Businessman Genius Kadungure, who is facing four counts of prejudicing Zimbabwe Revenue Authority (Zimra) of over $3,8 million in taxes, has applied for exception on all the counts arguing he did not act criminally in any way.
Kadungure is charged in his personal capacity as the second accused while his company, Piko Trading, is the first accused.
Through his lawyer Mr Jonathan Samkange, Kadungure argued in his application that he could not be charged in his personal capacity because he was not resident in Zimbabwe during the relevant period.
He added that essential elements of the offence were not linked to him. Part of the exception application reads; “The facts do not speak of the second accused having so acted in his personal capacity nor having been on a frolic of his own. The facts as alleged are very clear that second accused acted as a representative of the company.
“In any event at the time of charging first accused, the State never enquired as to who would be representing it. During the period the company is alleged to have committed the counts, Kadungure was resident and working outside the country in Botswana.
“In the result, the second accused is entitled to except as he will be prejudiced in his defence to answer to allegations which relate to a company, in his personal capacity.”
In response, the State represented by Mr Andrew Kumire and Mr Lovack Masuku said in all the counts, the charge clearly discloses sufficient particulars to advise Kadungure the nature of the charge against him.
Kadungure is accused of importing 5 289 000 kg of liquefied petroleum gas (LPG) into Zimbabwe with intent to defraud the State of customs duty amounting to $672 533,93.
The State argues that under the circumstances, the charge discloses sufficient particulars to inform Kadungure the nature of allegations against him.
“He can only escape liability by showing on a preponderance of probabilities that he did not take part in the commission of the offence and could not have prevented it. The onus is thus on him.
“This does not relate to his being charged but to his guilt. In other words, this only operates as his defence not as an exception to the charge,” said the State.
Magistrate Mr Chrispen Mberewere is expected to make a ruling on the application