The State v Michael Changunda

The accused, Michael Changunda, was the owner of Zvevatsunga Spar Supermarket Juru and also operated Takudzwa General Dealer at Juru. On 27 August 2020, Sly Mutyavariri from the Medicines Control Authority of Zimbabwe (MCAZ), accompanied by ZRP officers from Juru, inspected both premises. The accused was found to be selling medicines at both locations without a licence to sell medicines, on premises not licenced for selling medicines, and without supervision by a licenced person. The medicines found (listed on Annexures A and B) included unregistered medicines originating from India. The accused failed to produce any required licences and his name did not appear on the MCAZ register kept in terms of s 54 of the Medicines and Allied Substances Control Act. All medicines were confiscated. The accused pleaded guilty to four counts and was convicted on all counts as charged.

• Whether the charges were properly framed under the Medicines and Allied Substances Control Act [Chapter 15:03]
• Whether multiple distinct offences under sections 55(1)(a), 55(1)(b) and 29(1)(a) of the Act were improperly combined into convoluted charges
• Whether the splitting of charges resulted in the accused being convicted of more counts than were properly established by the evidence
• Whether the convictions constituted a miscarriage of justice warranting review

The convictions were quashed and the sentences were set aside. The court noted that if the Prosecutor General exercises his right to re-charge the accused, the trial should be for contravention of the correct sections of the Act and any resultant sentence should not be more severe than the ones set aside.

The binding legal principle is that under the Medicines and Allied Substances Control Act [Chapter 15:03], sections 55(1)(a) and 55(1)(b) create separate offences, and each must be charged distinctly. Section 55(1)(a) prohibits operating on unlicenced premises, while s 55(1)(b) prohibits operating without supervision by a licenced person. Similarly, s 29(1)(a) creates a separate offence of selling unregistered medicines. Where an accused operates at multiple premises, each location constitutes a separate count for each offence type. Improperly combining these distinct offences into convoluted charges, or improperly splitting them to artificially multiply the number of counts beyond what the evidence establishes, results in unproved convictions that must be quashed on review as constituting a miscarriage of justice.

The court observed that a proper appreciation of the offence of trading in medicines without a licence makes the offence of trading in medicines on unlicenced premises redundant in certain respects, as an accused cannot lawfully trade in registered medicines on unlicenced premises either. The court also noted that if re-prosecution occurs, any sentence imposed should not be more severe than the sentence that was set aside, reflecting principles of fairness in the exercise of prosecutorial discretion following successful review proceedings.

This case is significant in Zimbabwean criminal procedure and pharmaceutical regulation law as it clarifies the proper formulation of charges under the Medicines and Allied Substances Control Act [Chapter 15:03]. It establishes that distinct offences under the Act must be charged separately and that improper splitting or combining of charges that results in an accused being convicted of more counts than the evidence establishes constitutes a miscarriage of justice. The case emphasizes the importance of precision in charging and the court's duty on review to ensure that accused persons receive real and substantial justice. It provides guidance on the three distinct offences created by the medicines regulatory regime: unlicenced trading, trading in unregistered medicines, and trading from unlicenced premises.