HIGH Court judge Justice Pisirai Kwenda has acquitted a Harare businessman Offer Sivan and Cassandra Myberg of fraud allegations involving US$1 million that were levelled against them by a fugitive former partner Gilad Shabtai.
Allegations were that Sivan, who is a director of Adlecraft Private Limited and his assistant, Myberg allegedly misrepresented to Stanbic Bank that Shabtai who is also a director in the firm, had agreed with them to open two bank accounts in the name of their company at Belgravia branch and allegedly forged Shabtai's signature on the forms.
One of the accounts was in United States dollars and another in Zimbabwean dollars.
It was alleged that they also manufactured a company resolution on September 20, 2020 appointing Sivan as the sole director of the company.
Shabtai had also accused the duo of withdrawing and misappropriating $22 359 513,14 and US$762 983,06.
The State was represented by Whisper Mabhaudhi and Lovet Masuku while Sivan and Myberg were represented by Advocate Nyamakura, Marble Tarugarira and Josephine Sande.
In defence, the duo said the charges were malicious. Sivan also accused Mabhaudhi of bias in favour of Shabtai saying he had lodged a similar complaint against Shabtai but the prosecutor had dismissed it as a civil dispute.
The prosecutor-general had also declined to prosecute the case saying the dispute was a manifestation of boardroom squabbles between Sivan and Shabtai which had no place in the criminal courts. He said the case must be resolved in the civil courts.
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Four witnesses testified in the matter and Sivan's counsel questioned how the trial could progress without key witnesses, Shabtai, and Munyaradzi Gonyora who had reported the case to the Zimbabwe Anti-Corruption Commission.
The State, however, indicated that Shabtai would not come for trial and Gonyora was nowhere to be seen and his phone was unreachable.
The prosecutor tried to tender a sworn statement by Shabtai as the basis for stopping the trial but the court refused saying the law does not allow such procedure.
Justice Kwenda then acquitted the duo saying it had been established that the bank received no complaint of fraud or forgery from Adlecraft.
In addressing the unavailability of key witnesses, Justice Kwenda said it was the responsibility of the State to secure the attendance of State witnesses.
“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 investigations.
“The State is expected to secure the attendance of State witnesses through the subpoena because it has the force of law,” Kwenda ruled.
“Further, in terms of section 237 of the Criminal Procedure and Evidence Act where any person subpoenaed to attend a criminal trial without reasonable excuse fails to obey the subpoena and it appears from the return or from the evidence given under oath that the subpoena was served upon such person to whom it is directed, or if any person who has attended in obedience to a subpoena fails to remain in attendance, the judge or magistrate may issue a warrant directing that such person be arrested and brought at a time and place stated in the warrant, or as soon thereafter as possible, before him or some other judge or magistrate.
“The State, having stopped the trial after the accused persons had pleaded to the charge, commanded the court to acquit the accused persons. As a result the accused persons are found not guilty and are acquitted,” Kwenda ruled.