THE High Court has found the couple accused of defrauding ex- Reserve Bank of Zimbabwe Governor Gideon Gono not guilty of defrauding him of ZW$137 million.
Clark Makoni and his wife Beverly Aisha Ndonda were charged with fraud and alternatively using forged documents, charges which High Court Judge Regis Dembure said were “fatally defective” and a nullity at law.
The couple had applied for discharge before Regional magistrate Stanford Mambanje who dismissed it saying they should go defence which the two represented by Admire Rubaya viewed as flawed and sought the higher court’s intervention.
In their challenge, the couple’s lawyer attacked the charge his clients were facing saying the essential element of fraud had not been disclosed and the cannot be made to answer to a charge which is not disclosing an offence.
The High Court concurred saying the essential elements of the alleged crime had not been averred in the charge sheet adding that the two cannot be made to defend themselves against something that is "fatally defective."
In application for review at the High Court, the Makonis’ said the lower court’s attempting to assist the prosecution in a dead case.
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They argued that the magistrate had introduced new particulars of fraud midway the trial, particulars which had not been alleged by the State the trial opened.
"There is no way the accused persons can be placed onto the defence in circumstances where the essential elements of the offence of fraud have not been set out in the charge sheet.
"As it stands the charge of fraud is barren as it lacks the essential averments required to make the charge a valid one for fraud as codified," their lawyer Rubaya argued.
Justice Dembure reasoned that magistrate's failure to determine issue of the validity of the charges raised in the application for discharge was a "gross irregularity and serious misdirection” hence the charges should not stand.
The Judge said the magistrate avoided the issue of the validity of the charge which had been raised adding that the lower court had taken the role of the State and invented a charge for the couple to face which was not alleged by the State.
"The Court appears to have clearly avoided the issue and then sought to reinvent particulars in respect of how charges ought to have been and not how it was presented to the court.
"The court took a dangerous path by seeking to invent and try to recreate the particulars of a charge as how it should have been.
"Findings of the magistrates court created a new charge for applicants to face not what had been placed before the court at the commencement of trial which is a gross irregularity.
"The court cannot create its particulars for the accused to face. This was not the function of the court but the State as the dominus litis," the judge said.
The Judge likened the situation with a quote in the application of events at a beer hall where drinkers would say “muzukuru wachinja cup” adding that one cannot put something on nothing and expect it to stand.
The couple’s acquittal puts to rest a three year legal battle between them and Gono whom they accused of trying to extort them.