Bulk Commodities (Pvt) Ltd v Sithembiso Ncube (Magistrate, Bulawayo N.O.) & Anor

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HB 206/19
HC 1004/18
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BULK COMMODITIES (PVT) LTD

Versus

SITHEMBISO NCUBE

(Magistrate, Bulawayo N.O.)

And

THE STATE

IN THE HIGH COURT OF ZIMBABWE

BERE J

BULAWAYO 9 APRIL & 14 MAY 2018 & 19 DECEMBER 2019

Urgent Chamber Application

N. Sithole, for the applicant

Ms N. Ngwenya for the second respondent

BERE J:	On 21 September 2017, the applicant appeared before the first respondent facing allegations of failing to comply with a disclosure order issued by the Director of Financial Intelligence Unit of the Reserve Bank of Zimbabwe in violation of section 18 (3) as read with section 11 and 13 of the Bank Use Promotion Act [Chapter 24:24].

Basically, the allegations were that the applicant had failed to submit certain returns to the Reserve Bank of Zimbabwe from the 25th of June 2016 to 13 June 2017.

In its defence to the charge the applicant took the position that it was complying with the disclosure order served on it and it was shocked to be charged for violating the order.

It further indicated in its defence outline that the recipient of the information had never acknowledged receipt of such information.

In an effort to prove its case the State relied on the evidence of two officials from the Reserve bank of Zimbabwe, viz, Antony Simbarashe Taruvinga and Richard Mumbata both of whom were from the Financial Intelligence Unit of the Reserve Bank of Zimbabwe.

Given the nature of the applicant’s defence it was incumbent upon the State to call those witnesses to whom the applicant was claiming to have submitted the returns.  It became common cause that the two witnesses whose evidence was relied upon by the State were not part of the two administrators to which the information required was emailed.  The evidence of the two witnesses who testified in court therefore remained largely hearsay.

It was the uncontroverted evidence of the two State witnesses that they did not themselves require to have the returns copied to them as part of compliance with the disclosure order.

It was suggested to the two witnesses during their cross-examination that the real complainants on behalf of the Reserve Bank of Zimbabwe ought to have been the two officers from the administration section of the Reserve Bank of Zimbabwe, namely Mukoyi and Gwata whose emails were supposed to be used in compliance with the disclosure order.

It does seem to me that in the absence of the evidence of these two critical witnesses, it would not have been possible for the State to establish a prima facie case warranting the placement of the applicant on its defence.

Consequently, the court a quo may have erred in its finding that a prima facie case had been established at the close of the State case.

It is my conviction that the application for review made by the applicant is not a hopeless one.

I accordingly grant the provisional order  or interim relief as prayed for by the applicant on page 80 of its papers.

It is thus ordered:

That pending the determination of the applicant’s application for review under case number HCR 996/18 proceedings in case under CRB 1775/17 be and is hereby stayed.

Ncube Attorneys, applicant’s legal practitioners

National Prosecuting Authority, 2nd respondent’s legal practitioners