The State v Lovemore Kurotwi and Dominic Mubaiwa

The two accused were indicted to the High Court for trial on a charge of fraud on 10 January 2011. They were initially jointly charged with three other co-accused persons whose charges had been withdrawn before plea, as the state intended to use them as state witnesses. Following this development, the state applied to amend the original charge before plea to incorporate the withdrawal of charges against the three co-accused. The defence objected to the application, arguing that the amendment could only be made after plea, contending that the original charge could only be formally before the Court after the charge had been put and the accused had pleaded to it.

• Whether the Court can amend a criminal charge before plea
• Whether a matter is formally before the High Court once an indictment has been served and the accused committed for trial, even before plea is taken
• Whether the state requires Court permission to amend charges once an accused has been committed to the High Court for trial

1. The objection was overruled. 2. The matter was postponed for 10 days to enable the defence to prepare their response to the application for amendment of the charge before plea.

Once an accused person has been served with an indictment and committed to the High Court for trial pursuant to section 137 of the Criminal Procedure and Evidence Act, the matter is formally before the Court and all trial procedures are under the Court's direction and control. At this stage, the state is not at liberty to alter, amend or substitute charges without the Court's permission, even before plea is taken. A party is entitled to amend a charge at any time before judgment provided there is no prejudice to the other party that cannot be cured by an adjournment or other appropriate relief.

The Court noted it would be "pretentious and devious" for the Court to turn a blind eye and hold that the original charge is not before it when at committal proceedings both the Court and the accused received formal notice of the charge and the Court formally took possession of the charge sheet. The Court also observed that the principle of functus officio prevented it from revisiting its earlier ruling on the same issue in the same matter.

This case establishes important principles regarding criminal procedure in Zimbabwe (which shares similar common law foundations with South African law). It clarifies that once an accused has been indicted and committed to the High Court for trial, the matter is formally before the Court even before plea is taken, and the state requires Court permission to amend or alter charges. The case reinforces judicial control over criminal proceedings once the High Court is seized with jurisdiction, and applies the general principle that amendments should be permitted at any stage before judgment unless prejudice that cannot be cured is demonstrated.