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Ofer Sivan and assistant Cassandra Myburg acquitted of fraud charges

Businessman Ofer Sivan and personal assistant Cassandra Myburg were finally acquitted of allegations of fraud after spending months frequently going to court to answer to the charges.

The duo stood by the statement that allegations laid against them by Gilad Shabtai were an attempt at diversion from his own alleged criminal misdoings.

For almost two years Shabtai and his partner Munyaradzi Gonyora have allegedly been avoiding investigations against them for money laundering, tax evasion, misappropriation of company funds and illegal externalisation of funds.

Prosecutor Whisper Mabhaudi, representing the state, acting under instruction from fugitive Gilad Shabtai, through his lawyer Admire Rubaya, pushed the matter to trial purely in a bid to cause irreparable harm to the accused persons and divert attention from Shabtai’s own criminal actions.

After months of having the matter postponed, the state had no choice but to withdraw allegations against Sivan and Myburg and have the matter dropped.

The first witness called by the state was Simba Mawere, legal advisor to Stanbic Bank, who explained in detail the procedures for opening of accounts.

Contrary to the allegations made by the State, he confirmed that all verifications and formalities had been completed to the satisfaction of Stanbic.

It was also revealed that, at no time had any complaints been made to the bank regarding the operations of the accounts held by the company and that everything was done above board.

Mawere was not aware of any allegations in regard to the company accounts.

The second witness called was L Nhari, who testified that he was approached by a legal practitioner representing Shabtai who gave him copies of the Stanbic account opening forms and “undisputed” samples of Shabtai’s signature.

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Nhari expressed his frustration to the court that he had been summoned to provide evidence in a matter he knew nothing about. He also confirmed he had never been approached by investigating officers nor the complainant on any allegations in this matter.

He simply did a report on documents provided to him by Claudious Nhemwa of C Nhemwa and Associates and Rubaya on a private consultancy basis and provided the report to their specifications being the ones who paid his fee.

Following this witness Mr Nyamakura, representing the accused, expressed concern in the manner in which the matter was proceeding. He said, as per normal procedure the complainant is called up to testify first, the following witnesses are simply there to provide supporting evidence to the allegations.

The court issued a warning to the state representative Mabhaudi and stated that the matter would only be postponed one last time and that on the 4th and 5th of May the complainant, Shabtai should be in attendance along with the other witnesses who had made no appearance.

When the trial commenced on the 4th there was no sign of Shabtai or Gonyora. The court urged the Prosecutor to seriously consider the state’s position on the proceedings after the Investigating Officer, Owen Mutembwa, confirmed under oath that he had never actually investigated the matter.

He was handed a file from his supervisor, and instructed to take it to trial, following the dismissal of the original investigating officer Smart Mandofa from ZACC who is currently on remand after being charged with criminal abuse of office in this same matter.

Mutembwa confirmed that he never made any follow up investigations or enquiries into the matter, in fact, he had never met or spoken to the complainant or the accused.

Against this background, the court warned state representative Mabhaudi after incidences in court whereby he was taking instruction from Rubaya, Shabtai’s lawyer on how to proceed with the matter, against giving the impression that the legal practitioner, Rubaya, was conducting a private prosecution disguised as a prosecution at public instance.

Accordingly, Justice Pisirayi Kwenda in the judgement HACC (T) 2/22, acquitted Sivan and Myburg saying:

“We acquitted the persons after a protracted trial when the prosecutor general threw in the towel and exercised his prerogative to stop the prosecution.

“A situation where a complainant in a criminal matter arrogates himself the power to investigate crime or record statements from witnesses or to secure the attendance of witnesses or to determine whether or not and when such witnesses shall attend court or place conditions for their attendance, AS HAPPENED IN THIS CASE, is clearly inconsistent with the supreme law of the land.

“”In this case it is clear that the complainant, who was not satisfied with the earlier decision to decline prosecution, took it upon himself to compile his own docket by conducting his own criminal investigation and recording statements of witnesses and secure their attendance at the trial.

“A criminal court should not be misled into presiding over a private prosecution which is disguised as a public prosecution based on a police docket compiled from police investigators.” Justice Kwenda ruled.