Chidyausiku gives Tomana ultimatum over Telecel

By Tendai Kamhungira

HARARE – Chief Justice Godfrey Chidyausiku yesterday ordered the prosecutor-general (PG) Johannes Tomana to immediately comply with a Constitutional Court order allowing Telecel Zimbabwe (Private) Limited (Telecel) to institute a private prosecution against ex-chairperson Jane Mutasa.

Mutasa is jointly charged with her former PA Caroline Gwinyai, Telecel’s regional sales manager Charles Mapurisa and commercial director and Egyptian national Naquib Omar over the alleged misappropriation of $750 000 arising from airtime sales.

The Constitutional Court last October upheld a Supreme Court order instructing Tomana to issue a certificate for Mutasa’s private prosecution.

Mutasa was initially cleared together with her co-accused after the-then attorney-general (AG) Tomana flatly refused Telecel, the Zimbabwe unit of Egypt’s Orascom Telecom, permission to pursue a private prosecution against Mutasa, who sat on the mobile phone company’s board.

Mutasa is one of the most outspoken businesswomen and is a senior member of President Robert Mugabe’s ruling Zanu PF.

She heads the indigenous businesswomen’s organisation.

In a letter dated April 23, 2011 sent to Telecel’s lawyers, Tomana said: “Kindly note that I have read the witnesses’ statements in the police docket and have satisfied myself that the evidence therein does not establish a criminal offence against the four suspects.

“In the circumstances, I find it contra bono mores for me to grant my certificate in this matter.

“In essence I, therefore, withhold my certificate of Nolle Prosequi (decline to prosecute) and decline to issue the same.”

Godfrey Mamvura of Scanlen and Holderness — Telecel’s lawyers then — approached the High Court, arguing Tomana misdirected himself when he withdrew charges against the four.

But Justice Ben Hlatshwayo dismissed the review application saying a private company cannot institute private prosecution.

Telecel’s lawyers had argued that Tomana misdirected himself at law and exercised discretion when the provisions of Section 16 of the Criminal Procedure and Evidence Act provide that in every case in which the AG declines to prosecute, he shall at the request of the party intending to prosecute, grant the certificate required.

This then prompted Telecel to approach the Supreme Court and subsequently the Con-Court, which both okayed the private prosecution.

“A private corporation like the applicant is entitled to institute private prosecution,” Supreme Court judge Justice Bharat Patel said in his ruling, before ordering the PG to issue a certificate within five days.

Since that ruling, the PG has not issued the certificate, prompting Telecel’s lawyer Isiah Mureriwa to write a letter to the Con-Court’s registrar, asking for the judgment.

“The applicant (PG) has refused to comply with the Supreme Court judgment that it will only do so once it has considered the reasoning of the Constitutional Court,” Mureriwa argued.

“In the premises, the respondent remains prejudiced in not being able to execute its judgment.”

Chidyausiku said, “A court order is a court order and does not depend for its validity on the reasons for such order.”

Responding to Mureriwa’s letter, the acting chief registrar Munamato Mutevedzi said the judgment in the matter was going to be delivered at the earliest convenient date.

In the letter dated January 14, 2015 seen by the Daily News, Mutevedzi said, “The honourable Chief Justice does not accept that the validity of the Constitutional Court order is dependent on the reasons for judgment.

“In light of the above, it is entirely up to your client as to what legal recourse it considers advisable to take.”

The alleged swindle came to light in September 2009 when Telecel ordered an audit which found that mobile phone sim-cards and recharge cards worth $1,7 million were unaccounted for.

Investigations revealed a loophole which the company alleged had been used by Mutasa’s company, Oxygon Investments, to spirit away sim-cards and airtime worth $750 000 with no intention to pay.

Telecel said Mapurisa and Omar deliberately ignored a July 15, 2010 directive to cease all use of manual invoicing and log all sales into an electronic database.

The duo allegedly connived to release 30 000 sim cards, also known as seed packs, valued at $300 000 and airtime recharge cards worth $450 000 to Mutasa’s company using an invoice book which cannot be found.

The goods were delivered to Oxygon and received by Mutasa’s PA, Gwinyai. Daily News