FORMER Zimbabwe National Road Administration (Zinara) chief executive Frank Chitukutuku and his wife Nyasha, have lost their two upmarket houses, a fleet of vehicles and shares in two businesses believed to have been bought from proceeds of corruption, after the High Court granted State application for civil forfeiture.
The forfeiture of Chitukutuku assets in a civil matter, comes two months after he and ex-Zinara technical director Moses Juma were acquitted of corruptly awarding a tender to a local company for the rehabilitation of roads in three rural district councils.
While he was acquitted of criminal corruption, he still lost the money he acquired through that alleged corruption. In the criminal trial, the proof had to be beyond reasonable doubt. In the civil suit, the judge had to only consider the balance of probabilities. This means it is quite possible that someone can be acquitted of corruption-related charges but lose assets on the basis that they were bought with corrupt funds.
The National Prosecuting Authority (NPA) sought civil forfeiture of almost all of Chitukutuku assets, but the High Court left him something.
In a judgment delivered on Monday, Justice Benjamin Chikowero ordered forfeiture of a 10 tonne UD truck; Mazda T35 ACN 0695; Toyota Land Cruiser ADF8240; three John Deere tractors; two Kia tractors; one tractor trailer and four PVC water tanks.
In addition to the movable properties, the couple’s two upmarket houses in Borrowdale Estates, on a 4 048 square-metre stand, and in Glen Lorne on 8 853 square metres.
Further, the court forfeited Chitukutuku’s company, Hot Spike Trading (Private) Limited’s 40 percent shareholding in Champions Insurance (Pvt) Ltd. However, the court dismissed the application for civil forfeiture of Chitukutuku’s farm, two houses in Sentosa and North Highlands, and a small fleet of vehicles.
He keeps a Mazda ACN 2758; Hino Dutro 2738; Prado ACP 9977; Nissan NP 200; Range Rover ACM 2555; Hino Ranger 6845 and Land Rover Discovery ADA 7621.
The two houses left to him are in Sentosa on 9 536 square metres, registered in favour of Hot Spike Trading (Private) Limited, and in Colne Valley measuring 4 552 square metres. The farm is in Goromonzi trading as Farm Pride (Pvt) Ltd.
Through his lawyer Mr Jonasi Dondo, Chitukutuku is seeking to challenge the forfeiture of the property. “We are going to appeal (to the Supreme Court) against forfeiture of the property by end of this week,” said Mr Dondo.
The NPA brought the application for civil forfeiture against Chitukutuku
arguing that he acquired the property using proceeds of serious offences, which he committed when he was the chief executive officer of Zinara.
He registered some of the property in his name, some jointly with his wife and the rest as belonging to his company Hot Spikes (Pvt) Ltd. Chitukutuku and his wife Nyasha are the directors of Hot Spikes.
In its case, NPA argued that Chitukutuku engaged in conduct constituting one or more of the offences of corruption, money laundering and fraud and, as a consequence, obtained money which he then used to acquire and in some cases develop the property that is the subject of the application.
In this regard, the State asked the court to find that Chitukutuku had abused his office as Zinara boss by handpicking three companies without going through tender procedure to provide road rehabilitation services within the jurisdictions of some rural district councils.
Having identified those companies, he then exerted pressure on some officials of the local authorities to sign contracts on behalf of their respective councils. Representatives of the companies appended their signatures.
Chitukutuku then signed numerous requisition and funds transfer documents authorising Zinara’s bankers to pay huge sums of money to each of the companies in question. In this regard, the NPA asked the judge to find that the companies returned the favour to Chitukutuku in the form of kick backs which he then used to acquire and develop the properties that were sought for forfeiture.
On his part, Chitukutuku denied that he handpicked any of the three companies. He argued through his legal counsel Mr Dondo, that the various officials of the local authorities, could not have entered into road rehabilitation contracts with Notify Enterprises (Pvt) Ltd (“Notify”), Twalumba Civils (Pvt) Ltd (“Twalumba”) and Fremus (Pvt) Ltd (“Fremus”) without complying with the law relating to tender, knowing very well that they contravened the criminal laws of the land.
He claimed the local authorities’ officials in question were all singing from the same hymn book, namely raising the false allegations that it was Chitukutuku, who handpicked and imposed Notify Enterprises on Bubi and Umzingwane Rural District Council, Twalumba on Goromonzi Rural District Council and Fremus on Gutu, Zaka, Buhera and Mhondoro Ngezi Rural District Councils.
Chitukutuku also claimed his wealth, in the form of the property was lawfully acquired by him. He earned money while employed not only by the Air Force of Zimbabwe, and chief executive of Zinara, but also from his farming activities at his Ruwonde Farm in Goromonzi.
But Justice Chikowero, in his judgment, found that despite Chitukutuku’s spirited efforts to justify the origin of his wealth, he was convinced on a balance of probabilities that the couple laundered the proceeds of criminal activities, through Champions Insurance, the farming activities at Ruwonde farm and the acquisition and improvement of the properties.
“I have already found that the first respondent (Chitukukutu), at a time when he was the chief executive officer of Zinara, was involved in the unlawful awarding of road rehabilitation contracts to Notify Enterprises, Twalumba and Fremus,” said Justice Chikowero.
“I have recorded the huge amount paid to Notify despite it not having rendered any service at all as the projects pertaining to it were fictitious.
“In other words, Notify was simply used as a vehicle to syphon funds from Zinara. The first respondent authorised disbursement of huge amounts of money in favour of Notify, Twalumba and Fremus.
“The most probable inference that I draw from these proved facts is that the first respondent was handsomely rewarded for his dual role of hand picking the three companies and authorising Zinara to pay them.”
In this case, the prosecuting authority ran criminal and civil cases in tandem. They lost on the criminal side, as Chitukutuku was cleared of criminal abuse of office as a public officer, fraud, bribery and money laundering, all arising from his time at Zinara.
But the authority have the civil-forfeiture suit in part to seize what it believed were the fruits of corruption.