The High Court has acquitted Brickstone Builders and Contractors directors Lilian Chitanga and Spencer Mabeka of fraud charges linked to the controversial sale of residential stands on City of Harare land, ruling that prosecutors failed to produce evidence proving the essential elements of the offence.
Justice Benjamin Chikowero discharged the pair at the close of the State case after prosecutors conceded that the evidence led during trial could not sustain a conviction.
The two had been accused of falsely representing to the City of Harare that their company had been allocated 14.4 hectares of land in Belvedere Ridgeview by the Ministry of Local Government and Public Works and that they had authority to occupy and develop the land.
Prosecutors alleged that the misrepresentations exposed the local authority to potential prejudice of US$1.5 million.
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However, after hearing evidence from nine State witnesses, the court found that the prosecution had failed to establish that either Chitanga or Mabeka made any misrepresentation to the City of Harare.
In his ruling, Justice Chikowero said: "There is no evidence to prove the essential elements of the crime of fraud or any other offence which is a permissible verdict on a charge of fraud."
The judge said the State's own witnesses effectively dismantled its case.
A key prosecution witness, City of Harare Director of Housing and Community Services Addmore Nhekairo, testified that neither accused had made any misrepresentation to the council.
"Nhekairo was categoric that no misrepresentation was made by either of the accused to the City of Harare," Justice Chikowero noted.
The court further found that the local authority had suffered no prejudice as a result of the alleged fraud.
"Nhekairo testified that the City of Harare did not suffer any prejudice," the judge said.
The State had alleged that forged documents purportedly signed by senior government and council officials were used to justify the occupation and development of the land.
Evidence from Ministry of Local Government official Nathan Magadzire and former City of Harare housing director Sibusiso Sithole established that letters attributed to them were not genuine. A forensic document examiner also concluded that the signatures on the documents were forged.
But the court found a critical gap in the prosecution's case.
"The forged documents were not recovered from the accused persons by the Zimbabwe Anti-Corruption Commission investigators," Justice Chikowero said.
He added that the prosecution had failed to present evidence showing where the documents were recovered or who had produced them.
"The prosecution opened and closed its case without leading evidence regarding where and from whom the forged documents were recovered from," the judgment states.
The case arose from the occupation and development of land in Belvedere Ridgeview, where dozens of home seekers purchased stands from Brickstone Builders and Contractors for between US$25,000 and US$40,000 each.
Many of the buyers built houses on the land before the City of Harare demolished the structures after declaring the occupation illegal.
Evidence before the court showed that Brickstone Builders later sought to stop the demolitions through the courts but lost the application. The city subsequently regularised part of the development by allocating some of the stands to both the accused persons and several purchasers.
Although the court found evidence that Chitanga had initiated the project after informing fellow directors that her late husband had an interest in the land, Justice Chikowero said this was not enough to prove fraud.
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"It is correct that the first accused set off the chain of events that ultimately led to Brickstone Builders and Contractors Private Limited selling Council land to innocent land seekers," the judge said.
However, he stressed that the State had failed to prove that the accused intended to deceive the City of Harare or that they made the alleged false representations to the local authority.
"All told, this is a classic case where the State, at the end of its case, failed to produce evidence establishing all the essential elements of the charge of fraud," Justice Chikowero ruled.
The court consequently discharged both accused persons at the close of the State case before they were called upon to present a defence.
Chitanga and Mabeka were formally found not guilty and acquitted, bringing to an end a high-profile prosecution stemming from one of Harare's most controversial land disputes.
