Republic v Chizinga and Others (CRIMINAL CASE NUMBER 871 OF 1998) ((CRIMINAL CASE NUMBER 871 OF 1998))  MWHC 30 (16 June 2005);
It is clear from the foregoing and especially from the evidence of PW5 and PW11 that indeed the first accused gave gratification to
the above named officers for the benefit of such officers. Such payment could not have been made for any other purpose apart from
being an inducement for the Police Officers concerned to forbear from discharging their functions as stated by PW5. The checking
of foreign currency and suspected foreign individuals and trucks was a concern of the Malawi Police as indicated by PW5.
The question that however arises is whether the gratification was given corruptly. In terms of Section 3 of the Corrupt Practices
Act the accused will be deemed to have accepted corruptly if the gratification is accepted by way of a bribe or other personal temptation,
enticement or inducement.
In the cases of R vs. Smith (1960) 2 QB 423 and R vs. Calland (1967) Criminal Law Reports 236 it was held that the word “corruptly” does not mean “dishonestly” but purposely
doing an act which the law forbids (see also the case of Harvey (1999) Crim. L.R. 70.
The payment by the first accused was clearly calculated to operate as an inducement. The Corrupt Practices Act prohibits the giving
of gratification to public officers. Such giving was therefore done corruptly.
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.
The attempt comes in because the money Rodrick Chizinga brought to PW5 did not reach the intended beneficiaries as it was obstructed
by PW5 before reaching its desired targets. The first accused therefore attempted to corrupt those officers to whom the money did
It is evidence of the first accused that Benson Chithowa who at the material time was the Operations Manager for GDC sent to him an
envelope. He said that he only realized that there was money in the envelope when he was called by the officer in charge, PW 5 to
collect the envelope.
The first accused’s version does not seem to be credible. Firstly, one wonders how he could carry an envelope the contents of
which he did not know. Secondly, it is the evidence of the PW5 and PW 11 that when he was called by the Officer in charge and confronted
on the money, he apologized. We wonder why he did not say at that time that the envelope came from Chinthowa. We wonder why he did
not say that he did not know the contents of the envelop at such confrontation.
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 – (a)
makes or causes to be made to the Bureau a false report of the commission of an offence under this Act; or b)
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 established 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 established 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.
In his Caution Statement, (Exb 48) Rodrick Chizinga stated on page two (2) that GDC had in fact paid all the Toll Fees and that he
had received general receipt for those payments. He indicated that he could produce the general receipt, which he never did. In fact
an examination of Exhibits P15a, P18a, and P19a together with Exhibit P45 shows that the trucks contained in the named exhibits had
not had their Toll Fees deducted from Exhibit P45. The trucks had indeed entered Malawi as can be noted from the relevant NBS’s
(Exh P46 b).
It is clear from the foregoing therefore that the first accused gave false information or made a false statement to the Anti-Corruption
Bureau. The statement or information misled the Deputy Director and the Assistant Director of the Anti Corruption Bureau who at the
material they were investigating the matter.
False statements are misleading in themselves. The issue therefore is whether it has to be shown in what actions the Deputy Director
and the Assistant Director of the Anti Corruption Bureau took to show that they were misled.
Section 14(2) is clear in its intent and purport. No evidence is required to prove the actions of the Assistant Director and Deputy
Director to demonstrate that they were misled. The mere giving of a false statement is a form of misleading. The accused in fact
misleads by giving false information. In terms of the above section there are three forms of misleading.
One can mislead by:
Giving false information.
Making a false statement.
Making a false accusation.
The fact that a false statement was made invariably shows that there was misleading.
To misleading was defined in the Oxford Advanced Learner’s Dictionary Fifth Edition Page 745 as follows-
“ To cause somebody to have a wrong idea or impression about somebody or something”
It will be noted from the above that misleading means to give a false impression. By merely giving false information to the Assistant
Director and Deputy Director the first accused gave a false impression that toll fees were paid when in fact they were not. It is
not necessary to prove the actions that the Assistant and Deputy Director took as a result of the false information.
It is therefore not necessary to prove the actions the Deputy Director and the Assistant Director took to show that they were misled.
It is sufficient to prove that the false information or false statement was made to them by the accused and that the accused knew
that the statement or information was false.
Rodrick Chizinga indicated on page three (3) of the Caution Statement “at the time I was writing the reports I knew that they
were not correct but I kept on writing them because I was promised some money”. Investigations revealed that these trucks that
were contained in the reports (Make Plan documents) had indeed entered Malawi as is evidenced by the respective NBS’s.
An examination of exhibits 45, 46a, 46b and 47 also discloses that the contents of the “Make Plans documents” were in
fact true contrary to the assertion of the first accused in his Caution Statement.
The first accused therefore gave the above information to the Anti-Corruption Bureau officers fully knowing that it was false in material
particular at the time he was giving it. He had therefore contravened the provisions of Section 14 (b) of the Corrupt Practices Act.
LIGHTON ENOS MAGANIZO PHANGIRE (hereinafter called the second accused
He 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. The above was accepted as an inducement for forbearing to
carry out detailed weighing of GDC foreign registered trucks. The checking and weighing of the trucks being a concern of the Road
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. There is uncontroverted evidence that the second accused’s duties was to weigh
the trucks and check Toll Fees on GDC foreign registered trucks.
By way of example, Exhibit 4b shows that the sum of K1, 600.00 was earmarked for Balaka Weighbridge every month.
The evidence of Mbendera (PW3) Lindeire (PW4) show that GDC was making monthly payments to public offices and that included Balaka
personnel. Both PW3 and PW4 also confirmed that GDC personnel including the second accused used to frequent GDC premises.
It was the further evidence of PW3 that sometime in October, 1996 the second accused came to GDC Holdings premises to collect the
sum of K1, 600.00 and a petty cash voucher Exhibit P31 (a) was prepared. Exhibit 31(a), 31(b) and 31(c) bears testimony to this fact.
Exhibit P30b shows that in the month of September, a similar amount was also paid to Balaka Weighbridge.
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.
The evidence of both PW3 and PW4 confirm that the second accused accepted gratification. However, 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
“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 (c)
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”.
The absence of actual forbearance therefore will not be fatal to the prosecution evidence. In any event the accused does not deny
that he had been frequenting GDC premises. All he said was that he was frequenting GDC to visit his friend and mechanic. One however
would not fail to question the reasonableness of having to get a mechanic in Blantyre for a person who is based in Balaka. Are there
no mechanics in Balaka?
The accused’s own testimony renders credence to the evidence of PW3 that the second accused came to collect from GDC the sum
of K1,600 in October and he is the one who cashed the cheque in respect of such payment.
The testimony by the prosecution on the third accused is also an indication that the monthly payments of K1,600 ear marked for Balaka
were also being received by the third accused. An offence of corruption is a secretive offence. To expect the prosecution to demonstrate
that the money was actually signed for by the accused would be to expect the impossible from the prosecution. The court needs only
to look at the circumstances pointing to the fact that the accused received the gratification. It was held in the case of the Republic vs. Nyamizinga ALR Mal 258, that an inference of guilt can be drawn from circumstantial evidence when the prosecution has established beyond reasonable
doubt that the facts are incompatible with the innocence of the accused and incapable of no other reasonable explanation.
GDC HOLDINGS LIMITED (hereinafter called the third accused)
The third accused 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 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.
It is the prosecution’s evidence that the third accused is incorporated in Malawi. Exhibits P1 to P3 gives a history of the
incorporation of the Company.
It is also in evidence that the first accused was preparing NBS’s and TFCS’s, which were sent to management. The TFCS’s
were in the majority of cases irregular in that they did not tally with the NBS’s. It is further in evidence that the first
accused was preparing “Make Plan documents” which were being approved for payment by the management of the third accused
Company. Exhibits P15, P16 to P19(a) evidences this fact. Management of the third accused Company was also approving the payment
of goodwill requisitions.
It is the evidence of Lindeire (PW4) that he cautioned management of this practice but the General Manager (PW2) told him that the
practice was a long time practice in the third accused Company and that he himself as General Manager had found it. PW4 was told
simply to effect payments.
PW2 who was the former General Manager confirmed the existence of the above facts. Resulting from the above, the sum of K8.6 million
as evidenced from the Toll Fees Analysis, Exhibit 51(a) and 51(b) was evaded by the third accused Company.
Exhibit P53 also demonstrated that between the year 1996 and 1998 goodwill amounting to K234, 160.00 was paid to a number of officers
who were detailed to handle the third accused Company’s trucks.
For an offence of corrupt practices with public officers to be proved, the prosecution must show that the accused gave gratification
to public officers.
It is abundantly clear that GDC Holdings Limited organized parties for public officers detailed to handle its truck and also paid
goodwill to such officers. Indeed there is uncontroverted evidence of forbearance to collect K8.6 million by public officers.
For an offence of official corruption under Section 90 (b) to be established the prosecution must prove that the 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.
There is uncontroverted circumstantial evidence that the third accused Company gave K234,160 to persons employed in public service
and that it organized parties for such persons. The parties and money were a benefit and property respectively.
It is also abundantly clear that the cash and parties were given by the third accused Company on account of the persons employed in
the public service refraining from collecting Toll Fees, checking Toll Fees on the third accused Company’s trucks and expediting
the checking of travel documents of persons on GDC trucks respectively.
The payments were targeted to only those persons handling the third accused’s Company’s trucks and no other. The evidence
of PW2 Kangulu confirms this fact.
There are facts that are not disputed that are central to this case. Firstly the fact that GDC through Chizinga was making “make
Plan” documents evidencing that certain foreign registered trucks were crossing the boarder without paying toll fees thereby
making savings. The “ Make Plan Documents were being addressed to the Management of GDC and the General Manager was approving
The second fact is that GDC through Chinthowa was making a list of goodwill payments to specified Public Officers, all of whom were
concerned with the handling of GDC trucks. The Cheques were being cashed by PW3 who testified that the money was being sent to the
Chizinga at the Boarder to effect payment to Public Officers. Payment vouchers in respect of such goodwill payments were being authorized
and signed by the General Manager, the Managing Director in some cases and the Financial Controller PW4.
The fourth fact is that an envelope containing money was given to the Police and was returned. Further, Mr. Maganizo Phangire, who
was working for the Road Traffic Department came to collect the sum of K1, 600.00 which was cashed by PW3 and paid under petty cash
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 of 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 its commission.”
The above section further shows 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
It was stated by in 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” ( see also the case of Tesco Supermarkets Limited vs. Natrass (1972) AC 153)
Arlidge proceeds on page 199 as follows:
“ 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.”( see also the case of Tuck vs. Robson (1970)1 W.L.R 741
It is the evidence of Robert Bruce Holmes, who was the Managing Director of the third accused company that he never was aware that
such offence was being committed. He however, signed exhibits P21A, P21B, P34A, P35B, P39A and P31B. In cross-examination he advised
the court that he thought the payments appearing in the payment of vouchers were toll fees. When asked further whether the payment
in Malawi Kwacha would be payment for Toll fees when Toll fees was being paid US Dollar, he advised that the Toll fees is a generic
term encompassing a wide spectrum of payments. When quizzed further on exhibit P38B that only referred to ‘goodwill’,
he stated that he did not know what ‘goodwill’ meant. He however signed exhibit P39A.
It is quite strange how a Managing Director who was charged with the overall responsibility to run the affairs of the third accused
company could sign a voucher for eleven thousand three hundred fifty Kwacha (K11, 300) without knowing what the payment was for.
We are to the view that he knew that the ‘goodwill’ was meant for cash payments to Public Officers at the border. Further
Mr. Robert Holmes as Managing Director of the third accused company failed to take all reasonable steps to prevent the commission
of this offence. The presentation to him of exhibit P39A was enough to put him on enquiry that could have led him to discover and
put a stop to the commission of the offence herein by his Company. He should therefore be adjudged guilty of the offences herein
as he acquiesced to the commission of the offences herein by the third defendant and its management team.
A review of the facts of this case shows that the prosecution has proved beyond reasonable doubt that the accused persons have committed
the offences they have been charged with. The prosecution has satisfied the standard of proof required to prove criminal offences
against accused persons.
DATED THIS 16th DAY OF JUNE 2005
A E NAMPOTA
The First Accused and his Legal Practitioners
Messrs Knights and Knights
P.O. Box 1450
The Second Accused and His Legal
Messrs Mbendera and Nkhono
P.O. BOX 1785
The third Accused and their Legal
Messrs Nyirenda and Msisha P.O. Box 2420 BLANTYRE