News / National
CID free to investigate Biti's Econet phone call history
23 Jul 2011 at 08:26hrs | Views
FINANCE Minister Tendai Biti's bid to bar police from accessing information on his mobile phone's call history at Econet in a fraud investigation has hit a snag after the High Court threw out his interdict chamber application.
Police are allegedly investigating a case of suspected fraud in which the minister is believed to have authorised several foreign trips for a female economist in the ministry and giving her travel and subsistence allowances at special rates.
They obtained a warrant from the Harare Magistrates' Court to search for the relevant information at Econet, but the minister appealed against the issuance of the warrant before filing an urgent application to bar police from accessing the information.
According to information received by the police, Minister Biti showed favour to the woman to the prejudice of the State.
The dismissal of the application by Justice Chinembiri Bhunu yesterday gave police the green light to access information
"The application for an interdict barring the first, second and third respondents (Chief Superintendent Patrick Majuta, Senior Assistant Commissioner Simon Nyathi and Commissioner-General Augustine Chihuri) from accessing any information concerning the applicant's calls be and is hereby dismissed.
"The application for an interdict barring the fourth respondent (Econet Wireless) from providing first, second and third respondents with any information be and is hereby dismissed.
"The fourth respondent (Econet) shall abide by this court's decision," ruled Justice Bhunu.
He said police had a constitutional right to investigate crime.
He said there were no prospects of success on appeal and that the warrant issued by provincial magistrate Mr Mishrod Guvamombe on July 5 remained valid.
Justice Bhunu found that such a warrant could only be legally challenged through a review application and not an appeal.
It was also the court's finding that police could have even obtained the information without a warrant not only upon reasonable suspicion that an offence had been committed, but also for mere purposes of detecting crime.
"The above section (Section 54 (2) (a) (b) of the Criminal Procedure and Evidence Act) clearly authorises the police to obtain without warrant the required information not only upon reasonable suspicion that a crime has been committed but also for purposes of detecting crime.
"It is quite evident that the Magistrates' Court Act makes no provision for an appeal to any court against the issuance of a search warrant in terms of Section 54 of the Act.
"In the absence of the right to appeal to the High Court, it appears to me that a search warrant issued by a magistrate can only be impugned on review and not through an appeal.
"That being the case, the prospects of the High Court entertaining the appeal pending before it in respect of this matter are pretty dim indeed," he said.
Justice Bhunu held that the allegations made by police gave rise to a reasonable suspicion that an offence might have been committed emanating from Ms Petronela Chishawa's foreign trips.
He said it was a fact that Ms Chishawa worked in the Finance Ministry but whether the minister showed favour to her, was a matter of evidence.
"It is not unreasonable for the police to suspect that such evidence may be found in the record of the history of calls he might have made to his subordinates or colleagues.
"While applicant (Minister Biti) has the right to privacy under Section 18 of the Constitution, that right is not absolute. The police also have the legal right to detect, investigate and arrest suspects. Thus where the police have reasonable cause to investigate crime, the subject's right to privacy must of necessity give way for the common good and public interest to fight crime," said Justice Bhunu.
Advocate Thabani Mpofu, instructed by Mr Tawanda Nyamasoka of Artherstone and Cook represented Minister Biti, while chief law officer Mr Chris Mutangadura appeared for the police.
Police obtained a warrant of search at the Harare Magistrates' Court on July 5 that empowered the investigating officers to search for the required information at Econet.
They were treating the matter as fraud and alternatively, criminal abuse of duty as a public officer.
Minister Biti challenged the legality of the warrant issued by Mr Guvamombe saying the court erred in various respects.
The minister argued that the intentions of the police were bent on invading his privacy, harassing him and destabilising the inclusive Government.
Minister Biti said he had neither committed any offence nor was he being investigated of any criminal offence.
He said the police were bullying staff at Econet, threatening them with arrest.
Police denied bullying Econet staff saying the minister's application was a way of trying to obstruct the course of justice.
Police are allegedly investigating a case of suspected fraud in which the minister is believed to have authorised several foreign trips for a female economist in the ministry and giving her travel and subsistence allowances at special rates.
They obtained a warrant from the Harare Magistrates' Court to search for the relevant information at Econet, but the minister appealed against the issuance of the warrant before filing an urgent application to bar police from accessing the information.
According to information received by the police, Minister Biti showed favour to the woman to the prejudice of the State.
The dismissal of the application by Justice Chinembiri Bhunu yesterday gave police the green light to access information
"The application for an interdict barring the first, second and third respondents (Chief Superintendent Patrick Majuta, Senior Assistant Commissioner Simon Nyathi and Commissioner-General Augustine Chihuri) from accessing any information concerning the applicant's calls be and is hereby dismissed.
"The application for an interdict barring the fourth respondent (Econet Wireless) from providing first, second and third respondents with any information be and is hereby dismissed.
"The fourth respondent (Econet) shall abide by this court's decision," ruled Justice Bhunu.
He said police had a constitutional right to investigate crime.
He said there were no prospects of success on appeal and that the warrant issued by provincial magistrate Mr Mishrod Guvamombe on July 5 remained valid.
Justice Bhunu found that such a warrant could only be legally challenged through a review application and not an appeal.
It was also the court's finding that police could have even obtained the information without a warrant not only upon reasonable suspicion that an offence had been committed, but also for mere purposes of detecting crime.
"The above section (Section 54 (2) (a) (b) of the Criminal Procedure and Evidence Act) clearly authorises the police to obtain without warrant the required information not only upon reasonable suspicion that a crime has been committed but also for purposes of detecting crime.
"It is quite evident that the Magistrates' Court Act makes no provision for an appeal to any court against the issuance of a search warrant in terms of Section 54 of the Act.
"That being the case, the prospects of the High Court entertaining the appeal pending before it in respect of this matter are pretty dim indeed," he said.
Justice Bhunu held that the allegations made by police gave rise to a reasonable suspicion that an offence might have been committed emanating from Ms Petronela Chishawa's foreign trips.
He said it was a fact that Ms Chishawa worked in the Finance Ministry but whether the minister showed favour to her, was a matter of evidence.
"It is not unreasonable for the police to suspect that such evidence may be found in the record of the history of calls he might have made to his subordinates or colleagues.
"While applicant (Minister Biti) has the right to privacy under Section 18 of the Constitution, that right is not absolute. The police also have the legal right to detect, investigate and arrest suspects. Thus where the police have reasonable cause to investigate crime, the subject's right to privacy must of necessity give way for the common good and public interest to fight crime," said Justice Bhunu.
Advocate Thabani Mpofu, instructed by Mr Tawanda Nyamasoka of Artherstone and Cook represented Minister Biti, while chief law officer Mr Chris Mutangadura appeared for the police.
Police obtained a warrant of search at the Harare Magistrates' Court on July 5 that empowered the investigating officers to search for the required information at Econet.
They were treating the matter as fraud and alternatively, criminal abuse of duty as a public officer.
Minister Biti challenged the legality of the warrant issued by Mr Guvamombe saying the court erred in various respects.
The minister argued that the intentions of the police were bent on invading his privacy, harassing him and destabilising the inclusive Government.
Minister Biti said he had neither committed any offence nor was he being investigated of any criminal offence.
He said the police were bullying staff at Econet, threatening them with arrest.
Police denied bullying Econet staff saying the minister's application was a way of trying to obstruct the course of justice.
Source - TH
