HARARE – Efforts by property mogul Georgios Katsimberis to have fellow businessman Kenneth Sharpe privately prosecuted have hit a brick wall after High Court judge Maxwell Takuva trashed his request for lacking merit.
Katsimberis had mounted a court application citing prosecutor General Loice Matanda Moyo as the respondent.
The businessman wanted Moyo to furnish him with a certificate of Nolle Prosecui in relation to the criminal complaint against Sharpe together with the full docket in the matter reported in CR 246-11-18 (CCD Ref DR 117-11-18).
Nolle Prosecui is a legal notice or entry of record that the prosecutor or plaintiff has decided to abandon the prosecution or lawsuit.
Katsimberis had made a criminal complaint against Sharpe.
Police opened a criminal docket under CR 246-11-18, DR 117- 11-18.
When Sharpe was not prosecuted, Katsimberis instructed his lawyer to write to the PG urging her to prosecute him.
There was no response and the lawyer wrote again requesting a response.
On 19 August 2022, the PG responded advising Katsimberis to comply with section 16(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (The Code).
Applicant complied with section 16(2) and insisted on being granted the Nolle prosecui certificate.
However, nothing materialised prompting him to file the current application.
He also wanted the PG to bear his costs.
The PG opposed the application arguing that prosecution was never at any stage declined.
Katsimberis argued that since he has made several attempts to acquire this certificate without any success, the PG must be compelled to supply the certificate.
He also stated that the PG had clearly refused to prosecute Sharpe but at the same time refused to issue the certificate to enable him to prosecute Sharpe privately.
According to Katsimberis, after reporting Sharpe, a docket was prepared after which the matter was brought to the PG’s attention.
Prosecutor Chimbari assessed the evidence in this docket and declined to prosecute Sharpe.
The docket had three (3) other persons on it, but only one John Van Blerk had a warned and cautioned statement recorded.
He further argued that another officer in the National Prosecuting Authority one Justin Uladi, read the docket and concluded that the State would wait for the outcome of a different matter involving the complainant in Sharpe’s case.
Katsimberis accused the PG of not bothering to give reasons for the reluctance in granting him the certificate of Nolle Prosecui.
He submitted that Sharpe was at large out of the jurisdiction, he returned when his matter was “withdrawn”.
Moyo opposed the application and deposed an affidavit through Justin Uladi, NPA’s Acting Deputy Prosecutor General operations.
Uladi said perusal of the docket revealed that it referred to Sharpe, Michael John Van Blerk and Pokugara Properties (Pvt) Ltd.
He said the accused was Van Blerk meaning that Sharpe and Pokugara were not reflected as accused persons.
Justice Takuva upheld Uladi’s submissions noting that evidence shows that the PG did not refuse to prosecute Sharpe at any given time.
“In my considered view, Chimbari did not decline to prosecute the criminal matter against Sharpe for the simple reason that there was no such case presented to him.
“In any event, whatever decision Chimbari took or whatever words he wrote, relates to John Van Blerk and certainly not Sharpe.
“Therefore, the contention that prosecution against Sharpe was declined by Chimbari on behalf of the Prosecutor General is erroneous.
“Accordingly, l find that the applicant has failed to satisfy the requirements of s 13 of the Code,” said the judge.
The judge also noted that Katsimberis also submitted that Uladi proffered a different reason why the certificate could not be given.
The reason given was that the NPA is waiting for the outcome of a different matter involving the Applicant who was a complainant in that matter.
Katsimberis criticised this reasoning as an “abuse of office” since it was irrelevant to the case on hand.
But the judge said this was incorrect.
“Evidently, the Prosecutor General did not at any stage decline to prosecute Sharpe’s criminal matter.
“I find that this application was prematurely made.
“The Applicant ought to have implored the Prosecutor General to invoke her powers in terms of the Code to find out what was happening to the docket involving Sharpe, instead of jumping the gun.
“For the Prosecutor General to decline to prosecute at public instance he or she must have seen statements or affidavits on which a charge is based. In casu, this never happened.
“The application is devoid of merit and is hereby dismissed with no order as to costs,” he ruled.
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