Zimbabwe: Witness Warned Against Smuggling Hearsay Evidence

The perjury trial of former Pokugara Properties general manager Mr Michael Van Blerk continued yesterday with the State’s second witness being warned against smuggling hearsay evidence.

The witness, a former employee of the City of Harare Mr Roy Nyabvure, tried to smuggle hearsay evidence by claiming that the permits given to George Katsimberis were valid because he had seen other documents that indicated the permits had been submitted.

Van Blerk’s lawyer Advocate Tawanda Zhuwarara objected to the leading of such evidence because it violated section 253 subsection 1 of the Criminal Procedure and Evidence Act.

This provision bars a criminal court from hearing hearsay evidence.

After lengthy submissions, Harare regional magistrate Mr Ngoni Nduna concurred with Adv Zhuwarara that Nyabvure, as a former employee of City of Harare, could not comment on documents that he did not create or was a custodian of because that would be hearsay evidence.

Adv Zhuwarara said City of Harare officials are on record in other proceedings stating that the permits that Katsimberis has were obtained fraudulently.

He said Nyabvure could not testify to the fact that the permits were valid based on documents which he himself did not create.

Mr Nduna struck Nyabvure’s evidence off the record and held that it was not admissible for him to claim that they were valid.

On the previous sitting, Katsimberis testified under cross examination by Adv Zhuwarara, who asked him if he was the one who went to the Cleveland Council House to get the building plan stamped.

Katsimberis admitted that he sent his engineer to Cleveland House to get the building plan of cluster houses that he was supposed to build in Borrowdale.

“My engineer went to Cleveland to get the building plan stamped and approved,” Katsimberis said.

Adv Zhuwarara then asked if the engineer went to the Mt Pleasant office or Cleveland house to which Katsimberis replied that it was Cleveland.

But Adv Zhuwarara asked if he knew that only industrial building plans were sent to Cleveland and homes to Mt Pleasant. Katsimberis said he was sure that the building plans were approved at Cleveland.

Adv Zhuwarara again told Katsimberis that Cleveland House only deals with industrial building plans and not homes.

The lawyer then asked Katsimberis if he had any proof apart from the receipts that his building plans were approved at Cleveland to which he said he had none at that moment.

“So your engineer is the one who told you he submitted the plan at Cleveland House,” Adv Zhuwarara asked, to which Katsimberis replied “yes”.

Adv Zhuwarara further told him that the plan he was relying on was for Stand number 10 and not number 9, which he is insisting in court.

But Katsimberis insisted that it was number 9 and blamed his engineer for the blunder.

Adv Zhuwarara further told Katsimberis that if he had issues with the documents provided by Van Blerk, he should have stopped the matter from hearing at the High Court.

The lawyer further said the High Court matter was removed from the roll but Katsimberis appealed at the Supreme Court and his case was dismissed.

Van Blerk is denying the perjury allegations saying the charges were contrived and calculated to embarrass him.

The state represented by Mr Zivanai Macharaga had alleged that Van Blerk, in his personal capacity, and representing Pokugara Properties, filed a false written statement and lied in a sworn affidavit that a show house constructed by land developer, Katsimberis, was built without approved building plans from the City of Harare.

The showroom in question was constructed by Katsimberis under a joint venture deal with Pokugara Properties.

But Adv Zhuwarara said the perjury cannot arise from an affidavit whose averments were admitted by the complainant Katsimberis as having been true in the proceedings when that affidavit was logged.

Adv Zhuwarara said Van Blerk did not lie that the showroom was built without approved building plans from City of Harare through a letter dated July 26, 2018.


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