HARARE – A business couple accused of defrauding former Reserve Bank of Zimbabwe (RBZ) governor Gideon Gono of US$100,000 walked free after the High Court dismissed the charges, delivering a blistering judgment that accused a lower court magistrate of overreach and “creating new offences” to sustain a collapsed prosecution.
Clark Clever Makoni and his wife, Beverly Aisha Ndonda Makoni, successfully challenged Regional Magistrate Stanford Mambanje’s refusal to acquit them at the close of the state case. They had argued that the prosecution presented no evidence linking them to any fraud and that the charges were fundamentally defective.
Their lawyer, Admire Rubaya, accused the magistrate of attempting to “panel beat” the allegations by introducing new particulars of fraud mid-trial — claims never raised by prosecutors when the case began.
“The court cannot, by any stretch of its powers, seek to panel beat the charge for purposes of placing the accused persons onto their defence,” Rubaya argued. “It must avoid the temptation of doing the state’s bidding. It laid its bed, it must lie on it – and never rise from it.”
Justice Neville Wamambo Dembure agreed, issuing a sharply-worded ruling that criticised the magistrate for effectively taking over the role of the Prosecutor General by “reinventing” the case.
“Findings of the magistrates’ court created a new charge for the applicants to face, not what had been placed before the court at the commencement of trial,” the judge said. “The court cannot create its own particulars for the accused. That function lies solely with the state as dominus litis.”
Describing it as a “rare case” warranting intervention, the judge said the lower court had taken a “dangerous path” that violated the couple’s right to a fair trial.
The allegations stemmed from a 2017 agreement under which the Makonis were hired to manage Gono’s properties in Chivhu and later Mutare, including Valley Lodge (Pvt) Ltd. Prosecutors claimed the couple falsified documents to alter directorship records and seize control of the business, allegedly prejudicing Gono of ZWL$172 million — roughly US$100,000.
However, defence lawyers argued the state’s case was “a failed fishing expedition,” pointing out that all key witnesses conceded that Valley Lodge’s directorship had remained unchanged since 2009 — a finding the High Court found compelling.
“There was a clear concession by all critical witnesses that the directors of Valley Lodge have remained the same from 2009 to today,” the lawyers said.
The state also failed to prove that the couple withdrew US$70,000 allegedly siphoned from company accounts.
Rubaya accused prosecutors of resorting to theatrics to salvage a doomed case.
“The state is acting like a soccer player who dives at the centre circle and then clamours for a penalty,” he argued.
With the High Court ruling the charges invalid and the magistrate’s reasoning fatally flawed, the case has collapsed entirely, leaving the Makoni couple cleared of all allegations.
