THE National Prosecuting Authority (NPA) suffered a blow on Friday after the Supreme Court struck off the roll an appeal in a case the state is seeking to confiscate former police boss Augustine Chihuri’s properties over “unexplained wealth”.
Prosecutor-General Nelson Mutsonziwa had appealed to the Supreme Court after the lower court ordered that it was improper for the state to question Chihuri how he acquired wealth in the 1990s.
The bench, comprising Justices Susan Mavhangira, George Chiweshe and Joseph Musakwa, struck the appeal off the roll for non-compliance with Supreme Court rules.
Mutsonziwa admitted he erred, but swiftly corrected his mistake by filing an urgent application for condonation.
“Applicant indeed filed the Notice of Appeal which however turned out to be non-compliant with one of the rules of court,” said chief law officer Chris Mutangadura on behalf of the Prosecutor-General.
“That is a direct opposite of a litigant who does not attempt to appeal in time only to later on seek condonation.”
Mutangadura said the first error of fact stated in the grounds of appeal that the High Court committed was when it made a finding of fact that all assets acquired by the respondents be removed from the terms of the unexplained wealth orders earlier granted in HACC16/20 and HACC20/20 were acquired prior to 2015.
He explained: “The record of proceedings shows that stand 832 Mount Pleasant Township of Mount Pleasant Harare was acquired on 18 July 2017. Lot 28 Chisipite Township of Chisipite Harare was acquired on 21 March 2018. All the six properties (at) Gletwyn Township of Gletywn were acquired and developed during the period when US$34 875 948.10 was stolen from the public purse. This ground of appeal enjoys prospects of success on appeal.”
Cited as respondents are Chihuri, his wife, children and companies. Mutangadura said there were also prospects of success in that the High Court erred in law and fact when it determined the merits of the respondents’ explanation made in the application for setting aside of an unexplained wealth order, thereby usurping the administrative duties of the law enforcement authority.
“The statutory duty to investigate the veracity or otherwise of the respondents’ explanation is vested upon the appellant within 60 days of compliance with an unexplained wealth order by the respondents and the determination of the respondents’ explanation by the court a quo was not yet ripe.
“I also aver that the third ground of appeal enjoys reasonable prospects of success on appeal in that the High Court made an error of law when it delinked the theft of $34 875 948.10 from the other movable and immovable assets when the law permits seizure or confiscation of property equivalent in value to stolen assets even when such property is found not to be tainted.
“In other words, assuming that the immovable and movable assets removed from the unexplained wealth orders is to be found untainted after investigations, the law permits the court to seize and confiscate it,” he said.
On the last ground of appeal, Mutangadura said the High Court erred when it removed property owned by minors from unexplained wealth orders whereas the law allows the granting of unexplained wealth orders, whether or not there are other persons who also hold the property.
“The PG [Prosecutor-General] avers that reasonable prospects of success are very clear as the minors are not the ones who are primarily targeted by an unexplained wealth order.”
He added: “I aver that the matter enjoys public importance in that the law under which the matter stands to be adjudicated is fairly novel and concerns jurisprudential issues of both public importance and development of Zimbabwean law.”
Chinake said Chihuri and his family will not be prejudiced by the granting of condonationand extension of time within which to note the intended appeal as the record of appeal is already available and needs no further processing, thus averting further inordinate delays.
The state is seeking to forfeit some of Chihuri’s property, including houses and motor vehicles, in a bid to recover US$32 million allegedly lost through his alleged corrupt practices. The matter spilled into the courts after the then prosecutor-general, Kumbirai Hodzi, checked with the Deeds Office and established the rushed disposal of assets by the Chihuris.
This resulted in him being granted powers to freeze the properties and assets. The state alleges that on 17 July 2018, Chihuri’s wife, Isobel Halima Khan Chihuri, sold stand 1421 Gletwyn Township which was walled, gated with a borehole, water tank, tank stand, and wooden cabin to Brian Chijaka for US$130 000.
Her brother Aitken Khan had her power of attorney to make the transaction, reads the application. On 21 March 2018, Khan sold 8 St Aubin’s Chisipite in Harare on behalf of the owner, Chihuri’s daughter Samantha, to Erinah Muchingami for US$365 000.
The property, measuring 9 094 square metres, has a four-bedroomed house, gated and walled. The state is also seeking answers on the sale of five properties that were part of the family’s large real estate portfolio even when they had been placed under the Asset Management Unit.
Chihuri is alleged to have sold five properties between 2017 and 2018 after his departure from the police service.
Chihuri is contesting court orders allowing the state to forfeit his properties. He argued that he was gainfully employed, having risen through the ranks in the police force.
Chihuri also said he was a successful farmer. However, the state said Chihuri must simply explain how he built his empire as he is not facing a criminal but civil trial as ordered by the court. — STAFF WRITER.
