By Staff Reporter
Ending a three-year legal battle, the High Court has acquitted a Harare couple that had been accused of defrauding former Reserve Bank of Zimbabwe Governor Gideon Gono of ZW$137 million.
The couple, Clark Makoni and Beverly Aisha Ndonda, were accused of making themselves directors and changing company documents to siphon the money, but they insisted the charges were frivolous, malicious, and peddled by Gono, whom they accused of extortion.
Regional Magistrate Stanford Mambanje had initially rejected the couple’s discharge application, ordering them to proceed with their defense.
However, High Court Judge Justice Regis Dembure overturned this, ruling the charge fatally defective because its essential elements were not properly stated.
The couple, represented by Admire Rubaya, challenged Magistrate Mambanje’s ruling in the superior court, arguing he failed to address the issues raised.
They called the prosecution a “failed fishing expedition” by the State, enabled by the Magistrate’s court.
“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 in the charge sheet.
“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,” Rubaya argued.
The lower court’s decision was rejected by Justice Dembure, who described the magistrate’s omission—specifically the failure to rule on the validity of the charges in the discharge application—as a “gross irregularity and serious misdirection.”
Makoni and his wife argued against the lower court’s attempt to resuscitate a non-existent case resting on fatally defective charges. Their primary objection was the mid-trial introduction of new particulars of fraud, which the State had failed to allege when the trial commenced.
“This 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,” Rubaya said.
Justice Dembure agreed with the defense, noting that the lower court improperly assumed the role of the State by creating a new charge the prosecution had never alleged.
While acknowledging that superior courts rarely interfere with lower court proceedings, Justice Dembure deemed this “a rare case” requiring intervention because the magistrate grossly misdirected the court by avoiding the issue of the charge’s validity.
“The Court appears to have clearly avoided the issue and then sought to reinvent particulars in respect of how charges ought to have been and not how it was presented to the court.
“The court took a dangerous path by seeking to invent and try to recreate the particulars of a charge as how it should have been.
“Findings of the magistrates court created a new charge for applicants to face not what had been placed before the court at the commencement of trial which is a gross irregularity.
“The court cannot create its particulars for the accused to face. This was not the function of the court but the State as the dominus litis,” the judge said.
