The State v Benjamin Paradza

The accused, Benjamin Paradza, a judge of the High Court of Zimbabwe, was charged with inciting fellow judges (Justice Cheda and Justice Chiweshe) to corruptly release the passport of Russell Wayne Labuschagne, who was on bail facing murder charges. Labuschagne's passport was being held by the Registrar as a bail condition. The accused had a business interest with Labuschagne in hunting operations and stood to gain or lose US$60,000 depending on whether Labuschagne could travel abroad to source clients. On 15 and 16 January 2003, accused approached Justice Cheda by telephone, and on 24 January 2003 approached Justice Chiweshe, to have Labuschagne's passport released. Justice Cheda, who had been approached three weeks earlier by one Anand with an attempted bribe regarding the same matter, became alarmed and reported the matter to the Judge President and police. The conversation of 16 January 2003 was tape-recorded, producing a transcript (Exhibit 16) of poor quality but discernible content. The accused claimed he only asked the judges to assess the record and advise on prospects of a bail variation application, acting in his personal capacity as a businessman, not as a judge.

• Whether the accused's conduct amounted to incitement to commit statutory corruption under section 360(2)(b) of the Criminal Procedure and Evidence Act read with section 4(a) of the Prevention of Corruption Act
• Whether the accused acted in his capacity as a public officer or in a personal capacity
• Whether an offer of inducement or benefit is an essential element of statutory corruption under section 4(a) of the Prevention of Corruption Act
• Whether the accused intended the judges to act contrary to or inconsistent with their duties for the purpose of showing favour or disfavour
• Whether the release of the passport would defeat or obstruct the course of justice
• Admissibility and weight of tape-recorded evidence of poor quality

The accused was found guilty on Count 1 and Count 2 (incitement to commit statutory corruption in contravention of section 360(2)(b) of the Criminal Procedure and Evidence Act read with section 4(a) of the Prevention of Corruption Act). The accused was acquitted on the two alternative counts of attempting to defeat or obstruct the course of justice.

1. Statutory corruption under section 4(a) of the Prevention of Corruption Act [Chapter 9:16] does not require proof of an inducement or benefit being offered or promised; this distinguishes it from common law bribery. The elements are: (i) a public officer; (ii) acting in the course of employment; (iii) doing something contrary to or inconsistent with duty; (iv) for the purpose of showing favour or disfavour to any person. 2. Incitement under section 360(2)(b) of the Criminal Procedure and Evidence Act can be committed by "any person" regardless of capacity, through various means including request, suggestion, persuasion, or inducement. The decisive question is whether the accused reached and sought to influence the mind of another person toward commission of a crime. 3. A judge who approaches fellow judges to influence their exercise of discretion in a matter in which the judge has disclosed a personal financial interest, particularly when the judges are not seized with the matter and the proper person to approach is available, and does so in a secretive manner, commits incitement to corruption even without offering a benefit. 4. The presumption in section 15(2)(c) of the Prevention of Corruption Act applies where it is proved that a public officer in breach of duty did something showing favour or disfavour; it is then presumed the officer did so for the purpose of showing favour or disfavour unless the contrary is proved on a balance of probabilities.

The court observed that the way the indictment was framed caused confusion, as it should have clearly stated the accused was charged with contravening section 360(2)(b) (incitement) as read with section 4(a) of the Prevention of Corruption Act, rather than appearing to charge direct contravention of section 4(a). The court noted that judges do consult each other on matters in the ordinary course of their duties, but it is improper for a judge to approach another judge to seek favour in a matter, particularly where the approaching judge has a personal interest. Such conduct may be improper even if it does not amount to criminal incitement, and would be a matter for disciplinary tribunals. The court remarked on the accused's extraordinary lack of inquiry from the obvious sources (Labuschagne himself, Ralph Nkomo, Justice Kamocha who was dealing with the matter and was next door, or the legal representatives) regarding the details and status of Labuschagne's case. The court also observed on the accused's remarkable nonchalant attitude to being informed that his business partners had attempted to bribe Justice Cheda, which a reasonable person in accused's position would have investigated or at least mentioned to the business partners.

This case is significant in Zimbabwean criminal law for clarifying the elements of statutory corruption under the Prevention of Corruption Act, particularly that no inducement or benefit need be offered or promised, distinguishing it from common law bribery. It establishes important principles regarding judicial conduct and the crime of incitement. The case demonstrates that a judge approaching fellow judges to influence their exercise of discretion in a matter in which the judge has a personal interest, even without offering a benefit, can constitute incitement to corruption. It affirms that incitement can take various forms and the decisive factor is the intention to influence another's mind toward commission of a crime. The case also addresses the weight to be given to tape-recorded evidence of poor quality when corroborated by other evidence and the overall probabilities. It reinforces professional and ethical standards expected of judicial officers and the serious consequences of breaching them.