Godfrey Machiwana v The State

The appellant operated a petroleum gas filling business at Bvunzawabaya Complex in Hauna from 2017. On 29 July 2018 at around 0001 hours, a fire broke out at the building from which the appellant was operating. This prompted officials from Zimbabwe Energy Regulatory Authority to attend the scene. When requested to produce a valid petroleum gas operation licence, the appellant had none and could not produce one. Evidence showed that 5x48 kg of Liquid Petroleum gas cylinders were inside the room used for repairing refrigerators. The appellant confirmed he sold LP gas on an ad hoc basis and took bulk deliveries of gas, including deliveries at night. There was an advertisement for the gas business on the building. The appellant was charged in his personal capacity, though he claimed to operate through a company called Mach-One Refrigeration and Electricals (Pvt) Limited. He was convicted by the Magistrates Court at Mutasa for contravening section 29 of the Petroleum Act and sentenced to pay a fine of RTGS$ 8,500.00 or in default 6 months imprisonment.

• Whether the court erred in convicting the appellant in his personal capacity despite evidence that a company was operating the business
• Whether the charge was properly drafted and could be amended on appeal
• Whether there was sufficient evidence that the appellant was procuring and selling liquid petroleum gas without a retail licence
• Whether the doctrine of piercing the corporate veil could be applied to hold a director personally liable for regulatory offences

The appeal was dismissed. The conviction and sentence imposed by the Magistrates Court at Mutasa were upheld.

The binding legal principles established are: (1) A director can be charged and convicted in his personal capacity for regulatory offences where the evidence shows he was operating as a sole dealer and the company appears to be a mere name, with the director personally benefiting from the illegal activity; (2) Section 385(3)(v) of the Criminal Procedure and Evidence Act does not exempt a director from prosecution in his personal capacity even where a company could be charged, particularly where the crime is committed while furthering the director's own interests; (3) The citation of a company in representative capacity under section 385(3) only applies where the company itself is being charged, not where a director is charged personally; (4) An inelegantly drafted charge may be amended on appeal by consent where the amendment does not prejudice the accused, does not introduce a new charge, does not change the essential components of the offence, and does not require a change of defense.

The court made observations about the poor drafting of the original charge, noting that the trial court, public prosecutor and defence counsel all paid a "blind eye to the inelegance in the manner the charge was drafted." The original charge cited the whole Energy Regulatory Authority Act instead of making specific reference to the relevant section. The court also observed that the trial court had the advantage of seeing and hearing witnesses and assessing their credibility, which an appellate court should be slow to interfere with. The court commented on the appellant's prevarication regarding the quantity of gas and tanks he had, noting that he only "buckled during cross examination" when questioned about gas tanks received from Mutare on the day the premises caught fire.

This case is significant in Zimbabwean criminal and corporate law as it clarifies the circumstances in which a director can be held personally liable for regulatory offences despite operating through a corporate entity. It establishes that where a company appears to be a mere name with the director personally benefiting and operating as a sole dealer, the corporate veil can be pierced for purposes of criminal liability. The case also demonstrates the application of section 385(3)(v) of the Criminal Procedure and Evidence Act, which allows prosecution of directors in their personal capacity even when a company could theoretically be charged. Additionally, it provides guidance on when amendments to charges can be permitted on appeal without prejudicing the accused.