Alphonsus Obioma Achinulo v W. Maphios Moyo N.O and The State

The applicant was arraigned before a provincial magistrate in Gwanda charged with theft in contravention of s113(2)(c) of the Criminal Law Code, allegedly having stolen $70,533.34 belonging to a partnership (Enfund and N & S Partnership) of which he and the complainant Nicholas Masuku were the two partners. The money represented proceeds from the sale of 43 stands sold on behalf of the partnership by Umzingwane Rural District Council. The applicant received the money in his capacity as Finance Director of the partnership, while the complainant was operations director. The money was to be used for fuel and oils, pipes for servicing, casual wages, repairs and maintenance of equipment, and office expenses. The applicant pleaded not guilty, stating he used the money for its intended purposes and that some money was collected and used by the complainant himself. At the close of the state case, the applicant applied for discharge under s198(3) of the Criminal Procedure and Evidence Act. The state conceded that the money belonged to the partnership and that the applicant was entitled to discharge on count 3 (relating to $2,400 received by the complainant). The magistrate refused the discharge application, reasoning that the applicant had a duty to account to his partner and that verbal explanation was insufficient. The applicant then sought review of this decision and filed an urgent application for stay of criminal proceedings pending the review.

• Whether a superior court should intervene in unterminated criminal proceedings before a magistrate's court
• Whether the magistrate properly applied the test for discharge at the close of the state case under s198(3) of the Criminal Procedure and Evidence Act
• Whether the state had established a prima facie case of theft against the applicant
• Whether a partner in a partnership can be guilty of theft of partnership property
• Whether the magistrate misdirected himself by requiring the accused to account to his partner rather than determining if the essential elements of theft were proved
• Whether the irregularity in the proceedings was sufficiently gross to warrant intervention in unterminated proceedings

The provisional order for stay of criminal proceedings was granted in terms of the draft order, pending determination of the review application in HC 1699/16.

A superior court will intervene in unterminated criminal proceedings only in exceptional circumstances where there is proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means. When determining an application for discharge at the close of the state case under s198(3) of the Criminal Procedure and Evidence Act, the trial court must address whether the evidence adduced by the state has established a prima facie case - whether there is evidence to prove essential elements of the offence, evidence on which a reasonable court acting carefully might properly convict, and whether the evidence is sufficiently reliable. It is a fundamental principle of criminal law that the accused person bears no onus to prove anything. An accused cannot be put to his defence merely to account for his conduct or to clear his name, but only where a prima facie case has been established. A gross irregularity relating to the method of trial (requiring an accused to account rather than applying the proper legal test) and not just the result of a decision, can justify intervention by way of review in unterminated criminal proceedings.

The court observed that the dispute between the parties appeared to be a civil matter that was pending in the High Court (HC 1722/12) and that the parties had signed an agreement resolving the same dispute, suggesting this may well be a civil dispute where no criminal case may have been established. The court noted that it is a necessary feature of every system of adversarial administration of justice that there should be a higher court in the hierarchy to correct judicial errors. The court emphasized the distinction between appeal (which addresses whether the court came to a wrong conclusion on facts or law) and review (which addresses the method of trial and validity of the decision rather than its correctness). The court stated that in determining whether to exercise its discretion to stay proceedings, it would be injudicious to stay unterminated criminal proceedings where the court is unlikely to exercise its review powers in favour of the applicant.

This case is significant in South African and Zimbabwean criminal procedure jurisprudence as it clarifies the limited circumstances in which a superior court will intervene in unterminated criminal proceedings. It reinforces the proper test for discharge at the close of the state case under s198(3) of the Criminal Procedure and Evidence Act - that the court must determine whether a prima facie case has been established, not whether the accused can account for their conduct. The judgment emphasizes the fundamental principle that an accused person bears no onus to prove anything in criminal proceedings. It also demonstrates that a gross irregularity relating to the method of trial (not just the result) can justify intervention in unterminated proceedings. The case illustrates the important distinction between civil disputes between partners and criminal theft charges, and the danger of using criminal proceedings to enforce civil accountability.