Prosecutor-General gets more power in recovering stolen assets

Nyore Madzianike, Harare Bureau
IN a landmark ruling that sets a precedent for asset seizures by the National Prosecuting Authority of Zimbabwe (NPAZ), the High Court has empowered the Prosecutor-General to confiscate legitimately acquired property of equivalent value when stolen assets cannot be located or identified.

High Court judge Justice Benjamin Chikowero made the ruling on February 14 in a case where the Prosecutor-General sought an order to confiscate legally obtained property belonging to Phillip Tendenedzai to recover money he had stolen from his employer.

On 10 February 2023, Tendenedzai was convicted by a Harare magistrate of theft of trust property after embezzling US$13 147 from various branches of his employer, Optinova Eye Care.

As a driver and messenger, he converted the money to his own use.

Police investigations failed to recover any of the stolen funds.

Upon conviction, Tendenedzai was sentenced to five years in prison, with one year suspended on condition of good behaviour. An additional two years were suspended on condition he restituted Optinova Eye Care the full US$13  147 through the clerk of court at the Harare Magistrates’ Court by June 30, 2023.

However, Tendenedzai unsuccessfully appealed against both his conviction and sentence at the High Court.

When he failed to pay the restitution, he opted to serve the alternative two-year jail term that had been conditionally suspended. The Prosecutor-General was unable to locate the stolen US$13 147 or identify any property acquired with the proceeds of the theft.

In such circumstances, the NPAZ could not pursue civil forfeiture or apply for the confiscation of tainted property or its proceeds. However, the Prosecutor-General identified property owned by Tendenedzai in Caledonia, Harare, specifically stand Number 13800.

The Ministry of Local Government and Public Works was instructed to conduct a valuation of Tendenedzai’s rights and interests in the property.

The valuation report, completed on May 27, 2024, established that the open market value of the property, including a house built on it, was US$40 000.

It was also confirmed that Tendenedzai had used legally obtained funds to purchase and develop the property.

Armed with this information, the Prosecutor-General filed an application on September 12, 2024, seeking to confiscate property up to the value of US$13 147 from the US$40 000 estate.

However, Tendenedzai, through his lawyers, opposed the application, arguing that he had already served his two-year prison sentence, which had initially been suspended on condition he restitutes his former employer.

He contended that there was no legal basis for confiscating his legally obtained property to recover the stolen money.

However, Justice Chikowero dismissed Tendenedzai’s argument, stating: “That cannot be correct. The survey of international legal instruments and comparative jurisprudence reflected in this judgment demonstrates that the object of an order of confiscation of property equivalent in value to the unlocated or unidentified tainted property is rooted in combating serious economic crime.

“As pointed out by the Botswana High Court in Director of Public Prosecution vs Kgori Capital (supra) offenders of the kind of Phillip (Tendenedzai), who view imprisonment as an occupational risk worth taking so long as they can keep and enjoy the profits of crime after serving their sentences, need to know that gains derived from crime will in one way or the other be taken away from them. Taking away Phillip’s untainted property equivalent in value to the unlocated tainted property is the answer. That will deter persons from committing serious economic crimes as the prospect of profiting from crime would be illusory.”

Justice Chikowero then ordered the confiscation of Tendenedzai’s rights and interests in stand No 13800, Caledonia, up to the value of US$13 147, transferring ownership to the State.