Jane Mutasa to face the music as Tomana loses

Fidelis Munyoro Chief Court Reporter
Prosecutor-GeneraL Mr Johannes Tomana’s attempt to block the prosecution of Telecel Zimbabwe (Private) Limited shareholder Jane Mutasa on charges of fraud involving more than US$1,7 million in airtime recharge vouchers, failed yesterday after his challenge to the Supreme Court ruling was thrown out.

Mr Tomana (pictured right)had approached the Constitutional Court challenging a Supreme Court ruling earlier this year forcing him to issue a certificate for the private prosecution of Mutasa.

But the full bench of the Constitutional Court led by Chief Justice Godfrey Chidyausiku unanimously agreed to throw out the case.

“The application/appeal in this matter is dismissed with costs at the legal practitioner and client’s scale,” said Chief Justice Chidyausiku. “Reasons for this order will be handed down in due course.”

The ruling yesterday sealed the fate for Mutasa, who is now set to face trial.

Mutasa was arrested in 2010 along with the company’s commercial director, Naguib Omar, for allegedly stealing airtime vouchers worth over US$1,7 million.

Mr Alex Mambosasa, who represented Mr Tomana, argued that he declined to issue the certificate because investigations had established that no offence had been committed.

The decision of the Supreme Court, it was also argued, infringed upon provisions of the Constitution of Zimbabwe in that it sought to interfere with Mr Tomana’s constitutional function to decline to issue a certificate in a case where facts of the matter did not point to the commission of an offence.

But Telecel, which was being represented by Advocate Richard Fitches, argued that Mr Tomana only has a constitutional right of independence insofar as determining whether or not to prosecute at public instance.

Where he cannot prosecute, Telecel argued, the Prosecutor-General should issue a certificate for private prosecution once approached by any person who has a substantial interest in the case and has evidence that a crime was committed.

Early this year, the Supreme Court paved way for the prosecution of Mutasa when it ruled that a private corporate was entitled at law to institute private prosecution.

Justice Bharat Patel, who delivered the ruling, noted that Mr Tomana failed to exercise his statutory powers on a proper legal footing.