Walter Chigwada and Patricia Chigwada v The Officer Commanding C.I.D. Serious Frauds and The Commissioner General, ZRP and The Co-Ministers of Home Affairs and The Attorney General of Zimbabwe and The Zimbabwe Association of Church Related Hospitals

HH 69-2011
                                                                                        HC 1936/11

WALTER CHIGWADA
and
PATRICIA CHIGWADA
versus
THE OFFICER COMMANDING C.I.D. SERIOUS FRAUDS
and
THE COMMISSIONER GENERAL, ZRP
and
THE CO-MINISTERS OF HOME AFFAIRS
and
THE ATTORNEY GENERAL OF ZIMBABWE
and
THE ZIMBABWE ASSOCIATION OF
CHURCH RELATED HOSPITALS



HIGH COURT OF ZIMBABWE
KARWI J
HARARE, 2 & 7 March 2011


Urgent Chamber Application

Advocate Mpofu, for applicants
S. Fero, 1st, 2nd and 3rd respondents
K. Gama, for 5th respondents


       KARWI J: This is an urgent chamber application in terms of which applicants are seeking
an interim interdict along the following lines;
       “ That the police be and are hereby interdicted from interfering with applicants possession
       and ownership of their vehicle being a Toyota Registration number ABD 2925 (now
       registered as ADM1793) and shall forthwith return same to applicants, at any rate within
       24 hours of this order.”

       The facts of this matter, as summarized in the outline of the state case attached to the first
three respondents opposing papers are as follows; The state is preferring fraud charges against one
Raymond Gallufa Chidanyika for his alleged criminal conduct which resulted in this matter.
According to the state outline, Chidanyika is alleged to have been Tristar Insurance Company’s
agent and in that capacity he had brokered the fifth respondent (hereinafter referred to as ZACH)
into insuring its vehicle fleet with Tristar Insurance Company (hereinafter referred to as Tristar)
On April 2008 a ZACH vehicle, namely a Totota Hilux Double Cab registration number ABD
2925 was involved in an road accident and was extensively damaged. The matter was referred to
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Tristar through Chidanyika so that Tristar would meet the repair costs. Because of the economic
situation at the time, the vehicle was not attended to for a year. In the meantime it is alleged that
Chidanyika approached ZACH and misrepresented to them that Tristar had considered the said
vehicle to be a write off and were to pay ZACH $27 000 as compensation in terms of the
insurance cover. Tristar were to take the wreck. Acting on the misrepresentation by Chidanyika, it
is alleged that ZACH surrendered the motor vehicle’s registration book and its keys to
Chidanyika.
       Armed with the registration book and car keys, it is alleged that Chidanyika approached
Supreme Panel Beaters, the company which was holding the vehicle for repairs in its garage and
informed them that ZACH was selling the vehicle. Supreme Panel Beaters then offered to
purchase the vehicle for $6000.00 and requested Chidanyika to bring an Agreement of Sale in
respect of the motor vehicle. It is further alleged that in order to facilitate the sale of the vehicle,
Chidanyika manufactured or caused to be manufactured a fake Agreement of Sale bearing a
purported letterhead for ZACH which was dated 3 April 2009. The document is purportedly
signed by ZACH s national director, a Mrs. Chitimbire and the deputy director for projects, a Mr.
Mbengwa. Using the fake Agreement of Sale Chidanyika went on to sell the motor vehicle to
Supreme Panel Beaters. He instructed Supreme Panel Beaters to deposit the payment for the
vehicle into ZACH’s Barclays Bank Account. On 29 May 2009 Supreme Panel Beaters made a
bank transfer of $2000.00 into ZACH’s account.
       When ZACH received the deposit of $2000.00 from Supreme Panel Beaters, Chidanyika is
alleged to have further misrepresented to them that the money was from Tristar which money
Tristar had initially paid to Supreme Panel Beaters for the repair of the vehicle, which had been
refunded and had been directed to them towards the payment for the damaged vehicle.
       Chidanyika is alleged to have further misrepresented to Tristar that ZACH had given an
instruction to terminate the insurance cover for the vehicle fleet and therefore wanted a premium
refund. Acting on the misrepresentation, Tristar deposited $15 843, 36 into ZACH account as
premium refund. And when ZACH received the deposit, Chidanyika is again alleged to have
misrepresented to them that the money was part of $27 000 which was being paid for the vehicle
wreckage.
       Walter Chigwada, who is the deponent to the founding affidavit confirms the background
to this matter and adds that he purchased the vehicle in question for his wife, the second applicant,
from Supreme Panel Beaters for the sum of $24 00. 00. Applicants say they then used the vehicle
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as a family vehicle inter alia for the generation of income. Mr. Chigwada goes on to say that
sometime last year he was approached by two police detectives who wanted to recover the vehicle
on the basis that he had acquired it illegally. After sometime without following up on the matter,
the police removed the vehicle from the garage where he had left it for repairs on 18 February
2011. Applicants said that there was no legal basis for the police to interfere with their possession
and ownership of the vehicle. They said they had acquired it through a lawful and transparent
process.
        Samson Mangoma, the Officer Commanding C. I. D. Serious Frauds, who is the first
respondent said in his opposing affidavit that the police were investigating a case which had been
reported by Tristar pertaining to the vehicle in question. He said that the police were not
interfering with the rights of applicants as the police had a right to recover exhibits when
investigating a criminal offence in terms of s 49 of the Criminal Procedure and Evidence Act [Cap
9:07]. The vehicle was being held as an exhibit under Vehicle Theft Squad Exhibit Book number
42/2011 in which one, Raymond Chidanyika, was the Accused person, having allegedly
committed the crime of fraud when he was an agent for Tristar. The Officer added that the vehicle
was currently being held at Southerton Police Station’s Vehicle Theft Section. He also stressed
that the purported Agreement of Sale in terms of which the vehicle is said to have been sold was
fake and that Chidanyika had admitted to that fact. He further said that the procedure adopted in
the registration of the vehicle was not proper. The proper procedure should have been to register
the vehicle from ZACH to second applicant not from Supreme Panel Beaters to second applicant
as was the case in this matter. Supreme Panel Beaters were never the registered owners of the
vehicle. Mr. Mangoma emphasized that the police were acting not as agents of Supreme Panel
Beaters or ZACH, contrary to allegations by applicants, but were fulfilling their mandate in
protecting the interests of justice.
        The fifth respondent, ZACH strongly opposed the application. Their position is that its
letterhead is different from the one on which the so called Agreement of Sale was drafted and that
the signatures of Mrs. Chitimbire and Mr. Mbengwa as they appear on the purported Agreement
of Sale were forged. The said signatures are not those of the said officials of fifth respondent. Fifth
respondent also corroborated what the second respondent, ie that Chidanyika had admitted that the
document in question had been forged by him.
        ZACH added that it did not at any time sell the vehicle in question to Supreme Panel
Beaters. The fifth respondent indicated that they would want the vehicle to be held by the police
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until the criminal proceedings were completed, whereafter it would want to vindicate the vehicle.
They argued that if the vehicle was released at this juncture, the administration of justice would be
defeated because the vehicle could be sold or destroyed in an accident or be driven beyond our
borders. ZACH further stated that the founding affidavit did not disclose a valid cause of action.
       It is my considered view that applicants can only succeed in this application if they
manage to prove that the police acted outside the law. More particularly if they prove that the
vehicle in question was not taken in terms of s 49 of the Criminal Procedure and Evidence Act. It
seems to me that Applicants have failed to discharge that onus.
       Section 49 [a] of the Criminal Procedure and Evidence Act provides that

    “The State may, in accordance with this part, seize any article-
 a. which is concerned in or is on reasonable grounds believed to be concerned in, the
    commission or suspected commission of the offence, whether within Zimbabwe or
    elsewhere; “

     The first respondent has clearly indicated that the motor vehicle was recovered as part of the
 investigations into a report made to the police by Tristar against one Chidanyika who has since
 been arrested and confessed to have played a part in the fraudulent sale of the vehicle. The
 vehicle is now under police custody as an exhibit. The trial of Chidawanyika has been set down
 for the 15 March 2011 at Harare Magistrates Court. I am satisfied that the police did not act as
 agents of either Supreme Panel Beaters or ZACH. They acted in fulfillment of their
 constitutional mandate and in the best interest of justice. There is no mala fides on the part of the
 police. It would appear from the summary of the state case, which was produced, that the
 allegations are of a complex nature in that the alleged criminal conduct was well planned. It
 would seem to involve two or three complainants, that is ZACH, Tristar and probably Supreme
 Panel beaters and the Chigwadas (applicants) as well. The summary indicates that at some stage
 or other all the complainants were duped through the alleged fraudulent conduct of Chidanyika
 and that the vehicle in question was subject of the alleged crime. There is also no doubt in my
 mind that after the trial, all if not some of the complainants, will institute legal proceedings with
 a view to vindicating the vehicle. Under these circumstances it would only be proper and in the
 best interest of justice if the vehicle remains in police custody to avoid it from being dissipated
 by one party. The vehicle may also be at risk of being stolen or get involved in an accident if
 released to applicants before the criminal trial is completed. Besides, the criminal trial is
 imminent.
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 It is also my view that Applicants have failed to comply with the requirements for an interdict of
this nature on an urgent basis. It seems to me that applicants have failed to prove that they would
suffer some irreparable harm if their prayer is not granted. When the motor vehicle was recovered
by the police on 18 February, 2011, it had to be towed from a garage where it was left by
Applicants for repair. It follows that at the time it was taken by the police, it was not being used to
generate any income for it was a non runner. It also seems to me that Applicants have alternative
remedies readily available to them. For example, they have remedies in terms of ss 58, 59 and 61
of the Criminal Procedure and Evidence Act. More importantly, Applicants have failed to
establish either a right or a prima facie right. The application for an interdict is on the basis of
Applicants ownership of the vehicle. There is no doubt in my mind that if Chidanyika is convicted
(likely if it is to be believed that he has admitted that the Agreement of Sale was fake) applicants
would not be the owners of the vehicle in law for the simple reason that they bought a stolen
motor vehicle. Their relief would probably be a compensation order.
       It has been argued in favour of applications that the motor vehicle in question does not
need to be produced in the pending criminal trial. It was argued that the court can proceed without
the need to have the vehicle produced in court as an exhibit and that therefore there was no need
for the police to take the vehicle as an exhibit. Whilst exhibits are treated as pieces of evidence
and are for the courts to see and view, they are also needed for any order the trial court may want
to make in terms of the law. In casu, the court may consider, if it so wishes, to make an order as
regards the vehicle itself, in the event of an application by any of the interested parties or meru
motu. See Part XIX of the Criminal Procedure and Evidence Act.
       Applicants have therefore failed to prove that the police acted outside the law when they
took the vehicle away as an exhibit. They have also failed to prove that the vehicle was not
required as an exhibit. They further failed to meet the requirements for an interim order on an
urgent basis. Their application cannot therefore succeed.
 It is accordingly ordered that the application be and is dismissed with costs.




Matsikidze & Mucheche, applicant’s legal practitioners
Madzivanzira, Gama & Associates, 5th respondent’s legal practitioners