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Jane Mutasa

Fidelis Munyoro Chief Court Reporter
The Supreme Court has given Prosecutor-General Mr Johannes Tomana five days to issue a certificate for the private prosecution of Telecel Zimbabwe (Private) Limited shareholder Jane Mutasa on charges of swindling the firm of more than US$1,7 million in airtime recharge vouchers.

A three-judge panel unanimously decided on the appeal by Telecel against a High Court decision refusing to grant the mobile phone services provider an order compelling the Prosecutor-General to issue the certificate for private prosecution.

The ruling paves way for Mutasa’s prosecution.  She was arrested in 2010 along with the company’s commercial director, Naguib Omar, for allegedly stealing airtime vouchers worth over US$1,7 million.

At the time, Mr Tomana declined to prosecute Mutasa citing lack of evidence, something that did not go down well with Telecel.
Yesterday Justice Paddington Garwe allowed the appeal with costs and set aside the lower court’s decision.

He said the Supreme Court had decided that a private corporate was entitled at law to institute private prosecution.
“The decision by the respondent (Prosecutor-General) to refuse to grant a certificate to the applicant be and is hereby set aside,” said Justice  Garwe.

“The respondent is directed and ordered within five days of the date of this order, to issue a certificate to the applicant that he declines to prosecute the fraud charge at the public instance.”

Justices Vernanda Ziyambi and Bharat Patel concurred. Telecel had approached the Supreme Court after the High Court threw out its application last year.

The mobile phone company wanted the superior court to determine whether or not a private company was entitled to pursue private prosecution and if the Prosecutor-General had the discretion to issue or withhold a certificate of prosecution.

The Prosecutor-General argued that he was the sole prosecuting authority in Zimbabwe and used his discretion on such                                     matters.

But Justice Garwe ruled that the Prosecutor-General, who was represented by chief law officer Mr Chris Mutangadura, failed to exercise his statutory powers on a proper legal footing.

He said after Mr Tomana declined to prosecute Mutasa at the public instance, he should have considered whether or not Telecel satisfied the “substantial and peculiar interests” requirement of the law.

“He consequently failed to correctly understand and give effect to the provisions of the law which regulate his decision-making power,” said Justice Garwe.

Telecel lawyer Mr Isaiah Mureriwa had argued that the High Court wrongly found that only individuals and not companies could be issued with certificates for private prosecution.