An ex-finance manager who had been charged with fraud was cleared on Monday by a court in Bulawayo, but the case may still be pursued through civil litigation, the court ruled.
Mr. Mike Sibanda who was employed by Clarity Mineral Services (Zimbabwe) Private Limited and acted as the Duration Gold Group’s Finance Manager was freed by the trial magistrate who granted his application for discharge at the end of the State’s case.
A Bulawayo court acquitted Mr Sibanda who had been accused of paying himself US$6,575 in cash in lieu of accumulated leave days, which was not processed through the company payroll system.
Sibanda looked to have avoided further prosecution, due predominantly to a flawed charge sheet, resulting in the court ruling that the essential elements of fraud had not been met during the trial.
The State’s case claimed incorrectly that misrepresentation had been to the Payroll Administrator as the amount paid to Mr. Sibanda was for the redemption of leave days that had accrued to him.
Mr. Sibanda, who pleaded not guilty to the faulty charge claimed that the amount paid to him had been an advance on his salary.
A forensic investigation that had been undertaken and which was presented in court clarified that the misrepresentation and fraudulent action was in respect of the advance being expensed under the authorisation of Mr.Sibanda, resulting in the US$6,575.00 being charged in the financial records of the business to ‘salaries’, portraying the elements of fraud, being: That a misrepresentation took place, as Mr. Sibanda approved the disguising of the nature of the payment.
That the victim, being Clarity Mineral Services suffered a prejudice of US$6,575.00 as it was not recovered from Mr. Sibanda.
That the action was unlawful as the payment allocation was approved by Mr. Sibanda to be salaries, when in fact he was not due additional salary payments and did not declare and pay the PAYE that would have been due.
In upholding the accused’s application for discharge, the Magistrate said, “in light of the charge sheet, the evidence of the state has to show how the accused misrepresented to the Payroll Administrator under the guise of a request of cash in lieu of leave days.”
“The evidence also has to show that through the alleged misrepresentation, the Payroll Administrator went on to process the funds which benefitted the accused person.”
“It is of the court’s view that the state has not managed to prove a prima facie case. Therefore the application for discharge is hereby granted and the court retains a verdict of not guilty and acquitted.”
An ongoing forensic audit being conducted by Clarity Mineral Services has revealed more irregularities that took place during the period that Mr. Sibanda was at the financial helm.
Zim Morning Post will monitor the case to see whether an appeal is filed.
