Simon Mudzingwa Taranhike v The State

The applicant was employed by ZINARA as Finance Director. On 1 April 2019, he instructed a subordinate, Dennis Jaricha, to issue 1,800 litres of fuel coupons to Davison Vandira, a journalist from Zimbabwe Broadcasting Corporation (ZBC), without following proper procedure for issuance of fuel to external stakeholders. ZINARA suffered prejudice of $6,354.00 with nothing recovered. The applicant was convicted by a Harare Magistrate for violating section 174(1) of the Criminal Law (Codification and Reform) Act - criminal abuse of duty as public officer. He was sentenced to 30 months imprisonment, with 6 months suspended on condition of good behaviour and 9 months suspended on condition of restitution to ZINARA. In his defence, the applicant claimed he acted on instructions from the Board Chairman, Michael Madanha, and that the allegations were motivated by workplace power struggles for the vacant Chief Executive Officer position. He maintained that as Finance Director, he was not responsible for generating fuel requisitions or processing correspondence, but merely relayed the Board Chairman's instruction to relevant stakeholders. The applicant filed a notice of appeal against both conviction and sentence with 8 grounds of appeal, and applied for bail pending appeal.

• Whether acting on an unlawful instruction from a superior can justify a conviction for criminal abuse of office under section 174(1) of the Criminal Law (Codification and Reform) Act
• Whether the applicant possessed the requisite mens rea (criminal intention) for the offence where he acted on instructions from the Board Chairman
• Whether the magistrate misdirected himself by convicting on the basis of unlawfulness of an instruction when this issue had not been addressed by counsel at trial
• Whether the defence of obedience to orders applies beyond members of disciplined forces
• Whether the applicant has reasonable prospects of success on appeal to justify granting bail pending appeal
• Whether the sentence imposed was appropriate in the circumstances

Bail pending appeal was granted on the following conditions: (a) The applicant be admitted to bail pending appeal in case No. HC CA 747/19; (b) The applicant shall reside at 22 Coronation Road, Greendale, Harare, until the appeal is finalized; (c) The applicant shall deposit $2,000.00 with the Registrar of the High Court, Harare; (d) The applicant shall surrender his passport with the Registrar of the High Court, Harare; (e) The applicant shall report once every week on Fridays between 6am and 6pm at Rhodesville Police Station until the appeal is finalized.

In applications for bail pending appeal, the function of the court is not to satisfy itself beyond any measure of doubt whether grounds of appeal are doomed to fail. If the applicant has some fighting chance on appeal, and all other relevant factors are neutral, the applicant must be entitled to relief. The test is whether the appeal is free from predictable failure. Where a trial court convicts an accused on the basis of an issue (such as the unlawfulness of an instruction) that was not addressed by counsel for either party at trial, and where the court accepts that the accused acted on instructions from a superior, this raises a debatable question regarding whether the accused possessed the requisite mens rea for the offence. The effect of acting on an unlawful instruction on criminal liability for abuse of office is a matter suitable for appellate determination and can ground bail pending appeal. The provisions on obedience to unlawful orders as a defence (section 269 of the Criminal Law (Codification and Reform) Act) are specific to members of disciplined forces and cannot be read together with section 174 concerning criminal abuse of duty by public officers.

The court observed, citing Mostert v State, that while the defence of obedience to orders usually arises in the military context, the fact that it arose from military settings does not make its application exclusive to soldiers only. The court noted approvingly the principle from R v Wallendorf that ordinarily a crime is not committed if the mind of the person doing the act is innocent, and that the test for intention is subjective - the court must try to imagine itself in the accused's position when he committed the act. The court also cited with approval the warning in S v Mini against adopting an armchair approach when determining the state of mind of an accused. The court noted that there were no written standard operating procedures at ZINARA, and that directors could give instructions for fuel to be issued without requisite paperwork depending on urgency. The court observed that the applicant's defence included allegations of workplace power struggles and that he had made enemies when he caused the arrest of 24 employees for vehicle licence fee leakages.

This case is significant in Zimbabwean jurisprudence as it addresses important issues concerning: (1) the requisite mens rea for conviction under section 174(1) of the Criminal Law (Codification and Reform) Act (criminal abuse of duty as public officer); (2) the applicability of the defence of obedience to orders outside the context of disciplined forces; (3) the proper approach to determining whether unlawful instructions from superiors negate criminal liability; (4) the standard for granting bail pending appeal in Zimbabwe, reaffirming that the test is whether the appeal is free from predictable failure rather than whether it will succeed; and (5) procedural fairness requirements in criminal trials, particularly the need for courts to avoid convicting on bases not addressed by counsel during trial. The case provides guidance on the interplay between hierarchical authority in employment relationships and individual criminal responsibility for public officers.