The State v Sidingimuzi Ncube and 7 Others

Eight accused persons were charged with theft (alternatively, defeating or obstructing the course of justice) in relation to 14,710 kg of gold seized by ZIMRA. The allegations arose from criminal proceedings at Plumtree Magistrates Court where Jefat Chaganda had been prosecuted for smuggling gold. According to the State, the accused conspired to secure false testimony and documents claiming the gold belonged to Lovemore Sibanda (a registered miner). The fifth accused (a legal practitioner) represented Chaganda, the seventh accused prosecuted the matter, and the eighth accused presided as magistrate. Chaganda was discharged and the gold ordered released to Sibanda. The State alleged false evidence was presented, documents were not properly recorded, and payments totaling US$122,000 were made to the fifth accused, with portions intended for the seventh and eighth accused. The fifth, seventh and eighth accused excepted to both charges before pleading.

• Whether the indictments disclosed valid offences known at law
• Whether the charges contained sufficient particularity to inform the accused of the nature of the charges
• Whether criminal charges can be sustained arising from conduct in completed court proceedings that have not been set aside
• Whether exception was the proper procedural mechanism to challenge the indictments
• Whether legal practitioners, prosecutors and judicial officers can be prosecuted for conduct arising from performance of their professional duties

The exceptions raised by the fifth, seventh and eighth accused were dismissed. The matter was to proceed to trial on both counts.

An exception to an indictment can only succeed on two grounds: (1) that it does not disclose an offence known at law, or (2) that it lacks sufficient particularity as required by s146 of the Criminal Procedure and Evidence Act. Where an indictment discloses a valid offence and contains sufficient particularity, exception is not the appropriate mechanism to challenge it, even if the accused claims embarrassment. The proper procedure for challenging an indictment on grounds that it prejudices or embarrasses the accused in their defense is an application to quash under s178 of the Criminal Procedure and Evidence Act, which must be brought before pleading. Legal practitioners, prosecutors and judicial officers cannot claim immunity from criminal prosecution on the basis that alleged offences arose from conduct in their professional capacities. Whether essential elements of an offence are satisfied is a matter for evidence at trial, not determination on exception.

The court observed that there is little benefit an accused may derive from taking exception to a charge, as courts usually have power to order amendment rather than dismissal. Exception may only yield permanent results where the charge is ultra vires or the conduct does not constitute an offence. The court noted it would be unusual for a legal practitioner, prosecutor and magistrate to be charged with theft of an exhibit from proceedings in which all three featured, but emphasized this does not prevent prosecution. The court commented that it would be an abdication of responsibility for law enforcement to absolve legal practitioners, prosecutors and judicial officers from prosecution solely because conduct occurred in course of professional duties. The court noted that defeating the course of justice and corruption offences can arise from defending, prosecuting or presiding over criminal matters, subject to the circumstances of each case.

This case is significant in Zimbabwean criminal procedure for establishing that: (1) legal practitioners, prosecutors and judicial officers do not enjoy blanket immunity from prosecution for criminal conduct arising from performance of professional duties; (2) exception is not the appropriate mechanism where accused persons claim to be embarrassed by charges - the proper procedure is an application to quash under s178; (3) a charge that discloses a valid offence known at law and contains sufficient particularity cannot be successfully excepted to, even if the charge may ultimately be difficult to prove or inappropriate; and (4) the remedy for a charge that does not meet the required elements is discharge at close of state case or acquittal, not exception. The case clarifies the limited utility of exceptions in criminal procedure and reinforces that challenges to charges on grounds of embarrassment or prejudice must follow statutory procedures.