Prosecutor General v Magret Mukahanana Sangarwe and Sussana Makome Kuhudzayi and Walter Muzembi (Fugitive from Justice) and Aaron Dzingira Mushoriwa and Grey Hama

### Preamble
1
HH 120/21
HC 8663/19
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PROSECUTOR GENERAL

versus

MAGRET MUKAHANANA SANGARWE

and

SUSSANA MAKOME KUHUDZAYI

and

WALTER MUZEMBI

(Fugitive from Justice)

and

AARON DZINGIRA MUSHORIWA

and

GREY HAMA

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 25 November, 2020 & 12 March, 2021

Opposed application

T. Kasema, for the applicant

W. Muchengeti, for the 1st respondent

S. Hashiti, for the 3rd Respondent

MANGOTA J: In 2013, Zimbabwe and Zambia successfully co-hosted the 20th United Nations World Tourism Organisation (“UNWTO”) Conference. The event ran for the period 25th to 30th August, 2013.

The magnitude of the conference required a lot of planning and preparation. It is in the mentioned spirit that Government appointed the second and fourth respondents, who are professional consultants, to raise funds for Zimbabwe’s hosting of the conference. Their appointment is in terms of the letter which the Office of the President and Cabinet wrote to the Chief Executive Officer for Mbada Diamonds (Pvt) Ltd on 22 March, 2013. The letter appears at pages 82-84 of the record.

The role of the first and third respondents who, at the time of the conference, were respectively Permanent Secretary and Minister for the Ministry of Tourism and Hospitality Industry, requires little, if any, mention. They were pivotal to the successful hosting of the conference. They had a big role to play in the preparation as well as hosting of the conference for, and on behalf of, Zimbabwe.

Following their appointment into the position of professional organisers of the conference, the second and fourth respondents did, on 15 May 2012, sign with the Government of Zimbabwe a document titled the Professional Conference Organiser (“PCO”) Contract. The PCO defined their terms of reference, duration of the contract, the manner in which they would be remunerated for their work and other ancillary matters. It is at pages 18-21 of the record

The second and fourth respondents were complying with the directive of Government when they and others registered a notarial deed of trust with the registrar of deeds in June, 2013. Reference is made in the mentioned regard to the text of the letter of 22 March, 2013 which reads:

“….Government has resolved as follows:

To constitute a UNWTO Resource Mobilisation Trust Fund to be responsible for receiving and disbursing funds.

The Trustees will include Dr. Judith Kateera, Secretary in The Vice-Precedent’s office and Ms Margret Mukahanana-Sangarwe., Secretary for Tourism and Hospitality Industry representing the Working Party of the Inter-Ministerial Committee on UNWTO and appointees of the Minister of Tourism and Hospitality Industry.

The Trust deed, with an enlarged Board of Trustees, has since been lodged.

The Directors of Africa Convention, represented by Mr Aaron Mushoriwa and Ms Susan Makombe will become ex-officio Board members of the Trust” [emphasis added].

It is into the registered United Nations World Tourism Organisation Corporate

Resources Mobilisation Trust [“the trust”] that all donations which the second and fourth respondents sourced for the conference found their way. The four motor vehicles which are the subject of this application were sourced for the conference. They, like all other donations, found their way into the trust.

The motor vehicles were purchased for the conference. They were allocated to each of the first four respondents whom Government charged with the responsibility of preparing for, as well as hosting, the conference. The first, second, third and fourth respondents, therefore, each received the cars which had been allocated to them as follows:

First respondent: Ford Ranger, Double Cab, Registration number ACU 6801,

Second respondent: Ford Ranger, T6 Double Cab, Registration number ACU 2603,

Third respondent: Ford Ranger, T6 Double Cab, Registration number ACU 7946 – and Fourth respondent: Tata Xenon, Double Cab, Registration number AXC 5409.

The above-mentioned four cars constitute the applicant’s cause action. He accuses the respondents of theft of the cars. He alleges that they converted the cars which were allocated to them for the conference to their own use. He states that they did not surrender the four cars to Government after the conference. He insists that the vehicles are the property of Government. He sues the respondents under ss 79 and 80 of the Money Laundering and Proceeds of Crime Act [Chapter 9:24] [“the Act”]. He moves for a civil forfeiture order of the four motor vehicles.

All the respondents, but the second respondent, oppose the application. The first, third and fourth respondents deny that they converted the motor vehicles which were allocated to them for the preparation and hosting of the conference to their own use. They dispute the allegation which is to the effect that the four cars belong to the Government of Zimbabwe. They state that the cars are the property of the trust. They insist that, in the absence of the trust complaining against their conduct of using the cars after the conference, the cars cannot be forfeited to the State. They deny having ever committed any offence which warrants forfeiture of the motor cars to the State.

The third respondent whom the applicant described as a fugitive from justice denies that he is such. He alleges that he went to South Africa for medication. He states that he went to that country with the knowledge and consent of the applicant.

The fifth respondent pleads the defence of the innocent purchaser. He alleges that he bought the Ford Ranger, T6, Double Cab motor vehicle with registration number ACU 2603 from Race Course City, a garage, which guaranteed him that the car was free from claims by third parties. He insists that he should not, as an innocent purchaser, be adversely affected by the dispute of the applicant and the other respondents. All the respondents move me to dismiss the application with punitive costs.

Before I delve into the merits of the application, it is pertinent for me to make some observations in respect of the cases of the second and third respondents. The second respondent, the record reveals, did not react to the application at all. She did not oppose the application or file Heads.  Nor did she attend court when the matter was heard. The fifth respondent filed his notice of opposition as well as his Heads. But he did not attend court on the set down date of the application.

Ordinarily, default judgment would have been entered against the second and third respondents. It would have been entered against them at the applicant’s mere application without any further ado. It would have been entered because, from a prima facie perspective, both respondents were/are in default.

The question which begs the answer is whether or not default judgment would readily have been granted against the one, or the other, or both respondents. A number of observed factors qualify the answer to the question. I state hereunder those factors as follows:

Certificate of Service

The deponent of the founding affidavit states that she served the application on the

second respondent. She makes mention of that matter in what she describes as her certificate of service. She filed it on 3 June, 2020. It appears at page 203 of the record.

The defects which are inherent in the certificate make it hard, if not impossible, for anyone let alone the court to appreciate its meaning and import. It is more of a statement than it is certificate. It does not mention the name of the person who served the application on the second respondent. The deponent who claims to be the legal practitioner of the applicant states that she served the application upon the second respondent. She, however, does not state the name of the person to whom she handed the application when she called at the home of the second respondent, if she did.

A certificate of service of court process which the High Court Rules, 1971 accept is more than the statement which Ms Tapiwa Kasema who is the deponent to the founding affidavit made. The certificate should be as per Form No. 6 or 7, as the case may be. It is provided for in Order 5 of the rules of court. It is more often than not in Form No. 7 in terms of which the certificate must give the name of the clerk/ messenger/ employee of the applicant’s legal practitioner who served process on the other party.

The clerk/employee/messenger makes a written statement certifying that he served a copy of the application, in casu, upon the second respondent, that he served it on a particular person/responsible person who was/is at the respondent’s address of service. He mentions the date and time that he effected service of the process/application. He states, in the statement which constitutes part of the certificate, that the person upon whom he effected service accepted the application/court process for, and on behalf of, in casu, the second respondent by signing on a copy of the application which the messenger/clerk/employee has retained.

The statement of the employee/clerk/messenger should be authenticated by the legal practitioner of, in casu, the applicant. He certifies that he has satisfied himself by personal inquiry of his clerk/messenger/employee that service of the application/process has been effected as is stated in the statement of the clerk/messenger/employee. The legal practitioner’s written part of the certificate states the date of his certification and the legal practitioner signs the certificate.

The rigorous procedure of preparing and filing the certificate of service of court process in the manner which is described above serves a specific purpose. It confirms the statement of the party who serves process on the other that service has, indeed, been effected. This occurs where the other party challenges the issue of service of process having been effected upon him. Production of the certificate of service which is in the correct form and substance becomes conclusive evidence of service of court process having been effected on the party who challenges that process was not served upon him. The challenged party takes advantage of the stated procedure to prove, on a balance of probality, that, although the challenging party denies having received service of court process, the certificate which the challenged party retains kills the issue of service of process upon him on its mere production. The certificate of service which is valid in terms of the rules of court serves as the serving party’s fall-back position where the other party mounts a challenge in respect of service of process upon him. It assists the challenged party in a great measure.

The applicant cannot state, with any degree of certainty, that he served the application upon the second respondent. He makes an unsubstantiated statement on the issue of his service of the application upon the respondent. He produces no evidence which shows that he served the same on her. He cannot support the allegation which he makes. He does not have a fall-back position upon which he can rely. The allegation which he makes does not suffice.

The second respondent’s inaction to the application cannot, in the given circumstances, be held against her. The defective service of the application upon her is as good as stating that no application has been served upon her.  She is, in the circumstances of this case, accorded the benefit of the doubt. She cannot be penalised for an omission which is not of her own making.

(b)	Sheriff’s return of service

It is fortuitous that, notwithstanding the defective service of process,the application and the applicant’s Heads found their way to the third respondent who opposed the application and filed his Heads. The third respondent’s non-attendance at court on the set down date requires some comment. His non-attendance at court does not lie with the applicant. It lies with the system of justice delivery. The Sheriff did not serve the notice of set down of the application upon the third respondent. His reason for not serving the notice remains unknown.

The third respondent is not to blame for the perceived default. The justice delivery system, and not the applicant, failed him. If he had received notice of set down of the application, he, in all probability, would have made every effort to atend and defend his position vis-a-vis the suit. He would have done so notwithstanding the applicant’s allegation which is to the effect that he is a fugitive from justice. He, at any rate, denies that he is such.

The shortcomings which were/are inherent in the cases of the second and third respondents present a formidable challenge for the applicant. They place him in a very invidious position where he had to choose between applying for a default judgment against the one or the other or both respondents, on the one hand, or letting sleeping dogs lie, on the other. His wisdom told him to approach the matter of the two respondents with caution. He refrained from embarrassing himself by taking the first option. He, as it were, allowed sleeping dogs to remain lying where they were sleeping, so to speak.

The applicant remained alive to the fact that his application for default judgment against the second and third respondents would not see the light of day. He realised that his service of the application upon the second respondent was unsubstantiated and, therefore, fatally defective, and that the third respondent’s perceived default was not out of his own making but that it was a result of the justice delivery system’s failure. He, accordingly, held his horses and, in my view, correctly.

It is on the strength of the above-analysed matters that I remain of the considered opinion that no default judgment lies against the second and/or the third respondent(s). None of them was in what is normally referred to as wilful default. The second respondent was/is completely unaware of the application. She is not, therefore, in wilful default. The third respondent was not aware of the date and time of the hearing of the application. He, like the second respondent, is also not in wilful default.

Wilful default occurs where a defendant/respondent with full knowledge of the set down and of the risks which are attendant on his default, freely takes a decision to refrain from appearing: Newman(Pvt) Ltd v Marks, 1960 R & N 166 at 169 (SR). In re Young and Harton’s Contract, LR 31, chD 174 at 175.

Both respondents enjoy the benefit of the doubt. The benefit is more often than not extended to persons who, out of no fault of their own, fail to attend court or to answer to court process which has not been drawn to their attention as is the case with the two respondents. They cannot be punished for other persons’ fault or failure.

The law, it is trite, does not allow a person to be punished before he has been heard. Punishing him without hearing him violates the audi alterum partem principle which the court and the Supreme Court appropriately enunciated in Mawere v Minister of Justice, 2005 (1) ZLR3 (7) (H) as well as in Duly Holdings v Chanwiwa, 2007 (2) ZLR I (S).

The principle abhors the conduct of punishing a man before hearing him. It is one of the rules of natural justice which neither the court nor any adjudicating authority can afford to ignore and the ignoring of which will lead society which the system is meant to serve to misunderstand the system which men and women of my category, at various stages of man’s development, have sworn to, and continue to swear, to observe with little, if any, choice.

The application, as can be gleaned from papers filed of record, is for a Civil Forfeiture order. The applicant moves me to forfeit to the State four motor vehicles which are the subject of this application. The motor cars, it is agreed, were purchased for the successful hosting of the United Nations World Tourism Organisation Conference (“the conference”) by Zimbabwe. They were allocated to the first, second, third and fourth respondents who were pivotal to the successful hosting of the conference. They used the cars to run the errands of the conference which took place in August 2013. The application cannot succeed. It cannot do so largely because the conduct of the respondents is not in sync with the provisions of the Act under which the application was/is filed.

The provisions of the Act under which the applicant applied for an order of forfeiture are clear and straightforward. The title of the Act concisely captures the Act’s aims and objects which, taken as a whole, translate into the intention of the Legislature. The intention is to suppress the abuse of the financial system and enable unlawful proceeds of all serious crime… to be identified, traced, frozen, seized and (eventually) confiscated.

The interpretation section of the Act does not define the phrase ‘suppress the abuse of the financial system.’ The phrase is, however, left to be understood from a reading of the phrase ‘enable unlawful proceeds of all serious crime… to be identified, traced, frozen, seized and … confiscated.’ which appears in the definition section of the Act.

The definition section of the Act defines “proceeds” and “proceeds of crime” to mean any property or economic advantage which is derived from or obtained, directly or indirectly, through the commission of a criminal offence; including from the property and property converted or transformed in full or in part into other property.” (emphasis added)

Examples of proceeds of crime abound in every-day life. What immediately comes to the fore are proceeds which accrue to a person or a group of persons from such activities as human trafficking, sale of such prohibited drugs as cocaine etc, or in some countries such as ours, proceeds which are a result of organized white collar crimes, prostitution and the like.

It follows, from the foregoing, that for me to order forfeiture of the four motor vehicles, the applicant must allege and prove, on a balance of probabilities, that the cars were obtained  through criminal conduct. He must satisfy me that they are proceeds of a crime and/or that their coming into existence is associated with, or connected to, the commission of crime.

The applicant is not suggesting that the motor vehicles were acquired through the commission of crime. He is not saying that they are tainted property. He, in fact, is on the same page with the assertions of the respondents who state that the cars were acquired for a very noble cause which came and went bye. They cannot, given the stated fact, be classified or placed into the category of tainted property. They are not. They are what they are. They are goods which fall outside the definition of proceeds of crime. They are not tainted goods.

The applicant, in short, fails to show that the four cars are proceeds from conduct which constitutes or is associated with a serious offence or that they were used or intended to be used to be engaged in conduct which constitutes or is associated with a serious offence or that they were derived from some serious offence. The applicant’s failure on the mentioned score renders his application still birth.

It is a mis-statement for the applicant to state, as he does in para 11 of the founding affidavit, that the corporate world from whom donations were sought made donations to the Ministry of Tourism and Hospitality Industry. Evidence shows that donations were channelled into the trust which Government formed for the purpose of accepting such. The motor cars which are the subject of this application, being donations from the corporate world, were not purchased by money which Parliament allocated to the Ministry of Tourism and Hospitality Industry through the Ministry of Finance and Economic Development. The Ministry of Tourism and Hospitality Industry, it is common cause, did not use its voted money to purchase the vehicles. These were purchased from donations which were channelled into the trust. Government established the trust and charged it with the responsibility of receiving such donations.

It is evident, from the observed matter, that by resolving to form the trust, Government did not want to blur the distinction which existed and continues to exist, between voted money which Parliament allocated, and continues to allocate, to departments of Government, on the one hand and money as well as assets which found their way into the trust for the conference, on the other. The two purses were, and are, different and separate from each other.

The four motor vehicles were, and they remain, registered not in the name of any department of Government. They were, and are, registered in the name of the trust. Reference is made in the mentioned regard to Annexures G, H, I and J which respectively appear at pp 40, 42, 44 and 46 of the record.

It is evident, from the foregoing, that the four motor cars were never the property of Government. They were, and are, the property of the trust. The respondents’ unchallenged statements is to the stated effect. Because it is not controverted, the statement captures the true position of the case.

It is trite that what is not denied in affidavits is taken as having been admitted. There is sufficient authority for the stated proposition: See Gordon v Tarnow 1947 (3) SA 525 at 521-532; AA Mutual Assistance Association v Biddulph and Anor 1976 (1) SA 725 AD at 725H-735B; as read with s 36 of the Civil Evidence Act [Chapter 8:01] which makes reference to admissions to any fact in issue in civil proceedings.

The applicant’s statement which is to the effect that the respondents violated Government procedure when they failed to surrender the motor vehicles to the Ministry of Tourism and Hospitality Industry after the conference is difficult to comprehend let alone accept. A fortiori when he does not state or define the procedure of Government which he is referring to. It is more of a meaningless assertion than it is anything to go bye. He does not cite the circular, regulation, rule or law which he is insisting the respondents should have complied with. He does not produce any evidence which supports the assertion that the respondents should have surrendered the motor vehicles to Government after the event.

The record shows that the motor vehicles are registered in the name of the trust. It shows, further, that the trust is registered with the Deeds Office. Reference is made in the mentioned regard to p 89 of the record. It boasts of eight trustees who include one Tamuka Macheka, its founder, the first, second and fourth respondents whom Government appointed for their role in the preparation and hosting of the conference.

The trust, it is evident, is a body corporate which can sue and be sued in its own name.  It owns its own property which is managed under clause 7 of the notarial deed of trust. The clause reads:

“7	APPLICATION OF NET INCOME

All net income generated from the activities of the trust shall be employed to fund the successful hosting of the UNWTO Summit and any surplus resources  remaining after the Summit shall be used for running the trust, ongoing Zimbabwe Tourism and Hospitality and United Nations World Tourism activities locally, regionally and internationally.” (emphasis added)

Is clear, from a reading of the above, that the intention of Government was to allow the Trust to remain in existence after the conference and to allow it to own its own asserts. It was never the intention of Government to strip the trust of its property as the applicant seeks to do in casu. Government envisaged a situation where the activities of the trust would continue to be performed after the event.

The applicant, it is my view, misconstrued the conduct of the respondents when they retained the motor vehicles after the conference.  The first, second and fourth respondents are, by virtue of their position in the trust, beneficiaries of the trust. The clause which speaks of beneficiaries of the trust weighs well in their favour. It reads:

“Beneficiaries: shall mean the tourism and hospitality industry particularly the various committees, tasks and objectives relating to preparations for the co-hosting of the 20th Session of the United Nations World Tourism Organisation General Assembly as well as any future tourism and hospitality activities locally, regionally and internationally that the trustees may from time to time identify or approve.” (emphasis added)

Given the fact of the existence of the trust and its ability to own assets as is stated in the notarial deed of trust, nothing compelled the respondents to surrender the motor vehicles to Government as the applicant alleges. Government’s clear intention of establishing the trust was to allow it to:

receive and disburse funds in preparation of the conference;

remain in place after the conference— and

retain the residue of whatever donations it collected for the conference to serve as a reservoir for the trust’s pursuance of future activities which are related to tourism and hospitality.

It was, in fact, never the intention of Government to dissolve the trust at the end of the conference. Nor was it its intention to have whatever donations it received in preparation of the conference to be surrendered to Government after the event. It, in fact appears to be the intention of the applicant to strip the trust of its motor vehicles.

The suit of the applicant makes little, if any, sense when regard is had to Government’s letter of 22 March 2013 as read with the contents of the trust deed. The application which seeks to render to Government what it does not intend to receive is misplaced. A fortiori where the applicant produces no evidence which supports the allegation that the respondents should have surrendered the four vehicles to Government.

The applicant proceeded on the basis of an assumption which he does not justify. He went on to label the respondents as thieves whose alleged unwholesome conduct it could not prove. His persistence with the suit in the absence of any element which points to any crime on the part of the respondents is unfortunate. It is difficult to condone let alone accept.

The record shows that, at some point in time, the applicant preferred against the respondents charges of theft of trust property as defined in s 113 of the Criminal Law (Codification & Reform) Act [Chapter 9:23]. He, for reasons which were known to himself, withdrew the charges as against each respondent. He, in my view, had no option but to withdraw as he wisely did. He could not continue with prosecution of the respondents when their conduct was/is not in sync with the crime of theft or theft of trust property.

The respondents, it is evident, stole no one’s property. Their use of the vehicles after the conference is nowhere near the crime of theft or theft of trust property. They allowed the motor vehicles to remain registered in the name of the trust which owns them. Their conduct is not consistent with that of a thief. The elements of theft do not exist at all in what they did with the motor vehicles after the conference.

I observe, and reiterate, that the applicant’s greatest weakness is one of taking an assumption which he formulates in his mind and translating it into a fact which it is not. He, for instance, states in paragraph 18.2 of the founding affidavit that the second respondent sold the motor vehicle, ACU 3707, which had been allocated to her to the fifth respondent from whom he recovered it. He produces no evidence which supports his allegation. He, in fact, does not show that the second respondent sold her allocated vehicle to the fifth respondent.

The fact that the vehicle was recovered from the fifth respondent does not prove that the second respondent sold it to him. That is a mere assumption which the applicant makes. It is an assumption which the fifth respondent rebuts when he states that he purchased the car from a garage and not from the second respondent.

The applicant does not tie the loose ends of his case as he should have done. He does not show that the second respondent requested the garage from which the fifth respondent purchased the car to sell it for her. All he does is to allege that the car which was allocated to the second respondent was recovered from the fifth respondent who purchased it and, therefore, the second respondent sold it to the fifth respondent. That analysis is so flawed that it remains unconscionable.

The probability of the trust having surrendered the car to the garage to sell it for its own reasons remains totally unaddressed by the applicant. He produces no evidence at all from the garage which sold the car to the fifth respondent with a view to showing how the car found its way to it or the person who mandated it to sell the car which was/is registered in the name of the trust.

The fifth respondent states, correctly in my view, that he is an innocent purchaser who should not be adversely affected by the dispute of the applicant and the first four respondents. It is a fact that, when the motor vehicle was seized by the applicant, he moved the court under HC 319/18 to order the garage which sold the car to him to refund him US$28 200 or to compensate him with a motor vehicle which was/is similar to the one which the applicant seized. His application in the mentioned regard succeeded.

The fifth respondent cannot, in my view, suffer for the sins of others, if such exist. He, no doubt, is an innocent purchaser the conduct of which the court found reason to protect when it stated in The National Directors of Public and Another v Yasien Mac Mohamed N.O and 3 others CCT 44/02 that:

“At the forfeiture stage of the proceedings an owner can claim that he or she acquired an interest in the property in question legally and for value and that he or she neither knew nor had reasonable grounds to suspect that the property constitute the proceeds of crime or had been an instrumentality in an offence.” (emphasis added)

Although the above-cited case is not binding on me, it is, however, of great persuasive value. It offers a clear guide for dealing with the circumstances of the fifth respondent who purchased the car legally and for value. His case is strengthened by the fact that the car which he bought does not constitute the proceeds of crime. Nor was it an instrumentality in any offence as the applicant seeks to allege.

On an objective analysis of the circumstances of this application, therefore, none of the respondents can be said to have committed any crime. The conduct of each of them is well above board. No element of any offence attaches to any of them. Their hands remain as white as snow. They are clean.

The applicant failed to prove, on a balance of probabilities, the circumstances of the application which it filed. The application is, in the result, dismissed with costs.

National Prosecuting Authority, applicant’s legal practitioners

Muchengeti & Company, 1st respondent’s legal practitioners

Mushoriwa Pasi Corporate Attorneys, 4th respondent’s legal practitioners

J Mambara & Partners, 5th respondent’s legal practitioners