Online Reporter
Zvikomborero Parafini
THE High Court has halted the prosecution of a Harare couple accused of defrauding former Reserve Bank of Zimbabwe Governor Gideon Gono of his company after they challenged the magistrate’s decision to deny their application for discharge.
Clark Makoni and his wife Beverly Aisha Ndoda Makoni believe the magistrate erred in arriving at that decision and want to have it reviewed.
The two, represented by Admire Rubaya, applied for a stay of proceedings pending the review hearing, which was granted by High Court Judge, Justice Gibson Mandaza.
In their review application the couple said magistrate Stanford Mambanje’s decision to put them on defence is so “grossly outrageous in its defiance of logic that no sensible court having applied its mind to the applicable law and facts would arrive at it.”
In the staying order, the judge said, “The Application for Stay of Proceedings Pending Review be and is hereby granted.
“The criminal proceedings in the Harare Regional Magistrates Court under HRER428-9/25 be and are hereby stayed pending the finalisation of the Court Application for Review filed under HCH5082/25.”
The couple had moved to have the case dropped arguing that the State had failed to prove a prima facie case against them, adding that the prosecution had failed to disclose an offence against them. The court reasoned otherwise, saying the couple should explain why they based their defence on malice on the part of Gono and also explain why their names were on the offending company document.This has resulted in them seeking the High Court’s intervention.
In their review application, the couple cited magistrate Mambanje as the first respondent and the State as second respondent.
“The 1st Respondent grossly misdirected itself by ignoring the fact that neither the main nor the alternative charge disclosed a valid offence upon which the Applicants could validly or lawfully be placed on their defence leading to a gross irregularity in the proceedings which led to grave miscarriage of Justice and ought to be reviewed,” the application read.
The couple argued that the Court’s decision to put them on their defence seeks to facilitate and complel the State to make a case where there is none.
They argued that the magistrate was seeking to take over the role of the prosecution.
“The 1st Respondent, despite being alerted to the material issue of the fatality of the charge of fraud and for him to desist from taking over the role of the 2nd Respondent, relentlessly proceeded to usurp the role of the 2nd Respondent by redrafting the charge in his ruling after the closure of the State case, coming up with its own particulars of the charge fraud which are not set out in the charge and State oultline,” they argued.
In his founding affidavit, Clark Makoni said the Court descended into the arena and created a new charge against them which was not alleged by the State.“The 1st Respondent should just be an umpire who is not biased who should not be a judge of a case that he personally created but should have simply dealt with the case that was brought to him by the parties.
“The Court cannot, in the name of analysing evidence led by the State, seek to introduce new particulars which it believes are the particulars of fraud that were established by the evidence,” the affidavit said.
“It is trite that a Court must deal with issues placed before it and must not raise issues or new facts that were never placed before it as it would lead to it being on a frolic of its own, which the Courts seriously discourage.”
He said the the court has no discretion to refuse their discharge application and opting to hear defence evidence in circumstances where there was no case against them.
