HARARE – Business couple Clark Clever Makoni and his wife, Beverly Aisha Ndonda Makoni, walked free after the High Court quashed their fraud charges in a scathing judgment that accused a lower court magistrate of “creating new offences” to keep the pair on trial.
The couple had approached the High Court challenging Regional Magistrate Stanford Mambanje’s decision to dismiss their application for discharge on allegations of defrauding former Reserve Bank of Zimbabwe governor Gideon Gono of $100,000, arguing the state’s case was “barren of evidence” and built on fatally defective charges.
In their application, they accused the magistrate of gross misdirection, saying he effectively resuscitated a non-existent case by introducing new particulars of fraud halfway through the trial — allegations never made by prosecutors at the start of proceedings.
Their lawyer, Admire Rubaya, said the conduct amounted to the court “panel beating the charge” to push the Makonis onto their defence.
“The court cannot, by any stretch of its powers, seek to panel beat the charge for purposes of placing the accused persons onto their defence,” Rubaya submitted. “It must avoid the temptation of doing the state’s bidding. It laid its bed, it must lie on it – and never rise from it.”
Justice Neville Wamambo Dembure agreed, delivering a sharply-worded ruling that tore into the lower court’s handling of the matter.
Dembure said the magistrate had effectively taken over the role of the Prosecutor General by attempting to “reinvent” the allegations – a fundamental irregularity.
“Findings of the magistrates’ court created a new charge for the applicants to face, not what had been placed before the court at the commencement of trial,” the judge said.
“The court cannot create its own particulars for the accused. That function lies solely with the state as dominus litis.”
Ordinarily, he said, superior courts are reluctant to interfere with uncompleted proceedings in the lower courts, but this was “a rare case” in which intervention was unavoidable because of the “dangerous path” taken by the magistrate.
The Makonis had been hired by Gono in 2017 to manage a portfolio of 15 properties in Chivhu, later expanded to include properties in Mutare including Valley Lodge (Pvt) Ltd.
The prosecution alleged the couple fraudulently used a false document to alter directorship details of Valley Lodge and seize control of the business and its accounts, prejudicing Gono of ZWL$172 million, which the former central bank chief estimated at around US$100,000.
Prosecutors claimed they removed Ayoob Omar and Mohammed Hussein Omar as directors and inserted their own names.
But defence lawyers argued the prosecution was nothing more than “a failed fishing expedition,” insisting the state’s own witnesses had confirmed that Valley Lodge’s directorship had remained unchanged since 2009 – a point the court found compelling.
“There was a clear concession by all critical witnesses that the directors of Valley Lodge have remained the same from 2009 to today,” the couple’s lawyers argued.
“This concession clearly exonerated the accused persons.”
The state also failed to prove the couple withdrew US$70,000 allegedly siphoned from the lodge’s account.
Rubaya accused the prosecution of attempting to sustain a hopeless case through theatrics.
“The state is acting like a soccer player who dives at the centre circle and then clamours for a penalty,” he argued. “This is clearly unacceptable and untenable.”
With the High Court ruling that the charges were invalid and that the magistrate erred in law, the case has now collapsed entirely.
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