The State v Godfrey Gandawa and Shephard Honzeri and Nicholas Mapute

Three accused persons appeared before the High Court of Zimbabwe on 21 May 2018 facing multiple criminal charges: 3 counts of fraud, 4 counts of criminal abuse of duty as a public officer, 4 counts of money laundering, and 3 counts of corruptly concealing from principal a personal interest in a transaction. They did not plead to the charges. The accused were originally part of a 5-person indictment dated 31 March 2018, but charges against two co-accused (Jonathan Moyo and Frederick Mandizvidza) were withdrawn before plea. The trial was postponed to 5 November 2018. On that date, the 1st accused Godfrey Gandawa did not appear. The 2nd accused Shephard Honzeri arrived late at 10:40 am after court had convened at 10:20 am. His counsel Mr Nyakunika explained the delay was due to seeking affordable photocopying facilities as the accused lacked financial resources. The 3rd accused Nicholas Mapute was present.

• Whether the trial could proceed in the absence of the 1st accused
• Whether a warrant of arrest should issue for the accused in default
• Whether the indictment had become stale having been pending since 31 March 2018 without trial
• The duty of counsel to inform the court timeously of inability to proceed at scheduled times
• Court management of pending criminal cases under section 137 of the Criminal Procedure and Evidence Act

The court ordered: (i) A warrant of arrest to issue for the 1st accused Godfrey Gandawa for being in default; (ii) The 2nd and 3rd accused were each ordered to appear before court on 30 November 2018 at 10:00 am, the trial being postponed to that date by consent.

The binding legal principles established are: (1) Under section 137 of the Criminal Procedure and Evidence Act [Chapter 9:07], once an indictment is lodged with the Registrar, the case is deemed pending in the High Court; (2) An indictment becomes stale if the accused is not brought to trial within 6 months of the indictment date, absent circumstances beyond the Prosecutor General's control showing the absence or inability of an accused to stand trial; (3) Where an indictment has lapsed due to staleness, there is no valid indictment before the court and the case must be dismissed; (4) Legal practitioners owe a duty to inform the court and seek indulgence when unable to commence trial at scheduled times; (5) A warrant of arrest may properly issue when an accused fails to appear after being called three times in accordance with procedure.

The court made several important non-binding observations: (1) Criminal trials are not child's play and must be taken seriously as they concern rights to liberty and are of public interest; (2) Highest standards of ethics and professionalism must be exhibited at all stages by counsel and every court officer involved in criminal trials; (3) It is important and respectful to the court and stakeholders (police court orderly, interpreter, prison wardens, witnesses, public) that counsel appears at appointed times; (4) The High Court should not allow its time to be wasted by scheduling hearings doomed for abortive or false starts; (5) Both the Prosecutor General and defence counsel should agree the way forward beforehand; (6) While the decision to continue with a prosecution is entirely up to the Prosecutor General, the court noted this case had more than one false start and the Prosecutor General should ensure trials of available accused persons are held within times provided by law.

This case is significant for establishing important principles regarding criminal trial management in Zimbabwe, particularly: (1) The principle that indictments become stale if trial does not commence within 6 months absent circumstances beyond the Prosecutor General's control; (2) The duty of legal practitioners to inform courts timeously of inability to proceed and to exhibit highest professional standards in criminal matters; (3) The High Court's case management powers under section 137 of the Criminal Procedure and Evidence Act; (4) That the High Court is not a remand court and must manage its time efficiently. The judgment emphasizes the public interest nature of criminal trials and the rights to liberty involved, requiring all stakeholders to treat such proceedings with appropriate seriousness.