Lawyers want minister named in papers

case was defective.
The lawyers argued that failure by the prosecution to name Mines and Mining Development Minister Obert Mpofu in its papers rendered the State case defective.
Kurotwi and Mubaiwa are facing fraud charges after allegedly misrepresenting to the Ministry of Mines and Mining Development that Core Mining was a special vehicle for an international mining firm called BSGR.
According to the State, the duo’s actions resulted in the Government approving the formation of a joint venture company called Canadile Mining between Core Mining and the State’s Marange Resources.
The Government allegedly suffered US$2 billion prejudice as a result of the alleged misrepresentation.
Opposing the State’s application for permission to amend the indictment papers for the two following the withdrawal of charges against four others last year, defence lawyers Advocate Lewis Uriri and Ms Beatrice Mtetwa, said the absence of the minister’s name rendered the State case defective.
Ms Mtetwa said the amended charge sheet the State was seeking to produce in court lacked clarity, as it did not disclose the minister as the one to whom the alleged misrepresentation was made.
She said Minister Mpofu played an important role in the approval of the deal that later turned sour.
Ms Mtetwa said the minister should be mentioned in the charge sheet and summary of the State case and testify as a witness.
“The charge says misrepresentation was made by the first accused person (Kurotwi) to the Ministry and ZMDC. The accused cannot possibly know to whom exactly was misrepresentation made in the ministry.
“It is not clear whether it was a sweeper or someone else. The accused persons are faced with a charge they cannot plead to because of lack of clarity. It is not in dispute that the first accused met Minister Mpofu in March 2009 who later referred him to Mubaiwa.
“If misrepresentation was done to the Minister it should have been said in the papers and he should be a witness.
“The State has not explained why the minister’s name is missing in all the State’s documents,” she said.
Ms Mtetwa argued that the intended amendment of the indictment papers was more of whole substitution of the subject, which was not permissible under Section 202 of the Criminal Procedure and Evidence Act, which the State used in mounting the application.
She emphasised that the proposed amended papers were defective and that the court should not allow it.
Chief law officer Mr Chris Mutangadura submitted that the amendment was permissible at law and that the defence will not suffer any prejudice by the granting of the application.
Mr Mutangadura said the application simply sought to correct certain words and particulars without prejudice.
“The application seeks to remove words we erroneously inserted and to insert some that we erroneously omitted. We are simply seeking to correct some words and particulars and there is no shred of prejudice which will be occasioned by the amendment.
“The law allows for the charge to be amended at any stage before judgment. Even if the charge is amended, the defence may be allowed to respond or to prepare a defence based on the amendments,” he said.
According to the State, the essential elements of the charge will remain the same. Adv Lewis Uriri submitted that the State was actually seeking substitution of the whole indictment papers under the guise of an amendment, which he deemed prejudicial to his client.
He cited some of the differences between the original indictment papers and the amended ones in a bid to prove that it was a total substitution of facts.

 

 

 

Adv Uriri said the State initially indicated that Mubaiwa had nothing to do with memorandum of agreement between the two companies, which was admitted in the defence outline to the first indictment papers.
He said it was not proper for the State to seek to drift away from that position.