Online Reporter
Zvikomborero Parafini
TOP Harare lawyer Simplisius Julius Chihambakwe has been acquitted of theft of US$154 311,20 trust property after the presiding magistrate ruled that the State failed to prove its case.
Chihambakwe was acquitted at the close of the State case by Harare magistrate Feresi Chakanyuka.
The complainant is Tsungirirayi Banga Mandizvidza, who is a beneficiary of the estate of her late parents – Crispen Purisa Mandizvidza and Auxillia Maema Mandizvidza.
Chihambakwe, who is one of the country’s top lawyers, was appointed executor of the Mandizvidza estates under Swissette (Pvt) Ltd.
In her findings, magistrate Chakanyuka said the State failed to prove its case beyond reasonable doubt.
A witness, Tsungirirai Hedwick Banga, testified that everything was done above the book.
“It is the evidence of Tsungirirai Hedwick Banga that the proceeds realised from selling the properties of Swissette were to settle Chihambakwe’s fees as the executor, pay liabilities for Swissette, pay capital gains tax and master’s fees.
“Evidence was led to the effect that part of the Master’s fees and the full amount for capital gains tax were paid by the complainant and her husband. The witness confirmed that she received a breakdown of how the money was used by Chihambakwe.
“He then wrote to the complainant advising her of the outstanding balance of US$77 621 which was owing for his legal fees for different companies.
”Allegations against him were that he used the US$154 311.20 for a purpose other than that they had agreed on thereby violating the law.
”Suffice to note that during cross examination, the witness conceded that the sale of the property in question, having been done in August 2014 she was advised by Chihambakwe’s law firm that the money had been distributed.
“She conceded that US$19 141 was charged by the Master as the Master’s fees for the estate late C.P Mandizvidza. The witness conceded that the Master’s fees for the estate late C.P Mandizvidza was paid in full by Chihambakwe’s law firm.
“She also confirmed that for the estate late A.M Mandizvidza the master fees charged was US$5 319, 60 and that money was paid to the Master in full by Chihambakwe’s law firm. Clearly as at August 2014 the Master’s fees had been paid in full for the two estates by Chihambakwe’s law firm.
“The witness conceded that the additional amounts accrued after they requested for an amendment of the distribution account in 2016 that is two years after the sale of the assets for Swissette (Pvt) Ltd and the distribution of the proceeds thereof.”
Magistrate Chakanyuka added:
“The amendment of the distribution account meant that the Master raised new fees. Suffice to note that as at 2014 Chihambakwe had offset all the outstanding master’s fees which was due.
“Therefore, it cannot be said that Chihambakwe erred on that aspect.
“Undoubtedly the capital gains tax was paid by the complainants. This was after Chihambakwe had indicated that he no longer had money to offset ZIMRA.
“The defence counsel placed a letter from ZIMRA to the witness for her comments. The complainant admitted that she was copied in a correspondence written by ZIMRA wherein there were acknowledging that they had made an error in exempting the payment of capital gains tax for the properties of Swissette.
“The error was said to be on ZIMRA’s part. The witness indicated that Chihambakwe did not pay ZIMRA since this was an issue which was raised when he had no money. Suffice to note that there was no evidence led to the effect that Chihambakwe still had some money which he held from the sale of Swissette properties and therefore he ought to have paid ZIMRA.”
The evidence, ruled the magistrate, showed that there was transparency in the transactions.
“It is clear a schedule of how the funds from the sale of properties of Swissette were disbursed was tendered as exhibit number 8.
“It reflects that part of the money was used to offset legal fees which were owed by other companies such as Binga Estates Shamva Crocs and Riverside Housing.
“Chihambakwe’s law firm had provided legal services to these companies. Further these companies formed part of the estate of the late.
“The Law Society of Zimbabwe, which is the regulatory body of legal practitioners in Zimbabwe, was invited by the Zimbabwe Republic Police CID CCD section to comment regarding Chihambakwe’s conduct in offsetting his legal fees from the proceeds of the sale of the company in question. The Law Society, in a letter dated 3 November 2023 tendered as exhibit number 13, opined that a legal practitioner may offset legal fees where the owner of the trust funds owes them fees for work already done.
“Thus, according to the Law Society there was nothing amiss about his conduct.
“Clearly the evidence led so far there is nothing placed before the court to prove that Chihambakwe breached the duty of trust bestowed upon him, in that he failed to pay master’s fees to facilitate the winding up of the estate of the late C.P Mandizvidza and A.M Mandizvidza.”
No reasonable court, ruled the magistrate, would convict Chihambakwe.
“The evidence on record so far, no reasonable court acting carefully might properly convict based on such.
“Even if the court is to direct that the matter proceeds to defence case and Chihambakwe elects to exercise his right to silence, the question is can a conviction ensue?
“In casu certainly a conviction cannot ensue. There are no reasons for the accused to proceed to his defence.”
