Augustine Chihuri and Others v Prosecutor General and Others

The 1st applicant, Augustine Chihuri, was the former Commissioner General of the Zimbabwe Republic Police (ZRP). On 11 June 2020 and 18 June 2020, the High Court granted ex parte Unexplained Wealth Orders (UWOs) against the applicants (Chihuri, his family members, and related companies) at the instance of the Prosecutor General. The UWOs required the applicants to explain their acquisition of various properties, including immovable property, vehicles, farm equipment, and funds received by companies linked to them from the ZRP. The UWOs were granted under s 37B of the Money Laundering and Proceeds of Crime Act and included freezing orders. The applicants became aware of the UWOs through newspaper notices rather than formal service. The 1st respondent refused to serve the chamber applications and UWOs despite demand. The applicants challenged the UWOs, seeking to have them set aside on grounds that they were unreasonable, unjustified, infringed fundamental rights, and that the enabling legislation was constitutionally invalid. The applicants explained they acquired their wealth through legitimate means: the 1st applicant's 37 years of service with the ZRP, commercial farming activities since 1997, business dealings with the ZRP by related companies, and employment benefits. Two of the persons subjected to the UWOs (Ethan Takudzwa Augustine Chihuri and Nicole Tawonga Chihuri) were minors at the time the orders were granted, and the proper procedure for suing minors (appointment of curator ad litem under Rule 249 of the High Court Rules, 1971) was not followed.

• Whether the applicants showed good cause for setting aside the Unexplained Wealth Orders under s 37B(7) of the Money Laundering and Proceeds of Crime Act
• Whether the ex parte procedure for obtaining UWOs under s 37B of the Money Laundering and Proceeds of Crime Act is constitutional
• Whether sections 37B, 37C, and 37D of the Money Laundering and Proceeds of Crime Act are constitutionally invalid for infringing fundamental rights
• Whether the constitutional challenge was brought using the correct legal framework
• Whether the request for referral of constitutional questions to the Constitutional Court complied with s 175(4) of the Constitution
• Whether UWOs can properly be granted against minors without appointment of a curator ad litem
• Whether properties acquired before the suspected period of criminal conduct can be subjected to UWOs

1. The Unexplained Wealth Order granted on 11 June 2020 under case no HACC 16/20 is varied by deletion of paragraphs 15, 16, 17, and 18 (relating to vehicles, farm equipment, and immovable properties). 2. The Unexplained Wealth Order granted on 18 June 2020 under case no HACC 20/20 is varied by deletion of paragraphs 7 and 8 (relating to property held by a minor). 3. The 1st respondent's counter application in case no HACC 21/20 is granted as amended. 4. No order as to costs.

1. The ex parte procedure in s 37B of the Money Laundering and Proceeds of Crime Act is constitutional as it contains sufficient safeguards (right to apply for setting aside, time limits, protection against self-incrimination, power to vary or discharge) and is justifiable under s 86 of the Constitution as a limitation serving the legitimate public interest of preventing dissipation of proceeds of crime. 2. 'Good cause' for setting aside a UWO under s 37B(7) is established where: (a) the application is bona fide, (b) the facts relied upon are bona fide, and (c) the court is satisfied it would not have granted the UWO had it been aware of the facts now presented. 3. Under s 37C(3) of the Money Laundering and Proceeds of Crime Act, there must be reasonable grounds for suspecting a nexus between the respondent's involvement in serious crime and their acquisition or holding of the property. Assets acquired before the period of suspected criminal conduct generally cannot be subjected to UWOs in the absence of such a nexus. 4. UWOs cannot properly be granted against minors without following the mandatory procedure in Rule 249(1)(b) of the High Court Rules requiring appointment of a curator ad litem. 5. Constitutional challenges to legislation must be brought under s 85 of the Constitution, not conflated with ordinary statutory applications. The principle of subsidiarity requires exhaustion of non-constitutional remedies before invoking constitutional provisions. 6. Referral to the Constitutional Court under s 175(4) is only available when a constitutional matter arises in proceedings currently pending before a court, not in respect of fresh applications commenced after earlier proceedings have terminated.

The court observed that the Prosecutor General's refusal to serve the UWOs and chamber applications despite court order and demand was counterproductive and reflected negatively on bona fides, as it prevented the dies inducia from running and deprived applicants of information needed to respond. The court noted that the UWO procedure codifies and extends the common law Anton Pillar remedy for preservation of evidence. The court declined to consider allegations of political persecution and personal animosity between the 1st applicant and the President as these were not relevant to determining whether good cause existed to set aside the UWOs. The court noted that 'good cause' in s 37B(7) appears to set a lower threshold than 'good and sufficient cause' in Rule 63 regarding setting aside default judgments, as UWOs are granted without the affected party having had an opportunity to be heard. The court observed that while some judges have expressed reservations about courts inventing ex parte procedures, the Money Laundering and Proceeds of Crime Act properly codifies such procedures by statute.

This is the first significant judicial interpretation of s 37B of the Money Laundering and Proceeds of Crime Act (introduced by Finance Act 1/19), which provides for Unexplained Wealth Orders in Zimbabwe. The judgment establishes important principles: (1) Ex parte procedures for UWOs are constitutional when they contain adequate safeguards and serve the legitimate purpose of preventing dissipation of proceeds of crime; (2) The 'good cause' standard for setting aside UWOs under s 37B(7) is broadly construed to give the court wide discretion, requiring bona fide explanations that would have caused the court not to grant the order; (3) There must be a nexus between suspected criminal conduct and acquisition of property - assets acquired before the period of suspected criminality cannot automatically be deemed proceeds of crime; (4) Proper procedure must be followed when subjecting minors to UWOs, including appointment of a curator ad litem; (5) The principle of subsidiarity applies to constitutional challenges - where statutory remedies exist, direct constitutional litigation is improper; (6) Referral to the Constitutional Court under s 175(4) is only appropriate for constitutional issues arising in pending proceedings, not for terminated proceedings or fresh applications. The case balances the State's legitimate interest in combating money laundering and confiscating proceeds of crime with individual rights to property and procedural fairness.