HARARE – The High Court has intervened to halt the prosecution of a Harare couple, Clark Makoni and his wife Beverly Aisha Ndoda Makoni, who are accused of defrauding former Reserve Bank of Zimbabwe (RBZ) Governor Gideon Gono of his company. The decision comes after the couple challenged a magistrate’s ruling that denied their application for discharge.
Clark and Beverly Makoni, represented by Admire Rubaya, believe that magistrate Stanford Mambanje erred in his decision and are seeking a review of the case. They applied for a stay of proceedings pending the review hearing, which was granted by High Court Judge, Justice Gibson Mandaza.
In their review application, the couple argues that magistrate Mambanje’s decision to put them on their defence is “so grossly outrageous in its defiance of logic that no sensible court having applied its mind to the applicable law and facts would arrive at it.”
Justice Mandaza granted the staying order, stating, “The Application for Stay of Proceedings Pending Review be and is hereby granted. The criminal proceedings in the Harare Regional Magistrates Court under HRER428-9/25 be and are hereby stayed pending the finalisation of the Court Application for Review filed under HCH5082/25.”
The couple had previously sought to have the case dropped, arguing that the State had failed to establish a prima facie case against them and that the prosecution had failed to disclose an offence against them. However, the magistrate reasoned otherwise, stating that the couple should explain why they based their defence on alleged malice on the part of Gono and why their names appeared on the company document in question. This prompted them to seek the High Court’s intervention.
In their review application, the couple named magistrate Mambanje as the first respondent and the State as the second respondent. “The 1st Respondent grossly misdirected itself by ignoring the fact that neither the main nor the alternative charge disclosed a valid offence upon which the Applicants could validly or lawfully be placed on their defence leading to a gross irregularity in the proceedings which led to grave miscarriage of Justice and ought to be reviewed,” the application reads.
The couple further argued that the court’s decision to put them on their defence seeks to facilitate and compel the State to make a case where there is none. They contend that the magistrate was attempting to assume the role of the prosecution.
“The 1st Respondent, despite being alerted to the material issue of the fatality of the charge of fraud and for him to desist from taking over the role of the 2nd Respondent, relentlessly proceeded to usurp the role of the 2nd Respondent by redrafting the charge in his ruling after the closure of the State case, coming up with its own particulars of the charge fraud which are not set out in the charge and State outline,” they argued.
Clark Makoni, in his founding affidavit, stated that the court “descended into the arena and created a new charge against them which was not alleged by the State.” He added, “The 1st Respondent should just be an umpire who is not biased who should not be a judge of a case that he personally created but should have simply dealt with the case that was brought to him by the parties.”
Makoni further argued, “The Court cannot, in the name of analysing evidence led by the State, seek to introduce new particulars which it believes are the particulars of fraud that were established by the evidence.”
He emphasised that “It is trite that a Court must deal with issues placed before it and must not raise issues or new facts that were never placed before it as it would lead to it being on a frolic of its own, which the Courts seriously discourage.”
The couple maintains that the court had no discretion to refuse their discharge application and opt to hear defence evidence in circumstances where there was no case against them. The High Court’s decision to halt the proceedings now places the case in a state of limbo, pending the outcome of the review application. The legal battle between the Makonis and the State, with Gideon Gono at the centre of the allegations, is set to continue as the High Court deliberates on the merits of the review application.
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