fact that she gave the appellants advice on the matter. It also found that the failure to follow the proper procedure indicated criminal intent on the part of the appellants. The 2019 agreement had therefore been signed ultra vires the procurement regulations. 19. The trial court further found that the second appellant was not a mere witness as he had a duty to monitor and evaluate progress on the project. 20. After a full trial, interrupted, inter alia, by an unsuccessful application for discharge at the close of the State case, the appellants were, as already stated earlier, found guilty as charged. In relation to the sentence, the trial court stated that the appellants had undermined the proper function of the public service and sentenced them, each to two years imprisonment. 21. Aggrieved by this finding, the appellants appealed to the court a quo. It was their contention that the trial court erred in concluding that the 2019 contract was a new contract. The appellants further argued that the trial court ignored or disregarded the evidence that legal opinion was sought before their signing the addendum. The appellants further submitted that the State witnesses gave contradicting evidence. They also argued that the sentence by Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 7 the trial court was “too heavy” and the trial court ought to have considered community service as opposed to custodial sentences. 22. The court a quo held that the parties had entered into a new agreement. It held that the 2019 agreement was entered into for the reason that Monitor Enterprises had breached the 2016 agreement. It also found that it was clear from the 2019 agreement that the 2016 contract was terminated. 23. The court a quo also found that the appellants were aware that they lacked the authority to enter into a new contract without a council resolution, which explained their insistence that the 2019 agreement was merely an addendum. It accordingly held that the 2019 document constituted a new contract. It further held that the appellants’ claim that they had acted on legal advice, thereby negating the requisite intention to commit the offence, was untenable. It found that the appellants could not rely on ignorance of the law as a defence, as advice received from a legal practitioner is not a circumstance contemplated under s 236 of the Criminal Law Code. 24. Regarding sentence, the court a quo held that a sentence cannot be set aside solely on the basis that a non-custodial option was not considered. It concluded that there had been no misdirection by the trial court. Consequently, the appeal was dismissed in its entirety. THIS APPEAL 25. Aggrieved by the decision of the court a quo, the appellants appealed to this Court on the following grounds of appeal: AD CONVICTION The court a quo erred in upholding the appellant’s conviction: Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 8 1. Despite such conviction not being supported by any evidence, documentary or otherwise, to prove that the appellants had intentionally acted contrary to their duties as public officers. 2. In the face of overwhelming evidence that the state had failed to establish the mens rea on the part of the appellants in respect of the charge that they stood convicted of. A fortiori the court a quo upheld a conviction in the face of common cause fact that the State had not proven its case beyond a reasonable doubt. 3. When it was evident that the conviction was based on a reversal of onus on the appellants to prove their innocence in that, the trial court held that the appellants should have called the council lawyer to establish their innocence and to establish a fact which was common cause from the State’s case itself. 4. The court a quo misdirected itself in the Wednesbury sense of the word when it totally disregarded or elected not to place sufficient weight on the concessions of the State that the conviction by the trial court was unsafe. 5. Which was based on an incompetent charge in that the facts as alleged in the charge sheet and outline of the state did not (even if proven) constituted a criminal offence against the appellants in that: (i) It was common cause that the second and third appellants had only served as witnesses to the addendum agreement thus, they could not be charged for criminal abuse of public office based on their involvement in that capacity. (ii) The charge and outline of the State were vague as to what it is that the appellants were expected to have done in terms of s 30 of the PPDPA Act when it came to procurement methods. (iii) Engaging in Direct procurement method as provided for under s 30 of the PPDPA Act does not constitute a criminal offence. 6. The court a quo took leave of its senses and erred at law in that it entertained the appeal a quo in the face of glaring irregularity that the record of proceeding had not been certified by all parties as correct on the question of which state outline had been relied on by the State and the appellants. 7. The court a quo erred in upholding the conviction of the appellants based on the common purpose doctrine under circumstances whereby it had never been alleged that the appellants acted in common purposes and in circumstances where the common purpose doctrine was inapplicable regard had to the peculiar circumstances of each appellant. 8. A fortiori it was an error on the part of the court a quo to dismiss the appeal before it, in the face of an admission by the trial court that the judgment in support of the conviction and sentence of the first appellant had been arrived at without taking into consideration the first appellant’s closing submissions, thus, the ruling against the first appellant was arrived at without taking into account some relevant material potentially exonerating the first appellant. Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 9 AD SENTENCE 9. The court a quo erred at law in proceedings to dismiss the appeal against sentence in the absence of any scrutiny as to the correctness or otherwise of the sentence meted out by the trial court. 10. A fortiori the court a quo misdirected itself by failing to provide reasons for its decision and failing to interrogate whether the appellants were ideal candidates for a non-custodial sentence. RELIEF SOUGHT WHEREFORE, the appellants pray that; 1. The appeal be allowed. 2. The judgment of the court a quo be set aside and in its place be substituted the following- 1.The appeal is allowed. 2.The appellants’ conviction and sentence are quashed and set aside. 3.The judgment of the court a quo is substituted with the following- “The accused be and are hereby found not guilty and acquitted.” SUBMISSIONS BEFORE THIS COURT 26. Mr Sithole, for the appellants, submitted that the State had failed to prove beyond a reasonable doubt that the appellants committed the offence of criminal abuse of duty as public officers. He argued that, in signing the new contract, the appellants acted on the advice of the Zvishavane Town Council’s legal practitioner. Counsel contended that the evidence regarding this legal advice was placed before the trial court and was never disputed. Counsel further argued that, by requiring the appellants to call the Zvishavane Town Council’s legal practitioner, Ms Chigariro, as a witness, the trial court improperly Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 10 reversed the onus of proof onto the appellants. He submitted that the appellants bore no duty to prove their innocence, as the burden of proof rests squarely on the State throughout. 27. Counsel submitted that the State failed to establish the appellants’ actual intention to commit the offence. He further argued that the State had, in the court a quo, conceded its inability to prove actual intent on the part of the appellants, yet the court a quo failed to take this concession into account. He also highlighted that minutes of the meeting which could have exonerated the appellants had gone missing, although a witness confirmed that the meeting had indeed taken place. He submitted that this created the possibility that the appellants were telling the truth. Counsel additionally argued that there was no direct evidence linking the second appellant to the alleged offence, as his role was limited to signing the contract merely as a witness. 28. Mr Sithole further submitted that the appeal before the court a quo was determined at a time when the record of proceedings had not yet been certified by all parties. Counsel also contended that the transcript from the trial court did not include the questions posed by the State counsel to the appellants. He submitted that such questions ought to have been recorded to enable proper consideration of whether the doctrine of common purpose was applicable. He further argued that the trial court prepared its judgment without addressing the closing submissions made on behalf of the first appellant. He pointed out that s 200 of the Criminal Procedure and Evidence Act [Chapter 9:07] makes it mandatory for an accused person to submit closing arguments, and therefore the omission to consider those submissions constituted a material irregularity. Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 11 29. Counsel further argued that the State Outline relied upon by the trial court materially differed from the one that had been furnished to the appellants. He asserted that the appellants had responded to a different case from the one on which the court relied. He also stated that the evidence that was led was based on averments never put in the State Outline. Further, that the second appellant was merely a witness to the agreement and there was no evidence that his participation was other than that. 30. Per contra, Ms Phiri, for the respondent, submitted that the appellants’ argument that they acted on the advice of the legal practitioner amounted to a claim of mistake of law. She argued that the appellants were effectively contending that their alleged ignorance of the law negated the requisite mens rea. Counsel submitted that s 236 of the Criminal Law Code clearly provides that ignorance of the law is not a defence, but may only be taken into account as a mitigating factor during sentencing. 31. She further contended that the trial court’s judgment was not based on the State outline, but on the evidence presented by the witnesses. Counsel also averred that the second appellant was not merely a signatory, as he was aware of the proceedings, having previously signed other contracts. In any event, the appellants themselves had admitted in their defence outline that they had acted on the advice of the legal practitioner. Counsel argued that the defence by the second appellant that he was merely a signatory was an afterthought. ISSUES FOR DETERMINATION The issues for determination before this Court are as follows: 1. Whether or not the court a quo erred in upholding the conviction when the trial court had relied on a State Outline different from the one availed to the appellants. Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 12 2. Whether or not the court a quo erred in upholding the conviction when the trial court had disregarded the closing submissions by the first appellant. 3. Whether or not the court a quo erred in entertaining an appeal where the record of proceedings was incomplete and had not been certified by all parties. 4. Whether or not the court a quo erred in upholding the conviction in the face of concessions made by the State that the trial court erred. 5. Whether or not the court a quo erred in upholding the conviction when the State had failed to prove the requisite mens rea for the charge to hold. 6. Whether or not the court a quo erred in dismissing the appeal when the trial court had allegedly reversed the onus on the appellants to prove their innocence. 7. Whether or not the court a quo erred in upholding a custodial sentence. APPLICATION OF THE LAW TO THE FACTS 1. Whether or not the court a quo erred in upholding the conviction when the trial court had relied on a different State Outline to the one availed to the appellants. 32. The appellants contend that the trial court relied upon a State Outline that differed materially from the version provided to them, and that this constituted a misdirection or procedural unfairness, warranting interference with the conviction. It is well established that an accused is entitled to a fair trial, which includes adequate notice of the State’s case, and access to the documents and evidence upon which the prosecution intends to rely. The underlying principle is that a party should not be taken by surprise by the late introduction of material evidence or arguments, and must be afforded an opportunity to respond. Section 188 of the Criminal Procedure and Evidence Act [Chapter 9:07] provides as follows: “188. Outline of State and defence cases. Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 13 In a trial before a magistrate, if the accused pleads not guilty or a plea of not guilty is entered in terms of section one hundred and eighty-two-: (a) the prosecutor shall make a statement, outlining the nature of his case and the material facts on which he relies; and (b) the accused shall be requested by the magistrate to make a statement, if he or she wishes, outlining the nature of his defence and the material facts on which he relies and, if he is not represented by a legal practitioner, his or her right to remain silent, and the consequences of exercising that right, shall be explained to him.” 33. In the present matter, it is necessary to determine whether the differences between the State Outline used by the trial court and the version availed to the appellants were material and whether they prejudiced the appellants’ ability to prepare and present their defence . On record there are two State Outlines, one on p 99 and the other on p 101. In particular, Mr Sithole emphasized that the State Outlines were materially different in paras 10, 11 and 12. It is apparent that the differences between the two outlines are largely elaborative rather than substantive. The second Outline adds details concerning the mechanism of cancellation and the appellants’ roles, but does not introduce new factual allegations beyond what was already contained in the first Outline. In particular both Outlines consistently allege cancellation of the 2016 agreement and alteration leading to the 2019 agreement. Both allege that the appellants had acted contrary to the procurement procedure. Both allege that there was potential favour shown to Monitor Enterprises. Both State Outlines also show how the appellants had allegedly acted contrary to their duties as public officers. 34. It is the view of this Court that these are minor differences that would not have prevented the appellants from properly preparing their defence or occasioned any prejudice to them. The essence of the State’s case remained the same, and the appellants were able to address all Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 14 allegations, including their defence that they acted on legal advice. This was also addressed by the trial court. Accordingly, reliance by the trial court on the second State Outline did not constitute a gross procedural irregularity or misdirection, and cannot serve as a ground to set aside the conviction. 2. Whether or not the court a quo erred in upholding the conviction when the trial court had disregarded the closing submissions by the first appellant. 35. The appellants argue that it was an error by the court a quo to dismiss the appeal before it, in the face of an admission by the trial court that the judgment had been arrived at without taking into consideration the first appellant’s closing submissions. In passing its judgment the trial court indicated that the closing submissions for the first accused were not alluded to for the reason that they were only received on the date of the actual judgment. The closing submissions for the first appellant were thus only received on the date of the actual judgment and were not alluded to in the trial court’s judgment. 36. Section 200 of the Criminal Procedure and Evidence Act provides as follows: “200 Summing up. After all the evidence has been adduced, the prosecutor shall be entitled to address the court, summing up the whole case, and the accused, or each of the accused if more than one, shall be entitled by himself or his legal representative to address the court and if, in his address, the accused or his legal representative raises any matter of law, the prosecutor shall be entitled to reply, but only on the matter of law so raised.” 37. In their heads of argument, the appellants relied on S v Ndlovu HB 123/24 in which the following is stated at pp 8-10: “The right to sum up evidence. Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 15 The accused’s right to sum up his case and give closing submissions is captured in the peremptory provisions of s 200 of the Criminal Procedure and Evidence Act [Chapter 09:07] which provides thus: ‘After all the evidence has been adduced, the prosecutor shall be entitled to address the court, summing up the whole case, and the accused, and each of the accused if more than one, shall be entitled by himself or his legal representative to address the court, and if, in his address, the accused or his legal representative raises any matter of law, the prosecutor shall be entitled to reply, but only on the matter of law so raised.’ The above provision is peremptory. There have been calls time and again for this provision to be adhered to by magistrates but most of them are still struggling to understand the importance of this provision and the need to explain it to undefended accused persons. In stressing the value of this provision, I can do no more than quote the words of my brother Z ISENGWE J in S v Nguvo 2020 (1) ZLR 1292 at 1293 B-C where he stated thus: ‘From a perusal of cases submitted on review there appears to be a tendency to completely disregard this important provision. It is often treated as an unnecessary and time wasting inconvenience, yet it is evidently not, particularly where the accused is unpresented. The section presents an opportunity to tie up all the often discrete pieces of evidence, to comment on the credibility or otherwise of the various witnesses that may have testified. It affords the competing parties a chance to make concessions, if any, and to highlight the strengths and weaknesses of the respective cases. It also gives an opportunity to the parties to persuade the court to accept or reject the versions presented during the trial in light of the nature of the offence and the applicable principles related to onus and burden of proof.’ The learned judge continued at pp 1293 to 1294 to state the consequences of failure to advise undefended accused persons of this provision as follows: ‘As alluded earlier, the provisions of s 200 are peremptory and there are several implications that flow from this a few of which will be highlighted below. Firstly, the trial court is enjoined not only to bring to the unrepresented accused the provision in question but also to provide a succinct explanation of the same. Failure to explain to the unrepresented accused this right may amount to an irregularity vitiating the proceedings ( S v Parmand 1954 (3) SA 833(A), S v Mabote & Anor 1983 (1) SA 745 OPD, R v Cooke 1959 (3) SA 449). Some decisions have labelled this right as a fundamental one in a criminal trial and that failure to observe it constitutes a gross irregularity. In the S v Mabote and Another (supra) the headnote reads: ‘They are basic principles of our Criminal Law that an accused has the right to address the court which is trying him before judgement on the merits of the offence charged against him and that the opportunity to exercise that right is afforded him regardless of the prospects of success. A failure to afford him that opportunity affects the essence of Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 16 the administration of criminal justice and cannot be regarded as anything other or less than a gross irregularity. Such an irregularity destroys the fairness and accordingly also the legal validity of the proceedings in question. ‘See also S v Kwinda 1993 (2) SACR 408 (V) and S v Mbeje 1996 (2) SACR 252 (N).’ It is pertinent to note that s 175 of the South African "Criminal Procedure Act," 51/77 on which those decisions are based is similarly worded to our s 200. Some authorities have gone as far as holding that a failure by the court to afford accused the opportunity to address it, even unintentionally, is a serious irregularity which violates his constitutional right to a fair trial unless it can be shown that there was no prejudice to the accused ( S v Zingilo 1995 (a) BCLR 1186 (O), S v Mbeje (supra) at 257e-h). The accused can, of course waive his right to so address the court, needless to say that he can do so upon being apprised of its existence and import: suffice it to say that both the explanation and the election to waive it must be recorded and must appear ex facie the record of proceedings. Ultimately, however, the primary consideration whether or not to set aside the proceedings for want of compliance with s 200 is that of prejudice occasioned to the accused thereby.’” (My emphasis) 38. The mere failure by a trial court to summarise or expressly refer to a party’s closing submissions does not, without more , constitute a gross irregularity. The above authority is clear that what is decisive is whether the omission prejudiced the accused to the extent that the fairness of the trial was compromised. What therefore matters is whether the submissions introduced any new factual or legal issues that the court had not previously been made aware of. A review of the record shows that the appellants’ defence, including the claim that they relied on legal advice, the attack on the State Outline, and their challenge to the establishment of mens rea, had already been thoroughly ventilated during the trial. There is no indication that the appellants sought to raise any new issue of substance that was overlooked due to the late filing of their written submissions. 39. Accordingly, on the facts of this matter, the failure to expressly refer to or summarize the closing submissions did not amount to a gross irregularity. The trial court had already been Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 17 fully apprised of the defence case, and the omission did not prejudice the appellants in any material respect or vitiate the fairness of the proceedings. The appellants delayed in filing their submissions and cannot expect to benefit from their own mistake or tardiness. In my view, the court a quo cannot be faulted for having upheld the conviction. 3. Whether or not the court a quo erred in entertaining an appeal where the record of proceedings was incomplete and had not been certified by all parties. 40. The appellants contend that the court a quo ought not to have entertained their appeal because the record of proceedings was allegedly incomplete and had not been certified by all parties as correct on the question of which of the two State Outlines was produced by the State at the commencement of the trial. A court of appeal is generally entitled to consider an appeal only on the basis of a complete and properly certified record, as the record forms the primary source for determining whether the trial court erred. Certification by the parties ensures that the record accurately reflects the proceedings and that all relevant documents and evidence are before the appellate court. In S v Chabedi 2005 (1) SACR 415 (SCA) at paras [5] and [6] the court held as follows: “[5] On appeal, the record of the proceedings in the trial court is of cardinal importance. After all, that record forms the whole basis of the rehearing by the court of appeal. If the record is inadequate for a proper consideration of the appeal, it will, as a rule, lead to the conviction and sentence being set aside. “However, the requirement is that the record must be adequate for proper consideration of the appeal; not that it must be a perfect recordal of everything that was said at the trial. As has been pointed out in previous cases, records of proceedings are often still kept by hand, in which event a verbatim record is impossible (see eg S v Collier 1976 (2) SA 378 (C) 379A-D and S v S 1995 (2) SACR 420 (T) 423b-f). [6] The question whether defects in a record are so serious that a proper consideration of the appeal is not possible, cannot be answered in the abstract. It depends, inter alia, on the nature of the defects in the particular record and on the nature of the issues to be decided on appeal.” (my emphasis) Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 18 41. It is settled that an appeal should not fail merely because of technical defects in certification or minor incompleteness, provided that, the material portions of the record necessary for the determination of the appeal are present; and no party is prejudiced by the incompleteness. 42. The court, as reflected in the headnote in X v Health Professions Council of Zimbabwe 2001 (2) ZLR held as follows: “While it does not automatically follow that omissions or defects in an appeal record will result in the conviction being set aside in this case the missing evidence appeared to have been material.” 43. In S v Schwartz 2022 [ZAGPPHC] 972 at paras [10] and [11] the court held as follows: “[10] Essentially, what is material is not the absence of defects in the record but the presence of defects serious enough to render impossible a proper consideration of the appeal, which depends, among others, on the nature of the issues to be determined in the appeal and the nature of the defects in the record. [11] The record may have been “improperly and imperfectly reconstructed”; incomplete or defective, but as long as it is adequate in ensuring that the appellant exercised his constitutional right of appeal.” 44. The appellants contend that most of the questions asked by the trial prosecutor during the evidence in chief were not recorded and as such the record of proceedings did not depict a true testimony of the proceedings. The appellants further contend that these omissions could have assisted the court in determining whether the requisite mens rea was present. This contention is without merit. While questions may provide context, it is the answers and testimony of the witnesses that form the evidence upon which the court relies. In the present record, all answers given by witnesses are fully recorded, allowing the court to assess the credibility, content, and effect of the testimony. The absence of the exact wording of the questions does not impede the court’s ability to understand what each witness conveyed, nor does it prevent a proper determination of the elements of the offence, including the existence Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 19 or absence of mens rea. The court’s function is to evaluate the evidence presented, and that evidence is contained in the recorded testimony, not in the precise formulation of the questions asked. 45. A careful examination of the record shows that, while there may have been some aspects of formal certification that were incomplete, the material portions of the trial proceedings, including evidence and arguments relevant to the main issues on appeal were available to the court a quo . There is no evidence that the appellants were materially prejudiced by any minor incompleteness of the record as alleged. The appellants do not allege such prejudice. In such circumstances, the court a quo was entitled to entertain and determine the appeal on its merits. 4. Whether or not the court a quo erred in upholding the conviction in the face of concessions made by the State that the trial court erred. 46. This issue arises from the fourth ground of appeal. This ground of appeal was not motivated by the appellants in their heads of argument. The issue should thus not detain the court as it is now settled that failure to motivate a ground of appeal results in the said ground being deemed to be abandoned. In any event, it is also settled that the court is not bound by concessions made by the State. Furthermore, the appellants have not stated what the concessions that were made by the State are. In S v Dikatholo HB 122/06 at p 2, the court held as follows: “It is correct that respondent noted some anomalies by the trial court in this matter. However, in my view, the fact that respondent has also made a concession to these anomalies it is not a foregone conclusion that the appeal court will view these concessions as having been properly made to justify success of the appeal. The court or Judge has a final say in deciding whether or not a “concession” has indeed been properly made by any party in a trial or proceedings before it. The court, for its own Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 20 reasons, can conclude that the concessions have been improperly made, thereby dismissing the said appeal.” 47. From the above authority, it is clear that a court is not bound by concessions made by the State. A concession does not absolve a court from exercising its own discretion. The court a quo exercised its discretion and found the appellants guilty. The appellants ought to show this Court whether the court a quo erred in its exercise of its discretion. In my opinion the court a quo cannot be said to have exercised its discretion unreasonably. The fifth ground of appeal thus has no merit. 5. Whether or not the court a quo erred in upholding the conviction when the State had failed to prove the requisite mens rea for the charge preferred to hold. 48. Criminal abuse of duty as a public officer is provided for in s 174 of the Criminal Law Code in the following terms: “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.” 49. The State alleged that the appellants deliberately bypassed procurement requirements under s 30 of the Procurement Act, thereby unlawfully showing favour to Monitor Enterprises and in so doing the appellants acted contrary to their duties as public officers. At the centre of this appeal is whether the appellants possessed the requisite mens rea for the offence of criminal abuse of duty as a public officer. Section 174 (1) (a) of the Criminal Law Code Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 21 requires that a public officer must not intentionally engage in conduct that is “contrary to or inconsistent with his or her duty” or that he or she knows is unlawful. The mental element therefore consists of knowledge of duty coupled with a conscious departure from that duty. This offence does not require proof of corrupt intent, benefit, or dishonesty. It is sufficient that the public officer knew the proper procedure but nevertheless deliberately acted contrary to or outside of it. Thus, mens rea is established where, as here, senior officials intimately knowledgeable of procurement procedures knowingly circumvent the mandatory requirements of a competitive process and council resolution. 50. The appellants’ principal defence is that the first appellant acted on the advice of the Zvishavane Town Council’s lawyer and, therefore, could not have possessed the requisite mens rea for the offence of criminal abuse of duty. And as for the second appellant he was merely a witness to the agreement. The first appellant, as Town Secretary, was the chief administrative officer responsible for ensuring legality of all contracts concluded by the Council. The second appellant, as Town Engineer, had oversight responsibilities and was directly involved in implementing project-related decisions. Given their experience and positions as well as the evidence adduced at trial, they were aware of the requirements of competitive bidding under s 30 of the Procurement Act. They were aware that cancellation of an existing contract required council resolution. Knowledge of these duties is not only inferable; it was positively established through the testimony of multiple Council officials and the Procurement Authority Chief Executive Officer as well as the establishment of the internal procurement framework that were well known to them. Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 22 51. Mens rea does not require express admission. It may be inferred from the conduct of the parties. The appellants’ own conduct demonstrates, beyond doubt, that they were fully aware that they lacked the authority to conclude a new agreement with Monitor Enterprises. Their insistence throughout the trial that the 2019 agreement was merely an addendum to the 2016 contract, despite the clear wording in the agreement explicitly recording that the earlier contract had been cancelled, betrays their appreciation that entering a fresh contract required a council resolution and compliance with the Procurement Act. Had they genuinely believed, as they now claim, that the legal advice that they sought and obtained authorized them to proceed, there would have been no need to portray or disguise the 2019 agreement as a continuation of the 2016 one. This attempt to re-characterize a plainly new contract reveals a deliberate effort to circumvent both procurement procedures and Council authority. It is therefore clear that the appellants did not act under any bona fide misunderstanding of their duties, but consciously departed from them with full knowledge that their actions were ultra vires. 52. The position taken by the second appellant is equally untenable. While he sought to distance himself from responsibility by asserting that he merely signed the 2019 agreement as a witness, he nonetheless went on to offer a substantive explanation that the document was intended to operate as an addendum to the 2016 contract. This assertion is incompatible with his professed lack of involvement in, or knowledge of, the negotiations leading to the agreement. If indeed he was a mere witness with no appreciation of the contractual arrangements, he would have had no basis whatsoever to interpret the legal character of the document or to assert that it was an addendum. A witness essentially signs a document, not because he is acquainted with its content, but as someone who is attesting to the signing Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 23 thereof by a particular person, at a particular time and even place. He may thereafter, in the case of any dispute, be called upon to attest to the authenticity of such signature. This witness’ explanation therefore reveals itself as a clear afterthought, constructed only because the unlawfulness of the agreement had been exposed. Rather than negating mens rea, this inconsistency strengthens the inference that he was fully aware that the contract was being improperly executed outside the mandatory procurement framework. 53. The appellants possessed full knowledge of their statutory and administrative duties. Their conduct in executing the 2019 agreement without compliance with procurement procedures and without a Council resolution amounted to a deliberate deviation from established procedures. Their reliance on alleged legal advice was unproven, unreasonable, and incapable of legally negating mens rea. The court a quo therefore correctly found that the mental element of the offence was fully established and cannot be faulted for upholding the conviction. 6. Whether or not the court a quo erred in dismissing the appeal when the trial court had allegedly reversed the onus on the appellants to prove their innocence. 54. The trial court stated that the appellants had not called the Council lawyer to explain the advice she had given them and that “such transparency” had not been shown before the court. The appellants argue that this amounted to an impermissible reversal of the onus, because the court appeared to expect them to call the lawyer as a witness. In criminal law, an accused person is presumed innocent until proven guilty . The burden of proof therefore lies with the State. The State has to prove its case beyond a reasonable doubt. In S v Mlambo HH 524/23 at p 2 the court held that: Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 24 “It is trite that the state bears the onus to prove its case against an accused beyond reasonable doubt. The test to be applied before a trial court rejects an explanation given by an accused is worth repeating. In R v Difford 1937 AD 370 G REENBERG J puts it thus: ‘…..no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.’ We think it useful to refer also to S v Van der Meyden 1999(1) SACR 447 (W) where the court, at 448, had this to say: ‘The onus of proof in a criminal case is discharged by the state if the evidence established the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent. These are not separate and independent tests, but the expression of the same test viewed from the opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond a reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of the other.”’ 55. In S v Moyo HB 178/16 the court also held as follows: “An accused person's defence can only be rejected if it is improbable, unreasonable and not possibly true.” 56. In the case of S v Makanyanga 1996 (2) ZLR 231 the court summed it up as follows: “A conviction cannot possibly be sustained unless the judicial officer entertains a belief in the truth of the criminal complaint, but the fact that such credence is given to the testimony of the complaint does not mean that conviction must necessarily ensue. Similarly, the mere failure of the accused to win the faith of the bench does not disqualify him from an acquittal. Proof beyond reasonable doubt demands more than that a complainant be believed and an accused disbelieved. It demands that a defence succeeds whenever it appears reasonably possible that it might be true.” 57. The appellants submitted that the trial court improperly reversed the onus of proof when it observed that they had not called the Zvishavane Town Council lawyer to explain the legal advice they claimed to have relied upon. This contention is not supported by the law. Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 25 Section 174 (2) of the Criminal Law Code shifts the evidentiary burden onto the accused person. The said section provides as follows: “(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.” (My emphasis) 58. Once the prosecution proves that the public officer acted or failed to act in breach of his or her duty in a manner benefiting or prejudicing any person, the presumption becomes operative and is made that the action was taken with the improper purpose of favour or disfavour. The accused must then adduce evidence to rebut this statutory presumption . It is important to distinguish this evidentiary burden from the general legal burden of proving the offence beyond reasonable doubt, which remains firmly with the prosecution. The statutory presumption does not relieve the State of its ultimate burden to prove all elements of the offence, but it does require the accused to adduce evidence sufficient to challenge the presumption of improper intent. 59. It is necessary to restate the nature of the appellants’ defence. Their principal defence was that, in signing the new agreement, they acted on legal advice purportedly given by the Council’s lawyer. The existence, content, and effect of that alleged advice were matters peculiarly within the knowledge of the appellants, and were raised by them as the foundation of their innocence. 60. It was further common cause that the minutes in which this alleged advice was said to have been discussed were not produced, the appellants asserting that the minutes had been Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 26 “crushed in a computer” or lost when a computer crushed. Apart from this uncorroborated claim, no independent evidence was placed before the court to substantiate either the giving of such advice or the circumstances in which it was allegedly communicated. For these reasons the trial court found the defence by the appellants improbable. The trial court made the following finding: “The accused persons argued that the fact that they sought legal advice would show an element of transparency and accountability. As earlier stated, the accused persons did not call the lawyer in question Patience Chigariro to state the advice she gave to the accused persons. Hence that transparency and accountability has not been proved before the Court. The accused persons have not in essence put the court in to the picture to show the context in which they sought advice.” 61. In these circumstances, the trial court’s remarks do not amount to a shifting of the burden of proof. The State bore the burden to prove the elements of the offence beyond reasonable doubt, and that burden remained firmly with the prosecution throughout. The trial court treated the absence of the lawyer’s testimony as proof that the appellants’ version was false. The failure by the appellants to call the lawyer, weakened their credibility. The State was under no obligation to prove that the appellants did not receive legal advice. Accordingly, the argument that the trial court misdirected itself by shifting the burden onto the appellants is without basis and also without merit. 7. Whether or not the court a quo erred in finding that there was no misdirection on the part of the trial court in imposing a custodial sentence. 62. It is settled that sentencing lies within the discretion of the trial court, which must consider both the gravity of the offence and the circumstances of the offender, including any mitigating or aggravatory factors. An appellate court will interfere with a sentence only if it is shown that the trial court misdirected itself in principle, failed to consider relevant factors, Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 27 or imposed a sentence that is disturbingly inappropriate . In S v Munakamwe SC 121/23 at p 7 this Court held as follows: “Having said that, it must also be stated that the position is settled in our law that sentencing is, first and foremost, pre-eminently the discretion of the trial court. The purpose of discretion is certainly to allow the sentencer to select the sentence which he or she believes to be most appropriate in the individual case having regard to the facts and the circumstances of the offender. As to when an appeal court can interfere with the discretion of a trial court, it is also settled that interference can only be done where the sentence is disturbingly inappropriate or where the discretion has been exercised capriciously or upon a wrong principle. The law is impressively captured by M ALABA DCJ (as he then was) in Muhomba v The State SC 57/13 at p 9 as follows; ‘On the question of sentencing, it has been said time and again, that sentencing is a matter for the exercise of discretion by the trial court. The appellate court would not interfere with the exercise of that discretion merely on the ground that it would have imposed a different sentence had it been sitting as a trial court. There has to be evidence of a serious misdirection in the assessment of sentence by the trial court for the appellate court to interfere with the sentence and assess it afresh. The allegation in this case is that the sentence imposed is unduly harsh and induces a sense of shock. In S v Mkombo HB 140/10 at p 3 of the cyclostyled judgment it was held that: ‘The position of our law is that in sentencing a convicted person, the sentencing court has a discretion in assessing an appropriate sentence. That discretion must be exercised judiciously having regard to both the factors in mitigation and aggravation. For an appellate tribunal to interfere with the trial court’s sentencing discretion there should be a misdirection. See  S v Chiweshe 1996 (1) ZLR 425 (H) at 429D; S v Ramushu & Ors SC 25/93.’ It is not enough for the appellant to argue that the sentence imposed is too severe because that alone is not misdirection and the appellate court would not interfere with a sentence merely because it would have come up with a different sentence. In  S v Nhumwa S 40 /88 (unreported) at p 5 of the cyclostyled judgment it was stated: ‘It is not for the court of appeal to interfere with the discretion of the sentencing court merely on the ground that it might have passed a sentence somewhat different from that imposed. If the sentence complies with the relevant principles, even if it is severe than one that the court would have imposed sitting as a court of first instance, this Court will not interfere with the discretion of the sentencing court.’” 63. In casu , the trial court carefully considered the seriousness of the offence, the statutory framework, and the appellants’ personal circumstances. The record shows that the court Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 28 took into account that, the first appellant was likely to struggle in securing alternative employment because of the criminal conviction, was involved in charity work, and contributed to the community. The second appellant had a family to support, was similarly involved in charitable activities, and had lost his source of income. The trial court also considered that there was no aggravating factor in relation to the project, which, although delayed, spanned ten years, and that imposing only a fine would trivialise the matter, given the appellants’ positions in influential offices. 64. Given the nature of the offence, to wit, criminal abuse of public office, it was essential for the trial court to consider the deterrence aspect in assessing the appropriate sentence . Public officers occupy positions of responsibility, and a sentence must reflect both the seriousness of the wrongdoing and the need to deter similar conduct in the future. In this context, the trial court’s imposition of two years’ imprisonment was within the appropriate sentencing range and met the justice of the case. There is no indication that the trial court acted arbitrarily or failed to consider relevant factors. The court a quo thus correctly held that there was no misdirection on the part of the trial court. As correctly stated by the court a quo, ‘a court on appeal will not overturn a sentence on the sole basis that a non-custodial penalty was not considered.’ Accordingly, the appeal against sentence has no merit. DISPOSITION 65. Having carefully considered all the grounds of appeal and the submissions made on behalf of the appellants, the court finds no merit in any of the complaints raised. The alleged deficiencies in the record did not prejudice the appellants, the omission of certain cross- examination questions did not affect the fairness of the proceedings. The differences in the Judgment No. SC 05/26 Civil Appeal No. SCB 27/25 29 State outlines were immaterial and non-prejudicial. The trial court correctly applied the burden of proof. The court a quo cannot be faulted for having dismissed the appellants’ appeal. No misdirection was shown on the part of the court a quo. 66. In the result, it is ordered as follows: “The appeal be and is hereby dismissed.” BHUNU JA : I agree MUSAKWA JA : I agree Rubaya & Chatambudza Legal Practitioners, appellants’ legal practitioners. National Prosecuting Authority, respondent’s legal practitioners.