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Mr Tomana

 Fidelis Munyoro Chief Court Reporter
The Constitutional Court will on October 8 hear a case in which Prosecutor-General Mr Johannes Tomana is challenging a Supreme Court decision forcing him to issue a certificate for the private prosecution of Telecel Zimbabwe (Private) Limited shareholder Ms Jane Mutasa.
Ms Mutasa is accused of swindling the mobile phone company of more than US$1,7 million in airtime recharge vouchers.
The high-profile case was set for hearing next month after both parties’ lawyers filed all the necessary court papers to set the matter in motion.

Telecel lawyer Advocate Isaiah Mureriwa on Wednesday confirmed that parties had since been served with notices for the hearing.
“The matter is set for hearing on the 8th of October at the Constitutional Court,” said Adv Mureriwa. “We are now waiting to go to court on that day and argue the matter. All the parties were served with notices end of last week.”

Mr Alex Mambosasa, who is acting for the Prosecutor-General’s Office, could not be reached for comment.
The charges against Ms Mutasa were dropped after the State declined to prosecute, resulting in Telecel approaching the High Court seeking an order for private prosecution, but lost the case.

Telecel won the case on appeal at the Supreme Court early this year.
Mr Tomana launched a constitutional application challenging the landmark ruling, arguing that it infringed on his constitutional independence.

Mr Tomana wants the court to protect the constitutional independence of his office by declaring that it cannot be forced to issue a certificate for private prosecution in the absence of solid evidence against a suspect.

He contends that the Supreme Court order against him sought to interfere with the powers vested in him in terms of the Constitution.
Mr Tomana argued that at the time of the order, all prosecutorial functions had been removed from the Attorney-General to his office.

He further argued that he declined to issue the certificate on the basis that police investigations had revealed that no offence had been committed by Ms Mutasa and her three alleged accomplices.

But Justice Bharat Patel opened the avenue for Ms Mutasa’s prosecution after he quashed a High Court decision refusing to grant the mobile phone services provider an order forcing the Prosecutor-General to issue the certificate for private prosecution.

He ruled that a corporate entity was entitled at law to institute private prosecution, adding that Mr Tomana failed to exercise his statutory powers on a proper legal footing.

Ms Mutasa was arrested in 2010 along with Telecel’s commercial director, Mr Naguib Omar, for allegedly stealing airtime vouchers worth over US$1,7 million.
Mr Tomana declined to prosecute Ms Mutasa citing lack of evidence, which did not go down well with Telecel.