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Mashudu Netsianda, Senior Court Reporter
THE High Court yesterday ordered the immediate release of four top managers at Makomo Resources following their arrest for tax evasion where they are alleged to have failed to pay $4 525 each in taxes.

The ruling by Bulawayo High Court judge Justice Francis Bere follows an urgent chamber application by Tendai Mungoni, Jonathan Zichawo,  Kudakwashe Nyabonda and Michael Ngonidzashe Dengu seeking an order declaring their arrest and detention illegal.

Mungoni from Makomo Resources, Nyabonda of Double Pick Properties, Jonathan Zichawo from Mapungubwe Energy (Pvt) Ltd and Dengu from Rhine Sports Investments appeared before Hwange magistrate Mrs Rose Dube facing charges of failure to pay tax to the Zimbabwe Revenue Authority (Zimra).

Nyabonda, Zichawo and Dengu’s companies are contracted to provide management services to Makomo resources, a coal mining concern based in Hwange.

Mrs Dube had convicted the quartet of contravening section 3 of the Statutory Instrument 104 of 2010 as read with section 10 (1) of Statutory Instrument 153 of 2011. She had remanded the four men in custody to today for sentence.

In papers before the court, the state and Mrs Dube were cited as respondents.

Justice Bere ruled that the arrest and detention was illegal, saying the applicants being employees could not be held personally liable in cases involving their employer.

“It is ordered that the detention of applicants by the respondents is declared unlawful. It is also ordered that the applicants be released immediately from Hwange Prison,” ruled Justice Bere.

In their founding affidavits through their lawyers Mashindi and Associates, the applicants argued that there was no law that permits the incarceration of accused persons in a representative capacity.

“Section 385 (3) of the Criminal Procedure and Evidence Act provides that if a person representing a corporate body is committed for a trial, he or she shall not be committed to prison but shall be released on his own cognisance to stand trial. It is therefore evident that there is no provision at law that supports the applicants’ incarceration where they act in a representative capacity. The first respondent’s (Mrs Dube) decision was therefore unlawful and unjust in the circumstances,” said the quartet’s lawyers.

According to state papers the four applicants took the money between December 1, 2012 and December 12, 2016. During the period December 1, 2012 at Makomo Resources in Hwange, Mungoni failed to fiscalise the records of its taxable transactions for the purpose of VAT, that is to say they failed to put in place an electronic register for all its transactions, thereby prejudicing the State of $4 525.

For Double Pick Properties, Mapungubwe Energy (Pvt) Ltd and Rhine Sports Investments the dates of the commission of the same offence are between August 1, 2013 and December 12, 2016 and between June 2015 and December 12, 2016, respectively.

They also prejudiced the State of $4 525 each.

— @mashnets