Jaison Max Kokerai Machaya and Chibururu Chisainyerwa v The State and Charity Maphosa N.O.

The applicants were charged with contravening s 174(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] for criminal abuse of duty as public officers. The first applicant was Governor and Resident Minister for Midlands Province from August 2008, and the second applicant was the Midlands Provincial Planning Officer since 2005. The allegations were that between 2012 and December 2017, they unlawfully took 1000 stands that had been allocated to the Ministry of Local Government as commonage by Gokwe Town Council and diverted them to Striations World Marketing (Private) Limited Company, which then sold the stands to the public. The applicants allegedly exerted pressure on Gokwe Town Council to adopt a layout plan for Mapfungautsi Extension, demanded the surrender of 1000 stands out of 3360, allocated these stands to Striations World Marketing, and generated fake minutes to sanitize the transaction. The stands were sold at $3,900 each. Upon arraignment, the applicants pleaded and excepted to the charge, arguing that it did not disclose an offence and that the land in question was not commonage. The trial magistrate dismissed the exception, and the applicants sought to review that decision while applying for a stay of criminal proceedings pending the review.

• Whether the charge disclosed an offence known to law
• Whether the exception to the charge was properly dismissed by the trial magistrate
• Whether the intended review application had prospects of success to warrant a stay of criminal proceedings
• What constitutes commonage land under the Manual for Management of Urban Land
• Whether an exception should be directed at defects in the charge or disputes about facts
• Whether the applicants were prejudiced in their defence by the charge
• Whether the first applicant qualified as a public officer despite the post of Provincial Governor being abolished by the Constitution

The application for stay of criminal proceedings was dismissed.

An exception to a criminal charge is taken only to formal defects apparent on the face of the charge, not to disputes about the facts accompanying the charge. A charge is sufficient if it sets forth the offence with such particulars as to time, place, person and property as may be reasonably sufficient to inform the accused of the nature of the charge (s 146 of the Criminal Procedure and Evidence Act). An accused is not prejudiced in their defence if they are able to plead and except simultaneously and outline their defence. Superior courts will only intervene in uncompleted criminal proceedings sparingly, in rare cases where there is a miscarriage of justice. For a review to succeed on grounds of unreasonableness, the decision must be grossly unreasonable - completely wrong and defying all logic - not merely incorrect or representing a different view of the law. Factual disputes, including what constitutes commonage land, are triable issues to be determined by the trial court, not through exception proceedings.

The court observed that it has become fashionable to challenge the dismissal of exceptions by way of review even where applicants have not demonstrated how they were prejudiced in their defence. The court suggested that the applicants appeared to be unhappy with the decision to dismiss the exception rather than how that decision was arrived at, and that the proper remedy would have been an appeal, but the applicants must have found mounting an appeal at that stage untenable. The court commented that the charge "could have been drafted with more precision" but found this did not constitute a fatal defect. The court noted that whether the first applicant was a Governor or not was irrelevant - what would need to be proved is whether he held a paid office in the service of State.

This case is significant in Zimbabwean criminal procedure for clarifying the limited scope of exceptions to criminal charges. It reinforces the principle that exceptions are directed at formal defects in charges, not factual disputes that should be resolved at trial. The judgment also provides guidance on when superior courts will intervene in uncompleted criminal proceedings through review, establishing a high threshold requiring demonstration of gross unreasonableness rather than mere incorrectness. The case illustrates the distinction between matters appropriate for appeal versus review, and emphasizes that factual disputes (such as what constitutes commonage land) cannot be determined through exception proceedings but must be resolved through the trial process. It also confirms that an accused's ability to plead and outline their defence demonstrates they were not prejudiced by the charge formulation.