Magistrate in controversial ruling in a case involving top CIO
By Staff Writers
A provincial magistrate in Zimbabwe has set tongues wagging in the legal fraternity with an unprecedented judgement which could impact negatively on both lawyers and clients who come to them for legal advice.
In a misrepresentation case which involves top spy Kizito Gweshe from Zimbabwe’s dreaded Central Intelligence Organisation (CIO), Harare provincial magistrate Tendai Mahwe ruled that one Wilford Nyambo be placed on his defence to explain why he instructed his lawyer Norman Bvekwa to write to Zimbabwe’s National Social Security Authority (NSSA) claiming that he is the rightful owner of Christmas Gift, a company at the centre of an ownership wrangle.
Nssa acted on an offer by Gweshe to buy disputed land in Gweru from a Portuguese businessman, Roger De Sa who has interests in a local company, DMC Holdings.
Nssa purchased the 650 hectares of land in Gweru in 2013 despite written representations by Bvekwa acting on behalf of Nyambo objecting to the transaction on the grounds that Nyambo is the real owner of the property. The case is currently before the High Court and has drawn in Gweshe, the director for counter-intelligence in the President’s Office, the Midlands governor (now Provincial Affairs minister) Jason Machaya and an unnamed “big boss of the police”.
Mahwe ruled that Bvekwa has no case to answer while placing Nyambo on his defence, a development lawyers say is curious because Nyambo sought and obtained legal advice from Bvekwa and not the other way round.
“In light of this, it is the ruling of the court that for accused 2 (Nyambo) to be able to explain the genuineness of his instructions he ought to be put to his defence,” reads part of Mahwe’s judgement which exonerated the lawyer while placing Nyambo on his defence.
“How does a magistrate discharge the lawyer and put his client on his defence,” queried one top lawyer? “It is in fact the lawyer who gave legal advice to the client and that is the normal practice that you approach a lawyer for advice. Since when has it become a criminal offence to give legal advice even if it is wrong?
The lawyers went on to say the magistrate’s ruling was setting a dangerous precedent where lawyers would be fearful of giving advice especially in cases involving high-profile people.
“Equally the public will refrain from seeking advice for fear of arrest.”
Some of the more intriguing aspects of this criminal case include the playing in court of an audio recording which implicates high-profile politicians and security officials.
The recording carries alleged details of a conversation between De Sa and Nyambo who have been business partners in DMC for almost 30 years. DMC is the holding company and owner of Christmas Gift and three other companies. Gweshe suddenly appeared as a director of Christmas Gift in 2010, apparently without Nyambo’s knowledge and approval.
In the recording, De Sa explains Gweshe’s involvement in Christmas Gift by telling Nyambo that he had in fact saved Christmas Gift’s land from compulsory acquisition by greedy senior government officials and other powerful individuals, including Local government minister Ignatious Chombo.
“Do you know who wanted to take that land huh?” De Sa asks Nyambo in the transcript. “It was the governor of Midlands, with the commissioner with the …eh… big boss of the police, another commissioner, the big one,” said De Sa. After being quizzed further, De Sa explains to Nyambo that “Chombo is the big one”.
“Chombo yes,” he says. “Chombo’s office was involved. There was no one to help me. They said the government can take the land under blah blah act. They were all in cahoots to steal the land from us so eventually I had to resort to the President’s Office then this guy (Gweshe) helped us sort these things out otherwise today we wouldn’t have anything.”
Gweshe has since admitted under cross examination at the magistrates court last month in Harare that he had made an initial approach to Nssa offering them the land in Gweru for US$16,4 million.
Nyambo’s former lawyer, Norman Bvekwa, wrote to Nssa in an attempt to stop the sale of the land on the grounds that his client was an interested party with shares in Christmas Gift and had not been involved in any of the negotiations for the proposed sale.
Nssa eventually paid US$7,4 million which Gweshe admitted to have started using to paying legal fees, surveyor’s fees and capital gains tax despite a Supreme Court order granted on February 14 this year barring the use of the funds.
During cross examination by Beatrice Mtetwa who represented Nyambo – who is now being accused along with Bvekwa of misrepresentations in their letter to Nssa — Gweshe admitted that he had no documents proving his directorship, nor did he ever inject any funds into Christmas Gift.
He however said that he was comfortable “with the verbal agreement with my friend and partner (De Sa) concerning my shareholding and I am not complaining”.
“There is no exact percentage and that is how we framed it (the agreement) and agreed,” said Gweshe, adding that “the reason is very simple. We are yet to agree on my contribution to the running expenses related to the transaction which in my view is just fair.”
Gweshe also said in his evidence: “I have contributed time, my energy and travelling expenses. I have negotiated with corporates and I am even appearing in this court for the company – all of which surely your worship is not for free. I have not made any direct monetary contribution but I have earned my shares your worship.”
Sources close to the development said Gweshe is now threatening Mtetwa for representing Nyambo.
“Someone was sent to Mtetwa to inform her that she will end up behind bars if she continues to represent Nyambo,” the source said.
In an interview Mtetwa refused to shed light on the threats.
“I cannot say anything at the moment because i am representing my client. I do not want the issue to distract our efforts,” Mtetwa said.