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

The first applicant was the former resident Minister for the Midlands Province and the second applicant was the Midlands Provincial Planning Officer. They were jointly charged with criminal abuse of duty as public officers under section 174(1) of the Criminal Law (Codification and Reform) Act. The State alleged that they unlawfully diverted 1000 residential stands which Gokwe Town Council had allocated to the Ministry of Local Government as 'commonage' and gave them to Striations World Marketing (Pvt) Ltd, which sold the stands to members of the public, thereby showing favour to that company. The first applicant had requested stands for civil servants but Gokwe Town Council declined and instead allocated them to the Ministry. The allocation letter never reached the Ministry, and somehow the first applicant gained control and allocated the stands to Striations. The second applicant allegedly fast-tracked approval of layout plans contrary to procedure, submitting them for ministerial approval before Town Council adoption and withholding the approval letter from Council. Both pleaded not guilty with a bare denial defence. At the close of the State case, they applied for discharge which was dismissed by the trial magistrate. They then sought review of that decision and brought this urgent application for a stay of the criminal trial pending the review outcome.

• Whether the High Court should interfere with ongoing criminal proceedings in a lower court by granting a stay of trial pending review of an interlocutory decision to refuse discharge at the close of the State case
• Whether exceptional circumstances existed warranting interference by the High Court with criminal trial proceedings still in progress before a court with competent jurisdiction
• Whether there was prima facie evidence at the close of the State case to put the accused on their defence on a charge of criminal abuse of duty as public officers under section 174(1)
• The proper scope and elements of the offence of criminal abuse of duty by public officers under section 174(1) of the Criminal Law Code
• Whether it is necessary to outline in detail the specific duties of a minister or public officer in a charge under section 174(1)

The application for stay of criminal trial proceedings was dismissed.

Superior courts will not interfere with ongoing criminal proceedings in lower courts unless there are exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be remedied by other means. The mere fact that an interlocutory order may be wrong is insufficient to justify such interference. In relation to the offence of criminal abuse of duty by public officers under section 174(1) of the Criminal Law Code, the gravamen of the offence is the mental element - the public officer must have intentionally taken advantage of his/her position, influence or power as a public officer to benefit himself/herself or to show favour to another person. Conduct undertaken by a person in a position of power for self-interest or an ulterior or improper purpose is inherently inconsistent with discharge of duty as a public officer. Section 174(1) does not criminalize mere incompetence or unsatisfactory performance of duties, but rather constitutes a species of corruption. It is not always necessary to outline in detail the specific duties of a minister or public officer in a charge under section 174(1), as ministers and public officers must act in accordance with the law and Constitution, which provides the foundational code of ethics and principles governing public administration.

The court made observations about the drafting of the provisional order, noting two problems: (1) the applicants had not taken steps to request urgent set down of the review yet the interim relief if granted would have unlimited validity and could suspend the criminal trial ad infinitum; and (2) the final order sought was identical to the interim relief, meaning the interim relief had more finality than the draft final order which would automatically lapse when the review was determined, giving applicants no incentive to seek confirmation. The court noted it had power to correct such defects and grant any appropriate order. The court distinguished the Kasukuwere judgment relied upon by applicants, noting it concerned an exception to the charge at commencement of trial under section 171, whereas this case concerned an application for discharge at the close of the State case under section 198(3) - different procedural contexts with different considerations. The court referenced constitutional principles including that executive authority derives from the people and must be exercised in accordance with the Constitution (section 88), and the basic values and principles governing public administration including high professional ethics standards (section 194).

This case is significant in Zimbabwean criminal procedure and administrative law for several reasons: (1) It reaffirms the principle that superior courts should exercise restraint in interfering with ongoing criminal proceedings in lower courts and will only do so in exceptional circumstances of proven gross irregularity causing a miscarriage of justice that cannot be remedied by other means. (2) It clarifies the scope and elements of the offence of criminal abuse of duty by public officers under section 174(1) of the Criminal Law Code, emphasizing that the gravamen of the offence lies in the state of mind - intentionally taking advantage of one's position for self-interest or to show improper favour to another, rather than mere incompetence or unsatisfactory performance. (3) It establishes that it is not always necessary to detail exhaustively the specific duties of a minister or public officer in a section 174(1) charge, as ministers must act in accordance with law and the Constitution, and the national code of ethics in the Constitution provides the framework. (4) It characterizes the section 174(1) offence as a species of corruption. (5) It demonstrates that harm that can be remedied by appeal or review after final judgment does not constitute grounds for interim interference with ongoing proceedings.