adminTelecel took the matter up to the Supreme Court after the High Court threw out its initial application last year.
Dr Mutasa was arrested in 2009 with two other managers on allegations of swindling Telecel of more than US$1,7 million.
The alleged fraud involved an airtime and starter pack deal that led to the company losing money.
Mr Tomana then declined to prosecute the suspects for lack of incriminating evidence, a development which did not go down well with Telecel.
Through its lawyer, Advocate Isiah Mureriwa of Scanlen and Holderness, Telecel applied for authority to institute private prosecution. Mr Tomana again declined the request.
Telecel then approached the High Court seeking review of Mr Tomana’s decision arguing the law compelled him to issue a certificate for private prosecution whenever it is requested.
But Justice Ben Hlatshwayo, while he was still at the High Court, dismissed the review application saying a private company cannot institute private prosecution.
The Supreme Court bench comprising Justices Vernanda Ziyambi, Paddington Garwe and Bharat Patel reserved the ruling after hearing arguments from Adv Mureriwa and chief law officer Mr Chris Mutangadura of the Attorney-General’s Office.
In yesterday’s hearing, Mr Mureriwa argued that the High Court erred in dismissing Telecel’s application because the AG was compelled to issue such certificates upon declining to prosecute matters.
He argued that the court wrongly found that only individuals could be issued with certificates for private prosecution.
“There is no reason for denying a company such a right. There is nothing in the criminal law that takes away the company’s right to institute private prosecution,” he said.
Mr Mutangadura counter-argued that Section 16 of the Criminal Procedure and Evidence Act lists the categories of persons who should be issued with such certificates and a private company did not qualify.
“A private company was not envisaged under Section 16 of the Act as a person who should be issued with the certificate for private prosecution.
“The history of private prosecution shows that only a human being can institute private prosecution. A company does not have the characteristics of a human being and on that basis the judge (High Court) correctly ruled in our favour,” said Mr Mutangadura.
Mr Mutangadura argued that the AG was the sole prosecuting authority in Zimbabwe and he has to use his discretion on whether or not to issue the certificate.
He conceded that whenever the criteria for the issuance of the certificate were met, the AG was compelled to issue the certificate in question.
Online Reporter