Brighton Matikiti filed a suit in the High Court seeking the release of his Mercedes Benz E320 and a Land Rover Freelander impounded by the police. Chihuri is the first respondent while the Officer in Charge of Southerton Police Station (referred to in the court papers only as Mr Masendu), and a detective Mangena from the same station have been cited as the second and third respondents.
Despite a High Court order granted in favour of Matikiti in August 2011, his cars have not been returned to him, with Chihuri only submitting an opposing letter after a final order had already been given in a default judgement.
The top cop described the police’s failure to submit opposing papers as a “bona fide mistake of fact” because officials in his legal division, named as Mr Mawodza and Ms Kundai had not fully grasped what they were supposed to do.
“I inquired into the circumstances surrounding the granting of the default judgement and concluded that it was not as a result of the respondents’ wilful default but absence of understanding between the two, namely Mr Mawodza and Ms Kundai, who appear to have had the desire to file papers but failed to grasp what exactly was required in the circumstances,” Chihuri said in an affidavit to the High Court.
Documents seen by the Zimbabwe Independent show that Matikiti bought the two cars from a Harare car dealer, Felix Nyirenda, in 2009. Matikiti subsequently sold the Mercedes Benz to a buyer who, when he attempted to register the car in his name, was arrested for allegedly being in possession of stolen property.
It was then that he referred the police to Matikiti who in turn implicated Nyirenda. Nyirenda was arrested together with a Betty Mamvura and Frank Dube for allegedly smuggling cars stolen from the United Kingdom.
Both cars were impounded and sent to Southerton Police Station where they were to be kept as exhibits.
Matikiti claimed the police went on to auction the Mercedes Benz, which was bought by a senior officer and the charges against the trio were withdrawn as a cover up.
The cover up only came to light when Matikiti tried to recover the vehicles after being sued by the man to whom he had sold the Mercedes. Matikiti wrote to the Southerton Police and went to the Magistrates’ Court only to discover that all charges had been withdrawn. Nyirenda, Mamvura and Dube were re-arrested and brought to trial after Matikiti laid a complaint.
However, the trio was acquitted on December 23, 2011.Under normal circumstances, that should have been reason enough for the cars to be returned to Matikiti as there was no longer any justification to keep them as exhibits.
Matikiti claimed in his court papers that the police held an auction where the Mercedes was allegedly bought for a paltry US$150 by a senior police officer. He also claimed that Nyirenda sent him a message saying the police were demanding US$5 000 for the release of the car.
Despite the court order, Chihuri continued to dig in, claiming that the cars in question were “tainted” and it would be a “grave miscarriage of justice and a perpetuation of a crime if these two tainted motor vehicles could be transferred and vest title in any person, no matter how innocent or clean the hands in which they find themselves in”.
He suggested that the best remedy was to forfeit them to the state under the Serious Offences (Confiscation of Profits Act), regardless of whether anybody would be prosecuted for the offence. Another alternative would be to forfeit them in terms of the Customs and Excise Act as there allegedly was evidence they had been smuggled into the country, or to confiscate them in terms of the Criminal Procedure and Evidence Act.
A legal source close to the case said the police had no legal grounds for holding onto the cars and queried their insistence that there was a criminal case when the accused trio were acquitted.
“It’s unusual for Chihuri to write an affidavit in his personal capacity over an issue where he is cited in his professional capacity,” the source said. “This clearly shows that he has a personal interest in the matter. His (Chihuri’s) involvement should have been restricted to telling his officers to release the cars to Matikiti. He should not even be talking about the non-payment of customs duty because he does not work for Zimra,” said the source.