THE STATE

versus

LOVEMORE KUROTWI

and

DOMINIC MUBAIWA

HIGH COURT OF ZIMBABWE

BHUNU J.

HARARE, 21 February 2012 and 28 February 2012.

C. Mutangadura with E. Mpofu, for the State

Mrs B Mtetwa, for the 1^stAccused

L Uriri, for the 2^ndAccused

BHUNU J:  Both accused persons are charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Cap 09:23]. They are alleged to have on various occasions during the period extending from 29 March 2009 to 14 August 2009 defrauded the government of Zimbabwe of two Billion United States Dollars.

The charge sheet is framed as follows:

“Accused are guilty of FRAUD as defined in s 136 of the Criminal Law (Codification and Reform) Act [Cap 09:23].

In that on various separate occasions but during a period beginning 29 March 2009 to 14 August 2009 and at the ministry of Mines and Mining Development and at Zimbabwe Mining Development Corporation’s Offices in Harare, Both accused persons and in common purpose unlawfully and fraudulently made misrepresentations with intent to defraud the government of Zimbabwe, that is to say, Lovemore Kurotwi misrepresented to the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation that Core-mining and Mineral Resources (Pty) Limited (a shelf company in South Africa) was a special purpose vehicle of a company known as Benny Steinmeitz  Group Resources (BSGR) (which was supposed to be the Guarantor in a Joint Venture Agreement between Core-Mining and ZMDC) in common purpose with Dominic Mubaiwa who later joined in the criminal enterprise and unlawfully prepared and entered into an unapproved and uncirculated memorandum of Agreement between Marange Resources (Pty) Ltd signed on 24 July 2009 and later acquired a cabinet authority to proceed to South Africa to conduct a due diligence Exercise on Co-Mining (a mere shelf company) which both accused persons purported to be a Special Purpose Vehicle of Benny Steimeitz Group (BSGR) thereby ending up concluding a share holder Agreement between Zimbabwe Mining Development  Corporation and Core-Mining and Mineral Resources (Pty) Limited instead of Benny Steinmeitz Group (BSGR) which all along had been held out by both accused persons as the Guarantor of Core-Mining thereby causing an actual prejudice of two Billion United States Dollars to the Government of Zimbabwe.”

Both accused persons pleaded not guilty and thereafter proceeded to except to the charge.

Their main complaint is that although the charge makes allegations of misrepresentation to the Ministry of Mines and the Zimbabwe Mining Development Corporation none of the papers indicate to which natural person the misrepresentation was made. It was argued that both entities being artificial persons could only act though natural persons. It was therefore necessary to specify the natural person to whom the misrepresentation was made otherwise the accused will be prejudiced in their defense if they were left in the dark or to speculate as to which natural person they are alleged to have made the misrepresentation.

The accused’s second complaint is that although the state alleges actual prejudice of two Billion United States Dollars it does not inform them as to how the prejudice came about. In light of such objections the accused requested the Court to order the delivery of the relevant particulars in terms of section 177 of the Criminal Procedure and Evidence Act [Cap 09:07] to enable them to prepare their defence. That section reads:

“177 Court may order delivery of particulars

(1)        The court may either before or at the trial, in any case if it thinks fit, direct that particulars be delivered to the accused of any matter alleged in the indictment, summons or charge, and may, if necessary, adjourn the trial for the purpose of the delivery of such particulars.

(2)        Such particulars shall be delivered to the accused or to his legal representative without charge, and shall

be entered in the record, and the trial shall proceed in all respects as if the indictment, summons or charge had been amended in conformity with such particulars.

(3)        ….”

Section 146 of the Criminal Procedure and Evidence Act prescribes the essentials of a valid and competent charge. It states that:

“146 Essentials of indictment summons or charge

1. Subject to this Act and except as otherwise provided in any other enactment, each count of the indictment, summons or charge shall set forth the offence with which the accused is charged in such manner, and with such particulars as to the alleged time and place of committing the offence and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.”

Thus the State is under an obligation to frame a charge among other things so as

to inform the accused person of the offence he is facing together with the particulars or essential elements of that offence. The section also requires the State to inform the accused of the person against whom the offence was committed and the nature of the property involved if any.

                Failure to give such particulars would render the charge defective and exceptiable.

It is therefore necessary to examine and see if the charge complies with the essentials laid

down in s 146 of the Criminal Procedure and Evidence Act.

 It is common cause that the accused were informed that the offence they were facing is fraud committed against the Government of Zimbabwe in the sum of two Billion United States Dollars. In short, they are being accused of defrauding the government of Zimbabwe of two Billion United States Dollars.

It is trite that the Government of Zimbabwe is a legal entity with full legal persona capable of suing and being sued in its own name. It has a separate legal existence from its officials and servants. The government of Zimbabwe duly constituted by the Constitution of Zimbabwe is therefore, undoubtedly a juristic person. Halo’s South African Company Law through the cases 6^thed 1999defines a juristic person as:

 “a body corporate or association other than a natural person , that is endowed by law with the capacity to have rights and duties apart from its members.”

The State being a juristic person ought to be treated like any other juristic person Tett and Chadwic, Zimbabwe Company law, 2^nded at p 13 states that:

“The effect of a company having separate legal personality is that it can engage in any activity and is entitled to the same rights and remedies as any other juristic person.”

The law therefore, makes no distinction between the framing of charges involving natural persons and artificial persons. Thus the government of Zimbabwe like any other juristic person has the full locus standi in judicio to appear and be heard as the complainant in any Court without being carried on the back of any natural person. Thus, it is sufficient for the State to allege that the misrepresentation was made to a juristic or artificial person without naming any natural person. It is instructive to note that s 146 of the Criminal Procedure and Evidence Act does not make it a requirement that where the complainant is a juristic person the charge must specify the natural person to whom the misrepresentation was made.

The failure to mention or specify the natural person to whom the alleged misrepresentation was made cannot possibly prejudice the accused in their defence because the state elaborated in its summary that the misrepresentation was made to the juristic persons through written letters which will be produced in court through named competent witnesses including the permanent secretary in the ministry of mines. Written documents which the accused can interrogate speak for themselves in the normal run of things letters disclose their author, addressee and the communication conveyed from one party to the other. I can therefore perceive no prejudice to the accused if they have been provided with access to the relevant documents upon which the alleged misrepresentations are founded.

As regards the quantum of prejudice the State elaborated that the amount of prejudice was occasioned in one capital sum arising from the misrepresentation. In the light of that explanation it will be illogical to order the state to provide a non existent break down when it alleges that the prejudice was not incurred in instalments.

The purpose of an indictment is to inform the accused of the case he is going to meet in Court without necessarily providing the evidence required to prove the allegations. The summary of the state case provides a precis of the evidence upon which the state intends to rely on in proving its case. Viva voce evidence, documents, exhibits and any other evidence constitute the actual poof of the allegations against the accused as alleged in the indictment and summarized in the outline of the state case. It is important not to confuse one stage from the other.

Having carefully perused the charge sheet and the State’s response it appears to me that the particulars required by the accused person in respect of the indictment are properly contained in the summary of the state case that is yet to be read in open Court. For that reason alone both the exception and application for further particulars cannot succeed. Both objections are accordingly dismissed.

The Attorney-General’s Office, The State legal practitioners

Mtetwa & Nyambirai, The 1^st defendant’s legal practitioners

Kantor and Immerman, the 2^nddefendant’s legal practitioners