Prosecutor-General v Frank Chitukutuku & Ors

### Preamble
1
HH 377-21
HACC 14/20
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PROSECUTOR-GENERAL

versus

FRANK CHITUKUTUKU

and

NYASHA CHITUKUTUKU

and

HOTSPIKES (PVT) LTD

and

REGISTRAR OF DEEDS

and

REGISTRAR OF MOTOR VEHICLES

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 23 March 2021 & 21 July 2021

Opposed Application

C. Mutangadura, for the applicant

J. Dondo with E Nyakunika, for the 1st, 2nd and 3rd respondents

No appearance for the 4th and 5th respondents

CHIKOWERO J: This is an application for an order for civil forfeiture of property brought in terms of s 79 as read with s 80 of the Money Laundering and Proceeds of Crime Act [Chapter 9:24]  (“the MLPCA”).

The property in question includes ten motor vehicles, four immovable properties and shareholding in two companies. The property allegedly belongs to the first, second and third respondents.

The applicant (“the Prosecutor-General”) alleges that the first respondent was involved in the commission of serious offences namely criminal abuse of duty as a public officer, fraud, bribery and money laundering at a time when the latter was employed as the Chief Executive Officer of the Zimbabwe National Road Administration (“ZINARA”). The first respondent is said to have taken advantage of his office to hand-pick two companies to undertake civil construction works in Gutu, Zaka, Buhera, Mhondoro-Ngezi and Goromonzi. The two companies, namely Fremus (Pvt) Ltd (“Fremus”) and Twalumba Civils (Pvt) Ltd (“Twalumba”) obtained contracts to undertake the road maintenance work without having gone through tender procedures. The first respondent was allegedly pivotal in the corrupt awarding of the contracts to these companies. The Prosecutor General alleges that first respondent unlawfully benefitted from the huge payments remitted by ZINARA to the two companies in that they then paid bribes to him. Using the proceeds of those crimes, the first respondent, working with the second respondent (who is his spouse) acquired the property which is the subject matter of this application.

Without going through tender procedures, the first respondent is also alleged to have abused his office to award road maintenance and bridge construction contracts to Notify Enterprises (Pvt) Ltd (“Notify”) to undertake fictitious work in the Bubi and Umguza districts in Matabeleland North Province. To conceal the crimes, the respective rural district councils’ Chief Executive Officers connived with the first respondent to flight notices in some national newspapers inviting tenders at a time when the contracts had already been awarded to Notify. The Prosecutor-General contends that Notify employed part of the money received from ZINARA for the fictitious civil works to pay off the first respondent.

To the founding affidavit is attached certain documentation inclusive of the following: copies of the contracts between ZINARA and the respective rural district councils, the ZINARA bank statements, minutes of meetings of some of the rural district councils and title deeds of the immovable property sought to be forfeited.

On 22 May 2019 this court granted an unexplained wealth and asset freezing order pursuant to an ex parte application brought by the National Prosecuting Authority against the first respondent. That order, under case number HC 3820/19, required the first respondent to give a statement to the Head of the Criminal Investigations Department, Commercial Crimes Division’s Asset Forfeiture Unit at Morris Depot in Harare within 30 days explaining, among other things, the nature and extent of his interest in the same property whose forfeiture is now sought and how he had obtained or purchased the same. The court order, the first respondent’s statement and the addendum thereto are annexures to the founding affidavit.

The unexplained wealth and asset freezing application was made in terms of s 37H of the then Presidential Powers (Temporary Measures) (Amendment of the Money Laundering and Proceeds of Crime Act and Exchange Control Act) Regulations, 2018 Statutory Instrument 246 of 2018.

The first, second and third respondents opposed the instant application on the merits. They also raised two points in limine.

THE FIRST PRELIMINARY POINT.

The respondents argue that the application is fatally defective for want of a valid founding affidavit. Consequently, I am urged to find that there is no proper application before me. Respondents therefore submit that I should strike off the application from the roll with costs on the punitive scale.

The founding affidavit was deposed to by Justin Uladi, the Acting National Director of Public Prosecutions in the National Prosecuting Authority, duly authorized by the Prosecutor- General. The respondents do not dispute that Uladi was authorised by the Prosecutor-General to depose to the affidavit.

Paragraph 2 of the founding affidavit reads as follows:

“2.	The facts in this affidavit come from my personal observation, my training experience and information obtained from case file that relate to the first and second respondents’ criminal activities during the material time. This information is contained in a case file investigated by the Zimbabwe Anti-Corruption Commission (hereinafter called ZACC)”

Mr Dondo argued that the founding affidavit does not comply with the peremptory provisions of r 227(4)(a) of the High Court Rules, 1971. The rule reads:

“227 (1)	………………

(2)	……………….

(3)  	………………..

(4)	An affidavit filed with a written application-

(a)	shall be made by the applicant or respondent, as the case may be, or by a person 				who can swear to the facts or averments set out therein…”

He submitted that it is common cause that Uladi received a file of papers from ZACC pursuant to the latter’s investigations into the first respondent’s alleged involvement in the commission of the serious offences of criminal abuse of duty as a public officer, fraud, bribery and money laundering during the currency of first respondent’s employment with ZINARA. That being the case, Mr Dondo submitted, it follows that Uladi did not observe, or see, the unfolding of the events which he deposes to. Not being an eye witness, Uladi has no personal knowledge of the facts of the matter. It is therefore incorrect for the deponent to swear that:

“The facts in this affidavit come from my personal observation…....”

Uladi was not on the ground at the material time and, being restricted to ZACC’s case file, would not be a competent viva voce witness to the facts were he to be called. See Chiadzwa v Paulkner 1991 (2) ZLR 33 (SC)

In resisting the preliminary point Mr Mutangadura referred me to the case of Minister of Foreign Affairs v Michael Henrich, & Ors 2015(1) ZLR 428(H). In that matter a Chief Law Officer in the Civil Division of the Attorney-General’s office had deposed to the founding affidavit. The court held that the case largely turned on its litigation history and the law, which was a matter within the personal knowledge of the deponent, a lawyer. The deponent’s personal knowledge was derived from her perusal of the files kept at the Civil Division. Those files reflected the litigation history of the matter. Her personal knowledge was also based on enquiries made by the deponent from her colleagues and, as I have already indicated, her knowledge of the law. Accordingly, the court concluded that the founding affidavit was not fatally defective.

Mr Dondo urged me to find that the case of Minister of Foreign Affairs (supra) is distinguishable. Relying on Bubye Minerals (Pvt) Ltd and Anor v Rani International Ltd 2007(1) ZLR 22(S), he argued that Uladi is not the correct person to swear to the facts and averments set out in the founding affidavit. Those facts and averments are the merits of the matter. They are disputed by the respondents. Uladi has no personal knowledge of the facts.

Mr Mutangadura argued that s 27 (1) of the Civil Evidence Act [Chapter 8:01] renders the contents of Uladi’s affidavit admissible. The section reads:

“27 First-hand hearsay evidence

Subject to this section evidence of a statement made by any person, whether orally or in writing or otherwise, shall be admissible in civil proceedings as evidence of any fact mentioned or disclosed in the statement, if direct oral evidence by that person of that fact would be admissible in those proceedings.” (underlining for emphasis).

There are conditions for the admissibility of first hand hearsay evidence. See Mutimwinyi v Mutimwinyi and Registrar of Deeds SC 192/95; Pocock v AFC 1995 (2) ZLR 365 (S); Church of the Province of Central Africa v Jakazi and Ors (1) 2010 (1) ZLR 246 (H) at 249F; Glenwood Heavy Equipment (Pvt) Ltd v Hwange Colliery Company Ltd and Others HH 664/16. In Hiltunen v Hiltunen 2008 (2) ZLR 296(H), cited by both counsel, Makarau JP (as she then was) said at 302 F-303B:

“The provisions of section 27 (1) of the Act merely provide for the admissibility of statements made by other persons where such statements would have been admissible had they been adduced as direct evidence by the makers of the statements as detailed above. It does not provide for the wholesale admissibility of hearsay evidence…..

I have had recourse to the provisions of s 27 (1) of the Act to determine whether the contents of the affidavit can be admitted thereunder. I am unable to find in favour of the deponent in this regard in that the source of information and basis of belief by the deponent is not disclosed. I am therefore unable to determine whether if the source of the information were present and testifying, such information as was supplied to the deponent would have been admissible from the mouth of the source”.

What Uladi deposes to is premised on the file of papers that he received from ZACC. He used some of those papers as annexures to his founding affidavit. His source is that file. I think that is where the problem is. The person or persons who received statements, written or oral, or both, appear to me to be the ZACC investigator(s). They have not placed any affidavits before me. Accordingly, I do not think what is before me is first hand hearsay evidence. My view is that the Prosecutor General, on the papers as presented before me, cannot therefore rely on s 27(1) of the Act.

Mr Mutangadura also effectively contradicted himself.  He argued that since most of the annexures are public documents it means that even if the founding affidavit itself contains otherwise inadmissible hearsay evidence the validity of the affidavit is saved by the annexures because the affidavit shows that Uladi was interpreting the contents of the annexures.

I am unable to accept this submission. It puts the cart before the horse. The founding affidavit cannot be separated from the annexures. In this case the affidavit itself violates the best evidence rule in that it is anchored on primary facts which ought to have been deposed to by some other person or persons. In setting out the factual conspectus, those person(s) would then properly relate to the contents of the annexures.

I take this view for the stronger reason that the factual issues are heavily disputed. Where the factual issues are heavily contested, the duty of the court is to interrogate the facts to establish the truth. A court of law cannot interrogate facts which are not properly placed before it. In Chamisa v Mnangagwa & Ors CCZ 21/19 MALABA CJ, writing for the court, in somewhat different circumstances, said at p 97:

“….the duty of a court where factual issues are heavily disputed is to establish the truth. The court becomes a trier of fact. The dispute is, however, between the parties who have the duty to place evidence before the court in order for the truth to be established.”

These sentiments apply to the present matter with equal force. What the Prosecutor-General has done in his affidavit is that he has sought to speak for everybody. As the applicant, the Prosecutor-General can indeed speak for himself in an application such as the present. For example, he can swear to the existence of the unexplained wealth and asset freezing order. However the facts deposed to in the founding affidavit go beyond that order. In these circumstances the ZACC investigators, among other persons, ought to have sworn to the facts they uncovered during the course of their investigations.

Section 80 of the MLPCA reads, in relevant part:

“(2) the Court, on an application by the Prosecutor-General, shall grant a civil forfeiture order in respect of property within the jurisdiction of Zimbabwe, where the court finds, on a balance of probabilities that such property is tainted property or terrorist property.”

In my view, this provision proceeds from the procedural assumption that the facts and evidence on which the court acts are properly before it. I am aware that s 79(1) of the MLPCA provides that a civil forfeiture order can be sought in respect of property that is suspected to be tainted property or terrorist property whenever such property is identified by or comes into the possession of, among others, the Prosecutor-General.  I am aware also that s 81 of the MLPCA details the procedure in an application for an unexplained wealth and property freezing order. Section 81(2) and (3) provide, among other things, that the application shall be in writing, that the application may be made ex parte and that it shall be supported by an affidavit of an authorised officer indicating that the officer believes, and the grounds for his or her belief, that the property which is the subject of the application is tainted property or terrorist property. However, my view is that when it comes to an application for civil forfeiture, the court can only relate to the contents of affidavits where such affidavits are not defective.

According to s 84 of the MLPCA the High Court Civil Rules apply to this application. Indeed, Counsel argued the application on this basis. I have adverted to various sources of civil law and procedure currently applicable in this jurisdiction. Against this backdrop, the fact that the Prosecutor-General is the beneficiary of an unexplained wealth and asset freezing order granted by this court, in respect of the property the subject of the present application does not, in my view, mean that I must disregard the law governing how facts and evidence should be placed before this court. This Court is a court of law. It operates within the parameters defined by the law.

The circumstances of this matter are such that, absent the depositions of the persons I have alluded to in this judgement, the Prosecutor-General’s founding affidavit is rendered fatally defective. It is a mixture of that which the deponent can swear to and that which he cannot swear to. The affidavit cannot be severed. Since it is the only affidavit placed before me in support of the application the result is that the application, too, is fatally defective.

This renders it unnecessary to deal with the second preliminary point raised by the respondents as well as the merits of the matter.

The respondents have succeeded on a procedural point. I do not think that this result justifies an order of costs on a punitive scale.

In the result, the following order shall issue:

The preliminary point is upheld.

The application be and is struck off the roll.

The applicant shall pay the 1st, 2nd and 3rd respondents’ costs.

The National Prosecuting Authority, applicant’s legal practitioners

Dondo & Partners, 1st, 2nd & 3rd respondents’ legal practitioners