HARARE businessman Chemist Siziba has turned screws on the National Prosecution Authority (NPA) and its acting Prosecutor-General Nelson Mutsonziwa over a missing docket that was allegedly destroyed in 2014.
The criminal case involves Paul Rink Peacy, Craig John William Danckwerts, Ray Kaukonde and Samson Edmare. Two dockets reportedly disappeared during trial at the Magistrates’ Court in Harare.
In 1998, Siziba was approached by an agent of the accused to enter into a casino business deal that required owning a piece of land.
Siziba agreed to pay ZW$9 million for the land, which belonged to the accused and he paid ZW$4,5 million for Lot 4 of Arlington Estate and a similar amount for Lot 5 at the same piece of land.
In light of a fraudulent CR14, Siziba said in his founding affidavit that he did not own or control anything while the accused continued to control and dispose of portions of the land, which he alleged was because of the NPA actions.
Siziba, according to court papers, then discovered that Danckwerts had fraudulently reinstated himself as a director of his company and appointed Brooke, Kaukonde and Edmare as directors.
The businessman reported the matter to the police leading to the arrest of Danckwerts and colleagues but sometime in March 2014, Mutsonziwa summoned the docket for the purposes of reviewing it.
Siziba, who is accusing the NPA of meddling on the matter, is now pursuing private prosecution.
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In his draft application to the High Court, he said the NPA and Mutsonziwa have refused or failed to answer whether or not they were opposed to private prosecution after neglecting to prosecute his case.
The businessman’s application, according to his founding affidavit, is for the supply of reasons why the NPA is failing to prosecute the matter. The NPA and Mutsonziwa have already filed their Notice of Opposition to Siziba’s application.
“It is my case that the respondents are not above the law and that in the exercise of their public powers, are enjoined to explain their administrative decisions to affected parties such as myself and to the public in general,” Siziba said.
“I continue to suffer due to the conduct of the respondents, hastening to state that I have engaged the second respondent in his dual capacities to explain the failure to have the matters I reported prosecuted. He has roundly ignored my requests and demands for written reasons.
“I have further inquired whether, in light of their failure/refusal to prosecute the criminal matters at hand, respondents are opposed to issuing me with the requisite authority to undertake a private prosecution on my complaint. This too, the respondents have ignored,” he added.
The businessman, in his basis for the application, and in respect of the first docket, said he requested reasons for the NPA and Mutsonziwa’s decisions leading to the disappearance of the 2014 docket during court proceedings including the “effective” stay of proceedings against the accused.
Siziba also noted the failure by Mutsonziwa to trust his colleagues handling the matter at the magistrates’ courts, delay in concluding the matter and defeat or obstruction of judicial proceedings which had reached trial stage.
He said Mutsonziwa also refused to explain whether or not he has any relationship with the accused in the matter or their agents and whether or not he was improperly induced to act in their favour.
On the second docket, Siziba argues that Mutsonziwa has not explained reasons for declining to prosecute the matter which the court had put the accused on remand.
“He has not accounted for key evidence against the accused which was previously in the docket,” Siziba said.
In its opposing affidavit, the NPA, represented by Justin Uladi, the acting deputy prosecutor general in charge of operations, said Siziba’s submissions were “vague and embarrassing” and unclear as to what he was seeking from the court.
“It is noted that the applicant was initially represented by Mutuso, Taruvinga and Mhiribi Attorneys who have not formally renounced agency. Applicant is now unprocedurally self-acting without renunciation of agency from his lawyers. This shows a great deal of ill motive behind this application,” Uladi argued.
“Before we could even respond to his lawyers, the applicant unprocedurally wrote to us in person and also brought this application, which undoubtedly shows great confusion on his part.”
He said Siziba should have joined other interested parties he mentioned in the application including the police, investigation officer, the Zimbabwe Anti-Corruption Commission (Zacc)
“The non-joiner of these parties is an irregularity. In the circumstances, the order he seeks is defective, meaningless and incompetent,” Uladi said.
Mutsonziwa, in his opposing affidavit, said he was not aware of the second docket until an inquiry after receiving a complaint from Siziba’s lawyers.
He also denied the knowledge of key evidence Siziba alleges to have disappeared from the docket.
“I don’t know which evidence the applicant is talking about because when the dockets were referred to the Area Public Prosecutor everything was contained in dockets,” Mutsonziwa said.
“According to our records, the dockets were subsequently destroyed by the police. I must state that I have nothing to do with the destruction of the dockets.”
The acting prosecutor-general also argues that Siziba’s assertion that he breached the law was “malicious”.
He said he had no idea how the dockets were obtained from the Harare Magistrates’ Courts. Mutsonziwa also denied releasing any suspect connected to the case adding that deferment of the case was based on the outcome of a High Court case to determine who to prosecute between the two dockets.