Indian businesswoman, son acquitted

HARARE - An Indian businesswoman and her son, who had been insincerely accused of defrauding a local businessman through a share sale, were acquitted on Friday after a magistrate dismissed the case as a civil matter.

Nighert Parween Savania, 62, and her son Deen Mahendra Jivan, 33, were represented by Msindo Hungwe when they appeared before Harare magistrate Tendai Rusinahama.

The complainant was Nathan Mnaba, 29, who bought Norwhich Trading (Norwhich) — the property in dispute — from the family in 2011.

However, Rusinahama conceded with the defence that Nighert was a beneficial owner of the entire issued share capital in the company with specific property rights (use and title) although legal title belonged to another.

She ruled that it was undisputable that Mnaba was the one in control of the issued shares in question and allotted himself more shares in the same company.

Rusinahama further noted that Mnaba had appointed a new board of directors in his exercise of shareholding powers — and runs the company according to his wishes.

The magistrate cemented arguments raised by Msindo when he filed an application seeking his clients’ acquittal at the close of the State’s case.

“The complainant should not take the court for a ride as that is tantamount to confusion on his part since he is approbating and reprobating at the same time,” Msindo said.

“It is therefore submitted that complainant is seeking to abuse the criminal justice system in a bid to settle a civil matter through a criminal court in the hope that the accused persons would duck consequent to fear of a criminal sanction.

“The State failed to establish prima facie that the complainants acted on the alleged misrepresentations given the agreement of sale shows that the purchaser had a chance to do due diligence and thus made relevant verifications independently . . . he cannot summersault and allege fraud yet he was aware of the shares’ status.”

Norwhich is a restaurant business with 125 shares and the late Mahendra Savania was a major shareholder with 94 shares, Nargis Shalin Mohamed with 25, Ignatius Paul Cardoza had four and two other nominal shares.

Following the death of Mahendra in March 2010, his wife and son reportedly offered the company for sale to Mnaba.

It was alleged that Nighert did not disclose that Norwhich was part of the deceased’s estate yet to be registered with the Master of High Court for execution and entered into an agreement of sale with Mnaba.

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