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

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.