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Chivayo (31), of Number 14 Stanchart Lane, Greystone Park, Harare, who was facing an eighth charge of money laundering, had pleaded not guilty to all the charges.
Acting Bulawayo regional magistrate Mr Godwin Sengweni ruled that the State had failed to prove a prima facie case against Chivayo in all the eight counts.
Allegations against Chivayo were that he would identify wealthy victims through connections that he had in the banking sector and, using bogus websites, trick them into supplying goods to his non-existent company on the pretext that they would make a huge profit of more than 500 percent.
After allegedly pretending to be the purchasing manager, Chivayo would allegedly beg for a cut of the profits if the victims agreed to the deal.
He would then allegedly refer his victims to other bogus supplying companies in South Africa, namely Delitel Trading and Redgold Investments, where the victims would deposit the money to secure the orders.
The moment the money was deposited, he would allegedly fly from Harare, withdraw the money and disappear. The State further alleged that between October and December 2009, he defrauded the complainants of R1,361 million and nothing was recovered.
“In all seven counts of fraud none of the complainants knew the accused person. None of them had an encounter with the accused even through some means of communication.
“That the seven complainants suffered actual prejudice cannot be doubted. That someone misrepresented to them and induced them by way of that misrepresentation to part with their money cannot be doubted. Excessively large mark-ups were used by whoever conned the complainants into luring them into the transactions that led to their respective losses,” said Mr Sengweni.
The magistrate noted that Chivayo was linked to the alleged fraudulent activity by an alleged implication by one Norman Nompilo Mpofu.
Mpofu, who testified as an accomplice witness, told the court that he knew Chivayo as they were doing business together and said Chivayo approached him and told him to reopen websites he had closed as a result of an instruction from the police.
It was Mpofu’s evidence that police had instructed him to inform them once he was approached by anyone asking that he reopen the closed websites as this was the person the police were looking for.
“The witness did not alert the police when the accused approached him. He could not give any meaningful explanation for his failure to alert the police as had been arranged.
“Mpofu was in fact arrested in connection with the same allegations that the accused was facing well before the accused was arrested. The witness made serious allegations of police brutality perpetrated on him upon his arrest by officers from the CID Serious Fraud Unit. The most glaring allegation of the alleged brutality was intimidation by one member of the investigating team outside this building as the witness entered the courtroom to continue with his testimony,” said Mr Sengweni.
He said Mpofu told the court that the police officer threatened him with unspecified action if he soiled his name in his testimony.
“Nompilo Mpofu admitted in court that his evidence was tailored to avoid further harassment by the police. Pressured by the defence counsel under cross-examination, the witness conceded that his evidence contained untruths and could not be relied on. The witness did not say which part of his testimony could not be relied on,” said Mr Sengweni.
It was the court’s finding that Mpofu had been “fatally” tampered with by the police before he came to testify.
Mr Sengweni found the State linked Chivayo to the allegation through the evidence of Mpofu and two detectives who testified in court.
He added: “None of the police officers had any appreciation of what a closed corporation is and none of the police witnesses knew anything about the legal status of a closed corporation. The State did not adduce evidence in that regard. This matter cannot be put to rest without a discussion of the legal status of the closed corporation. The law talks of invited liability. The law talks of the corporate veil while one law talks of instances when and where the corporate veils pieced in order to rectify criminal elements who seek protection under the corporate veil.”
Mr Sengweni said no basis was laid by the State to piece the corporate veil and all that was said was that Chivayo was a member of Dolintel Trading and Redgold Investments, both being closed corporations within a separate and distinct legal personality.
“My considered view is that the evidence led by the State did not prove the essential elements of fraud against the accused in that some of the evidence was so manifestly unreliable and no reasonable court acting carefully might convict,” he said.
The magistrate castigated the police who investigated the case saying by virtue of their training and profession, police officers’ brief is to enforce the law and start the wheels of justice.
“Such a responsibility requires men and women of unquestionable integrity. To brutalise suspects and ignore the rudiments of the laws governing the handling of suspects cannot in any way reflect a civilised police force. It would be a sad day in the history of our judicial system if police officers of commanding ranks debase themselves to the level of ordinary things by physically and professionally violating the bodily integrity of suspects let alone for witnesses outside the court building to remind them of the orgy of violence they would have survived before their testimony,” said Mr Sengweni.
Soon after the pronouncement of the verdict and after the court had taken an adjournment, an elated Chivayo could be seen hugging his lawyer Mr Joseph James of James, Moyo-Majwabu and Nyoni and commending him for a “job well done”.
Mr Thompson Hove, of the Attorney General’s Office, assisted by Mr Blessing Kudhlande, prosecuted.
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