Robert Kweyunga Kwesiga & Anor v Prosecutor General & Ors

### Preamble
Judgment No. SC 58/25
1
Civil Appeal No. SC 333/24
---------


REPORTABLE   (58)

ROBERT     KWEYUNGA    KWESIGA    (2)    SANDE     HILDA     KWESIGA

v

PROSECUTOR     GENERAL     (2)     KNIGHT      FRANK     (3)     REGISTRAR     OF     DEEDS

SUPREME COURT OF ZIMBABWE

UCHENA JA, KUDYA JA & CHATUKUTA JA

HARARE: 24 SEPTEMBER 2024 & 11 JULY 2025

T. Mpofu, for the appellants

K. Mafute and Ms M. Mutamangira, for the first respondent

No appearance for the second and third respondents

KUDYA JA:

[1]	The appellants appeal against the interlocutory judgment of the High Court (court a quo) handed down on 15 May 2024, with leave from the court a quo.  The court a quo granted an application for an unexplained wealth order and an interim freezing order in favour of the first respondent and against the appellants.

FACTUAL BACKGROUND

[2] The first and second appellants are husband and wife.  They are Ugandan nationals.  Their marriage was solemnized in Kampala Uganda on 16 July 1994.  The wife was born Sande Hilda Doris.  The couple resided in Zimbabwe between 2005 and 2013, when the husband was employed, firstly as the Regional Head of the International Federation of the Red Cross before moving, in a similar capacity, to the Danish Red Cross Society in Harare in 2007.  The two institutions were international non-governmental organizations with diplomatic status in Zimbabwe.  The first respondent is the head of the National Prosecuting Authority.  The second respondent, Knight Frank, is a firm of real estate agents (the estate agent).  The third respondent is the Registrar of Deeds.

[3]	On 24 May 2023, the first respondent applied to the court a quo for an unexplained wealth order and an interim freezing order in terms of s 37B as read with s 37I of the Money Laundering and Proceeds of Crime Act [Chapter 9:24] (‘the Act’) against the appellants.  The application was on notice to the peregrine appellants.  It was however served on the appellants’ erstwhile legal practitioners in Harare, who accepted such service without any protest.  This was because, prior to the service and on 23 March 2023, 12 April 2023 and 2 May 2023, the said legal practitioners communicated with the investigating officer and the first respondent on the express instructions of the appellants.

[4]	The basis of the application was that the appellants might or could have committed the crime of money laundering in violation of s 8 (1) of the Act.  The first respondent suspected that the appellants concealed or disguised the illicit origin of the proceeds of money laundering by utilizing them to pay for the purchase price and transfer costs (the acquisition) of the two immovable properties (the properties) in Mount Pleasant and Vainona in Harare in the sum of US$115 000 and US$165 000, respectively.  These amounts were paid into the respective trust accounts of the appellants’ erstwhile legal practitioners and estate agent.  The properties are subdivision A of subdivision C of Lot 58 Block B of Avondale, also known as No.12 Windsor Close, Mount Pleasant, Harare measuring 3250 square metres held under Deed of Transfer Registered Number 4472/2010 and Stand 259 Vainona Township of Vainona measuring 4034 square metres, also known as 5 Fal Road Vainona, Harare held under Deed of Transfer Registered Number 1698/2012 dated 6 April 2012.

[5]	On 11 June 2013, the appellants and the second respondent executed a property management contract of an indefinite duration in terms of which the latter leased out the properties.  On 2 July 2021 one Derick Manuel Dube flighted an advertisement for the sale of the Vainona property in the Herald Newspaper.  The second respondent duly alerted the appellants, who instructed a legal practitioner, Mr James Mkinya, to file an urgent chamber application, case No. HC 3700/21, in the court a quo.  On 14 July 2021 a provisional interdict was granted against Derick Manuel Dube interdicting him from disposing of the Vainona property in execution of a default judgment obtained in case No. HC 7476/20, pending the resolution of the dispute between them in case No. HC 3660/21.

[6]	On 19 August 2021, the Criminal Investigation Department (CID) asset forfeiture unit, acting on “a tip-off from an open source” commenced investigations against the appellants on purported unreported criminal activities involving “large” sums of money that went undetected at the time the husband was “the Accounting Officer and Budget Controller” of the Danish Red Cross.  Soon thereafter and at the behest of the investigating officer, Detective Sergeant Mangena, Mr Mkinya attended at Morris Depot on behalf of the appellants.  Detective Sergeant Mangena, apparently sought a warned and cautioned statement from the appellants on allegations of Money Laundering as defined in s 63 of the Serious Offences (Confiscation of Profits) Act [Chapter 7:24], notwithstanding that it had been repealed and substituted by s 8 (1) of the Act on 28 June 2013.  Mr Mkinya allegedly presented to the detective sergeant various documents, which included computer generated bank statements for May 2009 and June 2011 issued by the Standard Chartered Bank, in Kampala, Uganda, the agreements of sale and the deeds of transfer of the properties and the husband’s Danish Red Cross payslip for September 2009.

[7]	The appellants were, in addition to money laundering, generally suspected of breaching exchange control regulations, hoarding and trading in hoarded cash.

[8]	The first respondent confessed and excused her inability to ascertain the appellants’ legitimate income on their failure to file local income tax returns.  The first respondent further averred that the value of the properties in question far outweighed the appellants’ unknown legitimate income, which she estimated at less than US$100 000 during the seven-year period they were stationed in Harare.  She attached valuation reports prepared by the Minister of Local Government and Public Works on 20 March 2023 which valued the Mount Pleasant property at US$235 000 and the Vainona property at US$300 000.  The first respondent’s suspicions against the second appellant were further aroused by the fact the Uganda Government Gazette, published on 19 September 2019, showed that she officially assumed her husband’s surname on that date.  The first respondent accused her of falsifying her surname in the agreements of sale and title deeds in order to conceal her true identity in the acquisition of the “tainted” properties.  The first respondent premised the interim freezing order on letters purportedly written by the appellants to the estate agent on 8 May 2023 to transfer the Mount Pleasant property to an undisclosed purchaser and by the estate agent to the first respondent on 9 May 2023 to uplift an XN caveat she registered on the same property on 17 August 2021.  It did not escape their attention that the police investigations and the registration of the XN caveat occurred at the time their legal woes with Derick Manuel Dube commenced.

[9]	The appellants opposed the application in the High Court.  They raised a preliminary issue on the propriety of the service of the application on their erstwhile legal practitioners without their consent.  On the merits, they sought to establish the legitimate source of their income by attaching 17 documentary exhibits, some of which were executed in Uganda and others in Zimbabwe.  They denied committing the crimes of money laundering, violation of exchange control regulations and the hoarding of and trading in cash.  They also disputed ever concealing the manner or basis upon which they acquired the properties.  They decried the first respondent’s failure to buttress her suspicions, on both the extent of their income and the suspected criminal activities at the time of acquisition, by any concrete evidence.  They further asserted that the first appellant was accorded diplomatic status in Zimbabwe, which exempted him from filing any local income tax returns.  The appellants averred that the value of the properties in the Minister’s valuation report were inflated. In their estimation, the whole application was based on unsubstantiated falsehoods and forged letters dated 8 and 9 May 2023 allegedly emanating from Knight Frank, who disputed their origin and authenticity.  The letters were used to seek the interim freezing order.  They asserted that they paid the purchase prices through normal banking channels.  They explained that the second appellant’s change of surname was done for the legitimate purpose of aligning her academic certificates with her Ugandan National Security card, national identity card and passport which bore her married surname and not for any improper motive.  The appellants further asserted that they earned rental income from their property portfolios in Uganda which, together with savings from their employment earnings and the sale of one of their flats in Uganda, they used to purchase the properties in question.  They attached an authenticated sale agreement of the flat dated 10 July 2011 for the princely sum of 190m Ugandan shillings, then equivalent to US$80 000.

[10]	The appellants’ opposing affidavits, which they deposed to in Kampala, were authenticated by a notary public in Kampala.  James Mkinya, and the managing partner of the estate agent Siza Masuku, filed supporting affidavits deposed to in Harare.  Mr Mkinya confirmed his interactions with the appellants, the estate agents and DS Mangena.  Mr Masuku confirmed the estate agent’s participation in the purchase and thereafter the management of the properties.  He dissociated the estate agent from the letters upon which the interim freezing order was based.  The Uganda Gazette embodying the wife’s change of name was authenticated by a notary public in Kampala.  The copies of the husband’s diplomatic passport, the computer-generated pay slip, the computer-generated Kampala Standard Chartered current account bank statements and the marriage certificate dated 16 July 1994 were not authenticated.  The local purchase agreements and the local management agreement with the estate agent were also not authenticated.

[11]	The pay slip and bank statements showed that the first appellant earned emoluments of US$10 474 per month in 2009 and US$ 10 910.99 in 2011 per month.  The credit balance in May 2009 was US$30 693.36 and was US$41 651.48 in June 2011.

[12]	In the answering affidavit, the first respondent lamented the absence of a paper trail for the payment of the purchase price. DS Mangena, for the first time, filed a supporting affidavit to the answering affidavit in which he disputed ever receiving any documents from Mr Mkinya.

[13]	In their heads of argument a quo, the appellants raised a preliminary objection to the effect that both the founding and answering affidavits filed by the first respondent were fatally defective because the dates on which they were executed were computer generated and not in long hand.  They relied on the cases of Mandishayika v Sithole HH 798/15, Twin Castle Resources (Pvt) Ltd v Paari Mining Syndicate & Ors HH 153/21 and Ndoro & Anor v Conjugal Enterprises Pvt) Ltd & Anor HH 814/24 to argue that the computer-generated dates on the affidavits invalidated these affidavits.  The appellants further sought the striking out of the supporting affidavit of DS Mangena on the basis that it had been improperly and irregularly filed.  The appellants did not motivate the avowed impropriety of the service of the application on their erstwhile legal practitioners without their express authority.  For her part, relying on Chamisa & Ors v Mnangagwa & Ors 2018 (2) ZLR 251 (CC) at 270G the first respondent argued in limine that the estate agent was improperly before the court for filing a supporting affidavit instead of filing its own opposing affidavit.

[14]	On the merits the first respondent submitted by reference to the United Kingdom and Kenyan unexplained assets law predicated upon the disproportionate sources of income and the values of the assets concept that it had established probable cause that the appellants’ legitimate income might have been insufficient to purchase the two properties.  She argued that money laundering could be deduced from the appellants’ protracted concealment of the quantum of their employment income and the disproportionality between the values of the two properties and such income.

[15]	The appellants, on the other hand, made the contrary argument that the first respondent had failed to set out objective concrete facts on which probable cause could be drawn from that the properties had been acquired from the proceeds of crime.  By reference to Ziumbe v Westlakes International Finance Ltd & Ors HH 291/20 at paras 14-16, they argued that, contrary to the first respondent’s submission on the point, the opposing affidavits of the appellants were authenticated by a notary public in Uganda and were thus compliant with the requirements of r 85 (2) (a) of the High Court Rules, 2021.  They submitted that the first respondent’s failure to deny the fraudulent nature of the letters of 8 and 9 June 2023, constituted an admission of that fact.  They further argued that their uncontroverted documents established the legitimate sources of their income and ability to purchase the properties in question.  They prayed for a dismissal of the application with costs on the higher scale.

[16]	In dealing with the preliminary points raised, the court a quo held that the fact that the first respondent’s founding and supporting affidavits bore a computer-generated date as the date when the oath was taken did not invalidate them.  The court a quo, held that there is no law that prescribed that the date on which the oath is administered should be reflected in long hand.  We note in passing that the finding was contrary to the Mandishayika case, supra, a decision by two judges on appeal, which on the basis of the doctrine of stare decisis bound the court a quo.  We further observe that, unbeknown to the parties and the court a quo, the authorities cited in para [13] above, were confirmed by this Court in Ariston Management Services v Econet Wireless Zimbabwe Ltd SC 123/23.  In relation to the supporting affidavit of DS Mangena, the court a quo held that it was properly filed in response to the accusations made against him in the opposing affidavit.  It dismissed the appellants’ preliminary points for lack of substance.  The court a quo also held that the third respondent was not opposed to the application on the sole basis that it had not filed any heads of arguments.

[17]	On the merits, the court a quo properly set out the provisions of s 37B (3) (b) and 37C of the Act.  It found the requirements prescribed in s 37B (1), that the appellants had an interest in the properties and that they were, at purchase, valued in excess of US$100 000, were satisfied. It agreed with the first respondent’s submissions that the documentary evidence produced by the appellants was inadmissible in light of r 85 (2) of the High Court Rules, 2021 as they were not authenticated.  It identified the unauthenticated documents executed in Uganda as the pay slip, bank statements and the 10 October 2011 sales agreement and its related title deed.  Having excluded these documents, it dismissed the appellants’ explanation of their sources of income.  The court further found that the application was based neither on falsehoods nor forged documents.  It was satisfied that notwithstanding the absence of the crucial information pertaining to the quantum of the first appellant’s employment income, there was reasonable cause to suspect that he was at the material time involved in a serious crime. Relying on undisclosed information which precipitated criminal investigations, the court a quo found that the absence of a discernible paper trail of the origin and movement of the purchase price constituted objective facts upon which reasonable suspicion or as he called it “reasonable basis to suspect” existed that the purchase price was derived from criminal proceeds.  It premised the finding on the absence of a “discernible paper trail of the origin and movement of the money used to liquidate the purchase price of the two properties”.  Although it was satisfied that the appellants were not attempting to dissipate the properties, it proceeded to grant an interim freezing order to preserve the effectiveness of any subsequent confiscation order, benefit recovery order, civil forfeiture order or property seizure order that might ensue from its order.  Consequently, the court a quo granted the order sought by the first respondent.

[18]	Irked by the decision of the court a quo, the appellants lodged the present appeal on the following grounds.

[19]	GROUNDS OF APPEAL

Having found that 1st respondent did not, at the time she proceeded against appellants, have any knowledge of what their salary or disposable income was, the court a quo erred in not concluding that she had no basis for activating the provisions of the Money Laundering and Proceeds of Crime Act [Chapter 9:24] bearing on unexplained wealth orders and that the proceedings were accordingly an abuse.

The court a quo erred in failing to find that the 1st respondent failed to satisfy the mandatory requirements of section 37C of the Money Laundering and Proceeds of Crime Act [Chapter 9:24] which obliged her to establish that there was a reasonable suspicion that the appellants were involved in conduct which justified the relief sought a quo.

The court a quo erred in failing to consider the explanation given by appellants as to their source of wealth and how they had acquired the two properties and so erred in not finding that the documentary evidence produced was produced in support of an explanation which the court was obliged to consider measures against the allegations made by 1st respondent.

The court a quo erred in refusing to consider the explanation given by the appellants on the basis that the paper trail attached to their notice of opposition was not authenticated and so erred in failing to give due consideration to the rules which provide that non-authentication does not bar the court from finding that the documents are as a matter of fact authentic.

A fortiori, the court a quo erred in not becoming engaged with the question whether the unauthenticated documents were authentic and genuine or otherwise had any probative value.

In all circumstances, the court a quo erred in granting invasive relief against parties that are so evidently not contemplated by the provisions of the legislation it sought to apply and against whom the law was palpably being used for an improper purpose.

RELIEF SOUGHT

The Appellant prays for the following relief:

That the appeal be allowed with costs; and

That the judgment of the court a quo be set aside in its entirety and in its place be substituted the following:

“The application is dismissed with costs.”

SUBMISSIONS ON APPEAL

[20]	Mr Mpofu, for the appellants, submitted that, even though the properties in dispute are situated in Zimbabwe, the court a quo had no jurisdiction to deal with the matter because the appellants did not and do not reside in Zimbabwe.  He contended that the jurisdiction of the court a quo would only have been invoked by an attachment ad confamandam jurisdictionem.  He argued that the first respondent ought to have sought the attachment of the properties to confirm jurisdiction before lodging the application for an unexplained wealth order.  He therefore, on that basis, sought for the vacation of the judgment of the court a quo with costs.  In engagement with the Court, Mr Mpofu conceded that, as the question of an attachment ad confamandam jurisdictionem did not form part of his grounds of appeal, he could not properly relate to it.  No more, therefore, needs to be said in this judgment on this issue.

[21]	On the substance of the appeal, Mr Mpofu strongly argued that the conjunctive requirements of s 37C (1), (2) and (3) of the Act were not met.  These provisions cast the onus in such applications on the first respondent.  He premised his contentions on subs (2) of s 37C, which requires an enforcement authority to invoke the disproportionate income requirement test before seeking an unexplained wealth order.  He contended that the first respondent’s positive assertion that the appellants’ income during the period they were in Zimbabwe was less than US$100 000, could not stand as it was based on nothing.  Counsel further argued that it behoved an enforcement authority to first ascertain the appellants income from legitimate sources before they could invoke the provisions of s 37C of the Act.  He submitted that the court a quo erred in casting the first respondent’s duty of providing the appellants’ income on the appellants, which duty constituted a condition precedent for the invocation of s 37C (2) of the Act.  He further argued that the court a quo further erred in pivoting the unexplained wealth order on the provisions of s 37C (3) in the absence of concrete evidence upon which it could reasonably be inferred that the appellants were involved in serious crimes.

[22]	He further submitted that, the concession by the first respondent that she did not know the income of the appellants at the time of acquisition resolved the appeal in the appellants’ favour.  This was on the basis that the first respondent could not therefore have reasonably suspected that the appellants were incapable of purchasing the properties from their income.

[23]	He also contended that the explanations proffered by the appellants in their opposing affidavits rebutted the first respondent’s suspicions.  He argued that the explanations were separate and distinct from the documentary evidence, which sought to prove the appellant’s rebuttal.  Counsel further contended that the first appellant’s salary was sufficient to meet the purchase price and transfer costs for the properties.  He urged the Court to take judicial notice of the notorious fact that, firstly, at the time of acquisition it was not illegal to buy property for cash and secondly, that any person with an automated teller machine (ATM) card, could withdraw a maximum of US$10 000 per day.  He therefore argued that, although the appellants used normal banking channels to transfer the acquisition costs to the trust accounts of their estate agent and erstwhile legal practitioners from whence the “cash” payments recorded in the deeds of transfers were paid, there was no law that could have prevented them from making cash purchases for the two properties.

[24]	Regarding the pay slip, bank statements and authenticated sales agreement, counsel made the following contentions.  They all adequately established the appellants’ legitimate sources of income.  The payslip was issued to the first appellant in Zimbabwe and did not therefore require authentication.  Likewise, the bank statements did not require authentication because, in terms of s 13 (1) of the Civil Evidence Act [Chapter 8:01], they were admissible on the mere basis that they are computer generated.  The court a quo failed to advert to r 85 (6) of the High Court Rules, 2021, under which unauthenticated documents are admissible in any court in Zimbabwe.  The court a quo therefore improperly disregarded them.  In addition, the supporting affidavits of two professionals, that is the legal practitioner and estate agent, which confirmed the appellants’ ability to meet the acquisition and transfer costs from their income, were simply not related to by the court a quo.  The common cause fact that the local agreements of sale showed that these costs were transferred into the trust accounts of the appellants’ estate agent and erstwhile legal practitioners together with the payslip, and the sale agreement of the flat in Uganda, all dispelled the first respondent’s suggestion and the court a quo’s finding that neither the origin nor the path of the money was established.

[25] 	Mr Mpofu therefore prayed for the success of the appeal, the vacation and substitution of the judgment of the court a quo with costs.

[26]	Per contra, Mr Mafute counsel for the first respondent, submitted that the Act provides novel ways of addressing the shortcomings in the traditional methods of criminal prosecution by creating new offences such as money laundering and investigation processes such as an unexplained wealth order.  An unexplained wealth order constitutes a preliminary investigative tool and a prelude for the collation of evidence for Confiscation Orders, Benefit Recovery Orders, Civil Forfeiture Orders and Property Seizure Orders.  He submitted that an unexplained wealth order is an application with respect to any property.  He contended that as it is not always easy to reasonably ascertain the known sources of income, such a failure could not bar an enforcement authority from seeking and a competent court from granting an unexplained wealth order.   He fully supported the decision of the court a quo arguing that the appellants’ failure to demonstrate the origin and a path for the money used to purchase and meet the transfer costs of the properties was all that the first respondent needed to show to obtain the unexplained wealth order in the court a quo.

[27]	Regarding the issue of authentication, counsel for the first respondent submitted that the payslip required authentication as some of its contents are in English and others in some foreign language.

[28]	In reply, Mr Mpofu contended that s 37C (2) and (3) introduce a fact-based enquiry predicated on reasonable grounds.  He argued that the first respondent failed a quo to place facts upon which an unexplained order could be issued.

ISSUE FOR DETERMINATION

[29]	Although the appellants have raised six grounds of appeal, the main issue for determination which is capable of disposing of the matter is whether or not the court a quo erred in granting an unexplained wealth order.

THE LAW

Legislative provisions

[30]	The relevant provisions in the determination of the present appeal are ss 8 and 37C of the Act, s 13 (1) of the Civil Evidence Act [Chapter 8:01] and r 85 (2) and (6) of the High Court Rules, 2021.

[31]	The Act came into force on 28 June 2013. Section 8 creates four categories of the crime of money laundering and the requisite mens rea and actus reus thereof under subs (1) to (5). It provides that:

“8 Money laundering offences

(1)  Any person who converts or transfers property—

(a) 	that he or she has acquired through unlawful activity or knowing, believing or suspecting that it is the proceeds of crime; and

(b) for the purpose of concealing or disguising the illicit origin of such property, or of assisting any person who is involved in the commission of a serious offence to evade the legal consequences of his or her acts or omission; commits an offence.

(2) Any person who conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing or suspecting that such property is the proceeds of crime, commits an offence.

(3) 	Any person who acquires, uses or possesses property knowing or suspecting at the time of receipt that such property is the proceeds of crime, commits an offence.

(4) 	Participation in, association with or conspiracy to commit, an attempt to commit, and aiding, abet-ting, facilitating and counselling the commission of any of the offences referred to in subsections (1), (2) and (3) is also an offence.

(5)	 Knowledge, suspicion, intent or purpose required as elements of an offence referred to in subsections (1), (2), (3) and (4) may be inferred from objective factual circumstances.” (own emphasis)

[32]	Section 37C as read with s 8 (5) of the Act embody the essential requisites of an unexplained wealth order. The relevant provisions read as follows.

“37C. Requirements for making of unexplained wealth order.

(1)	In deciding whether to make an unexplained wealth order the High Court must be satisfied that there is reasonable cause to believe that—

(a)  the respondent holds the property; and

(b)  the value of the property is greater than one hundred thousand United States dollars or its equivalent in any currency.

(2) The High Court must be satisfied that there are reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain or hold the property.

(3) The High Court must be satisfied that there are reasonable grounds for suspecting that -

(a) the respondent is, or has been, involved in serious crime (whether in Zimbabwe or elsewhere); or

(b)  a person connected with the respondent is, or has been, so involved.

(4)  It does not matter for the purposes of subsection (1)-

(b) whether the property was obtained by the respondent before or after the coming into force of this section.

(5)       For the purposes of subsection (2)-

(a)  regard is to be had to any mortgage, charge or other kind of security that it is reasonable to assume was or may have been available to the respondent for the purposes of obtaining the property;

(b) it is to be assumed that the respondent obtained the property for a price equivalent to its market value;

(c) income is “lawfully obtained” if it is obtained lawfully under the laws of the country from where the income arises;

(d)	“known” sources of the respondent’s income are the sources of income (whether arising from employment, assets or otherwise) that are reasonably ascertainable from available information at the time of the making of the application for the order” (My underlining for emphasis)

[33]	 Section 13 (1) and (6) of the Civil Evidence Act deal with the admissibility of computer-generated documents and provide that:

“13 Documents produced by computers.

Subject to this section, a document produced by a computer shall be admissible as evidence of any fact stated therein if direct oral evidence of that fact would be admissible.

(6) 	A document which is admissible under this section may be produced in evidence by any person who for the time being has custody of the document...”

[34]	Rule 85 (1), (2) and (6) of the High Court Rules, 2021 provide for the use of authenticated documents, inter alia, in our courts.  They state:

“85. Authentication of documents executed outside Zimbabwe for use within Zimbabwe.

In this rule, unless inconsistent with the context-

“authentication”, in relation to a document, means the verification of any signature thereon;

“commissioner” means a commissioner of the High Court appointed by the High Court to take affidavits or examine witnesses in any place outside Zimbabwe;

“document” means any deed, written contract, power of attorney, affidavit or other writing, but does not include an affidavit sworn before a commissioner.

Any document executed in any place outside Zimbabwe shall be deemed to be sufficiently authenticated for the purpose of production or use in any court or tribunal in Zimbabwe or for the purpose of production or lodging in any public office in Zimbabwe if it is duly authenticated at such foreign place by the signature and seal of office-

of a notary public, mayor or person holding judicial office;

(6) 	Nothing contained in this rule shall prevent the acceptance as sufficiently authenticated by any court, tribunal or public office of any document which is shown, to the satisfaction of such court, tribunal or public office, to have been actually signed by the person purporting to have signed the same.”

CASE LAW

[35]	The reasonable grounds required to satisfy the High Court in an application for an unexplained wealth order are synonymous with the concept of reasonable suspicion, which must be satisfied by the State to place a suspect on remand.  It is therefore necessary to borrow the meaning and nature of reasonable grounds from related case law on reasonable suspicion.  The following cases have defined the nature and scope of reasonable suspicion.

[36]	In Martin v Attorney General & Anor 1993 (1) ZLR 153 (S) at 159B-D this Court stated that:

“It is the entitlement of every individual to challenge the power and right of the State to place him on remand. This he does upon a submission that insufficient facts have been alleged to enable the court to objectively find the existence of a reasonable suspicion of his having committed, or being about to commit, a criminal offence, thereby justifying the deprivation of his personal liberty under s 13 (2) (e) of the Constitution. He may adduce evidence, as the applicant did, designed to demolish, clarify or weaken, the facts alleged by the State. The test to be applied is the same as that for arrest without warrant. It does not require the firm resolution of conflicting evidence that guilt beyond a reasonable doubt demand, nor even a preponderance of probability. Certainty as to the truth is not involved, for otherwise it ceases to become suspicion and becomes fact. Suspicion, by definition, is a state of conjecture or surmise whereof proof is lacking. See Attorney-General v Blumears & Anor 1991 (1) ZLR 118 (S) at 122B-C; S v Ganyu 1977 (2) RLR 97 (AD) at 104F.” (Underlining for emphasis)

[37]	Further in the case of Muzonda v Minister of Home Affairs & Anor 1993 (1) ZLR 92 (S) at 96E it was held that:

“It is not sufficient for a peace officer to personally believe that he has reasonable grounds on which to base the arrest. These grounds must, in addition, be justifiable from an objective point of view, that is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds.”

[38]	In similar vein is the case of Mabona & Anor v Min of Law & Order & Ors 1988 (2) SA 654 (E) at 658G-H which said:

“The reasonable man will therefore analyse and assess the quality of the information at his disposal critically, and he will not accept it lightly or without checking it where it can be checked.  It is only after an examination of this kind that he will allow himself to entertain a suspicion which may justify an arrest.  This is not to say that the information at his disposal must be of sufficiently high quality and cogency to engender in him a conviction that the suspect is in fact guilty. However, the suspicion must be based on solid grounds.  Otherwise, it will be flighty or arbitrary and therefore not a reasonable suspicion.”

[39]	Again, in Smythe v Ushewokunze & Anor 1997 (2) ZLR 544 (S) at 588 B-C this Court pronounced that reasonable suspicion is activated by and based on objective facts, when it said:

“With this approach in mind it is to be decided whether the State has offered facts upon which objectively it can be held that reasonable suspicion existed that the applicant had committed the offences for which he was placed on remand.”(own emphasis)

[40]	To similar effect is Williams & Anor v Msipha NO & Ors 2010 (2) ZLR 552 (S) at 570G where the Court said

“A reasonable suspicion that an accused person has committed the offence with which he is charged presupposes that the facts on which the charge is based would, if proved at the trial, constitute the offence. Where the accused person challenges the legality of the charge on the ground that the offence itself was not committed, the onus is on the State to first show that, if proved at the trial, the facts on which the charge is based would constitute the offence with which the accused person is charged. Only then would the question whether the facts provide ground for a reasonable suspicion that the accused person committed the offence as required by s 13 (2) (e) of the Constitution arise.”

It further emphasized at 571C that:

“To determine the question whether the conduct committed by the applicants and for which they were charged with the crime of contravening s 37 (1) (a) (i) of the Act would, if proved at the trial, constitute the offence they were charged with, the magistrate was required under s 13(2)(e) of the Constitution to take into account the essential elements of the offence and the conduct which, if proved at the trial, would constitute the offence charged. He was required to apply the knowledge of the statute to the conduct actually committed by the applicants and decide whether it constituted the proscribed conduct.” (own emphasis)

[41]	Lastly, the Court in FreeZim Congress v Boora N.O & Ors HB143-18 at p 4 stated that:

“Civil liberties are enshrined in the constitution, and before a police officer seeks to curtail same, he must have a well-grounded, justification for doing so in the form of a reasonable suspicion. The online dictionary defines a reasonable suspicion as: “a legal standard for arrests and warrants, which is more than inchoate or unparticularized suspicion or “hunch”, it must be based on “specific and articulable facts” taken together with rational inferences.”

THE APPLICATION OF THE LAW TO THE FACTS

[42]	The requisites for an unexplained wealth order derived from s 37C of the Act are the following:

(a)	The existence of a reasonable cause that the respondent or defendant owns or has interests in the property;

(b)  The property is valued in excess of US$100 000;

(c)	There is reasonable suspicion that the person’s known sources of income are insufficient for him or her to purchase the property.

(d)  There exists reasonable suspicion that he or she is or has been involved in serious crime(s) in or outside Zimbabwe.

(e)	 The existence of objective factual circumstances from which reasonable suspicion in (c) and (d) is inferred.

[43]	The provisions of subs (5) constitute factual presumptions on the deemed value of the property and definition of lawfully obtained income at the time of acquisition and provide the wide meaning of known sources of income at the institution of the application, which encompasses employment earnings and asset disposals.

[44]	The Act places the onus to establish reasonable grounds to obtain an unexplained wealth order on the enforcement authority.  It behoved the first respondent to establish and the court a quo to find that the appellants had converted or transferred property they knew or believed or suspected to be proceeds of crime in order to conceal or disguise its illicit origin.

[45]	It was common cause that the first respondent satisfied the ownership or interest and value elements prescribed in paras (a) and (b) in para 42, above.  The appellants are the actual owners of the two properties.  In addition, the two properties were purchased for US$115 000 and US$165 000 respectively, which values are in excess of US$100 000 and are deemed by s 37C (5) (b) to be equivalent to each property’s market value.

[46]	It was further common cause that the first respondent did not know nor ascertain the income of the appellants at the time the properties were acquired and transferred.  At the institution of the application a quo, the first respondent knew that the first respondent held a senior position in the Danish Red Cross and that his known source of income was his job.  She approbated and reprobated on whether she enquired from his employer who, at the time the police commenced investigations into the acquisitions, had relocated to its home country in Denmark.  The assertion in her founding affidavit that the first respondent earned less than US$100 000 during the seven-year period in which the acquisitions were made was plucked from thin air.  It was not based on any objective factual basis.  It could not, contrary to the requirements prescribed of s 8 (5) of the Act, be inferred from objective factual circumstances.  Nor could it meet the disproportionate income requirement prescribed in s 37C (2) and (5) (d) of the Act.  Such an acute failure, based as it was on a false premise, should have set the alarm bells in the court a quo as to the propriety of the application.  It was in these circumstances premature for the first respondent to institute the application in the absence of information on the known sources of the appellants’ income.  The application ought, on this ground alone, to have suffered a still birth.

[47]	The last requirement upon which the decision a quo was made is set out in subpara (d) of para 42 of this judgment.  The first respondent was obliged to establish and the court was required to be satisfied that there were reasonable grounds for suspecting that the appellants were involved in serious criminal activities.  The court a quo was satisfied that there were reasonable grounds for suspecting that the appellants were indeed involved in serious crimes in Zimbabwe.

[48]	The basis for suspecting their involvement in serious crime is set out in para 9 of the founding affidavit thus:

“9. At the relevant time of the acquisition of the said property, and by virtue of the circumstances surrounding the purchase of the property and means of payment used as cash other than some traceable electronic means through the financial system, there is clear evidence of perpetuation of an offence of Money Laundering as defined in s 8 (1) (a) of the Money Laundering and Proceeds of Crime Act [Chapter 9:24] it being alleged they acquired (sic) using illegally acquired money from some unlawful activities.”

[49]	The basis is further amplified in the supporting affidavit of the officer in charge of the Police Asset Forfeiture Unit in paras 4, 5 and 8 thus:

“4. On 9 August 2021 information was received from a source to the effect that during the period extending from the year 2007 to 2013 the first respondent while working as an expatriate for Danish Red Cross Society in Zimbabwe being an accounting officer and budget controller was involved in criminal activities and got large sums of money in the process. To disguise the illicitly gotten money the accused (sic) purchased the following properties…

5.  According to forms of declaration by purchasers obtained from registrar of deeds the respondents purchased the two properties in cash.

8.  The above properties which were purchased in cash in Zimbabwe do not have any official lawful trace of origin of funds.”

[50]	The appellants disputed the above averments and decried the absence of any objective facts upon which the enforcement authority’s averments were based.  They asserted that the payments were made through bank transfers to the trust accounts of the estate agent and their erstwhile legal practitioners who in turn transferred the money to the sellers.  They attached several documents explaining their known sources of income and the path of the money.

[51]	The court a quo rejected the paper trail of the respondents and held in para [54] of its judgment that:

“[54] In any event, I am satisfied, on a consideration of the bases (sic) of the application, that there is reasonable cause to suspect that the first respondent was at the material time involved in serious crime and laundered the proceeds thereof by acquiring the two properties in this country. “Reasonable cause to suspect” is exactly that. It is a reasonable basis to suspect. It is not proof on a balance of probabilities. It is the existence of some facts which, objectively viewed, calls upon, in casu, the first and second respondents to explain how they acquired the two properties (including, in particular, how any costs incurred in obtaining them were met). In satisfying myself that there indeed is reasonable cause to suspect that the first respondent was involved in serious crime at the material time and laundered the proceeds through acquisition of the properties I have not lost sight of the circumstances that, on the record, there appears to be no discernible paper trail of the origin and movement of the money used to liquidate the purchase price of the two properties.” (My emphasis)

The court a quo therefore predicated its unexplained wealth order on the appellants’ failure to show the sources of their funds and the path the funds followed to reach the sellers.

[52]	The Court agrees with Mr Mpofu that the requirements prescribed in s 37C (1) to (4) are conjunctive and not disjunctive.  Put differently, the High Court must be satisfied that all the requirements are present before it can be satisfied to grant an unexplained wealth order.  If therefore a single element is missing, then the unexplained wealth order cannot properly be granted.  The conjunctive nature of the requirements is apparent from the legislative command embodied in the common phrase “the High Court must be satisfied” which permeates subss (1), (2) and (3) of s 37C of the Act.  It denotes the cumulative indivisibility or integration of these subsections.  This appears to be a deliberate balancing act by the legislature between the protection to private property and the investigation of serious crimes. While the threshold of reasonable suspicion is below reasonable doubt and a preponderance of probabilities, the suspicion must be measured through the prism of the prudent man.  In other words, the suspicion must be based on objective facts.

[53]	Now, in the present matter, the first respondent did not place any objective facts demonstrative of suspected money laundering, breaching exchange control regulations, hoarding and trading in hoarded cash.  She simply made the bald assertion that she was relying on a tip off from a faceless individual.  The paucity of objective facts that could link the first appellant to these generalized crimes clearly does not meet the prescribed threshold in s 37C (3) of the Act.  The first respondent improperly reasoned backwards, firstly by inferring suspicion from the common cause facts of the acquisitions.  Secondly by utilizing her own failure to obtain the appellants’ income as a further basis to infer that they could not at the time afford to purchase the two properties within a space of two years.  Lastly, by inferring from the two preceding inferences that they must have been involved in criminal activities.  Instead, the provisions of s 37C of the Act required her to first establish objective facts of their income, of their unlawful extra-curricular activities before she could infer that the appellants were incapable of raising the purchase price and transfer costs from their lawful activities.  In the end, what the first respondent presented and what the court a quo upheld was an inchoate or unparticularized suspicion or hunch from a tip off and not specific and articulable facts upon which rational inferences could be drawn.  Clearly, the facts and circumstances disclosed by the first respondents and accepted by the court a quo were insufficient to warrant a prudent man to suspect that the appellants had committed, the criminal offences of money laundering, breaching the exchange control regulations and hoarding or trading in hoarded cash for which they were to suffer the indignity of an unexplained wealth order.

[54]	 The court a quo fell for the first respondent’s stratagem.  It exercised its discretion on the wrong basis.  See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at p 670 and S v Pillay 1977 (4) SA 531 (AD) at p 353 C-E.  This Court agrees with Mr Mpofu that, firstly, it was improper for the first respondent to bring a quo a half-baked application in which she did not know the lawful income of the respondents.  Secondly, that the court a quo granted the application for an unexplained wealth order in circumstances where the cumulative requirements set out in s 37C of the Act were not met.

[55] We therefore find the first two grounds of appeal to be meritorious.  In the light of these findings, it is not necessary to relate to the third, fourth, fifth and sixth grounds of appeal, which deal with the probative values of the appellants’ rebuttal evidence and the authentication of documents.  In the circumstances, the court a quo erred and grossly misdirected itself in granting the unexplained wealth order.

DISPOSITION

[56]	The appeal has merit.  The court a quo could not have granted the application for an unexplained wealth order when the requirements set out in s 37C of the Act were not met.  The appeal ought to be allowed.  There is no reason why costs should not follow the result.

[57]   It is therefore ordered as follows:

1.  The appeal be and is hereby allowed with costs.

2.  The judgment of the court a quo is set aside and substituted with the following:

“The application is dismissed with costs.”

UCHENA JA		:           I agree

CHATUKUTA JA	:     	I agree

Gill, Godlonton & Gerrans, appellants’ legal practitioners.

National Prosecuting Authority, first respondent’s legal practitioners.