HARARE - The evidence contained in the TIZ report demonstrates clearly that Tomana has violated and even abused the terms of his office to assist certain individuals, some of whom are his acquaintances, to escape criminal liability. The report says that the four individuals whose cases it has studied were accused of engaging in actions that caused financial prejudice either directly to the Government or to parastatals. In the case of one, the court papers filed by the State during her prosecution alleged that her corruption had resulted in the loss of life.
The case of Bright Matonga
During Tomanas tenure as A-G, he has handled two cases involving former deputy minister of information and Zanu (PF) MP Bright Matonga in a manner that suggests abuse of office. In the first case, Matonga was charged with two counts of contravening the Prevention of Corruption Act.
Although in this case Matongas prosecution commenced before the current A-Gs appointment, charges against Matonga were withdrawn after plea prematurely within a month of Tomanas appointment. In the second case, Matonga was charged with culpable homicide after being involved in an accident that resulted in the death of Chipo Chikowore, a magistrate based at Chitungwiza Magistrates Court.
In 2004, Matonga, then CEO of ZUPCO, was charged with corruption. It was alleged that he had purchased buses from Scania, a South African-based company, without the authority of the ZUPCO board. He was represented by Muzangaza, Mandaza and Tomana, a law-firm where Johannes Tomana was a partner.
These corruption charges were withdrawn before plea on August 30, 2004. The case was reported in the Daily Mirror. This raises questions on Tomanas impartiality once appointed to A-G – Matongas cases were prematurely terminated early once he took office.
Tomana was also on the ZUPCO Board when the alleged offence took place. As the corruption allegation was that Matonga had acted without the authority of the ZUPCO Board, it is ethically questionable whether a law-firm to which a ZUPCO Board member was a partner should have acted for him, particularly in a manner prejudicial to the interests of the Board.
The corruption case
On February 6, 2006, Matonga was charged with two counts of Contravening Section 3 (1) (a) (i) of the Prevention of Corruption Act. On the first count, it was alleged that in October 2003, he went to Gift Investments as an agent of ZUPCO and corruptly solicited and actually received US$10 000 00 for causing the extension of a lease agreement between ZUPCO and Gift Investments. On the second count, Matonga caused the price of about 75 buses that were bought by ZUPCO from Gift Investments, to be inflated by about US$2 000 each and thereafter, caused ZUPCO to agree to such a tender intending that each US$2 000 inflation was to benefit him and Charles Nherera, his co-accused who, at the time of his trial, had already been convicted.
The trial opened on February 6, 2007 at Harare Regional Court (CRB 7607/06) and continued for two years.
In December 2008, Tomana was appointed as A-G. A month later, on January 23, 2009, an officer from his office, Ms Mercy Dube, (hereinafter referred to as the Prosecutor), withdrew charges after plea against Matonga, who was then acquitted as a result.
In her written submissions to the court, which she copied to the A-G the Director of Public Prosecutions, the Head of the Economic Section in the A-Gs Office and Mr. Manase, Matongas lawyer, the Prosecutor stated that she was unable to secure the attendance of the key-witness, Jayesh Shah and as a result could not proceed with the case.
In essence, she cites two major reasons for withdrawing charges after plea:
(a) The A-G was unable to secure the attendance of key witnesses to court, namely Jayesh Shah, Perpetua Joy Ndekwere, Benjamin Mauchaza and Linda Choto;
(b) The evidence of the other State witnesses namely Gideon Gono and Fortune Chasi which was admitted without opposition in court, did not implicate Matonga in any wrongdoing and was therefore of no value to the State case.
Neither of these reasons can stand scrutiny. There is no evidence in the records to suggest that the Prosecutor exerted the required effort to secure the attendance of the witnesses. Her blatantly feeble attempts at securing the attendance of vital State witnesses as stated in her written submissions to the court, suggest a deliberate intention on her part and her superiors namely the A-G and the Director of Public Prosecutions, to whom she copied her submissions to allow Matonga to subvert the course of justice. As illustrated below, securing the presence of the three key witnesses should have been a simple task for even the most inexperienced of Prosecutors.
JAYESH SHAH
The impression that the A-Gs office creates in its submission to court is that Shah is a foreign-based businessman whose attendance in court cannot be easily secured. On the contrary, Shah is a prominent, locally based businessman. His business activities have been in the public domain for almost a decade.
In 2004, Kingdom Merchant Bank took Saturn Investments, one of Shahs companies to court over a transaction involving US$4 million. This issue was covered extensively by the local press.
In August 2005, Tomanas law-firm, Muzangaza, Mandaza and Tomana wrote to Shahs lawyers Atherstone & Cook threatening to sue him on behalf of their client Charles Nherera, over Shahs allegations of corruption against him. This event was covered in the Financial Gazette edition of September 15, 2005. The allegations against Matonga arose out of a deal involving the proposed supply to ZUPCO of buses by Gift Investments, a company owned by Shah.
In November 2010, almost two years after the A-Gs Office claimed to have failed to secure his attendance to court because of his alleged unavailability, Shah dragged Trust Holdings to court for a US$1.5 million debt. Again, this matter was widely reported in the local press.
On January 14, 2011 Shah was once again in the press over allegations that he had been involved in the murder of an Indian doctor. Ironically, Shah is quoted as having challenged his accusers to sue him in any of the three countries where he does business, namely Zimbabwe, India and Zambia.
PERPETUAL JOY NDEKWERE
In her written submissions to the court, the Prosecutor states that one of her witnesses, Perpetual Ndekwere, had failed to appear in court after being subpoenaed. A warrant was consequently issued by the Regional Magistrate. It would appear that at the time of the Prosecutors submissions, Ndekwere had not been apprehended.
There is no evidence in the court record to suggest that the State interrogated the Polices inability to locate Ndekwere. In her written submissions, the Prosecutors explanations on her inability to call Ndekwere are reduced to a short paragraph of three sentences wherein she states the following;
She resides at 22 Fowley Road, Vainona, Harare. She was issued a Warrant of Arrest on the 15th of September 2008 and the warrant has not yet been cancelled. It is the States humble view that she could have left the country or moved from her last known address.
A casual inquiry through ZUPCO of Ndekweres whereabouts revealed that she is in fact in Zimbabwe, and works for the Zimbabwe Open University. It is difficult to imagine how the police and the prosecutor could have failed to locate a witness who works for a Government institution in Harare.
In addition, Ndekwere was State witness in Charles Nhereras corruption trial. In her judgement, the Regional Magistrate who presided over the case found that Ndekweres evidence corroborated Shahs in a manner that gave the allegations against Nherera some credibility. This may explain why the A-Gs Office did not make exhaustive efforts to secure her attendance.
BENJAMIN MAUCHAZA and LINDA CHOTO
The Prosecutor states that Benjamin Mauchaza and Linda Choto had relocated to Botswana and South Africa respectively at the time she made her written submissions. According to the Prosecutor, both these witnesses were never subpoenaed. The Prosecutorss written submissions suggest that the State did not attach to Matongas case the seriousness it warranted. In light of the gravity of the offences, the lackadaisical approach that the State adopted in the trial calls for an investigation of the motives of all those involved in the Prosecution.
In the absence of a convincing explanation from Tomana, the only conclusion to derive from the conduct of his Office is that he deliberately sabotaged the States chances of securing a conviction against his former client, Matonga.
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