Court name
Harare High Court
Case number
84 of 2021
Case name
1. Mutasa And Another v Mapfumo N.O And 2 Others 2. Mangoma v Mapfumo N.O And 4 Others
Media neutral citation
[2021] ZWHHC 84
Judge
Chikowero J
Kwenda J

HH 84-21

HACC 8-9/20

CRB ACC 24/19

 

1. TEERERAI L MUTASA

and

ELTON MANGOMA

versus

FRANCIS MAPFUMO N.O

and

THE STATE

and

JOSHUA CHIFAMBA

 

2. ELTON STEERS MANGOMA

versus

FRANCIS MAPFUMO N.O

and

THE STATE

and

JOSHUA CHIFAMBA

and

TERERAI LUIS MUTASA

HIGH COURT OF ZIMBABWE

CHIKOWERO & KWENDA JJ

HARARE, 8 June 2020, 25 June 2020 & 17 March 2021

 

Court Application for Review of Unterminated Proceedings

 

G Madzoka, for the applicants

A Muzivi, for the 2nd respondent

T Bhatasara for 3rd respondent

 

 

            KWENDA J: Background: The applicants filed separate court applications which we consolidated at the request of the applicants because it was convenient to do so.

The applicants were jointly charged with Joshua Chifamba in a trial pending before the 1st respondent. They appeared before the Anti-Corruption Court sitting at Harare Magistrates Court. The three were jointly charged with 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 precise allegations read as follows:

“In that on 24 October 2011 and at ZESA Holdings Head Office, Electricity Centre, Harare, Elton Mangoma, Tererai Luis Mutasa and Joshua Chifamba, or one or more of them being public officers by virtue of their employment as Minister of Energy and Power Development, Managing Director for ZESA Enterprises and Group Chief Executive Officer of ZESA Holdings respectively, in the exercise of their duties as public officers connived to unlawfully and intentionally do that which was contrary to or inconsistent with their duties as public officers by engaging Techpro Company of South Korea to partner ZESA Enterprises a subsidiary of ZESA Holdings in a switchgear Technology Transfer Partnership without going through tender procedures therefore showing favour to Techpro Company of South Korea.”

           

            The applicants and their co-accused, Joshua Chifamba, entered pleas of not guilty to the charge. The thrust of their defences was that they denied acting in a manner contrary to or inconsistent with their duties. They did not dispute that they engaged the South Korean Company in question to partner ZESA Enterprises (Pvt) Ltd without going through tender procedures. Their position was that it was not required of them to have gone through tender procedures before ZESA Enterprises (Pvt) Ltd entered into the partnership agreement with Techpro Company.

The State closed its case after leading evidence from 4 witnesses whereupon the appellants and their co accused person invoked the provisions of s 198 (3) of the Criminal Procedure & Evidence Act [Chapter 9:07] which reads:

“198 conduct of trial

  1. If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”

 

            The crux of the application for discharge at the close of the State case was that there was no prima facie evidence establishing at least one essential element of the crime. It was submitted that ZESA Enterprises (Pvt) Ltd was not a procurement entity. It was not a statutory corporation. Accordingly, it was not a legal requirement for it to go to tender before the partnership agreement was entered into between Techpro and ZESA Enterprises (Pvt) Ltd. Consequently, all the accused persons did not act contrary to or inconsistent with their duties by engaging Techpro without going to tender. They were not required by law to proceed via the tender route. This argument was premised on the decision in S v Chikumba 2015 (2) ZLR 382 (H). The trial court accepted the argument. It is useful to reproduce the trial court’s findings in this regard. They read:

            “virtually no evidence was led to prove that accused 2 was a public officer. Also there is no             evidence which proves that ZESA Enterprises (Pvt) Ltd is a statutory board.

 

            ZESA Enterprises (Pvt) Ltd is not a procuring entity. In terms of the schedule to s 34 of the Procurement Regulations ZENT is not listed there as a public enterprise.

           

            The State has not been in a position to adduce evidence to the effect that ZENT was added to the     list of procurement entities before 24 October 2011.

           

            The State’s view that ZENT is a successor company is misplaced. It is therefore not a statutory         board so at the signing of the agreement with Techpro ZENT was not a procuring entity to which    the provisions of Procurement Act and Regulations apply.

 

            The court’s view is that s 7 of the Procuring Regulations can only be violated by a procuring entity and its employees who are officers and ZENT by virtue of not being a procuring entity this could           not happen.

 

The State alleges that the decision not to go to tender was a violation of board resolutions… The three accused persons might have violated their board resolutions by not going to tender but no board members came to testify that board resolutions were violated. There is also no evidence to suggest that they made a complaint.”

 

All the accused persons were aggrieved by the first respondent’s decision whereupon they filed separate applications for review seeking the same relief i.e. orders of this court setting aside the lower court’s decision which dismissed their application for discharge and substituting the ruling with an order for their acquittal. The third respondent’s application has already been determined by this court, as presently constituted, in the matter of Joshua Chifamba v Francis Mapfumo N.O and Others HH 317/20. We acquitted the third respondent.  

The grounds of application are that the first respondent’s decision to place the applicants on their defence was grossly unreasonable and irrational in view of the fact that it had found in favour of the first applicant that he was not a public officer. The decision was irrational and grossly unreasonable in as far as it was inconsistent with the 1st respondent’s own findings that the Zesa Enterprises (Pvt) Ltd did not have to follow the procurement procedures stated in the charge sheet.

The applications were opposed by the State on the grounds that there were no exceptional circumstances justifying interference, by this court, with uncompleted criminal trial proceedings. There were no proper grounds of review. In any event, the charge on which the applicants were put on their defence was a permissible charge in terms of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

 

 

The law on interference with uncompleted criminal proceedings

The law is set out in the cases of Dombodzvuku and Another v Sithole N.O and Another 2004 (2) 242 (H) per MAKARAU J (as she then was) and Attorney-General v Makamba 2005 (2) ZLR 54 (S) at 64 C per MALABA JA (as he then was).

In Attorney-General v Makamba , supra, MALABA JA as he then was, stated as follows at 64 C

The general rule is that a superior court should intervene in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

           

All the ingredients must be present before this court intervenes in uncompleted proceedings. In other words, the accused seeking review must prove that all the following exist: -

  1. that there are exceptional circumstances
  2. arising from a proven irregularity
  3. the irregularity has the effect of vitiating the proceedings
  4. resulting in miscarriage of justice
  5. there is a nexus between the miscarriage of justice and the interlocutory order which is clearly wrong
  6. and that there is proven serious prejudice to the rights of the litigant
  7. the prejudice cannot be redressed by any other means

If an element is missing, then this court must not interfere. It is therefore not enough to show that the decision a quo is wrong or simply that there was an irregularity or that the accused suffered prejudice because all that can be corrected on appeal. By way of example, the interlocutory misdirection may not result in irreparable harm because the accused may be acquitted at the end of the trial a quo. Even if the accused is wrongly convicted or acquitted a quo, the resultant miscarriage of justice can be redressed on appeal. More critically, a wrong decision does not necessarily vitiate proceedings. A trial court has the competence to make decisions irrespective of whether or not such decisions are later, on appeal, adjudged to be wrong. A correct interpretation and application of the case law as cited therefore is that circumstances under which this court may be justified to interfere with uncompleted proceedings pending in the lower court should be very rare indeed or put differently such instances should be uncommon and evidently exceptional. In our view that explains why since the decision in Walhaus &Ors v Additional Magistrate, Johannesburg & Anor 1959(3) SA (AD) applications for review of uncompleted proceedings were hardly heard of. At the risk of repeating myself, the accused seeking review must prove something exceptional justifying a superior court to descend into the arena of proceedings pending before another court of competent jurisdiction because the judiciary is one system. I will restate the the decision in Walhaus &Ors v Additional Magistrate, Johannesburg & Anor supra as quoted and approved by the Supreme Court in the matter of Prosecutor General of Zimbabwe v Intratrek Zimbabwe (Pvt) Ltd, Wicknell Chivhayo and Anor SC 59/2019. In that case PATEL JA, as he then was, reproduced the following passage from the case of Walhaus &Ors v Additional Magistrate, Johannesburg & Anor 1959(3) SA (AD) at page 119D-120E

If, as appellants contend, the magistrate erred in dismissing their exception to the charge, his error was that, in the performance of his statutory functions, he gave a wrong decision. The normal remedy against a wrong decision of that kind is an appeal after conviction. The practical effect of entertaining applicant’s position would be to bring the magistrate’s decision under appeal at the present, unconcluded, stage of the criminal proceedings against them in the magistrate’s court. No statutory provision exists directly sanctioning such a course…. It is true that, by virtue of its inherent power to restrain illegalities in inferior courts, the Supreme court may, in a proper case, grant relief-by way of review, interdict or mandamus-against a decision of the magistrate’s court before conviction…., This, however, is a power which is sparingly exercised. It is impracticable to attempt any precise definition of the ambit of this power; for each case must depend upon its circumstances. The learned authors of Gardiner and Lansdown (6ed, vol.1 p.750) state:

‘While a superior court on review or appeal will be slow to exercise any power, whether by mandamus or otherwise, upon the unterminated course of proceedings in a court below, it certainly has the power to do so, and do so in the magistrates’ court except in those rare cases where grave injustice might otherwise result or justice might not by other means be attained…In general however, it will hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the court below, and to the fact that redress by means of review or appeal would ordinarily be available’

 

In my judgment, that statement correctly reflects the position in relation to unconcluded criminal proceedings in the magistrate’s courts… [The] prejudice, inherent in an accused’s being obliged to proceed to trial, and possible conviction, in a magistrate’s court before he is accorded an opportunity of testing in the Supreme court the correctness of the magistrate’s decision overruling a preliminary, and perhaps fundamental contention raised by the accused, does not per se necessarily justify the Supreme court in granting relief before conviction.”

I will quote from the headnote of the case of Dombodzvuku & Anor vs Sithole NO & Anor 2004() ZLR 242 (H) at p 243: -

“ .. an incorrect interpretation of the law cannot be grossly unreasonable merely because it does not find favour with its attacker. The person attacking the decision must go further and show that, on the facts before the court, the decision defies logic and is completely wrong. A different opinion of the law, clearly showing how it was arrived at, cannot be said to defy logic. It may be wrong but may not necessarily be unreasonable.”

At page 246 the learned judge observed as follows: -

“In my view there is nothing irregular in the decision by the first respondent that may compel me to use my review powers at this stage of the proceedings. The decision by the first respondent was arrived at after hearing argument from both counsel and it was a carefully considered decision. The decision represents the first respondent’s interpretation of the law and it can only be an incorrect decision and not an irregular one. She engaged in a logical process…. She did not spin a coin or consult an astrologer to reach at her decision…. It is my view that the applicants have fallen into the all too often error of thinking that anyone whom we disagree with is being unreasonable.”

 

A careful reading of the cases above reveals that the temptation to intervene in proceedings

unfolding before a court with competent jurisdiction is generally unwelcome unless the error complained of has the effect of vitiating the proceedings. The word vitiate is defined in the Oxford dictionary as ‘to destroy or impair the legal validity of something.’ In other words, a trial court can make contestable decisions in the course of a trial but the wrong decision (s) do (es) not necessarily destroy the legal validity of the trial proceedings or result in a miscarriage of justice. In the exercise of appellate jurisdiction this court will not necessarily quash the verdict or set aside the sentence unless there was a gross miscarriage of justice. For the avoidance of doubt it happens very often that an accused may be put on his/her defence but he/she is acquitted at the end of the trial.

It appears the approach preferred by this court over the years has been that of

non-interference with uncompleted criminal proceedings. The rationale is articulated by MAKARAU J in the Dombodzvuku & Anor vs Sithole NO & Anor, supra, so well that I ca do no more than reproduce what she said at page 245

“While the Statute granting review power does not place ant limitations on the exercise of that power, this court has in practice rarely exercised that power in relation to proceedings pending before the lower court. In practice, the court will withhold its jurisdiction pending completion of the lower court’s proceedings to make for the orderly conduct of court proceedings in the lower court. It would create a chaotic situation if ant irregularity or unfavorable ruling in an interlocutory matter were to be brought on review before completion of the proceedings in the lower court. The court’s aversion to disrupting the general continuity of proceedings in the lower court assumes ascending importance especially in cases where no actual and permanent prejudice will be occasioned to the applicants. The power is, however, exercised in matters where, to do so, would result in a miscarriage of justice. “

 

We are guided by the sentiments of MALABA JA, as he then was, in the case of Attorney-

General v Makamba and agree with narrow approach to the exercise of review powers in uncompleted proceedings taken by MAKARAU J in Dombodzvuku & Anor vs Sithole NO & Anor.

There is no way of knowing whether actual miscarriage of justice will ensue at the end of the trial. In addition, courts do make decisions and competently so, some of which may turn out to be wrong but that, on its own, does not vitiate the proceedings or put differently that does not destroy the legal validity of the trial. Further, where a contestable decision is made at the lower level of the courts’ hierarchy there is always room for redress. Accordingly, even the risk of a wrong conviction in the lower court does not call for the superior court to descend into the arena. There would still be room for redress on appeal.

As soon as a court this court is seized with the merits of an interlocutory ruling made by the lower court in uncompleted proceedings which it adjudges to be wrong, the temptation to intervene is usually irresistible and the court ends up interfering, ostensibly, exercising review powers when in fact, it is prematurely exercising appellate jurisdiction. The problem is exacerbated by the thin line between a decision which is so irrational in defiance of logic that no reasonable court acting carefully could arrive at such a decision and just a wrong decision. In all criminal trials, the presiding judicial officers are called upon to make interlocutory decisions. The decisions may relate to objections to the charge, admissibility of evidence, production of real evidence, competence of witnesses, postponements of the trial, applications for discharge at the close of the State case and many other issues. The trial court has the competence to rule on all such interlocutory issues and its decisions/rulings are binding on the parties to the trial irrespective of their attitude. In the event that the trial court misdirects itself in any decision that it makes during the course of a trial and the misdirection(s) result(s) in a miscarriage of justice or a wrong verdict then that becomes the subject matter of an appeal and not review, with the misdirection (s) forming the grounds of appeal.

In the Joshua Chifamba judgment we made it clear that our findings applied to Joshua Chifamba and his co-accused persons, who are now the applicants before us. I will reproduce the portions of the cyclostyled judgment by my brother, chikowero j which I concurred with to demonstrate the point.

 

……., applicant and his co-accused entered pleas of not guilty to the charge.

They tendered their defence outlines. For my purposes, it suffices that I point out that they denied             acting in a manner contrary to or inconsistent with their duties. In short, their defences were that      they were faithful servants of the law. But it was not in dispute that they engaged the South Korean         Company in question to partner ZESA Enterprises (Pvt) Ltd without going through tender procedures. Their argument was that it was not required of them to have gone through tender         procedures before ZESA Enterprises (Pvt) Ltd entered into the partnership agreement with Techpro   Company.

 

The State closed its case after leading evidence from 4 witnesses.

...........................................................

All three accused persons then invoked the provisions of s 198 (3) of the Criminal Procedure & Evidence Act [Chapter 9:07].

            ……………………………………………

           

The crux of the application for discharge at the close of the State case was that there was no prima facie evidence establishing at least one essential element of the offense. It was submitted that ZESA Enterprises (Pvt) Ltd was not a procurement entity. It was not a statutory corporation. Accordingly, it was not a legal requirement to go to tender before the partnership agreement was entered into between Techpro and ZESA Enterprises (Pvt) Ltd. Consequently, all the accused persons did not act contrary to or inconsistent with their duties by engaging Techpro without going to tender. They were not required by law to proceed via the tender route. This argument was premised on the decision in S v Chikumba 2015 (2) ZLR 382 (H). ……………... The trial court accepted the argument. …………………………………

 

These positive findings in favour of the accused persons, among whom applicant was

counted, means that the State case was dead and buried. But the trial court acquitted none.

………………………………………..  The Magistrates Court ordered that the trial proceeds into

the defence case. To set the framework for a clear analysis, I will let the trial magistrate speak:

            “The Public Finance Management Act gave accused persons a chance to appoint Techpro (Pvt) Ltd             without going to tender. The preparation of the document and the signing by the parties was             completed in a record time of two days. Accused 3 signed the document recommending it and             accused 1 also signed approving the business plan. Section 48 (3) of the Public Finance        Management Act stated that the Minister of Finance should also approve the agreement.

 

This court does not subscribe to the submission by accused 3’s defence counsel that there is no requirement for the Minister of Finance to have approved in writing. The Act itself says the

approval should have been in writing. The Minister is a Minister in government and naturally          

knows that approval is recorded in writing… There was no document to say that the Minister of      

Finance approved the business plan. This therefore means that there was lack of compliance with   

the provisions of s 48 (3) of the Public Finance Management Act. It then follows that if there was   

no compliance then an offence was committed. It appears that accused 1 and 3 omitted to do that   

which they were supposed to do. That is ensuring that there was approval by treasury. If this is the  

position then, they acted contrary to or inconsistent with their duties. It is not clear how the deal       sailed through without the approval of the Minister of Finance.

 

            …If Techpro was appointed without the approval it means it was unlawful and that the whole             process was meant to favour Techpro of South Korea. That obviously amounted to an abuse of             office by a public officer.

 

            … The court’s well considered view is that both accused 1 and 3 should be placed on their defence             to clarify and answer questions regarding the approval of the document by treasury. They need to             explain to the court, how the Minister of Finance approved the agreement in question….”     (underlining mine for emphasis)

………………………………………………

What I say here, however, would naturally apply with equal force to all three persons on trial although I have a single applicant before me.”

 

[The learned judge then discussed the case law in  Attorney-General v Makamba 2005 (2) ZLR 54 (S) at 64 C per MALABA JA, AS HE THEN WAS; Attorney-General v Makamba 2004 (2) ZLR 63 (S) per  ZIYAMBI JA; Dombodzvuku and Another v Sithole N.O and Another 2004 (2) 242 (H) per MAKARAU J; In Bridges and Hulme (Pvt) Ltd v Magistrate, Bulawayo and Another 1996 (1) ZLR 542 (H) per MALABA J (as he then was); Prosecutor General of Zimbabwe v Intratrek Zimbabwe (Pvt) Ltd (2) Wicknell Munodaani Chivayo (3) L Ncube N.O SC 59/19 per PATEL JA, as he then was; and continued as follows:

“………………………………..

I agree with Advocate T Mpofu that the facts of this matter fit both tests as set out in AG v Makamba             (supra). By putting applicant to his defence to explain how the partnership agreement had been             entered into between ZESA Enterprises (Pvt) Ltd and Techpro Company of South Korea without      the written approval of Treasury (Minister of Finance) the trial magistrate had taken over the      function of the State. Even the State could not competently perform that function at that stage. The            trial magistrate had come up, without realizing it, with a new charge of criminal abuse of duty as a             public officer. Applicant had not pleaded to this new charge. The State had not preferred such a           charge against the applicant. No State outline was on record to speak to such a charge. There was    no defence outline relating thereto. The State case had not been presented and fought on that basis.         In short, instead of the breach of duty being entering into the partnership agreement without going   to tender the fresh charge which took the form of the trial magistrate’s ruling was entering into the    partnership agreement without written Treasury approval. If that is not proven gross irregularity       vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by             any other means, then one might as well discard that test.”

 

“Similarly, the interlocutory decision ordering applicant to effectively answer to a new charge,         albeit under the same section, but for the first time, and in the defence case was clearly wrong as to           seriously prejudice his rights as a litigant. What happened in this matter reminds one of the drama       which unfolded in Isaura Masinga v Ms Sande N.O and The Acting Prosecutor General HH 372/19     where there was no State case to begin with.

 

Similarly, the half-hearted attempt by Mr Muzivi to call exhibit 12 prima facie evidence of applicant having committed the lesser offence of corruptly using a false document sinks under its      

own weight. Exhibit 12 is a letter dated 12 September 2011. It was written by applicant. It was addressed to the Permanent Secretary for the Ministry of Energy and Power Development for onward transmission to the 1st accused. It sought the approval of 1st accused to enter into the partnership agreement. It was written on the basis that it was not a requirement to go to tender before entering into the       partnership agreement. Attached thereto was the business plan for consideration in deciding whether to grant the approval. The letter of 12 September 2011 related to Treasury approval because a similar request was send to Treasury. Applicant was not charged with criminal abuse of duty as a public officer with the duty breached          being entering into the partnership agreement without Treasury’s written approval. There is thus no competent verdict to talk about. Mr Muzivi had taken a cue from the trial magistrate’s confused reasoning. The State had not, a quo, resisted the application for discharge on the basis that a prima facie case had been established to the extent of a competent verdict.”

           

            In my brief remarks of concurrence to that judgment, I also observed as follows: -

            “There, therefore, was no basis to allege that the applicant and his co-accused acted corruptly by             neglecting to go to tender before settling on Techpro of South Korea to partner ZESA Enterprises     (Pvt) Ltd in the project. The trial prosecutor did not represent the State before us. But before the   trial court he did not seek to have the State witnesses impeached or declared hostile. What that      means is that he was not caught by surprise. The witnesses’ testimony was in accordance with what         he reasonably expected them to say at the trial based on their statements to the police. How a     prosecutor would prefer a charge which he knows would not be sustained by the State’s evidence    boggles the mind. Just what was he thinking or was he thinking at all? At the end of the day the        applicant has gotten away on a technicality arising from the fact that the charge preferred and the             State evidence are at variance. There is need to be thorough in preparing charges to make sure that             there is harmony between the preferred charge and State evidence in the docket.”

 

Applicants’ submissions on review

Basing on our previous decision and remarks as quoted above, applicants’ counsel submitted that issue estoppel applies to this case. He relied on Galante v Galante (2) 2002(1) 144(H) as per Smith J at page 150: -

The rule was expressed thus by Lord Denning MR in Fedelitas Shipping Co Ltd v V/O Exportchleb [1965] 1 QB 630 at 640 B-C:

‘the rule then is that, once an issue has been raised and distinctively determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in exceptional circumstances.’

            At page 153 Smith J stated that

‘the doctrine of issue estoppel has been considered in our courts. In Kashiri v Muvirimi 1988(1) ZLR 270 (S) at 274D-F, Korsah JS said:

“The policy of the law, as regards issue estoppel, was succinctly stated in Phipson on Evidence 13 ed paras 28-46, thus:

 

‘if in litigation upon one such cause of action, any of such separate issues as to whether a particular condition has been fulfilled is determined by a court with competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can , in subsequent litigation between one another upon any action which depends on the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.’”

 

At page 154 SMITH J stated: -

“That issue having been determined between the same parties by the community court, the determination of it by that court raises an issue estoppel. The parties are estopped from disputing an issue decided by a judgment of a court of competent jurisdiction.’

 

In Willowvale Mazda Motor Industries v Sunshine-a Car (Pvt) Ltd 1996(1) ZLR 415 (S)    at p 423 B-F per Korsah JA:

 

‘While the doctrine of issue estoppel may not be part of Roman Dutch law and may not as yet have found a berth in South African law, it seems to me that this court, in the wider application of existing law in light of the current modes of thought, ……has embraced the doctrine of issue estoppel under the general rule of public policy that there should be finality to litigation.”

 

Our findings on the law and facts

We are however of the view that issue estoppel, in the form discussed above, does not apply to criminal proceedings. Issue estoppel was raised on appeal in the matter of Thomas Madeyi v The State HH 34/13 against the State. The court per hungwe j ruled that the principle did not apply to criminal proceedings. This court is not precluded from arriving at a conclusion different from the decision it made in a similar matter. The court becomes functus officio only with respect to that person who was before it. Although a court is expected to follow its previous decisions, it is not precluded from departing from a previous legal position either by way of distinguishing it or on the basis that the previous legal position was wrong. At the same time the State may not be estopped from arguing the guilt of the applicants simply because the applicants’ co accused were acquitted. The State can even change its position because in criminal matters what matters is not the attitude of the State but whether or not the accused is guilty of the crime charged and that is a matter for evidence.

 In addition to the above, in civil cases, issue estoppel is specifically pleaded as a defence, that is, either that the cause of action is res judicata (terminated by a judicial decision) or that a particular issue has already been determined between the parties. See LH Hoffmann and DT Zeffert The South African Law of Evidence 4th Edition at page 335. The legal position therefore is that issue estoppel does not apply to criminal proceedings despite similarities in the thought process and logic. The equivalents of issue estoppel in criminal proceedings are pleas of autrefois convict or autrefois acquit which according to the authors, LH Hoffmann and DT Zeffert ‘prevent double jeopardy’. In terms of s 180 of the Criminal Procedure and Evidence Act [Chapter 9:07] the accused may, among other pleas available to him or her, plead that he/she has already been convicted of the offence with which he is charged; or that he/she has already been acquitted of the offence with which he is charged. The plea is dealt with as a preliminary issue before evidence is led. The question is whether the facts necessary to support a conviction on the current charge are the same as those in the previous case. See S v Ndhlovu and Ors 1971(1) SA 668 (A). The accused must show that he/she was previously tried on substantially the same charge; by a court of competent jurisdiction and he/she was either acquitted on the merits or convicted.

Having observed as above, I wish to make it clear that we are clearly not at plea stage. This is a review. Notwithstanding our views on issue estoppel, we figured out from the applicants’ counsel’s line of argument that what he meant is that in the process of determining the Joshua Chifamba matter, supra, we determined the merits with respect to the present applicants. In other words, our pronouncements in the judgment that the trial court had grossly misdirected itself when it refused to discharge and acquit Joshua Chifamba at the close of the State case were intended to apply and do apply with equal force to the applicants.  The fate of the applicants has therefore, with finality, been decided by this court as presently constituted.

We agree. The peculiar circumstances of this case are such that it falls into the category of

those rare or exceptional cases where this court can properly intervene in uncompleted proceedings to avert a gross injustice. The trial court committed a gross irregularity by dismissing the applicants’ application for discharge when its ruling, properly construed, had the effect of upholding that application. A charge consists of not only the relevant citation of the legal provision which creates the crime but also the particulars of the conduct giving rise to the charge. An accused person may only be guilty as charged or guilty of a permissible verdict arising from the facts as pleaded in the charge. What the court did was to clear the applicants of the crime charged and then preferred a new charge at the close of the State case. The charge is new because the applicants were put on their defence on conduct which was not the basis of the original charge. Introducing a fresh charge at the close of the State case was an irregularity so gross that it destroyed the legal validity of the proceedings. Having exonerated the applicants at the close of the state case, of the charge on which there were on trial the Court could not competently order continuation of the trial on a new allegation. A criminal trial commences with the charge being put to the accused who may plead or except to it. The defence outline and questions put to the witnesses in cross-examination are all informed by the particulars of the charge. At the end of the state case, the applicants cannot plead, except or exercise all rights that accrue to an accused during a trial.

            In short, the proceedings a quo really ended with the magistrate’s finding that it was not necessary for ZESA Enterprises to go to tender. What should have followed that finding, as a matter of law, was the pronouncement of the verdict of not guilty. There was no longer any defence case to proceed into, hence our intervention on the basis that it was grossly irregular to both effectively acquit the applicants, and in the next breath still order they be put on their defence. The irregularity cannot be corrected by way of appeal but review.

Disposition of this matter

For the above reasons the application for review succeeds.

 We order as follows: -

  1. The decision of the first respondent dismissing the applicant’s application for         discharge at the close of the State case under case number ACC 24/19 be and is             hereby set aside.
  2. It is substituted with the following:

            “(i)       the application for discharge be and is granted.

            (ii)        accused 1 and 2 are found not guilty and are acquitted.”

 

CHIKOWERO J AGREES:…………..……

1.Hatinahama and Associates, 1st applicant’s legal practitioners

Mupanga and Bhatasara Attorneys, 2nd applicant’s legal practitioners

National Prosecuting Authority, 2nd respondent’s legal practitioners