THE PROSECUTOR GENERAL
COMMERCIAL BANK OF ZIMBABWE
REGISTRAR OF DEEDS
HIGH COURT OF ZIMBABWE
HARARE, 19 February 2015 & 16 March 2015
Mutangadura, for the applicant
N Munyuru, for the respondent
MTSHIYA J: On 2 May 2014, this court issued a Provisional Order whose terms were as follows:
“TERMS OF FINAL ORDER SOUGHT
That you show cause why a final order should not be made on the following terms:
- The registration of a Mortgage Bond 2592/2010 on the Deed of Transfer for stand 158 Quinnington Township 4 of Quinnington of Borrowdale Estate measuring 7445 square metres be and is hereby cancelled.
- The 3rd respondent be and is hereby ordered to transfer stand 158 Quinnington Township 4 of Quinnington of Borrowdale Estate measuring 7445 square metres from Shokorino Choga to Simbabrashe Michael Choga born on 13 May 1995.
- The costs of this application shall be in the cause.
INTERIM RELIEF GRANTED
- The 3rd respondent be and is hereby ordered not to administer any encumbrance or transfer of stand 158 Quinnington Township 4 of Quinnington of Borrowdale Estate measuring 7445 square metres pending the confirmation or discharge of this order”.
The property referred to in the above order shall herein be referred to simply as “the
On 19 February 2015 the matter came before me and I confirmed the order. The first respondent, who is believed to be in South Africa, was in default. The matter was therefore opposed by the second respondent only.
Through a letter from its legal Practitioners dated 23 February 2015, the second respondent has requested that I give reasons for the confirmation of the provisional order. I therefore give here-below the reasons as requested.
The provisional order of 2 May 2014 was granted following an urgent chamber application by the applicant, wherein the following averments were made:
“1. The subject matter relates to an immovable property of substantial value which is subject of a court order that was defied by the 1st Respondent who instead of transferring the property in question from his name to the name of his second born son, proceeded to encumber the property by registering a mortgage bond in favour of the second respondent against a debt of US$50 00-00 incurred with the knowledge of a court order to the contrary.
2. There is a high risk of perverse conduct on the part of the 1st Respondent who is most likely going to proceed to dispose of the property as he has title to the property. Without an interdict, the risk of prejudice to the beneficiary of the same property exists in casu.
3. The encumbrance of the property in question by the registration of a mortgage bond over a debt which did not benefit the 1st Respondent’s second son means that there is contempt of court which further prejudices the 1st respondent’s second son who has not been provided with maintenance in blatant defiance of an order of the maintenance court. This will let the 1st respondent a law unto himself”
With respect to the issue of the court order referred to in para 1 above, on 3 July 2008,
the following consent order was issued by the magistrate court, Harare:
“After consultation between their respective legal Practitioner the Parties have hereby agreed as follows:
- This Order shall operate and regulate the parties … in the above said case numbers B557/08 and 367/08 of this Honourable Court.
- Applicant shall retain stand number 101 Chishawasha Hills, Chishawasha as his sole and exclusive property but shall register it in the name of NGONIDZASHE NICHOLAS CHOGA (born 15th May 1993) as his sole and exclusive property within a reasonable period from the date of this order.
- Applicant shall retain stand number 17/158 Ettington Road, Greystone Park, Borrowdale, Harare as his sole and exclusive property but shall register it in he name of SIMBARASHE MICHAEL CHOGA (born 13th May 1995) as his sole and exclusive property within a reasonable period from the date of this order.
- Respondent shall retain a Toyota Camry motor vehicle registration number AAH 5887 as her sole and exclusive property.
- Applicant shall surrender through his Legal Practitioners the above said motor vehicle registration book to Respondent’s Legal Practitioners and also do all the necessary paper work to facilitate change of ownership within seven (7) days of this order.
- Applicant shall surrender through his Legal Practitioners the title deeds in respect of stand 1436 Lanner Avenue, Vainona, Borrowdale, Harare to Respondent’s Legal Practitioners and shall sign a Declaration and Power of attorney to pass transfer within seven (7) days of this order.
- Applicant shall in due course (but within a reasonable period), secure a residential/developed property for FADZAI MICHELLE CHOGA (born 3rd June 1999) as her sole and exclusive property.
- The Warrant of arrest issued against Respondent on 4th June 2008 be and is hereby cancelled.
- Each party bears its own costs”.
Notwithstanding the existence of the above consent order, in 2010 the first respondent
proceeded to register a mortgage bond against the property. He therefore mortgaged the property which he was supposed to transfer to his son as per the consent order quoted above. That action was in violation of the consent order.
Failure by the first respondent to comply with the consent order resulted in an order of contempt of court being issued on 15 April 2011 against him.
The contempt order read as follows:
“(a) the Respondent be and is hereby found in contempt of court for failure to abide by a consent order of this court.
(b) The Respondent be and is hereby ordered to surrender all the necessary documents to the Applicant for the proper processing of change of ownership of the properties.
(c) Upon Respondent’s failure to comply with this order within seven (7) days of its service warrant of arrest to issue to show cause why in contempt.
(d) That Respondent shall pay the costs of suit”.
The applicant has, apart from properly treating the first respondent as a fugitive from justice, listed the following offences against him:
“(a). Contempt of Court as a result of failure by the 1st Respondent to obey a court order requiring him to pass transfer of the property from his title to that of his Son Simbarashe Choga.
(b) Contravention of section 23 of the Maintenance Act resulting from failure to obey a maintenance order.
(c) Fraud, resulting from misrepresenting to the 2nd Respondent that the property in question was free from encumbrance when it was common cause that there was a court order vesting title to Simbarashe Choga.
(d) Money Laundering, resulting from conversion of proceeds of crime by the 1st Respondent”.
The issue of being a fugitive from justice is backed up by an existing warrant of arrest
issued against the first respondent on 1 April 2011 for contempt of court.
Although the offences are many, our major focus in casu is on contempt of court relating to the consent order which deals with the property now mortgaged in respect of a debt of US$50 000-00 owed to the second respondent by the first respondent. The second respondent’s opposition is anchored on that transaction. The consent order preceded that debt and my immediate conclusion is that as long as the consent order remained extant, the first respondent could not deal with the property in the manner he did.
Notwithstanding his title to the properly, the consent order deprived the first respondent the discretion or right to use the property as he wished. I find it immaterial that the order did not specify when transfer was to be effected in favour of his son. Following the consent order, he could not do anything with the property except to transfer it to his son. He did not do that and hence the issuance an order of contempt of court on 15 April 2011.
The first respondent did not only fail to comply with the court order but he went on to use the property in a manner prejudicial to his son’s rights conferred by the order. His non-disclosure to the second respondent of the fact that the property was the subject of a court order brings him to the arena of fraud. Having refused to comply with the court order the first respondent went further to unlawfully deal with the property. He mortgaged a properly which was subject to a court order without even disclosing same to the other party (i.e second respondent).
On the basis of the foregoing, I find it difficult to accept that the applicant can be said to lack locus standi. An offence was committed i.e “knowingly contravening or failing to comply with any order of a court which is given during or in respect of judicial proceedings with which it is his or her duty to comply”. A warrant of arrest for contempt of court was issued and the exercise to bring the first respondent to justice involves the applicant.
The first respondent’s illegal use of the property rendered it tainted property because it was used in the furtherance of disobedience to a court order. The property now fell into the first respondent’s illegal scheme(s). I do not want to believe that the second defendant would have accepted the use of the property if it knew it was the subject of a court order. This was encumbered property. I have no reason to doubt the evidence of the first respondent’s son wherein he confirms his mother’s averment that the first respondent is currently in South Africa.
I take the position that until the warrant of execution is executed, the first respondent remains a fugitive from justice.
I also do not see how the consent court order of 3 July 2008 can be deemed superannuated when it remains the basis of the order of contempt of court upon which the warrant of arrest dated 3 June 2011 is based.
In addition to what I have already said, regarding the merits of this case, I have no doubt that, apart from the offence of contempt of court, the first respondent has also violated s 8 of the Money Laundering and Proceeds of Crime Act [Chapter 9:24] which provides as follows:
“8 Money laundering offences
- Any person who converts or transfers property-
- that he or she has acquired through unlawful activity or knowing, believing or suspecting that it is the proceeds of crime; and
- for the purpose of concealing or disguising the illicit origin of such property, or of assisting any person who is involved in the commission of a serious offence to evade the legal consequences of his or her acts or omission; commits an offence.
- Any person who conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing or suspecting that such property is the proceeds of crime, commits an offence.
- Any person who acquires, uses or possesses property knowing or suspecting at the time of receipt that such property is the proceeds of crime, commits an offence.
- Participation in, association with or conspiracy to commit, an attempt to commit, and aiding, abetting, facilitating and counselling the commission of any of the offences referred to in subsections (1), (2) and (3) is also an offence.
- Knowledge, suspicion, intent or purpose required as elements of an offence referred to in subsections (1), (2), (3) and (4) may be inferred from objective factual circumstances.
- In order to prove that property is the proceeds of crime, it is not necessary for there to be a conviction for the offence that has generated the proceeds, or for there to particular person committed the offence.
- For the purposes of this section, “proceeds of crime” includes proceeds of an offence committed outside Zimbabwe if the conduct constitutes an offence in the State or territory where the conduct occurred and would have constituted an offence if committed within Zimbabwe.
- The offences referred to in subsections (1), (2), (3) and (4) shall be punishable-
- by a fine not exceeding five hundred thousand dollars (US$500 000) or not exceeding twice the value of the property involved or the gain derived by the offender, whichever is greater; or
- by imprisonment for a period not exceeding twenty-five years; or
- both such fine and such imprisonment”
The property in question was not available to the first respondent for use as security for the loan of US$50 000-00 from the second respondent. I am certain that the first respondent did not disclose to the second respondent the existence of the consent order of 3 July 2008. That kind of conduct on the part of the first respondent heavily smells of fraud. The property in question is directly linked to the offences that the applicant alleges the first respondent has committed and hence the following submissions:
(4) Mr Shokorino Choga was once a Senior Employee at the 2nd Respondent who
obviously was not aware of the existence of a court order. However, failure by the 1st Respondent to disclose the fact that there was a court order on its own is a crime of fraud. That is, misrepresentation by omission. In this case, the said Shokorino Choga was found guilty of contempt of court by a magistrate hence his evasion from this jurisdiction fearing committal. That makes the latter a fugitive from justice. Section 86 of the Money Laundering and Proceeds of Crime Act bars fugitive from having any right of audience in proceedings of this nature. It provides as follows:-
A person who is a fugitive from justice in Zimbabwe may not appear, either personally or through a representative, in a proceeding for civil forfeiture in Zimbabwe or contest the granting of a civil forfeiture order’
(5) The property in question which is subject to a court order became tainted
property from the moment it was subject to a mortgage bond. Tainted property
is defined in the definition provisions in the Money Laundering and Proceeds
of Crime Act as follows:
‘tainted property” means-
- Proceeds from or instrumentalities of the commission of a serious offence, other than a terrorist act; or …
(6) The Supreme Court of Appeal of South Africa defined the meaning of
‘instrumentality of an offence’ in NDPP V R O COOK Properties 2004 (80
BCCR 844 (SCA) and held that:
‘..the words concerned in the commission of an offence, must in our view, be interpreted so that he link between the crime committed and the property is reasonably direct, and that the employment of the property must be functional to the commission of the crime. By this we mean that the property must play a reasonably direct role in the commission of the offence. In a real and substantial sense the property must facilitate or make possible the commission of the offence” .
I associate myself with the concepts of law explained in the above submissions.
Given the foregoing, my view is that the evidence before the court militated against refusal to confirm the provisional order of this court granted on 2 May 2014.
I therefore had reason to confirm the provisional order on 19 February 2015.
Prosecutor General, applicant’s legal practitioners
Mr S. Choga (Fugitive From Justice) 1st respondent
Muvingi & Mugadza, 2nd respondent’s legal practitioners