adminJustice Chinembiri Bhunu yesterday ruled that it was necessary for the court to carry out an inspection in loco in SA inorder to observe and experience real evidence that cannot be brought to court as an exhibit.
This comes after the State application for an order for an inspection in loco to be conducted in South Africa to ascertain the authenticity of a due diligence exercise conducted by the Zimbabwe Mining Development Corporation select committee at a mining firm purported to be owned by Core Mining Director Lovemore Kurotwi.
Charges against Kurotwi and former ZMDC boss Dominic Mubaiwa arose after they perpetrated a series of fraudulent misrepresentations culminating in the signing of an inappropriate shareholder agreement to the loss and prejudice of the Government.
The State alleges that part of the modus operandi involved the crafting and presentation of a due diligence report based on a visit to South Africa by the ZMDC board select committee.
Justice Bhunu ruled that once the court had determined that it is necessary for it to go for an inspection in loco, it does not concern itself with the logistics and administrative issues, which are within the domain of the State which has called for the inspection in loco.
“It is for the State to make the necessary arrangements to facilitate the inspection in loco.
“It is accordingly ordered that the application for an inspection in loco to be conducted in South Africa is hereby granted,” said Justice Bhunu.
He said in this case the State alleges that the fraud was perpetrated through the conducting of a fake or fraudulent due diligence exercise allegedly carried out in South Africa and it was necessary to visit the place to ascertain the authenticity of the disputed due diligence exercise.
“The places allegedly visited during the course of the supposed fictitious due diligence exercise cannot, however, be brought to court so in the words of the State counsel Mr (Chris) Mutangadura — ‘if the mountain cannot go to Mahammed, then Mohammed must go to the mountain’”.
Justice Bhunu said the court must go to those places for the better conduct of its functions. He noted that in resolving this issue it was incumbent upon the court to define the concept and purpose of an inspection in loco.
Kurotwi and Mubaiwa, represented by Mrs Beatrice Mtetwa and Advocate Lewis Uriri, had opposed the application arguing that it was not necessary and unduly expensive and time wasting for the court to travel to South Africa. The defence also contends that visiting South Africa amounted to holding a trial in a foreign land beyond the jurisdiction of the court, which is limited to the territorial boundaries of Zimbabwe.
The case was postponed to Tuesday next week when the court will determine whether to continue with the trial or first conduct the inspection in loco.
Online Reporter