This is an appeal against the whole judgment of the High Court Harare, dated 6 July 2022, dismissing the appellant's application for the review of the first respondent's refusal to find the appellant not guilty in spite of his having upheld the appellant's exception, taken together with the plea, in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter 9.07] (the Act).
BACKGROUND FACTS
The facts giving rise to this appeal are as follows:
The appellant is employed by the City of Harare (“the City Council”) as Deputy Director of Housing and Community Services, and was, at the time of the alleged commission of the offence, the Acting Director of Housing and Community Services when the incumbent was attending a week-long workshop in Kadoma.
In June 2021, he was arraigned before the first respondent, facing a charge of “criminal abuse of duty as a public officer, in contravention of section 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]” (the Criminal Law Code).
The allegations levelled against him are that he irregularly and fraudulently allocated non-existent Stands to various persons who had applied for Stands to the City Council but were not yet due for allocation of Stands and some who were not on the City Council's waiting list.
The first objection, taken by way of exception, was taken with the consent of the parties in terms of section 170(2) of the Criminal Procedure and Evidence Act. At that stage, the appellant only objected and did not plead to the charge.
It enabled the first respondent to order the second respondent to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act to which it added an alternative charge of fraud.
The amended charges were read to the appellant, who pleaded and excepted to them, in terms of section 180(4) of the Criminal Procedure and Evidence Act.
In his exception, the appellant pointed out certain irregularities in the amended charges, such as, the failure to specify how he showed favour to the persons he allocated the non-existent Stands to.
The first respondent upheld the exception.
It ordered, that, the trial should proceed on the basis of the charge he ordered the prosecution to amend and prefer against the appellant in terms of section 170(3) of the Criminal Procedure and Evidence Act.
The appellant demanded a verdict of not guilty and an acquittal.
His counsel contended, that, after his exception was upheld, he was entitled to a verdict of not guilty and an acquittal as his plea remained hanging in the air pending the charge the first respondent had ordered the second respondent to amend.
In his submissions on the appellant's demand to be found not guilty and acquitted, the State's counsel conceded, that, the appellant was indeed entitled to a verdict of not guilty.
In his ruling, the first respondent refused to return a verdict of not guilty, as demanded by the appellant, notwithstanding the concession made by the prosecution. He, ruled that:
“Section 170(3) of the Code provides what happens where an exception has been made it (sic) is stated that:
'(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared.'
In the event of an exception being upheld, the indictment shall be amended and the trial shall proceed as if no such defect had appeared.”…,.
Aggrieved by the first respondent's refusal to return a verdict of not guilty, the appellant filed an application for review in the court a quo.
The basis of his application is stated in his notice of application, which partly reads as follows:
“Illegality: The decision by the first respondent [in State v Funny Machipisa ACC158/20] not to return a verdict of 'Not Guilty' after upholding the applicant's exception, which exception had been taken in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter: 9:07], is illegal as a contravention of section 180(6) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The applicant was entitled, as of right, to a 'Not Guilty' verdict once an exception which he had taken after pleading 'Not Guilty' had been upheld.”
SUBMISSIONS MADE IN THE COURT A QUO
Submissions made by the appellant
In moving for a not-guilty verdict..., counsel for the applicant argued that the first respondent's decision was tainted by either 'gross irregularity' or by being 'clearly wrong.' He contended, that, the not-guilty plea which he tendered inevitably ought to have been followed by a not-guilty verdict. It could not “hang in the air waiting for an amended charge.”
He submitted, that, section 180(6) of the Criminal Procedure and Evidence Act provides that any person who has pleaded is entitled to a verdict. He therefore submitted, that, the first respondent's decision violated that provision and, as such, constituted a gross irregularity.
The applicant's counsel further contended, that, section 180(6) of the Criminal Procedure and Evidence Act should be read together with section 8(b) of the Criminal Procedure and Evidence Act, which makes an acquittal mandatory whenever charges are withdrawn after a plea.
The second respondent's submissions
In countering the appellant's averments, counsel for the second respondent contended, that, there was no irregularity in the first respondent's decision. He submitted, that, the first respondent acted in accordance with the law. He further submitted, that, the first respondent has the discretion to direct the prosecution to amend the charge, among other options.
Counsel for the second respondent further contended, that, an order to amend a charge is an interlocutory ruling.
It is a ruling made in the course of ongoing, uncompleted proceedings, which superior courts do not interfere with except in exceptional circumstances where it would have been established that the lower court committed a gross irregularity or was clearly wrong. He further argued, that, no gross irregularity had been proven in respect of the manner in which the trial court conducted the proceedings, warranting interference by the court a quo.
In spite of his earlier resistance to the application for review, counsel for the second respondent subsequently changed course and conceded, that, the first respondent erred and his decision should be set aside on review.
DETERMINATION OF THE COURT A QUO
After hearing counsel, the court a quo held that it could not interfere with un-terminated proceedings, as there was no justification for such intervention. It did not agree with the submissions of the applicant's and second respondent's counsel, that, the first respondent erred in refusing to find the appellant not guilty.
In arriving at its decision, that the trial court had correctly applied the law, the court a quo said:
“In casu, the pertinent question is, does the first respondent's decision fall into the exceptional category reflecting gross irregularity?
We think not.
An examination of the first respondent's ruling shows, that, he took guidance from the applicable law. To begin with, he exercised the discretion provided for in section 171 of the Criminal Procedure and Evidence Act, where an accused person decides to both plead and except to the charge. Section 171 reads:
'(1) When the accused excepts only and does not plead any plea, the court shall proceed to hear and determine the matter forthwith, and, if the exception is over-ruled, he shall be called upon to plead to the indictment, summons or charge.
(2) When the accused pleads and excepts, together, it shall be in the discretion of the court whether the plea or exception shall be first disposed of.'
…,.
The first respondent exercised his discretion in terms of subsection (2) and dealt with the exception first.
What was he then going to do with the plea of not guilty, which had been tendered together with the exception?
The first respondent was guided by section 170(3), which allows amendment of the indictment summons or charge provided such amendment does not prejudice the accused in his defence.
This section provides as follows:
'(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary, and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and, thereupon, the trial shall proceed as if no such defect had appeared.'
A significant aspect of the first respondent's ruling is the distinction he draws between the upholding of an exception and the quashing of the charge. These are different courses of action provided for in section 170(1). The accused either excepts to the charge, or…,.”
It further dealt with situations where a superior court can interfere with unterminated proceedings. It stated, that, the test for intervening in un-terminated proceedings is high, as repeatedly emphasized by case law. It found no gross irregularity in the first respondent's ruling, and dismissed the application before it.
Aggrieved, the appellant noted the present appeal on the following grounds:
GROUNDS OF APPEAL
The appellant's grounds of appeal read as follows:
“1. The court a quo improperly exercised its discretion and misdirected itself in finding, that, there was no gross irregularity in the first respondent's refusal to return a verdict of 'Not Guilty' after upholding the appellant's exception to the charge, which exception had been taken in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter 9:07].
2. The court a quo erred in law and misdirected itself in not finding, that, the first respondent's refusal to return a verdict of 'Not Guilty' after upholding the appellant's exception to the charge, which exception had been taken in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter 9:07], was so clearly wrong as to warrant its review before the termination of proceedings.”
SUBMISSIONS MADE BEFORE THIS COURT
Appellant's submissions
Counsel for the appellant submitted, that, both parties agreed, before the trial court, that, the appellant was entitled to a verdict of not guilty after the exception was upheld. It was further submitted that the first respondent refused to return a verdict of not guilty, notwithstanding the concession made by the second respondent, resulting in the appellant's application for review before the court a quo.
He submitted, that, in terms of section 180(6) of the Criminal Procedure and Evidence Act, any person who has pleaded to a charge is entitled to a verdict, and that, after upholding the exception, the trial court ought to have returned a verdict of 'Not Guilty' as had been pleaded.
He further submitted, that, the court a quo was not clear in its approach to reviewing un-terminated proceedings in that it should have first asked itself whether the appellant established the grounds of review.
He also argued, that, if review grounds exist, it ought to have questioned the degree to which the grounds of review had been established. He submitted that the court a quo did not render a decision on this issue.
He further submitted, that, if one pleads 'Not Guilty' and the charge is thrown out, one remains not guilty and proceedings should come to an end at that stage.
He argued, that, the trial court had no authority to amend the charge, in view of the fact, that, the exception was taken, together with the plea, in terms of section 180(4) of the Criminal Procedure and Evidence Act.
Counsel for the appellant also contended, that, section 171(2) of the Criminal Procedure and Evidence Act gives the court discretion on what it can dispose of first when an accused person pleads and excepts at the same time.
He submitted that the court a quo has jurisdiction to review unterminated proceedings, and the court ought to take a two-staged approach in such circumstances, which are:
1. It must ask itself, has the appellant established the grounds of review?
2. If the grounds for review exist, it should ask itself a second question, have the grounds been established to the required degree?
In respect of the above questions, counsel for the appellant argued, that, the court a quo erred when it held that there was no irregularity in the proceedings before the first respondent.
He further emphasised, that, if one pleads not guilty and the charge is thrown out, one remains not guilty at that stage. He argued that proceedings should come to an end at that stage and that the State should start a fresh action.
He argued, that, the first respondent had no authority to order an amendment after the exception had been taken together with the plea. He argued that a plea of 'Not Guilty' cannot hang in the air.
He contended that the discretion must be exercised in a way that disposes of the matter.
Submissions by the second respondent
Conversely, counsel for the second respondent submitted, that, there was no gross misdirection as the court a quo exercised its discretion judiciously.
She submitted, that, since the appellant pleaded and excepted to the charges at the same time, section 171(2) of the Criminal Procedure and Evidence Act allows the court discretion on which to dispose of first, between the plea and the exception.
She further submitted, that, the discretion was properly exercised in moving for an amendment of the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act - after upholding the exception.
STAY OF PROCEEDINGS IN THE TRIAL COURT
At the end of their submissions, the parties applied for the stay of proceedings in the Magistrates Court until judgment in this case is handed down.
We agreed with the parties and ordered that the proceedings before the trial court be stayed pending the determination of this appeal.
During the preparation of this judgment, it became apparent to the court that there was need to give the parties an opportunity to make submissions on the interpretation of section 170(2) and (3) of the Criminal Procedure and Evidence Act, on the issue of whether or not it was competent for the first respondent to order the amendment of the charge when the appellant had pleaded and excepted in terms of section 180(4) of the Criminal Procedure and Evidence Act.
The need arose as this Court has to determine whether or not the first respondent could lawfully invoke the provisions of section 170(3) of the Criminal Procedure and Evidence Act, after upholding the appellant's exception, taken together with the plea of 'Not Guilty' in terms of section 180(4) of the Criminal Procedure and Evidence Act.
That issue had not been adequately covered by the parties at the hearing of the appeal.
