HARARE – Two ZINARA executives accused of transferring whistleblowers to frustrate a corruption investigation must be put to their defence, the High Court has ruled after throwing out their challenge to being placed on remand.
Finance director Adam Zvandasara and human resources director Gilfern Moyo had approached the High Court appealing against a decision by Harare magistrate Ngoni Nduna to place them on remand.
Nduna and the Prosecutor General Kumbirai Hodzi were cited as the respondents in the matter.
The duo faces four charges of contravening sections of the Prevention of Corruption Act.
Justice Benjamin Chikowero on Monday ruled that the lower court was not wrong in finding that the transfers of their subordinates from their stations at the company’s head office could be seen as obstructing the course of justice.
“The transfers were prejudicial to each of the complainants because they were effectively applicants’ way of dealing with the complainants for supplying information to the Zimbabwe Anti-Corruption Commission in an on-going investigation targeting the ZINARA executives among whom the applicants were counted,” he said.
“When the accused persons transferred the complainants, they well knew that ZACC was investigating allegations of criminal abuse of office as a public officer as defined in Section 174(a) of the Criminal Law Codification and Reform Act Chapter 9:23 and that the complainant was assisting the commission in the investigation and was likely to provide more information of other unreported corrupt activities at Zinara.”
Chikowero added that the application for remand was premised on the alleged offence committed by the two officials.
“In determining the application, the court below referred to pertinent case law. It noted that what was required of the state to succeed in persuading the court to place the applicants on remand was to allege facts which disclose all the essential elements of the offence and that there must be a nexus between the applicants and the facts so alleged. The court observed that what was required was suspicion and not certainty, but that the former must make sense otherwise it would be frivolous or arbitrary and hence not reasonable,” added Chikowero.
“What is clear from the cases cited is that evidence is not essential in a determination, by the remand court, of the existence of reasonable suspicion. Similarly, it was wrong for the applicants’ legal practitioner to give evidence from the bar the purpose of which was to endeavour to establish the applicants’ defence. What was before the Magistrate’s Court was not a trial.”
Justice Chikowero the application was therefore grossly unreasonable.
“I see no merit in the argument that the learned magistrate was biased against the applicants. It is true that the court opened its judgement by considering a background to the matter when no evidence of such background was put before it. On its two feet, the request for remand form, plus the annexure thereto, provided a firm basis upon which to place the applicants on remand. The advertence to the background becomes, in the circumstances, inconsequential,” he ruled.
“There is nothing to suggest any permanent prejudice from the continuation of the proceedings in the Magistrate’s Court. In fact, the applicants had already been released on bail, by the lower court, approached this court to seek review of the decision to place them on remand. The application for review is without merit. In the result, the application for review be and is dismissed.”