Funny Machipisa v Ngoni Nduna N.O. and The National Prosecuting Authority

The applicant was employed by the City of Harare as Acting Director of Housing and Community Services. In June 2021, he was arraigned before the first respondent (Regional Court magistrate) 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. The allegations were that he irregularly and fraudulently allocated non-existent stands to various persons seeking land from the city council. The applicant pleaded not guilty and also excepted to the charge in terms of section 170 of the Criminal Law Code, citing irregularities such as failure to specify how he showed favour to the persons allocated stands. The first respondent upheld the exception and directed that the second respondent (National Prosecuting Authority) amend the charge to enable the trial to proceed. The applicant then demanded a verdict of not guilty, contending that after his exception was upheld, he was entitled to such a verdict. The State initially conceded this point, but the first respondent refused to return a verdict of not guilty, leading to the present review application.

• Whether the first respondent's refusal to return a verdict of not guilty after upholding an exception constituted a gross irregularity warranting review
• Whether an accused who pleads not guilty and excepts to a charge is entitled to a verdict of not guilty when the exception is upheld
• Whether the High Court should intervene in unterminated proceedings before the lower court
• The proper interpretation and application of sections 170, 171, and 180(6) of the Criminal Procedure and Evidence Act
• The distinction between upholding an exception and quashing a charge

The application was dismissed. Each party was ordered to bear its own costs.

The binding legal principles established are: (1) Superior courts should intervene in unterminated proceedings in lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to miscarriage of justice which cannot be redressed by any other means, or where the interlocutory decision is clearly wrong so as to seriously prejudice the rights of the litigant; (2) There is a crucial distinction between upholding an exception to a charge and quashing a charge - upholding an exception leaves room for amendment of the charge under section 170(3) of the Criminal Procedure and Evidence Act, while quashing does not; (3) When an exception is upheld and the court directs amendment of the charge (rather than quashing it), the prosecution remains ongoing and the accused is not entitled to demand a verdict of not guilty at that stage; (4) An amendment to a charge does not constitute stopping the prosecution for purposes of section 8(b) of the Criminal Procedure and Evidence Act - the amended charge is not a new charge but the same charge perfected as per the accused's concerns.

The court noted that during oral submissions, counsel for both parties appeared to converge on an approach whereby after upholding the exception, the first respondent should have simply left it open to the prosecution to institute proceedings afresh, with the accused being "discharged, without being found not guilty." The court described this terminology as "somewhat nebulous" and found it would leave proceedings hanging and inconclusive with no clarity as to the way forward. The court also observed that the applicant's counsel appeared ambivalent on whether these were terminated or unterminated proceedings, initially treating them as unterminated in written submissions but suggesting during oral argument that once an accused has pleaded, he is entitled to a verdict. The court noted that the power to quash a summons, indictment or charge appears to be exercised by superior courts, while the Magistrates' Court is restricted to dealing with exceptions under section 170(2).

This case provides important guidance on the High Court's jurisdiction to review unterminated proceedings in lower courts in Zimbabwe. It clarifies the high threshold required for intervention in ongoing criminal proceedings, emphasizing that only exceptional circumstances of proven gross irregularity that go to the root of the proceedings will justify such intervention. The case also clarifies important principles of criminal procedure regarding the distinction between upholding an exception to a charge and quashing a charge, and the proper application of sections 170, 171, and 180(6) of the Criminal Procedure and Evidence Act. It establishes that when an exception is upheld but the charge is not quashed, the court may properly direct amendment of the charge without being required to return a verdict of not guilty, as the prosecution remains ongoing.