A HARARE magistrate has ruled that the alleged fraud case involving Renaissance Financial Holdings chief executive officer Patterson Timba and his brother, Stevenson, is not a criminal case as the state has failed to adduce facts that constitute a crime.
Magistrate Vongai Muchuchuti who made the ruling on Wednesday said: “Litigants must be urged to desist from abusing the criminal justice system to score points against business rivals and partners.”
She refused to place the Timba brothers on remand on what she described as “baseless allegations”.
Timba, jointly charged with Stevenson, chief executive of Freshco Resources, appeared at the Harare Magistrates’ Courts last month facing allegations of fraudulently attempting to take over a mining company, Glencairn.
“The accused persons are facing a charge of fraud and the essential elements of this offence demands that there be actual or potential prejudice. In this case the state seems to allege that it was the company which suffered prejudice and that cannot be substantiated,” said the magistrate.
“The fact that certain people be appointed directors without consultation from others does not cause prejudice to the company at all.”
She said during cross examination the investigating officer held the contention that the accused breached the provisions of the Companies Act, but could not explain how he arrived at the offence of fraud.
“It is clear that the investigating officer handling this matter is not conversant with the company laws vis-a-vis the memorandum of understanding and the articles of association of the company. That is where the crux of the matter lies,” she said.
Muchuchuti said it was the duty of the state to place before the court cogent facts that show that there is reasonable suspicion that the accused persons committed an offence known in the criminal system.
“It is disheartening when matters that have nothing to do with the criminal law are brought before the criminal courts,” the magistrate said. “Appointments of directors in a company and the matrices used to appoint such are civil matters which have no business in the criminal courts.”
She said she could not understand why the case was brought before the criminal court despite the Attorney-General (AG)’s Office’s refusal to prosecute.
“How the matter came before this court after the brilliant and instructive note written by Mr (Chief Law Officer Chris) Mutangadura of the AG’s office explaining why prosecution was being denied boggles the mind,” Muchuchuti adjudged. “The IO (investigating officer) admitted that the AG declined to prosecute this case and that admission leaves the court in a quandary as to who between the police and the AG is the prosecuting authority.”
Last month, Timba’s lawyers, Atherstone & Cook, wrote a complaint to officer commanding Criminal Investigations Department CID Fraud in Harare, Assistant Commissioner Samson Mangoma, asking him to ensure that justice and rule of law is observed by the police towards their clients’ case.
The lawyers said the police’s conduct in the case showed that they had personal interests, considering that Mutangadura had declined to prosecute the Timbas saying the matter was more civil than criminal.