Business couple Clark Clever Makoni and Beverly Aisha Ndonda Makoni have walked free after the High Court quashed fraud charges against them in a damning ruling that accused a lower court magistrate of “creating new offences” to keep the pair on trial.
The Makonis had challenged Regional Magistrate Stanford Mambanje’s decision to dismiss their application for discharge, arguing that the state’s case was “barren of evidence” and built on fatally defective charges.
Their lawyer, Admire Rubaya, told the court that the magistrate’s conduct amounted to “panel beating the charge” to push the Makonis onto their defence.
“The court cannot, by any stretch of its powers, seek to panel beat the charge for purposes of placing the accused persons onto their defence,” Rubaya said.
“It must avoid the temptation of doing the state’s bidding. It laid its bed, it must lie on it and never rise from it.”
Justice Neville Wamambo Dembure agreed, delivering a sharply-worded judgment that criticised the lower court’s handling of the case.
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“Findings of the magistrates’ court created a new charge for the applicants to face, not what had been placed before the court at the commencement of trial,” he said.
“The court cannot create its own particulars for the accused. That function lies solely with the state as dominus litis.”
According to ZimLive, the case has drawn attention for the judiciary’s rare intervention in ongoing proceedings, which Justice Dembure described as a “dangerous path” that justified High Court interference.
The Makonis had been accused of fraud and corruptly using a false document after allegedly altering directorship details of Valley Lodge (Pvt) Ltd in 2017 to seize control of the business.
Prosecutors claimed they removed Ayoob Omar and Mohammed Hussein Omar as directors and inserted their own names.
But defence lawyers insisted the prosecution was a “failed fishing expedition,” arguing that witnesses confirmed Valley Lodge’s directorship had remained unchanged since 2009.
“There was a clear concession by all critical witnesses that the directors of Valley Lodge have remained the same from 2009 to today,” Rubaya said.
“This concession clearly exonerated the accused persons.”
The state also failed to provide evidence that the couple withdrew US$70,000 allegedly siphoned from the lodge’s account.
“The state is acting like a soccer player who dives at the centre circle and then clamours for a penalty,” Rubaya argued. “This is clearly unacceptable and untenable.”
