4
HH 214-24
HCHACC 5/24
THE STATE
versus
PARDON DZIVA
and
ALEX TOMBE
HIGHCOURT OF ZIMBABWE
CHIKOWERO J
HARARE; 13-16 February, 5, 7, 27 March and 28 May 2024
Criminal Trial
W Mabhaudhi with F C Muronda and L Masuku, for the State
M D Hungwe and J Nemaisa, for the 1st accused
E Nengomasha with J Zuze and B Maruva, for the 2nd accused
CHIKOWERO J:
INTRODUCTION
[1] The accused persons are on trial on the main charge of fraud and the alternative charge of bribery as defined in ss 136(b) and 170(a)(i), respectively, of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code” or simply “the Code”).
[2] In respect of the main charge the allegations are that:
“…on the 15th day of November 2023 and at Kebbab Restraurant, Milton Park, Harare Pardon Dziva and Alex Tombe or one or both of them unlawfully and intentionally made a misrepresentation by claiming that accused one (1) was a runner of Justice Kwenda, a Harare High Court Judge who was presiding over the case of S v Henrietta Beatrice Rushwaya whereas in actual fact there was no such a position in the Judicial Services Commission with an intention to deceive Helliate Rushwaya or realising that there was a realising that there was a real risk or possibility of deceiving Helliate Rushwaya and intended Helliate Rushwaya to act upon the misrepresentation by paying both accused persons US$20 000 to her prejudice.”
[3] As for the alternative charge the allegations are that:
“…on the 15th day of November 2023 and at Kebbab Restaurant, Milton Park, Harare, Pardon Dziva and Alex Tombe or one or both of them solicited and accepted US$10 000 from Helliate Rushwaya as a consideration for facilitation of passing of a lighter sentence to her sister Henrietta Rushwaya by Justice Kwenda, knowing or realising that there was a real risk or possibility that such gift or consideration was not due to them in terms of any arrangement between themselves and their principal.”
THE PLEAS
[4] Both accused persons pleaded not guilty to the main and alternative charges.
THE CASE FOR THE PROSECUTION
[5] Accused persons ae male adults resident in Harare. The first accused is a public prosecutor in the employ of the National Prosecuting Authority. He is stationed at the Harare Magistrates Court. His co-accused is employed at Siya-So Home Industry, Mbare in Harare.
[6] The informant, Helliate Rushwaya, is a Media and Communications Consultant based in Harare.
[7] Her elder sister, one Henrietta Rushwaya, was convicted on a charge of smuggling and was scheduled to receive her sentence on 15 November 2023 at 14.40pm at the High Court in Harare before Mr Justice Kwenda.
[8] On the same day, Wellington Takavarasha, workmate to the elder Rushwaya contacted the informant over the phone stating that he had been approached by Progress Maringamoyo. Maringamoyo is a former police officer and public prosecutor and a legal practitioner in private practice. He is a fugitive from justice.
[9] Maringamoyo told Takavarasha that he could facilitate the passing of a lighter sentence on the person of Henrietta Rushwaya.
[10] Still on the same day, Maringamoyo took Takavarasha to Harare Magistrates Court where Maringamoyo introduced the first accused person, to Takavarasha, as Mr Justice Kwenda’s runner and hence the person who was able to facilitate the imposition of a lighter sentence on Henrietta Rushwaya.
[11] The first accused person told Takavarasha that he required payment of the sum of US$20 000 for him to play the facilitatory role.
[12] After the meeting with the first accused person at Harare Magistrates Court, Takavarasha told the informant of his interaction with Maringamoyo and the first accused person.
[13] The informant raised US$20 000, reported to the police’s anti-corruption unit that there was a person claiming to be Mr Justice Kwenda’s runner and hence able to facilitate the imposition of a lighter sentence, by that judge, sitting as the High Court of Zimbabwe, on payment to him (the “runner”) of US$20 000.
[14] This triggered the police to apply for a trap authority. The trap was authorised, the trap money, parcel of the money raised by the informant, was photocopied and a three member team of police detectives accompanied the informant to CABS Centre, Harare to execute the trap.
[15] On reaching TM Pick and Pay Supermarket, which is opposite CABS Centre, the informant was approached by the second accused. The latter indicated that he had been sent by the first accused person to collect the parcel from her on his behalf.
[16] The informant who was in the company of one member of the trap team, would have none of it. She insisted on handing over the parcel to the first accused person himself.
[17] The second accused then instructed the informant to drive to the basement of CABS Centre. Again, the informant turned this down, pointing out instead that the first accused should meet with her at Meikles Hotel, Harare, to receive the parcel.
[18] This did not break the stalemate.
[19] The two accused persons consulted over the phone. The result was that Kebbab Restaurant, Milton Park was then communicated to the informant by the second accused as the venue where the first accused was to meet with the complainant to receive the parcel.
[20] With that, the first accused drove his own vehicle, parked it in front of the informant whereupon the second accused identified it to the informant. The second accused told the complainant to drive behind his co-accused’s vehicle as they travelled to Kebbab Restaurant, Milton Park.
[21] It is there that the accused persons were arrested on receipt of the trap money, being the sum of US$10 000, from the informant. At the time of arrest, the first accused was carrying the money in a black branded gift bag handed to him by the informant.
THE DEFENCES
[22] Both accused persons raised the same defence. They averred that they were innocently associated with the parcel, without any knowledge of its contents and why it was changing hands.
[23] The first accused, both in outlining his defence and in evidence, stated that he was instructed by a friend, Progress Maringamoyo, to collect the latter’s parcel from some lady as Maringamoyo himself had some work commitments in Marondera. The first accused agreed to do this for the convenience of his friend.
[24] The second accused said he simply happened to be at the wrong place at the wrong time. He was due to hold a business meeting with the first accused at the CABS Centre on the fateful day. The latter, as a person known to him, had simply requested him to collect the same parcel from the lady, on the first accused’s behalf, for onward transmission to the first accused.
OUR APPROACH
[25] We shall analyse the evidence for purposes of returning a verdict on the main charge. An assessment of the same evidence for purposes of reaching a verdict on the alternative charge shall not be necessary. The pronouncement of the verdict on the main charge shall enable us to also render the verdict on the alternative charge, in respect of each accused person.
THE CRIME OF FRAUD
[26] The requirements of the offence of fraud are settled in this jurisdiction. See S v Nyambuya and Anor HH 308/16. In Tangwena v Prosecutor General SC 75/21 the crime of fraud was aptly described as “theft by deceitful means.”
THE INITIAL INTERACTION: PROGRESS MARINGAMOYO AND WELLINGTON TAKAVARASHA
[27] The latter testified, without it being seriously disputed, that on 15 November 2023 Maringamoyo phoned him (as Chief Executive Officer of the Zimbabwe Miners Federation) and hence Henrietta Rushwaya’s workmate, claiming that he was able to facilitate the imposition of a lighter sentence on Henrietta Rushwaya.
[28] Takavarasha explained that he had met and known Maringamoyo at a now defunct football club known as Shooting Stars Football Club. At that time Maringamoyo was a duly attested member of the Zimbabwe Republic Police.
[29] The duo’s telephone conversation of 15 November 2023 led Maringamoyo to appear at Pachedu Restaurant in Harare. There, Maringamoyo led Takavarashs to Harare Magistrates Court.
[30] The only person who could have seriously and meaningfully disputed Takavarasha’s testimony of his interation with Maringamoyo would have been Maringamoyo himself. Since Maringamoyo is a fugitive from justice, and resultantly not in a position a discredit Takavarasha’s evidence, this court finds as a fact that Maringamoyo made a phone call to Takavarasha on 15 November 2023 whereupon he stated that he was then working at the High Court and was in a position to facilitate the passing of a lighter sentence on Henrietta Rushwaya, on the same day, by the High Court sitting at Harare.
THE INTERATION AT HARARE MAGISTRATES COURT
[31] The court is aware that the first accused disputed interacting with Takavarasha at Harare Magistrates Court on 15 November 2023.
[32] Indeed, the first accused disputed even interacting with Takavarasha over the phone at all. The first accused testified that he was meeting Takavarasha for the first time at the trial of this matter.
[33] On the other hand, Takavarasha narrated in detail that Maringamoyo’s phone call led the latter to drive to Pachedu Restaurant, that the two drove their respective vehicles to Harare Magistrates Court, that once there Maringamoyo fetched the first accused from court number 17 whereupon the trio (Maringamoyo, Takavarasha and the first accused) then got into some office. In that office, so said Takavarasha, Maringamoyo introduced the first accused as the trial judge’s runner who would facilitate the imposition of a lighter sentence on Henrietta Rushwaya. The informal language used by Maringamoyo as he introduced the first accused according to Takavarasha,
“Uyu ndiye achapedza maspots.”
This informal phrase according to the evidence simply meant that the first accused was the person who would facilitate the passing of a lighter sentence on Henrietta Rushwaya.
[34] Takavarasha testified that as soon as Maringamoyo had made the introduction and left the two to converse in that office, the first accused asked the former to make an offer of how much was to be paid to the first accused for his role of facilitating the imposition of a lighter sentence on Henrietta Rushwaya. Takavarasha said he offered US$10 000, which was met with the first accused’s counter that the amount payable to him be US$20 000.
[35] The cross-examination of Takavarasha by Mr Hungwe, for the first accused, was designed to demonstrate that Takavarasha was not a credible witness. It was meant to lay a foundation for the contention that Takavarasha never interacted with the first accused on 15 November 2023 at Harare Magistrates Court at all.
[36] We think that Mr Hungwe did the best that he could in this regard. That said, we are fully persuaded that Takavarasha was a credible witness. This judgment has already shown that his narration of events did not start at Harare Magistrates Court. What set off the chain of events was Maringamoyo’s phone call, that person’s appearance at Pachedu and then the trio’s physical interaction at Harare Magistrates Court. We have already set out the informal language used by Maringamoyo in introducing the first accused to Takavarasha. Given the circumstances, the evidence capturing that utterance has a distinct ring of truth. Takavarasha also said the office where all this happened was a shared one not only because at one time a lady entered that office before he left Harare Magistrates Court but also because of the sitting arrangement therein. Takavarsaha was able to place before the court the content not only of Maringamoyo’s introductory words at Harare Magistrates Court but the offer that he (Takavarasha) made on invitation by the first accused and that the figure of US$20 000 was the first accused’s response by way of what he said was required for facilitating the imposition of a lighter sentence on Henrietta Rushwaya.
[37] Takavarasha was at Harare Magistrates Court for the first time on 15 November 2023. What caused him to be there is now known. He was not known to the first accused prior to 15 November 2023. These two were otherwise strangers to each other. We conceive of no basis for Takavarsha to lie that he interacted with the first accused at Harare Magistrates Court on 15 November 2023 if no such interaction occurred. That Takavarasha may have been mistaken on the office number where he interacted with the first accused is understandable. That was his first time to be there, in circumstances to do with his superior’s sentencing by the High Court. He did not go there to memorise any office number.
[38] Takavarasha’s testimony was so detailed and contextual to the extent that it would be an insult to the intelligence of this court to uphold the first accused’s protestations that it was fabricated. So detailed was the witness’ evidence that he went so far as to describe the first accused’s apparel on the day in question. That Takavarasha was testifying truthfully is enhanced by the fact that although the first accused is jointly charged with the second accused, the witness was clear that he did not interact with the second accused at all. In fact, the witness was open with the court to the extent of admitting that he did not know the second accused at all, and was setting his eyes on him for the first time in court. If Takavarasha was a vindictive and untruthful witness, there would have been nothing precluding him from claiming that he interacted with both accused persons on 15 November 2023 at Harare Magistrates Court. This would have been made easier by the fact that Maringamoyo did not testify.
[39] We are fortified in finding credence in Takavarasha’s testimony by the fact that his account does not end at Harare Magistrates Court. He did something about what we have found to have transpired there. He phoned Henrietta Rushwaya’s daughter relative to raising the said facilitation fee. He named the daughter in his evidence. He then called Henrietta Rushwaya’s younger sister, who is the informant. He said he gave the informant an account of his interaction with Maringamoyo and the first accused, that the first accused had confirmed that he was the trial judge’s runner and, in that capacity, required to be paid US$20 000 to facilitate the imposition of a lighter sentence on Henrietta Rushwaya. On request by the informant, he furnished her with the first accused’s mobile number and also furnished the first accused with the informant’s mobile number.
SIGNIFICANT EVENTS BEFORE THE ARREST OF THE ACCUSED PERSONS AND THE ARREST ITSELF
[40] The informant confirmed that she acted on the basis of information availed to her by Takavarasha, that there was a person who was presenting himself as the trial judge’s runner and that person (whose mobile number she got from Takavarasha) required payment of US$20 000 to facilitate the imposition of a lighter sentence on her elder sister come 2.30 pm that very day.
[41] But she decided to set a trap.
[42] Having raised US$15 000 she took it to the police where she made a report. Since the first accused made a phone call to her whilst the trap money was being photocopied, asking whether she was still coming to meet him at CABS Centre, a decision was made to use only US$10 000 out of the US$15 000 for purposes of setting the trap.
[43] She then drove a police detective, John Mvundura, to CABS Centre to meet the first accused. She made a phone call to the first accused to make him aware that she was on her way.
[44] Paul Misheni and Givemore Mutsinzwa, the two other members of the trap team, followed in another vehicle.
[45] The informant parked at TM Pick and Pay Supermarket in Harare’s Central Business District. She received another telephone call from the first accused, who was seeking to establish her whereabouts. She told the court that she described to him, over the phone, her motor vehicle, and that she had put the motor vehicle’s hazard lights on. The first accused, waiting for her in his office at CABS Centre (which is opposite TM Pick and Pay) confirmed that he had seen her vehicle and was sending someone to her. Still over the phone, so said the informant, the first accused confirmed that his envoy had pitched up at her vehicle.
[46] It is common cause that the second accused got into the informant’s vehicle, told her that he had been sent by Dziva (the first accused) but that she insisted on handing over the parcel to the first accused himself. This can only mean that the understanding of the informant, Mvundura, the first accused and the second accused himself was that the second accused was send by the first accused to collect the parcel on his behalf from the informant. Otherwise, the informant would not have refused to hand over the parcel to the second accused for onward transmission to the first accused.
[47] The informant testified that the second accused then told her to drive to the basement of CABS Centre. Again, this can only mean that, at that time, the first accused was in his office at CABS Centre and would now be receiving the parcel not in his office but in the basement. The informant turned down this proffered venue, telling the second accused that she should meet the first accused at Meikles Hotel.
[48] This did not find favour with the first accused, who made this known to the informant through the second accused. Instead, again through the second accused, he communicated that he would meet the informant at Kebbab Restaurant, Milton Park, Harare. According to the informant the second accused, who was still in her car, told her that the first accused would be with them shortly to lead them to Kebbab Restaurant in Milton Park. Indeed, the first accused pitched up in no time, stopped his Toyota Camry in front of the informant whereupon the second accused identified that vehicle to her and instructed her to follow it to Milton Park. If this was Progress Maringamoyo’s innocent parcel this was yet another opportunity for the first accused to have received it from the informant. There would have been no logic in the parties travelling to Milton Park first, with that parcel, when it could easily and conveniently have changed hands the moment that the first accused stopped his vehicle in the Central Business District in front of the informant.
[49] The informant gave detailed testimony on the conversation that she had with the first accused, in her vehicle, at Kebbab Restaurant in Milton Park. The second accused had alighted from the same vehicle to fetch the first accused. She said on exchanging pleasantries the first accused had introduced himself as:
“Dziva, public prosecutor Rotten Row, the one who sent Job Sikhala to prison and handled Mai Titi’s case. You can google me if you want.”
The informant also testified that she asked the first accused how much he had agreed with Takavarasha. Her evidence was that the first accused said the agreed figure was US$20 000 although “Mudhara” that is “Old Man,” had wanted US$30 000. She said she had raised US$15 000 but had US$10 000 on her person. The first accused accepted the US$10 000. The money was given to him, he declined an invitation to count the money uttering words to the effect that they do not count such money in their industry. He was given a transparent paper bag, placed the money therein and was also furnished with a branded black gift bag to carry the money. He reassured the informant that “they” worked as a team and that if she did not get results she would get her money back. That was the reason why he had wanted her to drive to the basement of CABS Centre so that she would know the location of his office in case she might need to seek reimbursement in the event she did not get the result that she had paid for.
[50] In their testimony both accused persons said that they got into the informant’s vehicle at Kebbab Restaurant in Milton Park to look for the second accused’s phone. The second accused said he did not even perceive the money changing hands because he was busy looking for his phone.
[51] Further, both accused persons testified that by the time that the informant parked at TM Pick and Pay the first accused had already left CABS Centre for Kebbab Restaurant, Milton Park. The first accused indeed tailored his defence as the trial progressed. He had not, in cross-examining the informant and Mvundura, disputed that he had a telephone conversation with the informant, while he was inside CABS Centre, at a time that the informant was parked by TM Pick and Pay Supermarket. He had not disputed that he had confirmed to the informant, over the phone, that he had not only seen her motor vehicle as she had described it, aided by hazard lights but had also seen that the person sent by him (the second accused), had arrived at her vehicle. Both accused persons, represented by teams of legal practitioners, had not disputed the informant and Mvundura’s evidence that the first accused actually drove and parked in front of the complainant at TM Pick and Pay Supermarket with the second accused person identifying the Toyota Camry as belonging to the first accused and that they drive behind him to Kebbab Restaurant.
[52] Like Takavarasha, both the informant and Mvundura were credible witnesses. We accept that the informant gave a true account of what happened at the police anti-corruption unit when she filed her report, was truthful in giving an account of her interaction with the first accused over the phone, her interaction with both accused persons in the city centre and subsequently at Kebbab Restaurant.
[53] The differences between her testimony and that of Mvundura are peripheral. They do not go to the root of the matter. For instance, it surely is immaterial how the money was moved in the vehicle from wherever it was placed until such time that the first accused person carried it away in the branded gift bag. The fact of the matter is that the money was recovered from the first accused and that it tallied with the serialised notes photocopied and produced in evidence. The black branded gift bag, together with the plastic bag, were also produced as exhibits. All this was with the consent of both accused persons.
[54] The signatures on the trap authority, ascribed to the accused persons by the police witnesses, were not submitted for examination by a Questioned Document Examiner. In the circumstances of this matter overwhelming evidence was adduced by the prosecution to such an extent that there was no need to prove the single individual fact, through expert evidence, that both accused persons affixed their signatures against some of the photocopies of the trap money on the trap authority. The State did not need to close the avenue of escape afforded by the accused persons’ denial of signing the trap authority. That avenue is illusory. See S v Isolano 1985(1) ZLR 62(S) at 64-65. It might possibly have been a real avenue of escape if, everything else being equal, the defences of both accused persons were that the money recovered in the first accused’s possession was not the complainant’s.
[55] The informant and the accused persons were not known to each other. Had it not been for the fact that Takavarasha furnished the first accused with her mobile number and that he also availed the informant with the first accused’s mobile number, it would not have been possible for the first accused person to interact with the informant over the phone. It matters not that the first accused person used a mobile line registered in the name of one Otillia Bvirakure. It was not Otillia Bvirakure who called the informant while she was still arranging the trap with the police, enquiring whether she was still coming to meet him at CABS Centre. It was not Otillia Bvirakure who made a phone call and conversed with the informant while she was parked at TM Pick and Pay Supermarket. It was not Otillia Bvirakure who led the way as the entourage struggled through heavy traffic to Kebbab Restaurant, Milton Park.
[56] The person who made the misrepresentation that the first accused was Mr Justice Kwenda’s runner and that, in that role, was able to facilitate the imposition of a lighter sentence on Henrietta Rushwaya was Progress Maringamoyo. He repeated that misrepresentation, to Takavarasha, in the presence and in the hearing of the first accused person. The first accused person associated himself with that misrepresentation by inviting Takavarasha to make an offer of the fee payable for execution of that task. He turned down Takavarasha’s offer of US$10 000. He doubled the figure. Mr Justice Kwenda does not have a runner. No evidence was placed before this court that he was involved in the first accused’s conduct of inducing payment to interfere with the passing of sentence on Henrietta Rushwaya. The first accused, both over the phone and in person, relentlessly pursued the informant to actuate the prejudice intended at the time of making of the misrepresentation. The second accused, despite not having been involved from the beginning committed the crime in association with the first accused. We have detailed his involvement at TM Pick and Pay Supermarket right up to Kebbab Restaurant in Milton Park. We have found that just like the first accused, he gave false evidence in his defence case. That testimony was tailored to aid in exonerating the first accused but it has had the effect of assisting the State in proving its case against the second accused. Indeed, the second accused associated himself with the conduct of the first accused. There was more to this parcel than met the eye. Even to the second accused, why would it be necessary to go to Milton Park when the supposed recipient of the parcel was right there in the Central Business District as was the informant and the parcel?
[57] In the result, we are satisfied that the State has proved its case beyond reasonable doubt against both accused persons in respect of the main charge.
Verdict: Main charge-accused one: Guilty as charged.
: Main charge -accused two: Guilty as charged.
: Alternative charge-accused one: Not guilty and acquitted.
: Alternative charge-accused two: Not guilty and acquitted.
The National Prosecuting Authority, State’s legal practitioners
M D Hungwe Attorneys at Law, first accused’s legal practitioners
Zuze Law Chambers, second accused’s legal practitioners