Duo's Bid to Stop U.S.$250k Fraud Trial Flops, Court Rules There Is a Case to Answer

The High Court has thrown out a bid by two Harare men accused of defrauding a woman of her US$250,000 house under the guise of a US$30,000 l...

The High Court has thrown out a bid by two Harare men accused of defrauding a woman of her US$250,000 house under the guise of a US$30,000 loan, ruling that their ongoing fraud trial must continue because "there was a case to answer."

Justice Joel Mambara last week dismissed an application for review filed by Leon Zvarevashe and Nyasha Mhuru, who had sought to overturn a magistrate Ethel Chichera's decision refusing to acquit them at the close of the State's case.

The pair argued that the trial court had grossly misdirected itself by placing them on their defence despite what they called "a complete lack of evidence."

But Justice Joel Mambara found that although the magistrate had misstated the legal test by saying a discharge is granted only in "exceptional cases," the ruling itself was sound.

"Strictly speaking, the magistrate did err in suggesting that a discharge is granted only in exceptional circumstances," the judge said. "However, her conclusion aligned with the substance of the law; there was a case to answer."

Zvarevashe and Mhuru are on trial for allegedly tricking complainant Debra Mullin into signing away her Hillside house in Harare, worth about US$250,000, when she believed she was signing a loan agreement.

Court papers show that in February 2023, Mullin and her daughter approached the two men seeking a US$30,000 loan. They were made to sign documents they thought related to the loan, only to later discover it was in fact an agreement of sale transferring ownership of the property.

The State alleges the pair "unlawfully and intentionally misrepresented" the true nature of the documents, causing potential prejudice of US$250,000.

At the close of the prosecution's case, the defence sought an acquittal, arguing that there was no proof of fraudulent intent and that the complainant had voluntarily signed the agreement. The magistrate dismissed the application, prompting the accused to approach the High Court seeking to halt the trial.

In his judgment, Mambara ruled that the magistrate's decision did not amount to a gross irregularity warranting High Court intervention before the trial concludes.

"The core allegation is that the complainant was deceived about what she was signing. On this point, the complainant testified unequivocally that she believed she was signing a loan agreement, not a sale," he said.

"If a court believes that testimony, then a misrepresentation is established. There was evidence linking the applicants to the alleged fraud."

The judge said the complainant's testimony, the signed documents, and evidence of partial repayments all pointed to a transaction that "could reasonably be found to be a sham."

He said that mid-trial interference by the High Court is reserved for the rarest of cases.

"This Court will not short-circuit the normal trial and appellate process absent a truly compelling reason," Mambara J stated. "The magistrate's decision was one a reasonable court could reach in light of the evidence."

Mambara concluded that there was no gross irregularity or injustice in the lower court's handling of the matter.

"The alleged misdirection in articulating the test for discharge, while noted, did not result in any substantial miscarriage of justice," he ruled. "The trial must proceed to completion, and the applicants' remedies, if any, lie in the normal course of trial and appeal."

The application for review was accordingly dismissed, paving the way for Zvarevashe and Mhuru to either testify or exercise their right to silence when the defence hearing resumes.

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