Mehluleli Dube v Mungwari Esquire N.O. and The State

The applicant, Mehluleli Dube, was Head of Gold Operations at Fidelity Printers and Refiners. On 13 June 2017, Malvern Chimutashu, representing Vernmal Investments, received US$234,000 from Blessing Chanakira for diesel that was never delivered. Instead, Malvern used US$183,000 to purchase gold from Fidelity Printers and Refiners. When the fraud was discovered, police Assistant Inspector Mudzimukunze contacted the applicant and advised him to temporarily stop the transaction. The applicant stated he was told a court order would be brought but it was never produced at that time. The transaction proceeded. A warrant of seizure was obtained by police approximately 2½ hours later, but by then the payment had already been processed. The applicant was charged with: (1) defeating the course of justice under s 184(1)(e) of the Criminal Code; (2) alternatively, money laundering under s 8(3) of the Money Laundering and Proceeds of Crime Act; and (3) alternatively, criminal abuse of office under s 174 of the Criminal Code for ignoring police directives. The applicant raised an exception to all charges at the commencement of trial in the Magistrates Court, which was dismissed. He then sought review of that decision in the High Court.

• Whether the applicant committed an offence by allowing a transaction to proceed when advised (but not ordered by court order) by police to stop it
• Whether the applicant had knowledge of an ongoing criminal investigation sufficient to establish the mens rea for defeating the course of justice
• Whether there was a legal obligation on the applicant to comply with police advice in the absence of a court order
• Whether the exception raised by the applicant to the charges should have been upheld by the Magistrate
• Whether the applicant's actions in performing his contractual employment duties constituted unlawful conduct

The exception taken by the applicant as a preliminary point was upheld. The main charge of contravening section 184(1)(e) of the Criminal Code (defeating the course of justice) and the alternative charges of contravening section 8(3) of the Money Laundering and Proceeds of Crime Act and section 174 of the Criminal Code (criminal abuse of office) were dismissed forthwith.

For the offence of defeating or obstructing the course of justice to be established, the accused must have actual knowledge that criminal proceedings or investigations are underway, and their act or omission must be designed to defeat or obstruct those proceedings. Mere advice from police to refrain from completing a transaction, without production of a court order or other lawful directive, does not create a legal obligation to comply, nor does it establish the requisite knowledge of criminal proceedings. An employee performing bona fide contractual employment obligations, without any personal gain or involvement in alleged criminal conduct, does not commit an unlawful act by continuing to perform those duties in the absence of a court order preventing such performance. The prosecution must establish both the mens rea (criminal intent and knowledge) and actus reus (unlawful act) to sustain criminal charges.

The court observed that the applicant had nothing to gain from the transaction proceeding, was unknown to both the fraudster and victim, and at all times was acting as an employee of Fidelity Printers and Refiners in the course of his employment. The court further noted that Fidelity Printers and Refiners itself had nothing to gain from the transaction proceeding. The court commented that the applicant's actions did not end or forfeit the criminal investigation, and there was no indication that any money was lost or that any financial prejudice was occasioned. The court noted that the applicant was not even mentioned in the Investigation Officer's witness statement for the fraud investigation, further supporting the conclusion that there was no basis for the criminal charges against him.

This case is significant in Zimbabwean criminal law as it clarifies the elements required for the offence of defeating or obstructing the course of justice, particularly regarding the requirement of knowledge of ongoing criminal proceedings and the distinction between informal police advice and legally enforceable court orders. It establishes that employees performing bona fide contractual obligations cannot be held criminally liable for obstruction of justice absent proof of actual knowledge of criminal proceedings and production of a lawful order (such as a court order) requiring them to act or refrain from acting. The case reinforces procedural safeguards and the principle that criminal liability requires proof of mens rea and an unlawful act, not mere compliance with employment duties in the absence of legal compulsion to do otherwise.