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Motors yesterday said the complainant Mr Paul Westwood was a self confessed drug addict currently on medical rehabilitation.
The company is valued at US$1 million.
Mliswa is jointly charged with George Marere (36), Martin Mutasa (47), Hammarkjold Banda and his wife Brendaly, and Alfred Mwatiwamba.
In their application for discharge filed at the Harare Magistrate Court yesterday by their lawyer Mr Charles Chinyama, the six claim that the State did not prove all the essential elements of the case of fraud in relation to all the accused persons.
“Of worth to note is the fact that Paul Westwood, the complainant in this matter is a self confessed drug addict currently on medical rehabilitation.
“He conceded in his evidence in chief that they were not running the company in terms of the Companies Act as read together with the Articles of the company but rather, Noshio Motors was being run as a family business with no meeting being conducted by the Board of Directors and no resolutions being passed authorising the company to do A,B,C,” they submitted.
They also claim that Mr Westwood conceded that none of the accused persons advised him that he had ceased to be a shareholder of the company but for the suspension.
The six said it was important for the court to take judicial notice of the fact that Mr Westwood’s mental status and capacity to give evidence to strenuous scrutiny in the absence of any certificate from a qualified person certifying that he is mentally fit to give evidence in court.
“The court might be dealing (with all due respect) with the evidence of a person not in his senses,” they further submitted.
They further said that Mr Westwood conceded that there was nothing illegal about the trust formed by Banda to run his 50 percent shares in Noshio Motors to which Mliswa and others were trustees.
They claimed that by bringing names of President Mugabe and that of Minister Saviour Kasukuwere, Mr Westwood was desperate to drag big names for his personal benefit.
“He could not even establish the nature of prejudice he suffered. “
A question was put to him by the defence as follows: ” You stated that the accused person was from AAG and Kasukuwere and His Excellency the President of the Republic of Zimbabwe knew he was at Noshio, assuming that the statement was made which is denied, did you act on it to your prejudice”. The answer was “no”.
“There is no case of fraud whatsoever made by the State against any one of the accused person under any normal circumstances and this is a clear case where the State acting as the State and without any interference from any other quarter would have displayed a measure of professional courtesy by throwing in the towel and simply withdrawing the charges after plea,” submitted Mr Chinyama.
The State is expected to respond to the submissions today while regional magistrate Mr Never Katiyo will make a ruling tomorrow.
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