Republic v Chizinga and Others (CRIMINAL CASE NUMBER 26 OF 2003) ([node:field-casenumber])  MWHC 60 (01 July 2004);
The first accused is also charged with attempting to give the above named Police
officers gratification as an inducement for the said Police Officers to forbear from carrying out their duty of checking foreign
currency and suspected foreign individuals on GDC trucks.
Under Section 14 (b) of the Corrupt Practices Act, an offence of misleading officers
of the Anti Corruption Bureau will be committed when the accused person has given any false information to the said officers of the
Anti Corruption Bureau. The giving of such false information must be done knowingly. Section 14(b) provides as follows-
“Any person who knowingly –
makes or causes to be made to the Bureau a false report of the commission of an offence under this Act; or
misleads the Director, the Deputy, Director or other officer of the Bureau by giving any false information, or by making any false
statements or accusations.
Shall be guilty of an offensive and liable to a fine of K100,000 and to imprisonment for ten years.”
For an offence under the above section to be proved it must be established by the
prosecution that the accused gave false information or made a false statement to the Anti- Corruption Bureau. It must also be demonstrated
that the false information or the false statement were made by the accused knowingly. Further, it must be established that the false
information or the false statement misled the Director, the Deputy Director or other officer of the Bureau.
As noted earlier, the second accused was charged with two counts of corrupt practices by public officers. In the first count he is
alleged to have accepted the sum of K234, 160 between the period 1st April 1996 and 31st July, 1998 from GDC. He is also alleged to have accepted entertainment. It is alleged that the above was accepted as an inducement
for forbearing to carry out detailed weighing of GDC foreign registered trucks.
In the second count, he is alleged to have accepted and to have solicited similar amounts from GDC Holdings Limited at Blantyre as
an inducement for him to forbear the above weighing and checking of GDC trucks.
The evidence that has come in Court is that among the monthly payments by GDC to
public officers, some payment was going to Balaka Weighbridge where Mr. Phangire was stationed.
For an offence of corrupt practices by public officers to be established against
the second accused, the prosecution should prove that the second accused corruptly accepted gratification to forbear from carrying
out the detailed weighing and the checking of Toll Fees on GDC trucks. It must also be shown that such weighing and checking was
a concern of the Road Traffic Commission. It cannot be disputed that the weighing and checking are a concern of the Road Traffic
Commission. The issues are whether the second accused accepted gratification and whether he forbore to do so weigh the trucks and
check toll fees. Nevertheless, In terms of Section 33 (1) and 47 of the Corrupt Practices Act it would not be a defence on the part
of the second accused to say that he did not forbear to check toll fees and weigh the said trucks as long as it is proved that he
accepted or solicited gratification from GDC. Sections 33(1) and 47 provide as follows-
“Section 33 (1)If, in any proceedings for an offence under any section of this Part, it is proved that the accused accepted any gratification,
believing or suspecting or having reasonable grounds to believe or suspect that the gratification was given as an inducement or reward
for or otherwise on account of his doing or forbearing to do, or having forborne to do, any act referred to in that section, it shall
be on defence that:-
he did not actually have the power, right or opportunity so to do or forbear;
he accepted the gratification without intending so to do or forbear; or
he did not in fact so do or forbear
Section 47“Where any public officer has corruptly solicited, accepted, obtained, or agreed to accept or attempted to receive
or obtain any gratification, it shall not be a defence in any trial in respect of an offence under Part IV:-
that the appointment, nomination or election of such person or any other person as a public officer
was invalid or void; or
that such public officer or any other public servant did not have the power, authority or opportunity
of doing or of forbearing from doing the act, favour or disfavour to which the gratification related; or
that the public officer did not actually do any act, favour or disfavour to induce the gratification,
or never had the intention of doing so”.
As it were, this section suggests that the absence of actual forbearance therefore
would not be fatal to the prosecution case.
The third accused, GCD Holdings Limited, is charged with three counts of the offence
of corrupt practices with public officers contrary to Section 24 (2) of the Corrupt Practices Act and in the alternative an offence
of official corruption contrary to Section 90 (b) of the Penal Code.
It is alleged that the third accused corruptly gave gratification amounting to K234,
160.00 to Raibon Enos Mwenitete, the second accused, Tonnex Mphepo and Selwin Simfukwe all officials of the Department of Customs
and Excise, The Road Traffic Commission and the Immigration department respectively and other unknown public officers. The third
accused is also alleged to have invited the above persons and other unknown public officers to parties. The said sums of money and
the parties, it is suspected, were given as an inducement for the above persons and other unknown public officers to forbear from
collecting Toll Fees in excess of K8.6 million in the case of Raibon Enos Mwenitete and the second accused and to expedite the checking
of travel documents for GDC drivers and unknown suspected passengers on GDC Holdings trucks in the case of Selwin Simfukwe.
For an offence of corrupt practices with public officers to be proved, the prosecution
must show that the third accused gave gratification to public officers. Further, for an offence of official corruption under Section
90 (b) to be established the prosecution must prove that the said third accused person gave property or benefit to persons employed
in the public service. The prosecution must also prove that such giving was on account of an act or omission by the said persons
employed in the public service.
Moreover, my understanding is that in terms of section 24 of the Penal Called once
a corporation is found to have committed a criminal offence every person charged with or concerned with the control or management
of the affairs of the company shall be guilty of such offence. Section 24 of the Penal Called provides as follows: “Where an offence is committed by any company or other body corporate or by
any society, association
or body of persons, every person charged with or concerned
or acting in, the control or management of the
affairs or activities of such
company, body corporate, society, association or body of persons shall be guilty
that offence and shall be liable to be punished accordingly, unless it is proven by
such person that, through no act or omission on his part, he was not aware that the
offence was being or
was intended or about to be committed, or that he took all
reasonable steps to prevent
The above section further means that the person charged with the responsibility of
running the company will be exculpated from liability if they show that they were not aware that the offence was being committed
and that they took all reasonable steps to prevent its omission.
Law and Discussion
Burden of Proof
Section 187 of the Criminal Procedure and Evidence Code is instructive on the burden
of proof in criminal trials in Malawi. The said provision is to the effect that the burden of proving that a person who is accused
of an offence is guilty of that offence lies upon the prosecution. Further, in R vs. Sinambale 4,cited withapproval the case of Miller vs. Minister of Pensions, is for proposition that the degree of proof required in a criminal case is a proof beyond reasonable doubt but that this does not
mean proof beyond a shadow of doubt. Thus, if the evidence leaves only a remote and improbable possibility in the accused’s
favour the conviction will still be justified as to do otherwise would mean that the criminal law will not adequately protect society.
The burden of proof on all the charges the defendants are answering is on the State.
The State must therefore prove all the elements of the offences charged based on the particulars asserted by the State in the Charge
Preliminary remarks The prosecution’s hypothesis
The court has observed that the prosecution’s case rests on the theory that
GDC Holdings Limited was giving gratification to public officers. Further, it is well to observe that the state is of the view that
Rodrick Ibo Chizinga was acting on behalf of GDC Limited (3rdDefendant) when he allegedly gave gratification to Police Officers at Mwanza Police. Accordingly, in the event that this court finds
that GDC Holdings Limited is not in any way liable I see no reason why there ought to be a case against any of the Defendants.
Status of the 3rd Defendant
State Exhibit P1 shows that the 3rd Defendant is a Malawi registered company. It is not a foreign company and does not own any foreign registered vehicles. Vicarious and Corporate Liability
There is no doubt that the 3rd defendant as a corporate entity did not itself engage in the commission of an offence. It is its servants and agents who may have
acted or omitted to act in circumstances giving rise to the suspicion that offences had been committed. It is therefore a legitimate
exercise to determine if the 3rd defendant will be criminally liable for the actions of its servants. Generally at law there is no vicarious criminal liability for
the acts of another. The only exception relates to aiding abetting counselling and procuring the commission of an offence. Moreover, being a corporate entity, a company has no mens rea of its own. For certain purposes however the mental state of key personnel
of a company will be treated as the mental state of the company. Generally it is the mens rea of very senior or personnel at the
Board level of a company which will be held to be the means rea of a company. Further, it was stated by Arlidge and Parry on Fraud 2nd edition as follows-
“ Where an offence is committed by a person whose position within a Company is such as to justify regarding his actions and intentions
as those of the company itself, the Company will also be guilty of the offence”
Arlidge proceeds further on page 199 to say that:
“ An officer who positively encourages or assists in the commission of the offence will in any event be guilty as an accessory. It is
arguable that the same would apply to a director, at least who simply acquiesces in the fraud, on the ground that a person who has
authority to prevent an offence being committed may be implicated by the mere failure to exercise that authority.””
In the instant case the 3rd Defendant engaged a General Manager and an Accountant as its employees. The General Manager testified that he was not aware of any
toll fees being evaded. The Accountant testified that funds were withdrawn from the company to pay public officers so that toll fees
were not paid. He conceded in cross examination that he had never seen evidence of payment to any public officer. If it had been
established by the State that these two officers were in fact carrying out orders of the Board or were doing something for the Company
even if the Board was not aware of what they were doing, there would have been a possibility of the mens rea of these officers being
attributed to the 3rd Defendant (GDC). From the mere delegation by the board of the functions of general manager and accountant to these officers it cannot
be concluded that acts or omissions of these persons were in the realm of criminal justice the acts and omission of the 3rd defendant. In any event they did not admit to participating in the commission of any offence.
Obligation to pay toll fees
It is commonplace that toll fees were payable only by foreign registered trucks.
The legal obligation to pay toll fees, therefore, rested on the owners of the foreign registered vehicles which entered Malawi. These
were GDC Limitada, a Mozambican company and GDC Hauliers Limited, a Zimbabwean company.
The offence in Count 9, against 3rd Defendant, cannot be sustained on the evidence because all the vehicles in respect of which it is alleged that toll fees were not
paid belonged to foreign companies from Mozambique and Zimbabwe. Though the State offered no explanation for the involvement of the
3rd Defendant it is clear that the 3rd Defendant as a local company merely acted as an agent for the foreign companies in arranging and paying toll fees for their vehicles.
The State had no legal or any right to collect toll fees from the 3rd Defendant just like the 3rd Defendant had no obligation to pay such fees. In a letter from the Controller of Customs to the Anti Corruption Bureau, dated 6th May 1998 the State explains how the toll fee collection system was managed. Several points appear from this letter which ought to
have been answered or explained by the State but which were ignored. These are:
The Department of Customs & Excise maintained the records regarding the payment of toll fees;
Receipts for all payments were in existence but could not be produced by Customs because they were surrendered to the Treasury Cashier;
Only foreign registered vehicles pay toll fees.
The 3rd Defendant made payments in cash over the counter when prepaid funds run out.
The official details of GDC Mozambique and Zimbabwe trucks crossing the border were contained in the MOTC 3 forms.
The said letter and its contents were introduced by the State and at the same time
not disputed by the State. The contents were put in so that the court could believe them and place some reliance on them. Unfortunately,
this court could not find anything in the letter to prove commission of an offence on the part of the 3rd Defendant. It is so found.
It is well to point that in his Caution Statement, Harvey Kapyola Munthali denies
receipt of any money from any transporters. Further, in the Caution Statement of Steven Marko Tsoka Banda there is an admission of
receipt of some casual gifts but none from the 3rd Defendant. Again, in his statement Tonnex Duncan Mphepo (weighbridge operator at Mwanza) admits attending a Christmas party in 1997
but denies receiving any money from the 3rd Defendant or anyone else.
There is a document, exhibit P18A, stating that toll fees have not been paid in respect
of certain vehicles. It apparently originated from Rhodrick Chizinga and was directed to Benson Chintowa. Chizinga says he copied
the wording from what Benson wrote for him. There is no suggestion that prepaid toll fees had been exhausted at this point. Therefore,
there is no basis for concluding that the contents of the document are in fact true. Certainly, in order to actually avoid paying
toll fees, the incoming drivers would have had to be involved in driving through without paying toll fees. Yet the evidence is that
all drivers always received a copy of an MOTC to evidence the fact of payment of toll fees.
It will be noted that the State did not call any driver to testify to the fact of
crossing the border without paying toll fees and without receiving a copy of the MOTC3 form which every foreign vehicle entering
the country had to have for use at entry and within the country to show that it had paid toll fees. As if the above anomalies are
not enough, the State did not call a single Customs or Road Traffic or Police Officer to testify that they found even one foreign
registered vehicle connected with the 3rd Defendant within the country having crossed the border but carrying no MOTC3 form to indicate that it had not paid toll fees. It
is ludicrous that even if corrupt practices occurred all Police Officers, Road Traffic Officers and Customs Officers throughout the
country where these vehicles went would have been corrupted by small payments at Mwanza so as to induce them not to act against such
vehicles. The only logical explanation, in my judgment, as to why no apprehensions of vehicles within the country for not having
paid toll fees at the border is that all foreign registered vehicles connected in any way with the 3rd Defendant carried MOTC3 forms. On a minimum the State should have found a few vehicles which were apprehended within the country
because they did not have the MOTC3 form indicating that though the vehicles were in the country, they had not paid toll fees on
entry. In the absence of such proof, this court will be slow to accept the theory being advanced by the State that foreign registered
trucks connected with the 3rd Defendant crossed the border without paying toll fees on account of corruption.
The “make plan documents”
Rhodrick Chizinga clearly testified to being asked to carry out certain tasks by
his supervisor, Benson Chintowa. His testimony was not shown to be false. It could be argued that he is taking advantage of the death
of Benson Chinthowa but against that must be considered the fact that he could not have designed and implemented any system of fraud
on his own when it was clear that he was acting as a go between. On his own he could not have drawn any funds from the 3rdDefendant. The balance of probabilities would support the conclusion that Chizinga merely carried out the instructions of others and
according to him those instructions were from Chinthowa. There is no reason why he should not be believed. Additionally, exhibit
P22 (and similar documents) does not prove non payment of toll fees. If anything it records the reimbursement of toll fees paid.
In my opinion, this exhibit confirms that cash was used to pay toll fees and reimbursements were collected and presumably taken to
Mwanza. Alternatively, cash was requisitioned and taken to Mwanza to pay up if a vehicle had been allowed to go through when the
pre-payment had been exhausted.
The Toll Fee Control Sheet
The prosecution introduced into evidence an exhibit which has been marked as P45.
It is called a Toll Fee Control Sheet. This document was prepared by Customs and used to draw down the prepaid toll fees. Any inaccuracies
in the documents could have been caused by error or omission on the part of Customs. If any instances of Customs actually failing
to draw down are shown, it should not be forgotten that some trucks were paid for through cash as demonstrated by Exhibit P22. There
is a suggestion that the entries relating to toll fee control sheets were made by Chizinga or someone else at the 3rd Defendant. However, it is important to observe that irrespective of the author of the control sheets, on a daily basis, the documents
were verified by Customs and stamped accordingly.
It is not farfetched to opine that the existence of discrepancy between the entries
recorded on the toll fee control sheets and the northbound sheets, could have been the result of mistakes. What is definite is that
the control sheets were recording the vehicles in respect of which debits would be made against the prepaid toll fees. The control
sheets were not recording situations involving the payment of toll fees by cash such as were referred to by Chizinga and the Controller
of Customs and Excise, Mr. Mtingwi and evidenced by receipts sent to Treasury Cashier. Actually, the maintenance of North bound sheets
by the 3rd Defendant tends to negative the assertion that toll fees were being evaded. In my view a person intending to evade toll fees would
not have meticulously recorded all incoming vehicles on the northbound sheets and then have different records on the toll fee control
sheets. The 1st Defendant [Chizinga] or anyone else with a scheme for evading toll fees would have ensured that the northbound sheets had the same
information as the toll fee control sheets. Indeed, a simple evaluation between the Northbound Sheets against the Toll Fee Control
Sheets overlooks the payments which were made in cash and which are referred to by a number of people viz. the Controller of Customs
and Excise in Exhibit P43; by Chizinga in his Caution Statement and in the reimbursement claims such as State Exhibit P 22. The Anti
Corruption Bureau should have secured the Receipts which Customs had sent to Treasury cashier to include those in their reconciliation
before concluding that any vehicle on a Northbound sheet, but which did not show on a Toll Fee Control sheet, represented an evasion
of toll fees.
XXXXXXThe core of the state’s case
The evidence of the Anti Corruption Bureau is largely that of Mr. Victor Banda an
Anti Corruption Bureau investigator. He testified that he received information that the 3rd Defendant was evading toll fees and carried out an investigation. I am alive to the fact that there is testimony from the 3rd Defendant that it cooperated fully and in fact carried out its own investigation and gave the Anti Corruption Bureau information
showing that funds were drawn from the company by a few individuals allegedly to pay “goodwill or toll fees etc” at Mwanza.
Further, it is in evidence that the 3rd Defendant gave Mr Banda all the documents in its possession relating to claims for goodwill etc.
It is said by the ACB that on the basis of the Northbound Sheets and the toll fee
register it concluded that toll fees amounting to K8, 600,000 had not been paid from April 1996 to 31 July 1998. Mr Banda further
put it that he prepared an analysis, marked as State Exhibit P51A, which shows the toll fees due on the basis of the northbound sheets
and the toll fees register. Based on these he took the view that the Northbound Sheets correctly recorded the foreign trucks coming
into Malawi and their destinations within Malawi. Mr Banda did not however establish that the information in the Northbound Sheets
in fact represented the truth in terms of foreign GDC vehicles which actually came into the country. Instead of investigating this
aspect and eliminating the possibility, which was put to him, that the Northbound Sheets may have been deliberately falsified as
part of the scheme for defrauding the 3rd Defendant, Mr. Banda concluded that the Northbound Sheets were in fact a correct record of incoming GDC foreign registered vehicles.
However, it will be observed that in cross examination Mr Banda made the following acknowledgment or admissions:
that the Northbound Sheets and the Toll Fee Control Sheets were not accounting documents for purposes of toll fees or foreign trucks
entering the country and that these were the documents of the 3rd Defendant;
that he was given copies of all these documents by the 3rd Defendant voluntarily when he asked for documents.
that the government accounting documents, for toll fee purposes, were the PTA MOTC 3 forms;
that he relied on the North-bound sheets which are internal documents of the 3rd Defendant to determine the numbers of foreign registered GDC vehicles which came into Malawi;
that it was possible that in fact no toll fees were evaded;
that the northbound sheets could be wrong;
that he did not investigate any issue relating to passengers in GDC vehicles;
that he concluded bribes were paid because he saw the payment vouchers and cheques even though cheques were always in name of cashiers
Mbendera and Maliro;
that none of the GDC personnel who were involved in the drawing of money for goodwill from the company identified any public officer
as payee of the money they drew;
that he established nothing but merely made inferences;
that he did not allow Customs to investigate;
that collection of toll fees was sometimes done in arrears;
Additionally, none of the official accounting documents for toll fees was produced
by Mr Banda. The originals of the memoranda were never found. Mr. Banda contented that the vehicles recorded on the memorandum in
fact crossed the border and some did not pay toll fees.
Nonetheless, Mr. Banda did not establish that the 3rd Defendant in fact paid bribes to public officers at Mwanza and elsewhere. In my judgment what he established was that funds were
drawn out of the 3rd Defendant as a ploy that goodwill was to be paid to some unidentified people. He conceded that when Mr Holmes joined the 3rd Defendant Company as Financial Director he was concerned with the goodwill withdrawals from the said company and put a stop to the
practice. He conceded that he had no evidence that public officers received the goodwill money from the 3rd Defendant. Nevertheless, Mr. Banda took the view that the circumstances showed that they must have received the money.
Mr. Banda noted that the system of prepayment of toll fees was introduced by Customs
and that sometimes vehicles went through when the prepaid funds had been exhausted. He took the view that no vehicle should have
passed without first paying. Yet, as seen earlier, no one from Customs verified the conclusion reached by Mr. Banda.
In respect of entertainment Mr. Banda was not able to say how many parties the 3rd Defendant organised and how many times each of the public officers charged the offences herein attended such parties. Neither did
he give the value of the food or drink consumed.
Analysis of Toll Fee Control Sheets (3/98)
State Exhibit P20 consists of Toll Fee Control Sheets. An examination of these sheets
and other documents will show that reliance should and could not have been placed on these sheets to prove that toll fees were not
paid. For example:
Toll Fee Control Sheet No
Northbound Sheet No.
The Toll Fee Control Sheet is for 1997 while the Northbound Sheet is for 1998
The Toll Fee Control Sheets are all duly stamped by Customs and Excise. This can only signify that they correctly record the vehicles
which had paid their toll fee from the prepaid amount. The document says nothing about payments made in cash.
Further, the Toll Fee Register shows that some vehicles recorded on the Northbound
Sheets were not recorded in the Toll Fee Register. This may tend to suggest that some vehicles did not pay toll fees. Equally this
could suggest that fees were paid for in cash. The trucks may have paid toll fees in cash or may have paid through the same prepayment
system later. The documents which would have conclusively shown that a vehicle on the North Bound Sheets did not pay toll fee would
be the MOTC3 forms and the Receipts issued for vehicles crossing and paying in cash. The Receipts were available at the Treasury
Cashier and Mr. Mtingwi, the Controller of Customs and Excise, pointed this out but apparently the Anti Corruption Bureau chose to
ignore that avenue.
There is considerable doubt as to whether indeed toll fees were evaded and that doubt was created by the failure to check the MOTC3
books comprehensively and also to get the General Receipt Books from the Treasury Cashier to see what cash payments were made for
Furthermore, it will be seen that the Toll Fee Control Sheet was completed by the
3rd Defendant on one day and stamped by Customs generally on another day. In this regard, the entire evidence of Mr Victor Banda, as
summarised in State Exhibit P51B, deals only with payments made through the prepayment system. It does not cover payments made in
cash which the Controller of Customs acknowledged. Mr Banda did not even try to check for the receipts sent to Treasury cashier to
confirm or disprove the contents of Mr Mtingwi’s statement.
Additionally, the documents used to claim funds from the 3rd Defendant do not always illustrate that the vehicles on those documents matched those recorded on the Northbound Sheets. For example:-
Make Plan payment for H528, H501, H530
The Northbound sheets do not show these trucks crossing
Northbound sheets do not show these vehicles crossing
The documents used to collect funds out of the 3rd Defendant also show some funds being collected to pay toll fees. As I see it, the investigators did not bother to verify with the
Receipts at Treasury Cashier if in fact toll fees in those amounts were paid over.
PV for Toll Fees
Cheque for Toll fees
PV for Toll fees
It is also well to observe that the documents which refer to “goodwill and Make Plan” prove only the collection of funds
from the 3rd Defendant and no more. They do not prove payment to any public officer and indeed no public officer has been identified as receiving
any funds out of this money. If a table were to be drawn the following picture emerges:
Goodwill Req. for Sept 96 (K9,150)
No evidence of payment to any public officer
PV for Goodwill Mwanza (K5,500)
PV goodwill Balaka K1,600)
Goodwill Req. for Balaka weighbridge (K1,600)
PV goodwill Balaka (K1,600)
PV Goodwill K5,000
PV goodwill Bt & Balaka (K3,600)
Goodwill Req. ROAD TRAFFIC DEPARTMENT (K2,000)
Goodwill Req. ROAD TRAFFIC DEPARTMENT Bt & allowances
Goodwill for Aug 98
Goodwill for June 97
In respect of allegations in the documents used to draw funds out of the 3rd Defendant the Court has noted that some vehicles referred to in those documents do not appear on the Northbound Sheets for the same
days. This is again clearly illustrated in the diagram below:
Make Plan payment for H528, H501, H530
The Northbound sheets do not show these trucks crossing
Northbound sheets do not show these vehicles crossing
This, in this court’s mind, again shows that either the Northbound Sheets were falsified in some respects or that the creator
of these documents knew that no one was going to compare the truck numbers on these papers and on the Northbound Sheets. This could
only be because the creator was the same person that received the money drawn and was also responsible for completing the Northbound
Origins of the so called “goodwill payment”
The evidence of Mr. Rob Holmes established that when he was appointed to be responsible
for the Malawi operations he found Mr. Kangulu as the General Manager. He also said that he found no evidence of the practice of
drawing funds for goodwill having existed before the stewardship of Mr Kangulu. It was further put in evidence by him that he was
asked on a number of occasions to sign cheques which were payable to cash. He was told that these payments were for tolls at Mwanza.
There was no reason, so he says, to doubt the management and signed. After a while as he was getting more acquainted with the operations
in Malawi, and had the opportunity to check on various transactions he realised that he had not seen receipts from anyone to acknowledge
receipt of the funds drawn from the few cheques he had been asked to sign. When he asked for receipts and non were forthcoming it
occurred to him that the Company was being defrauded of funds by its own officers. He refused to sign any more cheques for payments
to Mwanza. He also gave instructions terminating the practice of drawing funds under the description of goodwill payments.
He categorically put it before this court that his instructions were given well before
the Anti Corruption Bureau launched an investigation into the alleged corruption of boarder officials at customs, and police and
it occurred to him that the Company management was defrauding the Company
The position of the 3rd Defendant which appears not to have been manufactured during the proceedings, but was presented to the Anti Corruption Bureau for
investigation, is that there was serious fraud during the time when Mr Kangulu was General Manager under the pretext of drawing funds
for the payment of goodwill. The practice was stopped well before the Anti Corruption Bureau came to make inquires about the matter
as soon as Robert Holmes ascertained that there was no valid basis for the funds which were being claimed and that there were no
receipts for the funds drawn.
The master-mind behind the withdrawal of funds from the 3rd Defendant on the pretext that the funds were to be used to pay goodwill appears to have been Benson Chintowa. Unfortunately he died
before the case was filed. It is also clear that all the withdrawals for goodwill brought before the Court in respect of “goodwill”
requisitions of cash from the 3rd Defendant were made when Mr. Kangulu was the General Manager. No evidence was uncovered to show such a practice prior to Mr. Kangulu
becoming the General Manager of the 3rd Defendant. This does not necessarily mean that Mr Kangulu was part of the fraud. He may have been taken advantage of by his subordinates
because they figured out that he was susceptible to such trickery. The evidence of Mr Lindeire was to the effect that this was the
practice even before Kangulu became General Manager but this assertion was unsupported by the evidence. The evidence of Mr. Lindeire
is at its best suspect because he was the Accountant for the 3rd Defendant but comprehensively failed to question the practice of requisitioning funds for so called good will payments as any qualified
accountant would have done.
This court finds and concludes that the defence of the 3rd Defendant is plausible. If the 3rd Defendant had adopted their position only after the commencement of investigations, there could have been a basis for disbelieving
The statutory framework
It is common cause that the procedure for dealing with offences under the Corrupt
Practices Act is governed by the Criminal Procedure and Evidence Code. The standard of Proof remains that beyond reasonable doubt. The burden of proof remains on the Anti Corruption Bureau. Indeed, where
the burden is sought to be shifted to the accused that would violate the constitutional right to be presumed innocent.
Section 24 offences
Section 24 of the Corrupt Practices Act creates offences relating to public officers.
The term public officer is defined widely and includes Ministers. There is no dispute that all the alleged recipients herein were public officers. It is imperative to note that the section does
not criminalize the soliciting accepting or obtaining of some gratification. The section makes criminal, the act of corruptly receiving,
soliciting, giving etc. The term corrupt is not defined in the Corrupt Practices Act. "Corruptly" is defined in Black's
Law Dictionary as follows:
“When used in a statute, this term, generally imports a wrongful design to acquire some pecuniary or other advantage"
For an offence to be established under section 24 of the Corrupt Practices Act, the Anti Corruption Bureau must lead evidence to show
that there was a public officer involved;
that the accused gave or agreed to give or attempted to give a public officer some gratification;
that the gratification was as an inducement or reward for doing or forbearing to do some act with which the public officer was concerned;
precise nature of the gratification alleged to have been given;
that the giving etc was done corruptly, i.e. with a wrongful design to acquire a pecuniary or other advantage for corruptor;
that a dinner constitutes a gratification;
that the Christmas parties in issue were not conventional hospitality on a modest scale;
that the particular parties in issue were not a conventional hospitality on a modest scale;
that the parties were an inducement for public officers not to collect toll and other fees.
In dealing with offences under the Corrupt Practices Act it is also important to
understand that the giving, receipt or acceptance of a gratification is not an offence. The gratification which can form the basis
of an offence must be as defined in the Act.
Gratification is defined as "any payment in cash or in kind . . . other than a casual gift". And a casual gift is defined as any conventional hospitality on a modest scale or an unsolicited gift not exceeding K500 . . ."
As I understand it, the definition of gratification and the exclusion of certain
benefits from the term gratification require that the nature of the gratification which is the subject matter of a charge must be
specified together with its value. Evidence for the State must be called to prove the value of the gratification. This is a necessary
conclusion when it is considered that the term gratification is defined in section 3 of the Corrupt Practices Act as excluding "casual
Thus, not all gratifications can form the basis of an indictment. It is only those
that go beyond casual gift which can be the subject of an offence. From the definition of casual gift it becomes patent that for
any offence charged in which it is alleged that a gratification was involved, the Anti Corruption Bureau must establish that the
alleged gratification was not (1) conventional hospitality on a modest scale or (2) an unsolicited gift not exceeding K500.00 in
Accordingly, it is found and concluded that the Charges against 3rd Defendant cannot be sustained when it is considered that not all giving or acceptances of a gratification that constitute offences.
It is only those acceptances which can be described as "corrupt" which can support a charge of corruption.
Proof of Alleged Offences
It was incumbent upon the Anti Corruption Bureau to place before this Court testimony
to prove the following:
that the public officers, named in the counts in the charge sheet, were paid a bribe or given some form of gratification in order
not to collect toll fees or weighbridge fees.
that as a result of the bribe or gratification the concerned officers did not collect toll fees or do the other things that are specified
in the Counts;
The obligation to collect Toll fees
The figure of $220,000 cited in all the counts affecting the accused persons herein
relates to what are alleged to be unpaid toll fees. Toll fees were collectable by Customs for the Ministry of Transport. Now, the
one and only Customs Officer who was charged and acquitted by this court was Mr. Raibos Mwenitete. He is mentioned in Counts 9 and
12 in relation to the 3rd Defendant. All the other public officers named in the other counts were not concerned with the collection of toll fees. Thus, Count
10 is quite misconceived in alleging that Lighton Phangire forbore to check the payment of toll fees. Phangire was a weighbridge
officer at Balaka and unconcerned with the collection of toll fees at Mwanza. Furthermore, Count 11 is also misconceived in alleging
that Tonnex Mphepo who was a weighbridge officer at Mwanza forbore to check the collection of toll fees as he was not responsible
for or concerned with the collection of toll fees.
Actually, there is no evidence that the 3rd Defendant gave money to any public officer. In point of fact, there is no evidence that the 3rd Defendant paid K234,168 to Raibos Mwenitete to induce him not to collect toll fees. Indeed, Mr Banda concedes that from drawings
made from the 3rd Defendant for alleged goodwill payments he inferred that funds so drawn from the 8th Defendant went to public officers. He felt fortified in his inference by the fact that he found discrepancies between foreign trucks
shown on Northbound Sheets and the trucks recorded on Toll Fee Control Sheets. However, he conceded not investigating if the Northbound
sheets were accurately compiled. He appreciated that the Northbound Sheets were prepared by the same personnel of the 3rd Defendant who prepared the “goodwill documents” yet he did not check to determine that those who created the goodwill
system were not deliberately putting misleading figures in the Northbound Sheets.
Furthermore, the evidence on record shows that Mr Banda did not establish what happened
to the money drawn for so called goodwill payments. He also accepted that he did not and could not rule out that this was a scheme
to defraud the 3rd Defendant by Messrs Chinthowa, Kangulu, Chizinga, Mbendera etc. In spite of these possibilities, he nevertheless decided to act only
on one possibility and that was the conclusion that public officers were bribed and failed to collect toll fees because of such bribes.As it were, Mr Victor Banda, the key witness herein, ignored clear evidence that based on the documents which were used for accounting
for toll fees, Mr Mtingwi, the head of Customs was satisfied that all toll fees were paid. The accounting documents were not examined
by Mr. Victor Banda or other investigators or brought to Court. The said Mr. Victor Banda showed a preference for conclusions adverse
to the 3rd Defendant and therefore which tended to support the conclusion he had reached that all requisitions of funds were for purposes of
paying bribes to public officers in order to induce them to forgo the collection of fees payable by foreign registered trucks. He
chose to ignore the complaints of the 3rd Defendant that it was a victim of fraud at the hands of some of its employees.
The question of Passengers and Travel Documents
In this court’s judgment, there was totally no attempt to prove the charges
against the 3rd Defendant as contained in Count 11. Actually, there is no evidence that Selwyn Simfukwe or any other immigration official receive
K234,168 from the 3rd Defendant to expedite the processing of passengers in the vehicles of the 3rd Defendant at the Mwanza Border Post. If it be put here, the fact is that it was not shown that any vehicles of the 3rd Defendant carried passengers across the border. It was not shown that passengers in the vehicles of the 3rd Defendant had travel documents processed by Simfukwe or any other immigration officer at all, let alone quickly on account of the
payment of goodwill. What the court had was mere speculation.
There was no serious attempt to deal with the allegation that the 3rd Defendant organised parties for public officers with a view to corrupting the said public officers.
As rightly submitted by Mr. Msisha SC, there was no evidence of value per head of
the parties. For that reason, there is no evidence of the total value of the parties to enable this court to work backward and figure
out the cost of the parties per head. It is actually in evidence that other persons, who were not public officers charged herein,
were also invited to at least one Christmas party organised by the 3rd Defendant. Furthermore, there is no evidence that any of the public officers mentioned in the charges actually attended the alleged
parties. Detailed Weighing Of GDC Trucks at Weighbridges
There is no scintilla of evidence that any weighbridge employee received a payment
from the 3rd Defendant. Furthermore, there was no attempt to prove that any public officer failed to do his work in terms of weighing vehicles
as a result of such suspected payment. It is not clear what is meant by “detailed weighing”. Additionally, I have read
the court record and I do not see any cogent evidence of the 3rd Defendant evading weighbridge fees or Road Traffic levies. To the contrary, the evidence of Mr. Lindeire shows that fines were paid
each time they were levied when a vehicle was found over laden.
The global figure of K234, 160.00
As observed earlier on, the State attempted to demonstrate that the other Defendants received gratification from DGC Holdings Limited. The said gratification,
so the evidence went, was said to have been in the sum of K234, 160.00 cash and entertainment in the form of parties. The testimony
did not show how much each one of them received as gratification. Suffice to say that the State put up a global figure of the said
sum of K234,160.00 as the total sum that GDC holdings Limited is said to have given the said Public Officers at Mwanza Boarder.
There is no evidence that either the global figure of K234,168 or any part of it
was paid to any particular public officer. To deal with the failure to establish the fact of any payment to any public officer or
the amounts allegedly paid to such officers the charge adopts the approach of referring to unknown persons. Whilst this is a legitimate
way to lay charges, it does not substitute for the need to prove the allegations in the charge. Counsel for the state is indeed advised
to take note of the wise and illuminating words of Lord Templeman in Ashmore vs. Corporation of Lloyds where he said that:
“ It is the duty of Counsel to assist the Judge by simplification and concentration
and not to
advance a multitude of ingenious arguments in the hope that out of 10
bad points the Judge
will be capable of fashioning a winner” In the instant case the state wanted to overwhelm this court with a myriad of the so called “make plan documents” as proof
that the Defendants herein received the alleged sum of K234, 160.00 without further and cogent evidence of how much each one of them
received. The State would still have to prove that payment was in fact made and that it was made corruptly. The State has only established
that funds were withdrawn from the 3rd Defendant under the guise of being used for goodwill, reimbursement of toll fees and fines. It has proved nothing else.
Furthermore, the prosecution has failed to deal with the technical problem created
by the fact that casual gifts are permissible. In relation to the said sum of K234, 160.00 allegedly paid to public officers, assuming
the alleged payments were in fact made, depending on the number of recipients and the period covered (28 months – 1/4/96 to
31/7/98) by the alleged payments, the payments could have been casual gifts.
Even though it is assumed, which is without proof, that all the funds drawn under
the umbrella of goodwill payments, were in fact paid to public officers over a period 2 years 4 months and all the public officers
at the named stations received an equal portion of that amount then the State failed to remove the case from the possibility of such
payment being non bribes or casual gifts by reason of the amounts allotted to each public officer falling below K500. The burden
was on the Anti Corruption Bureau to show that any alleged gifts were not casual gifts. It failed to discharge the said burden.
Whether Toll Fees In fact Payable
As a parting shot I wish to make an observation which I failed to resist making considering
the position of the law. I must say though that the remarks I am making are purely obiter but might be helpful to the executive.
It is doubtful that the Minister had the power to impose toll fees. Section 103 provides
for the granting of transit permits. Under that section the Minister is not empowered to impose levies for vehicles which emanate
from outside Malawi and terminate their journey in Malawi. He can deal with those that go through Malawi. Under section 170 the Minister
is empowered to make regulations for the matters provided for in that section. Those matters do not include the levying of toll fees
for non transiting foreign owned vehicles. The Government Notice which provided for the payment of toll fees was therefore ultra
vires. Section 170, paragraph 2 refers to fees but these are limited to licence fees and for various appeals.
The other powers under section 170 cover the regulation of loads, speeds, etc but do not extend to the levying of toll fees.
The long and short of it is that the state has failed to prove the allegations made
against all the Defendants. Indeed, on all the crucial issues raised in the charges it cannot be said that the Anti Corruption Bureau
has placed on record evidence to support the allegations.
There is no evidence that the K234, 160 or any part of it was actually paid to any public officer. There is not a single public officer
who has been found to have been the recipient of any of that money. As I see it, the Court is being asked to suppose that because
the documents prepared by Chinthowa stated that funds were drawn for goodwill payments the funds were in fact used to pay public
officers. This is a point which requires proof and cannot be dealt with by assumptions and suppositions. It is irrelevant how attractive
it may be to assume that funds collected from the 3rd Defendant were passed on to public officers when there is no evidence to establish that fact. Whereas one may hypothesize that the
goodwill was intended for, and was paid to, some public officers, one can speculate with equal force that the payments were taken
and shared amongst some officers of the 3rd Defendant. The State has failed to clear the air as to which speculative venture represents the truth, but not only the truth but
something beyond reasonable doubt. Consequently, this court acquits the Defendants of the respective counts they were charged with.
Pronounced in open Court this ….th day of July 200 at the Principal Registry, Blantyre.