This
is an urgent chamber application in terms of which the 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, Raymond Gallufa Chidanyika is alleged to have been Tristar Insurance
Company's agent and in that capacity he had brokered the fifth respondent, The
Zimbabwe Association of Church Related Hospitals, into insuring its vehicle
fleet with Tristar Insurance Company. On April 2008, a Zimbabwe Association of
Church Related Hospitals vehicle, namely a Totota Hilux Double Cab registration
number ABD2925, was involved in an road accident and was extensively damaged.
The matter was referred to Tristar Insurance Company through Raymond Gallufa
Chidanyika so that Tristar Insurance Company 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 Raymond Gallufa Chidanyika
approached the Zimbabwe Association of Church Related Hospitals and
misrepresented to them that Tristar Insurance Company had considered the said
vehicle to be a write off and were to pay the Zimbabwe Association of Church
Related Hospitals $27,000= as compensation in terms of the insurance cover. Tristar
Insurance Company were to take the wreck. Acting on the misrepresentation by Raymond
Gallufa Chidanyika, it is alleged that the Zimbabwe Association of Church
Related Hospitals surrendered the motor vehicle's registration book and its
keys to Raymond Gallufa Chidanyika. Armed with the registration book and car
keys, it is alleged that Raymond Gallufa Chidanyika approached Supreme Panel
Beaters, the company which was holding the vehicle for repairs in its garage,
and informed them that the Zimbabwe Association of Church Related Hospitals was
selling the vehicle. Supreme Panel Beaters then offered to purchase the vehicle
for $6,000= and requested Raymond Gallufa 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, Raymond Gallufa Chidanyika manufactured or
caused to be manufactured a fake Agreement of Sale bearing a purported
letterhead for the Zimbabwe Association of Church Related Hospitals which was
dated 3 April 2009. The document is purportedly signed by the Zimbabwe
Association of Church Related Hospitals National Director, a Mrs. Chitimbire
and the Deputy Director for Projects, a Mr. Mbengwa. Using the fake Agreement
of Sale, Raymond Gallufa 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 the Zimbabwe Association of Church Related
Hospitals Barclays Bank Account. On 29 May 2009 Supreme Panel Beaters made a
bank transfer of $2,000= into the Zimbabwe Association of Church Related
Hospitals account. When the Zimbabwe Association of Church Related Hospitals
received the deposit of $2,000= from Supreme Panel Beaters, Raymond Gallufa
Chidanyika is alleged to have further misrepresented to them that the money was
from Tristar Insurance Company which money Tristar Insurance Company 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. Raymond Gallufa Chidanyika is alleged to have further
misrepresented to Tristar Insurance Company that the Zimbabwe Association of
Church Related Hospitals had given an instruction to terminate the insurance
cover for the vehicle fleet and therefore wanted a premium refund. Acting on
the misrepresentation, Tristar Insurance Company deposited $15,843=36 into the
Zimbabwe Association of Church Related Hospitals account as premium refund; and
when the Zimbabwe Association of Church Related Hospitals received the deposit,
Raymond Gallufa 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. The applicants say they then used the vehicle 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. The 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 Insurance Company pertaining to the
vehicle in question. He said that the police were not interfering with the
rights of the applicants as the police had a right to recover exhibits when
investigating a criminal offence in terms of section 49 of the Criminal
Procedure and Evidence Act [Chapter 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 Insurance Company. 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
Raymond 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 the Zimbabwe
Association of Church Related Hospitals to the second applicant, not from
Supreme Panel Beaters to the 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 the Zimbabwe Association of Church Related Hospitals, contrary to
allegations by the applicants, but were fulfilling their mandate in protecting
the interests of justice.
The
fifth respondent, the Zimbabwe Association of Church Related Hospitals,
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 the fifth
respondent. The fifth respondent also corroborated what the second respondent
said, ie that Raymond Chidanyika had admitted that the document in question had
been forged by him.
The
Zimbabwe Association of Church Related Hospitals 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
until the criminal proceedings were completed, where-after 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.
It
is my considered view that the 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 section 49 of the Criminal Procedure and Evidence Act [Chapter 9:07].
It
seems to me that the applicants have failed to discharge that onus.
Section
49(a) of the Criminal Procedure and Evidence Act [Chapter 9:07] 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
Insurance Company against one Raymond 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 Raymond
Chidanyika 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 the Zimbabwe Association of Church Related Hospitals. 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
has been argued, in favour of the applicants, 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 [Chapter 9:07].
The
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.
