By A Correspondent| Following months of trauma, stress and financial loss, Ofer Sivan and Cassandra Myburg, were acquitted of malicious allegations of fraud.
From day one they stand by their statement that the false allegations laid against them by Gilad Shabtai was purely an attempt at diversion from his own criminal misdoings and the fact that for almost two years Gilad Shabtai and Munyaradzi Gonyora have been avoiding investigations against them for money laundering, tax evasion, misappropriation of company funds and illegal externalization of funds.
What seems to all to be the truth is that Prosecutor Mabhaudi, representing the state, acting under instruction from fugitive Gilad Shabtai, through his lawyer Admire Rubaya, pushed the matter to trial purely in a bid to cause irreparable harm to the accused persons and divert attention from Shabtai’s own criminal actions.
After months of having the matter postponed for frivolous reasons, the state had no choice but to withdraw the false allegations and have the matter dropped. From the on set there was no basis to take the matter to trial as was plainly seen during the proceedings.
The first witness called by the state was Simba Mawere, legal advisor to Stanbic Bank, who explained in detail the procedures for opening of accounts. Contrary to the false allegations, he confirmed that all verifications and formalities had been completed to the satisfaction of Stanbic. At no time had any complaints been made to the bank regarding the operations of the accounts held by the company and that everything was done above board. He was not even aware of any allegations in regard to the company accounts.
The second witness called was L Nhari, who testified that he was approached by a legal practitioner representing Gilad Shabtai who gave him copies of the Stanbic account opening forms and “undisputed” samples of Shabtai’s signature. He expressed his frustration to the court that he had been summoned to provide evidence in a matter he knew nothing about.
He also confirmed he had never been approached by investigating officers nor the complainant on any allegations in this matter. He simply did a report on documents provided to him by Claudious Nhemwa of C Nhemwa and Associates, and A Rubaya on a private consultancy basis and provided the report to their specifications being the ones who paid his fee.
Following this witness Mr Nyamakura, representing the accused, expressed concern in the manner which the matter was proceeding. As per normal procedure the complainant is called up to testify first, the following witnesses are simply there to provide supporting evidence to the allegations.
The court issued a warning to the state representative Mabhaudi and clearly stated that the matter would only be postponed one last time and that on the 4th and 5th of May the complainant should be in attendance along with the other witnesses who had made no appearance.
Unsurprisingly to the accused and their council, when the trial commenced on the 4th there was no sign of Shabtai or Gonyora. The court urged the Prosecutor to seriously consider the states position on the proceedings after the Investigating Officer, Owen Mutembwa, confirmed under oath that he had never actually investigated the matter.
He was handed a file from his supervisor, and instructed to take it to trial, following the dismissal of the original investigating officer Smart Mandofa from ZACC who is currently on remand after being charged with criminal abuse of office in this same matter.
He never made any follow up investigations or enquiries into the matter, in fact, he had never met or spoken to the complainant or the accused at all. He had also never made any attempts to issue subpoenas to the witnesses to secure their appearance in court as he had no idea how or where to contact them.
The court warned state representative Mabhaudi after incidences in court whereby he was taking instruction from Rubaya, Shabtai’s lawyer on how to proceed with the matter, against giving the impression that the legal practitioner, Rubaya, was conducting a private prosecution disguised as a prosecution at public instance.
Honorable Judge Kwenda was not fooled by the inappropriate manner in which the state, represented by Prosecutor Mabhaudi, proceeded in the trial, nor did he hide his criticism at how “evidence” had been, in an unprocedural manner, handed to the investigating officer and experts, as well as the state, through a lawyer representing the complainant. In the judgement HACC (T) 2/22, the following statements were made by the Honorable Judge:
“we acquitted the persons when, after a protracted trial when the prosecutor general threw in the towel and exercised his prerogative to stop the prosecution”
“A situation where a complainant in a criminal matter arrogates himself the power to investigate crime or record statements from witnesses or to secure the attendance of witnesses or to determine whether or not and when such witnesses shall attend court or place conditions for their attendance, AS HAPPENED IN THIS CASE, is clearly inconsistent with the supreme law of the land”
“in this case it is clear that the complainant, who was not satisfied with the earlier decision to decline prosecution, took it upon himself to compile his own docket by conducting his own criminal investigation and recording statements of witnesses and secure their attendance at the trial. A criminal court should not be mislead into presiding over a private prosecution which is disguised as a public prosecution based on a police docket compiled from police investigators”
To sum up the matter, it is incomprehensible how fugitives from justice, Gilad Shabtai and his puppet, Munyaradzi Gonyora, (having charges against them for money laundering, tax evasion, misappropriation of company funds and illegal externalisation) had the audacity to use financial influence in order to compel persons to have a malicious false allegation against two innocent persons pushed to a criminal trial where there are absolutely no merits at all.