Prosecutor General v Daniel Kalira and Others

The first respondent was previously employed as a cashier at NetOne Cellular (Pvt) Ltd, a state-owned parastatal. He was charged with fraud and theft of trust property totaling ZWL$108,259,563.27 worth of airtime vouchers between September 2021 and May 2022, allegedly manipulating the inventory management system by splitting transactions to create physical airtime entries which he then stole. He was also charged with money laundering for acquiring Stand 913 Mandara Township on 20 December 2021 using proceeds of crime, registering it in his grandmother's (third respondent) name, and with theft of trust property for converting US$5,000 to his own use on 1 April 2022. He further acquired a Toyota Hilux registration number AFN 7886 registered in the name of the second respondent, who was his romantic partner and mother of his child. The Prosecutor General sought civil forfeiture orders under sections 79 and 80 of the Money Laundering and Proceeds of Crime Act [Chapter 9:24] in respect of various properties.

• Whether the properties sought to be forfeited constituted tainted property under the Money Laundering and Proceeds of Crime Act
• Whether it is necessary for the applicant to prove the property was derived from a particular serious offense or merely from some conduct constituting or associated with serious criminal offense
• Whether the respondents discharged the evidentiary burden to explain the legitimate source of the assets
• Whether properties registered in the names of third parties (grandmother and romantic partner) but acquired with proceeds of crime could be forfeited to the State

1. Application for civil forfeiture dismissed in respect of BMW 3 series registration AFP 8489, Mercedes Benz registration AFU 0067, Mercedes Benz registration AFI 5420, and Mercedes Benz registration AFS 1338. 2. Toyota Hilux registration AFN 7886 forfeited to the State. 3. Second respondent ordered to transfer ownership within seven days, failing which the Sheriff shall do so. 4. Fifth respondent (Registrar of Motor Vehicles) to register ownership in favor of the State. 5. Application for civil forfeiture of BMW 320d chassis WBA3036080NPA532 removed from the roll. 6. Undivided 6.0283% share being share number 18 in Stand 913 Mandara Township forfeited to the State. 7. Third respondent ordered to transfer title within seven days, failing which the Sheriff shall do so. 8. Fourth respondent (Registrar of Deeds) to register transfer in favor of the State. 9. Each party to bear its own costs.

Under sections 79 and 80 of the Money Laundering and Proceeds of Crime Act, it is not necessary for the applicant in civil forfeiture proceedings to prove that property was derived directly or indirectly from any particular serious offense; it suffices to prove the property is proceeds from some conduct constituting or associated with some serious criminal offense. Once the applicant establishes on a prima facie basis that property is tainted, the evidentiary burden shifts to the respondent to offer satisfactory explanation for legitimate acquisition of the asset or forfeit such asset. The theme in evidentiary burden in relation to unexplained assets is 'prove it or lose it'. An individual with legitimate income should have no trouble proving the origins of his or her assets. Property registered in the names of third parties can be forfeited where the evidence demonstrates the accused is the true beneficial owner and funded the acquisition with proceeds of crime.

The court observed that it would be remiss to render a decision on civil forfeiture of property allegedly belonging to a third party (Isaac Mugwagwa) without hearing that person, in line with the decision in Prosecutor v Chiba SC 12/24. The court also made observations about how people attempt to conceal proceeds of crime by throwing around names of various individuals and creating false documentation including fake joint venture agreements, invoices without letterheads, and forged ZIMRA declaration forms. The court noted the absence of primary evidence such as books of account, bank statements showing actual transfers, and coherent paper trails as indicators of fabrication.

This case is significant in Zimbabwean asset forfeiture jurisprudence as it clarifies the application of sections 79 and 80 of the Money Laundering and Proceeds of Crime Act. It establishes that the prosecuting authority need not prove property was derived from a particular serious offense, but merely from some conduct constituting or associated with serious criminal offense. The case demonstrates the court's willingness to look beyond legal title and registration to identify the true beneficial owner of assets. It also reinforces the evidentiary burden on respondents to satisfactorily explain the legitimate source of assets once the applicant establishes a prima facie case that property is tainted. The principle 'prove it or lose it' is affirmed. The case shows courts will scrutinize carefully attempts to conceal proceeds of crime through registration in names of family members or romantic partners, and will not accept fabricated documentation or contradictory versions as satisfactory explanations.