By Judith Nyuke
The Harare couple accused of defrauding former Reserve Bank of Zimbabwe Governor Gideon Gono has approached the High Court to challenge the lower court’s decision to dismiss their application for discharge following the close of the State’s case.
Estate agents Clark Clever Makoni and Beverly Aisha Ndonda Makoni are accused of defrauding Dr. Gono’s company Galwex Investments of ZWL$137 million.
Clark and Beverly Makoni are seeking a review of the magistrate’s decision believing the court erred by denying their request to drop the case after arguing the State failed to prove a prima facie case or disclose an offense against them.
Magistrate Stanford Mambanje, in his official capacity and the Prosecutor General Loyce Matanda-Moyo were cited as respondents in the application.
After dismissing the couple’s application for discharge, magistrate Mambanje ordered them to explain their defense of Dr. Gono’s alleged malice and account for their inclusion on the alleged documents.
However, through their lawyer Admire Rubaya, the couple labeled the case a “failed fishing expedition,” arguing against malicious prosecution.
“The State is acting like a soccer player who has dived at the centre circle of a soccer pitch and clamouring to the referee to be awarded a penalty. This is clearly unacceptable and untenable.
“The State simply alleges that the Accused persons made a misrepresentation that they were the official directors of Valley Lodge (Pyt) Ltd, intending to deceive ZB Bank (Private) Limited.
“There is no way the accused persons can be placed onto the defence in circumstances where the essential elements of the offence of fraud have not been set out.
“As it stands the charge of fraud is barren as it lacks the essential averments required to make the charge a valid one for fraud as codified,” read part of the application.
The couple said the Court should not be allowed to resuscitate a non-existent case which lacks expert evidence.
“This honourable court cannot by any stretch of its powers seek to panel beat the charge for purposes of placing the Accused persons onto their defence.
“It is entreated to avoid the temptation of making a bidding for the State. It laid its bed, it must lie on it, and it must never rise from it,” read part of the application.
Rubaya said the State’s witnesses proved the allegations false specifically regarding the claim that the couple removed Ayood Omar and Mohammed Hussein Omar from the Valley Lodge (Pvt) Ltd directorship.
“There was a clear concession by all the critical witnesses that the directors of Valley Lodge (Pvt) Ltd have remained the same as from 2009 and or at inception of the company till today. This concession clearly exonerated the Accused persons to the extent that there cannot be alleged to be a fraudulent removal of Directors from the list of the Directors.
“This proves beyond doubt that the State case is just but a high sounding nothing, it has not in any way scathed or impeached the Accused persons,” Rubaya said.
According to the defense, the State presented insufficient evidence to establish that the couple seized control of the bank accounts and subsequently withdrew local currency equivalent to US$70,000 for salaries.
“The State never led any evidence showing that there was any withdrawal from the account in question, which withdrawal was allegedly done by the Accused persons. The State did not proffer any documentary evidence to that effect. There were no withdrawal slips nor was there any other evidence which coalesced into a prima facie case of the alleged withdrawals,” the application reads.
A further argument was that the State’s reliance on questionable documents is insufficient, as the signatures cannot be linked to the suspects without supporting expert testimony.
“The State has produced an alleged fraudulent CR14 for Valley Lodge (Private) Limited, whose document has not been proven to be linked to the Accused persons except for the typed names thereto.
“The Accused persons challenged the production of the alleged CR14, but the Court accepted same provisionally awaiting for evidence from the Complainant and the State that one of the Accused persons or both of the Accused persons or both of them are the ones who created or authored the document.
“There is a disputed signature on the offending CR14 which has not been connected to any of the Accused persons. None of the State witnesses said they saw any of the accused creating and signing the alleged CR14 in issue. The Accused persons cannot in the circumstances, be linked to the alleged CR 14 using a copy whose signature has not been linked to them,” they submitted.
Rubaya maintained that the State had the burden of proof to demonstrate that the allegedly fraudulent CR 14 document for Valley Lodge (Pvt) Ltd was, in fact, authored by the accused.
“It is submitted with due reverence that the State failed to clear the first hurdle of proving as a matter of fact that the Accused authored the document in issue.
“The State has closed its case. It has dismally failed to lead credible evidence to establish that the Accused persons as a matter of fact authored the CR 14 in question. None of the witnesses who testified saw the Accused persor allegedly signing on the CR 14,” the defence stated.
Rubaya said all disputed State documents are inadmissible as evidence.
“The State produced some disputed documents with disputed andwritings and signatures. The Court simply took the documents as the ones allegedly filed at the bank but not as proof that they were prepared and signed by the Accused persons.
“A criminal trial is not a fishing expedition. The 1st (Clark) and 2nd (Beverly) Accused persons should not be put to their defence, hoping that along the way they will convict themselves out of their own mouths.
“This is a classical failed fishing expedition where the state has failed to even catch a small frog or a kapenta,” read part of the application.
