Chief Court Reporter
Former Zinara chief executive Frank Chitukutuku and his wife have escaped the first attempt to confiscate four houses, a fleet of 10 cars, and shares in two businesses believed to have been bought from the proceeds of corruption after the High Court agreed that the National Prosecuting Authority had made a defective application.
This first hurdle, a procedural matter before the judge could even start ploughing through the evidence to see if it was probable that the assets were bought with dirty money, involved an affidavit from acting national director of public prosecutions Mr Justin Uladi who deposed an affidavit using information in a file supplied by investigators of the Zimbabwe Anti-Corruption Commission.
The High Court agreed with the Chitukutuku lawyers that he could not use this second-hand evidence in his own affidavit, and instead should have got the ZACC team to swear out their own affidavits about what they had discovered. The prosecuting authority can still have a go at confiscating the assets but has to start from scratch as the civil application was struck from the High Court roll.
The prosecuting authority is running criminal and civil cases in tandem. On the criminal side, Chitukutuku is facing charges of criminal abuse of office as a public officer, fraud, bribery and money laundering, all arising from his time at Zinara.
But the authority also launched a civil forfeiture suit to seize what it believed were the fruits of the corruption. The civil suit would not only grab the assets, regardless of the results of the criminal prosecutions, but in theory was easier. In a criminal matter the proof has to be beyond reasonable doubt. In a civil suit it is only on the balance of probabilities. This means that it is quite possible that someone can be acquitted of corruption-related charges but lose assets on the basis that they were bought with corrupt funds.
When the prosecution authority brought its application for an order for civil forfeiture of the Chitukutuku couple’s properties, their legal counsel raised objections arguing the application was fatally defective for want of a valid founding affidavit.
The court was urged to find that there was no proper application before it since acting national director public prosecution Mr Justin Uladi, who swore out the affidavit, had no personal knowledge of the facts of the matter.
But the authority fired back that Mr Uladi had the evidence in the files received from ZACC.
However, Justice Benjamin Chikowero had problems with the file as the source of Mr Uladi’s founding affidavit.
The judge noted that the persons who received statements, written or oral, appeared to be the ZACC investigators, but had not placed any affidavits before him. So, what was before the judge was not first-hand but hearsay evidence, hence the Prosecutor- General Mr Kumbirai Hodzi could not rely on the provisions of the Civil Evidence Act to argue his case.
Justice Chikowero said in this case, the ZACC investigators, among other persons, should have sworn to the facts they uncovered during the course of their investigations and the absence of their depositions, the prosecuting authority’s affidavit was 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,” said Justice Chikowero, upholding the procedural point raised by Chitukutuku legal counsel.
However, if the National Prosecuting Authority fixes its application and relaunches the suit, the couple could lose 10 vehicles, four immovable properties and shareholding in two companies.
In his sworn statement, Mr Uladi argued there was a reasonable probability that Chitukutuku corruptly caused and generated flows of millions of dollars to favoured corporate entities for his personal gain and illicit enrichment.
This, in turn, created a fertile ground for Chitukutuku to start money laundering through allegedly cleaning dirty money by acquiring assets and businesses, argued Mr Uladi. He added that even where Chitukutuku acquired property legitimately, this should be forfeited to help Zinara recover its losses.