ACHINULO v MOYO NO & ANOR
HIGH COURT, BULAWAYO
[Urgent Chamber Application HB 226-16]
August 18 and 25, 2016
Applicant was arraigned before a provincial magistrate charged with theft. The allegations were that he had stolen a substantial sum of money belonging to a partnership in which he was one of the two partners. In denying the charge the applicant maintained that the money had been expended on legitimate partnership business. The magistrate refused to discharge him at the conclusion of the State case not because a prima facie case had been established but on the basis that as a partner in a partnership he was required to account to his partner how the money he had received was expended.
Held, that an application for discharge at the conclusion of the State case enjoins the trial court to discharge the accused at that stage where there is no evidence to prove an essential element of the offence; there is no evidence on which a reasonable court, acting carefully, might properly convict; or the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it. In short where no prima facie case is established the court has no choice but to acquit the accused.
Held, further, that 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 other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.
Attorney-General v Bvuma & Anor 1987 (2) ZLR 96 (S), referred to
Attorney-General v Makamba 2005 (2) ZLR 54 (S), referred to
Attorney-General v Mzizi 1991 (2) ZLR 321 (S), referred to
Attorney-General v Tarwirei 1997 (1) ZLR 575 (S), referred to
Ginsberg v Additional Magistrate, Cape Town 1933 CPD 357, referred to
Masedza & Ors v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (H), referred to
Mukwemu v Magistrate Sanyatwe NO & Anor 2015 (2) ZLR 417 (H), referred to
S v John 2013 (2) ZLR 154 (H), referred to
S v Kachipare 1998 (2) ZLR 271 (S), referred to
S v Tsvangirai & Ors 2003 (2) ZLR 88 (H), referred to
Criminal Law (Codification and Reform) Act [Chapter 9:23], s 113 (2)(c)
Criminal Procedure and Evidence Act [Chapter 9:07], s 198 (3)
L Nkomo, for the applicant
T Muduma, for the second respondent
No appearance for the first respondent
A superior court should always be slow to intervene in unterminated proceedings of an inferior court and will ordinarily not sit in judgment over a matter that is before the court below except in very rare situations where a grave injustice would occur if the superior court does not intervene. Although this Court’s review power may be exercised to grant a mandamus even before the termination of a case if there were gross irregularities in the proceedings or it is apparent that justice might not be attained, the general rule is that this Court’s power of review is exercised only after termination of a criminal case.
The applicant was arraigned before a provincial magistrate in Gwanda, charged with theft in contravention of s 113 (2)(c) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], the allegations being that he stole a sum of
US$ 70 533.34 belonging to the partnership of Enfund and N & S Partnership proceeds from the sale of 43 stands belonging to the partnership which were sold on behalf of the partnership by Umzingwane Rural District Council and the money given to the applicant. It is alleged that instead of using the money to purchase reticulation pipes and pay plumbers laying the pipes on behalf of the partnership the applicant used the money for other purposes.
The applicant pleaded not guilty to the charge and in his defence outline, he stated that he received the proceeds of the sale of the stands in his capacity as the Finance Director of the Partnership, he having been one of the two partners, the other being Nicholas Masuku who is the complainant in the matter. The latter was the operations director.
The money was to be used for, among other things, fuel and oils, pipes for servicing, casual wages, repairs and maintenance of equipment as well as office expenses. When he received the money he used it for that purpose. He therefore disputed stealing the money and maintained that some of the money was actually collected and used by the complainant. Indeed, evidence led on behalf of the State showed that the complainant is the one who received the sum of US$ 2400 in count three which he says he used to pay wages. The complainant’s gripe was that the applicant had not properly accounted for the rest of the money.
At the close of the case for the prosecution the applicant made an application for discharge in terms of s 198 (3) of the Criminal Procedure and Evidence Act [Chapter 9:07] which enjoins the trial court to discharge an accused person at that stage where there is no evidence to prove an essential element of the offence; there is no evidence on which a reasonable court, acting carefully, might properly convict or the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it. See S v Kachipare 1998 (2) ZLR 271 (S) at 276D-E; Attorney-General v Bvuma & Anor 1987 (2) ZLR 96 (S) at 102F-G; Attorney-General v Mzizi 1991 (2) ZLR 321 (S) at 323B; Attorney-General v Tarwirei 1997 (1) ZLR 575 (S) at 576G; S v Tsvangirai & Ors 2003 (2) ZLR 88 (H).
The applicant’s counsel submitted that there was “no iota of evidence” linking him to the commission of the offence and that putting him to his defence would amount to bolstering the State case unable to stand on its own. The evidence of the State was manifestly unreliable that no reasonable court acting reasonably could safely rely on it. The requirements of theft had not been satisfied. As the State had failed to establish a prima facie case the trial court was required to acquit by virtue of the peremptory provisions of s 198 (3) of the Criminal Procedure and Evidence Act.
In response, counsel for the State conceded that the money forming the subject of the charge belonged to the partnership of both the applicant and the complainant. He also conceded that he was entitled to a discharge in respect of count three relating to the money which the complainant admitted to having collected and used.
The learned provincial magistrate would have none of it. In his determination of the application for a discharge at the close of the State case he surprisingly did not address the usual question of whether the evidence adduced for the State had established a prima facie case for which the accused person could be called upon to answer. Instead he reasoned thus:
“In a partnership like the one entered into by accused and the complainant, the property they acquire through such partnership belongs to both of them jointly and not individually unless duly apportioned. If one of the partners uses the property for whatever purpose, the other partner should be appraised fully and timeously. If the property or money is used for the benefit of the project, both parties need to know and agree. In this case complainant is entitled to know how the proceeds of the sale of the 43 stands was spent. Accused has a duty to explain satisfactorily to his partner. For accused to give a verbal explanation how the money was used is not enough. Accountability and transparency on the use of such money is required. Complainant has the right to know. Also, the argument that accused was the owner of the proceeds of the sale of the 43 stands and therefore could not steal such is, to use the word used by the defence, nonsensical. The proceeds belonged to the partnership and not an individual. Accused could therefore steal this money though he was a [partner] if the other partner did not approve of his taking. To discharge accused without having fully explained to the complainant how the proceeds of the sale of the 43 stands at this stage would amount to a gross miscarriage of justice. As I said earlier on, for accused to say I paid wages with this money, I bought fuel and oils or other equipment without documentary evidence to prove accountability is clearly not adequate and does not suffice. Accountability on the use of these funds was required. Complainant is entitled to know. There is nothing civil about this case at this stage.”
So, the applicant was put to his defence not because the State had proved the essential elements of the theft as provided for in the law, or, put it another way, not because the State had established a prima facie case, but merely because, as a partner in a partnership of himself and the complainant, he was required to account to his partner how the money he received was applied.
The applicant has now taken that decision on review in HC 1699/16 and as the respondents are agitating to proceed with the trial on 23 August 2016, he has filed this urgent application for stay of the criminal proceedings pending the review. Mr Nkomo for the applicant pointed to a number of misdirections in the decision but highlighted the failure by the magistrate to acquit the applicant even in count three where the State conceded that the money in that count was received by the complainant and applied for other purposes. If the complainant did not commit an offence neither did the applicant. Above all, this points to the fact that the court did not deal with the application at all but merely dismissed it for no reason.
I have said that this Court will not interfere in unterminated proceedings except where there is gross irregularity resulting in a miscarriage of justice. That is the point made by MALABA JA (as he then was) in Attorney-General v Makamba 2005 (2) ZLR 54 (S) at 64C-E where the learned appeal judge said: