3
HH 328-24
HC 5494/21
CLEMENCE MASANGO
versus
BIANCA MAKWANDE N.O.
and
THE STATE
HIGH COURT OF ZIMBABWE
CHINAMORA J
HARARE, 5 August 2024
Court Application for Review
Mr T M Mutema, for the applicant
Ms Kachidza, for the second respondent
No appearance for the first respondent
CHINAMORA J:
Introduction:
The current application seeks a review of the first respondent's decision to deny the applicant's discharge application at the conclusion of the State's case. On 8 May 2020, the applicant appeared before the Anti-Corruption Court sitting at Harare Magistrates’ Court on a single charge of criminal abuse of duty as a public officer, as defined in s 174(a)(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The proceedings were presided over by the first respondent.
According to the second respondent, the applicant violated the provisions of the Public Procurement and Disposal of Public Assets Act [Chapter 22:23] and its regulations by procuring six specific vehicles from CMED and Duly's Motors without going to tender. The second respondent contended that the applicant did this solely to demonstrate a bias towards CMED and Dulys Motors. It is worth quoting in extenso what the charge sheet says, namely:
“… on a date unknown to the prosecutor, but during the period between 29 October 2019 and 29 January 2020 at the Civil Registry Offices …, Clemence Masango being a public officer by virtue of him then being the Registrar General of Zimbabwe, and in the course of his functions as such acted contrary to, or inconsistent with his duty as a public officer by corruptly awarding a tender to supply a Ford Ranger Wildtrak 3.2, TDCi 4x4 Double Cab and 5 Isuzu Light Pick Ups to Dulys Motors and CMED, respectively, without approval from the Accounting Officer, Melusi Matshiya, and also without following the tender procedures as laid out in section 94 (4) of the Public Procurement and Disposal of Public Assets Act [Chapter 22:23]. This he did for the purpose of showing favour to Dulys Motors and disfavor to other potential suppliers who could have participated in the tender process”. [My own emphasis]
In his defence, the applicant denied committing the offence he was charged with and tendered a plea of not guilty. The applicant explained that the vehicles in question were ordered and paid for by his predecessor before he took office. He said that, in fact, the Civil Registry Department (“the Civil Registry”) bought them from CMED though a shared procurement arrangement. Thus, he added that upon CMED being appointed by his predecessor as the procuring agent in the purchase of these vehicles, CMED became the accounting agency. By virtue of this, it was the applicant’s contention that CMED was responsible for ensuring compliance with the Public Procurement and Disposal of Public Assets Act and Regulations. The applicant continued that, as the purchase of the vehicles in question was done before he came into office, CMED was accountable for the procurement method utilized and the selected suppliers. In short, the applicant asserted that he did not play any part in the procurement which gave rise to the charge.
At the trial before the first respondent, seven (7) witnesses testified for the State. The second respondent closed its case after those witnesses had given evidence. It is then that the applicant sought a discharge, submitting that the second respondent had failed to establish a prima facie case for the applicant to be required to give evidence in his defence. In particular, the applicant argued that, by the close of the State case, no evidence had been led to establish at least one essential element of the offense. It was contended for the applicant that, in order to establish a prima facie case of criminal abuse of duty as a public officer, the State should have proved that the applicant deliberately acted contrary to his duties with the intention of showing favour to Duly’s Motors and CMED. In addition, it was submitted that the State had to prove that the applicant (if the first act was proved), intended to show disfavor to the other potential vehicle suppliers. The applicant argued that the State failed to prove the two elements of the offence. Despite this argument, the application for discharge was denied by the first respondent.
Before me, the applicant sought a review of the first respondent’s decision. The grounds relied on are that:
The learned magistrate has called the applicant to his defence on a new charge, which was not preferred against him, was not covered in the state outline and, therefore, was not addressed in the applicant's defence outline.
The learned magistrate made a serious error by completely ignoring and/or failing to address critical issues raised in the applicant's application, and by taking into account issues not raised by the applicant or by the second respondent in its opposition to the application or during the hearing of the case.
The learned magistrate clearly reversed the onus of proof by requiring the applicant to prove in his defence that the procurement of the vehicles in question was in accordance with the provisions of the Public Procurement and Disposal of Public Assets Act. Yet it should have been the State's duty during the presentation of its case to demonstrate a prima facie case that the applicant did not follow the requirements of the Act.
The second respondent opposed this application, maintaining that it had established a prima facie case. Essentially, the State argued that the applicant tampered with the procurement process by authorizing the accountant to purchase a Ford Ranger with funds from the FBC account. Furthermore, it was contended that the applicant did not adhere to Procurement Regulatory Authority of Zimbabwe (PRAZ) procedures. The second respondent argued that, as regards the purchase of the Ford Ranger, no authority from PRAZ had been shown as required by section 15 of the Public Procurement and Disposal of Public Assets Act. This provision states that, where the value of an item to be procured is at or above the threshold, written authority from PRAZ is required. If such authority is not available, bias towards the supplier can be inferred.
Let me now examine the law which is relevant to this type of review application. The general rule is that superior courts must wait until the lower court's proceedings are completed before intervening in any interlocutory decision made during the proceedings. However, there are exceptions to this rule. There is precedent for the position that superior courts may intervene in ongoing proceedings only in rare or exceptional circumstances, namely, where there has been a gross irregularity which goes to the heart of the proceedings, vitiating the proceedings irreparably. In this regard, in Prosecutor General of Zimbabwe v Intratek Zimbabwe (Private) Limited & Ors SC 67-20 the Supreme Court crystalized this principle in these terms:
“Thus, put conversely, the general rule is that superior courts must wait for the completion of the proceedings in the lower court before interfering with any interlocutory decision made during the proceedings. The exception to the rule is that only in rare or exceptional circumstances where the gross irregularity complained of goes to the root of the proceedings, vitiating the proceedings irreparably, may superior courts interfere with on-going proceedings.” See also Ismail & Ors v Additional Magistrate, Wyn Berg & Anor 1963 (1) SA at 5-6 and Attorney General v Makamba 2005 (2) ZLR 54 (S) at 64C-E”.
A review of the documents before the court reveals that the applicant was charged with a single count of criminal abuse of duty as a public officer, as defined in s 174 of the Criminal Law Codification and Reform Act [Chapter 9:23]. The provision states, among other things, that a public officer is criminally liable if he/she intentionally does anything that is contrary to or inconsistent with his or her duty as a public officer; or fails to do anything that it is his or her duty as a public officer to do for the purpose of showing favor or disfavor to any person. See G Feltoe, Commentary on the Criminal Law (Codification and Reform) Act, 2010, Legal Resources Foundation at p 175. I also observe that in S v Taranhike & Ors HH 222-18, the High Court held that:
“To be guilty of abuse of public office what can be gleaned from the above (s 174) is that:
One must have engaged in conduct that is inconsistent with duty as public officer,
Must act intentionally in the act or omission, and;
The purpose of the conduct must be to show favour or disfavour to any one person.”
The common thread from the preceding authorities is that, in order to establish a prima facie case of criminal abuse of duty as a public officer, the second respondent must demonstrate that the applicant acted in a manner contrary to his duty as a public officer, as well as that the applicant's actions were calculated to favour or disfavour a specific party. The evidence presented by the second respondent shows that CMED did not supply any of the vehicles in question, but rather served as a procuring agent for the Civil Registry Department in the transaction. The true factual position is that Paza Buster Motors, a third party not named in the proceedings, supplied the vehicles in question. Finally, the evidence shows that it was CMED (and not the applicant or the Civil Registry Department) that contracted with Duly's Motors, which supplied only one of the vehicles in question.
Let us recall that he applicant was charged with deliberately violating the provisions of the Public Procurement and Disposal of Public Assets Act by handpicking Duly's Motors to supply six vehicles without going to tender, thus showing favor to them (i.e. Duly’s Motors). However, the evidence presented by the second respondent showed that CMED was in charge of the actual procurement of the vehicles in question. There was no evidence presented to show that CMED acted on the applicant's specific instruction when procuring the vehicles in question from Duly's Motors or that the applicant directed CMED to favour Duly's Motors and/or disfavor the other suppliers who could have provided the vehicles.
Clearly, putting the applicant on the stand in his defense to explain if he had authority to initiate the procurement of the said vehicles would in my view be a gross irregularity. This would entail putting the applicant on defense merely to answer a newly formulated charge of procurement without authority, which the applicant did not plead to because the state outline does not address that charge. In my opinion, placing the applicant on his defense when the prosecution has not attempted to prove the charge or an essential element of the charge would be highly irregular. The view I have taken is the approach adopted by this court in Masinga v Sande N.O. & the Acting Prosecutor General HH 372-19, where Mathonsi J (as he then was) noted that:
“…it is clearly wrong and unconscionable to put an accused person to her defence where the prosecution has not attempted to prove the charge or an essential element of charge.”
More recently, in Mamombe & Anor v Chief Magistrate Mushure N.O. & Anor HH 405‑23, Munangati-Manogwa J when granting a similar application, appositely stated:
“The applicants cannot be pushed into a defence case to supplement the inadequacies of the State case and hope that in the process they incriminate themselves. To adopt such an approach would be unconstitutional and against the principles that place the burden on the State to prove its case, and in this case on a prima facie basis at the close of the State case. The superior courts in the cases of S v Kachipare, Attorney General v Bvuma & Anor, and Attorney General v Mzizi have already set the parameters, and in essence established that it is injudicious to support a State case which is unable to stand on its own due to lack of evidence. Where such is the case the accused is entitled to an acquittal”.
I find the logic of the learned judge compelling and respectfully defer to her wisdom, and am inclined to grant the relief sought by the applicant.
In the result I make the following order:
The application for review succeeds.
The first respondent’s decision dismissing applicant’s application for discharge at the close of state’s case be and is hereby set aside and substituted with the following:
“The accused person, Clemence Masango, be and is hereby found not guilty, discharged and acquitted at the close of the State case”.
There shall be no order as to costs.
Masango, Seda Mutema, applicant’s legal practitioners
National Prosecuting Authority, second respondent’s legal practitioners