Introduction
The appellant is a female adult. She is the wife of the Vice President of Zimbabwe. The couple live together in an unregistered customary law union. The union is blessed with children who are all minors. They live in the Borrowdale Brooke in Harare. She is a successful business person in her own right.
On the 16th of December 2019 the appellant appeared before the Deputy Chief Magistrate charged with six counts of exporting currency in contravention of section 5(1)(a) of the Exchange Control Act [Chapter 22:05] as read with section 20(1)b of the Exchange Control Regulations Statutory Instrument 109/1996. She is also charged with five counts of Money Laundering in contravention of section 8(2) of the Money Laundering & Proceeds of Crime Act [Chapter 9:24].
She also faces a charge of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
She applied for bail pending trial.
The Deputy Chief Magistrate, who presided, dismissed the application for bail on the 19th of December 2019. The appellant has therefore remained in custody since her arrest on the 14th of December 2019.
On the 18th December 2019, the appellant appealed against the refusal of bail in terms of section 121(1) of the Criminal Procedure and Evidence Act [Chapter 9:07]....,.
The Background Facts
Exchange Control Violations
The appellant faces six counts of exporting currency in contravention of section 5(1)(a) of the Exchange Control Act [Chapter 22:05] as read with section 20(1)b of the Exchange Control Regulations Statutory Instrument 109/1996, S.I.109 of 1996. These counts can be summarised as follows:-
Count One
It is alleged that certain named two personal assistants of the appellant unlawfully took a total of USD$114,000 to the Republic of China on behalf of the appellant after exiting Zimbabwe through Robert Mugabe Airport without declaring such currency. The alleged exportation of the currency was in contravention of the Exchange Control Act [Chapter 22:05].
Count Two
In November 2018, the appellant allegedly unlawfully externalised a sum of USD201,846=81 through a CBZ bank telegraphic transfer after misrepresenting, in writing, to the Bank that the money was for the purchase of event tents and chairs. She allegedly instructed one Memory Chakuinga to prepare an invoice which she (the appellant) presented to the Bank as proof that the money was payment for event tents and chairs. The Bank transferred the foreign currency from Zimbabwe to the alleged suppliers' South African bank account.
Thereafter, the appellant allegedly diverted the money, with the help of Memory Chakuinga, to Land Rover Centre in South Africa as payment for a Range Rover Autobiography which the appellant registered in her name in South Africa.
Count Three
Using the same method of operation as described in Count Two, the appellant allegedly caused the CBZ Bank in Zimbabwe to transfer USD307,545=05 to Project Suppliers (Pvt) Ltd bank account in South Africa, ostensibly to import prepaid meters. The money was not used to buy prepaid meters but was diverted, with the help of Memory Chakuinga, and used to buy an immovable property at 1309 Kingstone Heath Close Waterkloof Gold Estate, Pretoria, SA. The property is registered as the property of Lachelle Travel and Tours (a company wholly owned by the appellant).
It is alleged that the appellant therefore externalised the sum of USD307,545=05 through misrepresentation.
Count Four
In February and March 2019, the appellant allegedly asked one Judith Gamuchirai Goredema to pay ZAR3,000,000 for the purchase of two vehicles, namely, a Range Rover and Ford Ranger, in South Africa. The money was sourced and paid in South Africa on the appellant's behalf. In return, the appellant gave Judith Gamuchirai Goredema USD230,769=23 in Zimbabwe. The Range Rover is registered as the appellant's personal property in South Africa. The registration of the Ford Ranger is yet to be ascertained.
The appellant therefore allegedly externalised USD230,769=23.
Count Five
Sometime in February and March 2019, the appellant allegedly bought furniture in South Africa with the help of one Judith Gamuchirai Goredema who sourced and paid ZAR480,000 in South Africa on her behalf. In return, the appellant gave Judith Gamuchirai Goredema USD36,923=08. The property was delivered at the appellant's newly acquired residential property at Waterkloof Golf Course (see Count Three).
The appellant allegedly externalised USD36,923.
Count Six
In May 2019, the appellant allegedly instructed Memory Chakuinga to raise a false invoice for the supply of prepaid meters. The appellant allegedly used the invoice to effect transfer of USD142,858=93 to Bonnette Electrical (Pty) Ltd in South Africa through the CBZ bank. When the money was received in South Africa, the appellant allegedly diverted the funds to attorneys in South Africa for the purchase of a certain immovable property at 149 Valderana Close, Pretoria, South Africa. The appellant allegedly externalised USD142,858=93.
Money Laundering
The appellant is also facing five counts of money laundering in contravention of section 8(2) of the Money Laundering & Proceeds of Crime Act [Chapter 9:24].
The simple allegation is that in every case where she managed to obtain transfer of funds to South Africa by uttering fake invoices to the CBZ bank in Zimbabwe and diverted the money upon receipt in South Africa she laundered the funds in that she concealed, disguised the true nature, source or disposition of property knowing or suspecting such property to be proceeds of crime.
The appellant therefore laundered the funds mentioned in Counts 2 to 6 of the externalisation offences described in detail above....,.
The State called the investigating officer, Victor Masimba, to testify.
He opposed bail....,.
The investigating officer however made the following concessions:
(a)...,.
(b)...,.
(c)...,.
(d)...,.
(e) That all funds telegraphically transferred to South Africa, through the CBZ bank, came from company accounts and not the appellant's personal accounts.
The investigating officer, however, insisted that the appellant could still be criminally charged in her personal capacity for acts she did on behalf of a company.
(f) That, ordinarily, a company should be charged for its acts or omissions constituting offences albeit through human agents.
(h)...,.
The State submitted that it intends to amend the charge to incorporate the provisions of section 177 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] so that it is clear why the appellant is being charged in her personal capacity for the acts and omissions of a company.There is no reason why that could not be done before the charges were put to the appellant. ...,.
The court a quo failed to take into account that the acts and omissions constituting the money laundering offences were attributable to a registered company. The transactions involved movement of money between companies. Section 358 of the Criminal Procedure and Evidence Act is unambiguous in that a company may not be incarcerated.
Counsel for the appellant submitted that there is, therefore, no justification for the appellant's detention.
I also accept counsel for the appellant's submission that the court failed to take into account that the investigating officer conceded that the actius reus was constituted by acts and omissions of a company duly registered....,.
Counsel for the respondent submitted that the State was going to amend the charge and the outline of the State case to bring the appellant within the ambit of section 177 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] to include the necessary averments which justified making the appellant, as director of a company, personally criminally liable for acts or omissions of the company.
She could not explain why that had not already been done.
Counsel for the respondent said it was up to the Sate to decide whether to proceed against the company or the individual or both....,.
Counsel for the respondent submitted that the State did not have to prove that the appellant had committed an offence or that anyone ought to be convicted of an offence for the appellant to be guilty of laundering proceeds of crime in contravention of the Money Laundering Act. She quoted S v Mlambo 1995 (1) ZLR 50-52.
I agree.
She finds support in the Money Laundering and Proceeds of Crime Act [Chapter 9:24];
(1)…,.
(b)…,.
(2)…,.
(3)…,.
(4)…,.
(5)…,.
(6) 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 be a showing of a specific offence rather than some kind of criminal activity, or that a particular person committed the offence.”
