A Bulawayo magistrate has dismissed an application by Zimbabwe Anti-Corruption Commission (ZACC) to move a fraud case involving US$700 000 to the High Court.
Bulawayo Provincial magistrate Tinashe Tashaya, Wednesday ruled that the State had failed to submit valid reasons as to why the matter had to be indicted to the High Court and as such it would be prosecuted in the magistrate’s court.
He postponed the matter to March 20 for the commencement of trial.
The case involves Been There Restaurant (Pvt) Ltd managing director, Delny Deanna Ashley Davies, who allegedly defrauded Prince Abraham, managing director for Nedlac Automation- a company with branches in South Africa and Zimbabwe.
Allegations against Davies are that she told Abraham she had free funds in South Africa which Abraham would use to do his South African transactions and in return, he should transfer $700 000 into her Zimbabwean account.
The court heard Davies allegedly converted the funds to her own use as she used the money to settle a loan she was owing to one Mohammed Zakariya Patel.
The trial suffered a false start last week after the State, led by ZACC prosecutor Venerada Munyoro, made a sudden application that the case be heard before the High Court.
Munyoro said the State had come to that conclusion after the defence counsel announced their intention of making an application of intention to except the charges against Davies.
She told the court that indicting the matter to the High Court would curtail processes since all ‘intended applications would be made before that preliminary court’.
The defence counsel, represented by Advocate Thabani Mpofu, noted that the sudden application by the State, especially after agreeing to commence trial, raised suspicion that the State wanted to amend papers as it had previously done, to be able to counter the application for intention to except to the charges against their client.
Magistrate Tashaya dismissed the State’s application citing that the sudden change of proceedings was wrong.
He said the State should have sought indictment before agreeing to commence trial.
“Reasons submitted by the State do not bring out valid reasons why this court should not prosecute on the matter. It was conversant from the start of the fact that the amount involved is US$700 000 and this court has the jurisdiction to preside over that amount. This court hereby rules that the matter will not be indicted to the High Court but will be heard in the magistrate’s court,” said Tashaya.
“The Prosecutor General is bound by the initial decision made. The defence is hence expected to serve the State with written submissions of their reasons of applying for an exception so that the State may have time to prepare its responses to the matter. The trial will commence on March 20.”
Magistrate Tashaya explained that the Davies initially appeared in court on November 29 and was awarded bail.
“She was placed on remand until February 5 when the State called her to court on February 19. It was then that State announced it was ready to commence trial on February 20,” he said.
“If the Prosecutor General decided to commit to a higher court a case it had already granted permission to prosecute then the procedure had to be done formerly through serving the court handling the matter with a written notice of which in this case it was not done.”
He noted that although the Prosecutor General is independent, all its processes must be exercised within the confines of the law.
The court, through Munyoro, heard that Davies prejudiced Abraham a total of US$664 200-00 and only US$7 432-00 was recovered.
Munyoro said Abraham then told Davies that his company had two major invoices which had to be settled totalling about ZAR3 500 000-00.
“Sometime in November 2018, Abraham instructed Davies to pay ZAR3 070 000-00 to Maggotteax South Africa for goods bought and delivered to PPC Bulawayo and to pay ZAR 430 000-00 to Toyota Nelspruit for Nedlac Enterprises (Pvt) Ltd company vehicle,” said Munyoro.
“On November 26, 2018, Davies then instructed Abraham to deposit USD $700 000-00 into FMC Finance Company Ecobank account number 00147600849601. Abraham thus made two internal transfers of US$200 000-00 and US$500 000-00 into the stated account through Interbank banking using his Ecobank account number 005103760992101.”
She said investigations established that when the money was transferred into FMC Financial Services Ecobank Account, US$72 000.00 financed an overdraft for FMC Financial Services and US$628 000.00 was transferred to a Steward Bank account, on instructions from Zakariya Patel.
“On 29 November 2018, a total of ZAR 450 000-00 was paid to Nedlac Automation South Africa FNB account number 62716180807 by Davies and she converted a balance of ZAR3 050 000-00 to her own use. She later made another deposit of ZAR110 000-00 into Nedlac Automation FNB account,” said Munyoro.