By Daniel Nemukuyu
Telecel Zimbabwe (Private) Limited has taken Attorney-General Mr Johannes Tomana to the High Court to get him to reverse his decision to deny the firm a certificate to carry out a private prosecution against its chairperson Dr Jane Mutasa.
Early this year, Mr Tomana declined to prosecute Dr Mutasa and three others on allegations of defrauding the mobile phone service provider of US$750 000 in an airtime scam involving several senior staff members.
Telecel applied for certification to institute private prosecution against Dr Mutasa and her co-accused saying they had a case to answer, but Mr Tomana refused. He said the evidence in the docket did not show a criminal offence against the four. Through its lawyer, Mr Godfrey Mamvura of Scanlen and Holderness, Telecel presented its arguments before Justice Ben Hlatshwayo yesterday.
Chief law officer Mr Chris Mutangadura appeared for the AG and opposed the application. Justice Hlatshwayo asked them to file supplementary heads of argument by September 24. Mr Mamvura argued that the AG misdirected himself by denying Telecel the required certificate. He argued that the law obliged him to grant such certificates when requested by the prosecuting party.
“The respondent 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. It is unfortunate that the respondent thinks that he has discretion when it comes to issuing the certificate.”
“At the accused persons’ initial court appearance, the magistrate refused to grant them bail on the ground that the evidence against them was overwhelming and they were likely to abscond if admitted to bail.”
In his opposing affidavit, Mr Tomana submitted Telecel being a company and not a private person, cannot institute a private prosecution.
“Only private persons with some substantial and peculiar interest in the issue of the trial arising out of an injury that he individually has suffered by the commission of the offence are entitled to undertake private prosecutions. The application must fail on that basis. I deny that my decision, under the circumstances, is precluded by law as alleged.
“The section cited does grant me both powers and obligations, which are guided by a condition precedent, which is that I must consider the evidence first, before exercising the statutory discretion. I am obliged to issue the certificate in every case where I am satisfied that an offence has been committed, but that obligation does not arise where no case is disclosed by the evidence,” Mr Tomana said.
He said the application was ill-founded and should be dismissed with costs. Justice Hlatshwayo reserved judgment to a later date.
