37B Unexplained wealth orders
(1) The High Court may, on an ex parte application made by an enforcement authority, make an unexplained wealth order in respect of any property if the court is satisfied that each of the requirements for the making of the order is fulfilled:
Provided that if the court is not so satisfied, it may dismiss the application or require the applicant to serve notice of the application on the respondent before proceeding with the application.
(2) An application for an order must—
specify or describe the property in respect of which the order is sought; and
specify the person whom the enforcement authority thinks holds the property (“the respondent”) (and the person specified may include a person outside Zimbabwe).
(3) An unexplained wealth order is an order requiring the respondent to provide a statement—
setting out the nature and extent of the respondent’s interest in the property in respect of which the order is made; and
explaining how the respondent obtained the property (including, in particular, how any costs incurred in obtaining it were met); and
where the property is held by the trustees of a settlement, setting out such details of the settlement as may be specified in the order; and
setting out such other information in connection with the property as may be so specified.
(4) The order must specify—
the form and manner in which the statement is to be given; and
the person to whom it is to be given; and
the place at which it is to be given or, if it is to be given in writing, the address to which it is to be sent.
(5) The order may, in connection with requiring the respondent to provide the statement mentioned in subsection (3), also require the respondent to produce documents of a kind specified or described in the order.
(6) The respondent must comply with the requirements imposed by an unexplained wealth order within whatever period the court may specify (and different periods may be specified in relation to different requirements).
(7) Any person subjected to any unexplained wealth order may at any time apply to the High Court that issued the order to set it aside on good cause shown.
37C Requirements for making of unexplained wealth order
(1) In deciding whether to make an unexplained wealth order the High Court must be satisfied that there is reasonable cause to believe that—
the respondent holds the property; and
the value of the property is greater than one hundred thousand United States dollars or its equivalent in any currency.
(2) The High Court must be satisfied that there are reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain or hold the property.
(3) The High Court must be satisfied that there are reasonable grounds for suspecting that—
the respondent is, or has been, involved in serious crime (whether in Zimbabwe or elsewhere); or
a person connected with the respondent is, or has been, so involved.
(4) It does not matter for the purposes of subsection (1)—
whether or not there are other persons who also hold the property;
whether the property was obtained by the respondent before or after the coming into force of this section.
(5) For the purposes of subsection (2)—
regard is to be had to any mortgage, charge or other kind of security that it is reasonable to assume was or may have been available to the respondent for the purposes of obtaining the property;
it is to be assumed that the respondent obtained the property for a price equivalent to its market value;
income is “lawfully obtained” if it is obtained lawfully under the laws of the country from where the income arises;
“known” sources of the respondent’s income are the sources of income (whether arising from employment, assets or otherwise) that are reasonably ascertainable from available information at the time of the making of the application for the order;
where the property is an interest in other property comprised in a settlement, the reference to the respondent obtaining the property is to be taken as if it were a reference to the respondent obtaining direct ownership of such share in the settled property as relates to, or is fairly represented by, that interest.
(6) For the purposes of this section, section 2A (“When persons deemed to be associates”) of the Income Tax Act [Chapter 23:06] applies in determining whether a person is connected with another.
(7) Where the property in respect of which the order is sought comprises more than one item of property, the reference in subsection (1)(b) to the value of the property is to the total value of those items.
37D Effect of order, cases of non-compliance
(1) This section applies in a case where the respondent fails, without reasonable excuse, to comply with the requirements imposed by an unexplained wealth order in respect of any property before the end of the response period.
(2) The property is to be presumed to be tainted property for the purposes of any proceedings taken in respect of the property under this Act, unless the contrary is shown.
(3) The presumption in subsection (2) applies in relation to property—
only so far as relating to the respondent’s interest in the property; and
only if the value of that interest is greater than the sum specified in section 37C(1)(b).
(4) For the purposes of subsection (1)—
a respondent who purports to comply with the requirements imposed by an unexplained wealth order is not to be taken to have failed to comply with the order (see instead section 37E(7);
where an unexplained wealth order imposes more than one requirement on the respondent, the respondent is to be taken to have failed to comply with the requirements imposed by the order unless each of the requirements is complied with or is purported to be complied with.
(5) Subsections (6) and (7) apply in determining the respondent’s interest for the purposes of subsection (3) in a case where the respondent to the unexplained wealth order is connected with another person who is, or has been, involved in serious crime.
(6) In a case within subsection (5), the respondent’s interest is to be taken to include any interest in the property of the person involved in serious crime with whom the respondent is connected.
(7) Where an unexplained wealth order is made in respect of property comprising more than one item of property, the reference in subsection (3)(b) to the value of the respondent’s interest in the property is to the total value of the respondent’s interest in those items.
37E Effect of order: cases of compliance or purported compliance
(1) This section applies in a case where, before the end of the response period (as defined by section 37B(6)), the respondent complies, or purports to comply, with the requirements imposed by an unexplained wealth order in respect of any property in relation to which the order is made.
(2) If an interim freezing order has effect in relation to the property (see section 37I), the enforcement authority must determine what enforcement or investigatory proceedings, if any, it considers ought to be taken in relation to the property.
(3) A determination under subsection (2) must be made within the period of sixty days starting with the day of compliance.
(4) If the determination under subsection (2) is that no further enforcement or investigatory proceedings ought to be taken in relation to the property, the enforcement authority must notify the High Court of that fact as soon as reasonably practicable (and in any event before the end of the sixty-day period mentioned in subsection (3)).
(5) If there is no interim freezing order in effect in relation to the property, the enforcement authority may (at any time) determine what, if any, enforcement or investigatory proceedings it considers ought to be taken in relation to the property.
(6) A determination under this section to take no further enforcement or investigatory proceedings in relation to any property does not prevent such proceedings being taken subsequently (whether as a result of new information or otherwise, and whether or not by the same enforcement authority) in relation to the property.
(7) For the purposes of this section—
the respondent complies with the requirements imposed by an unexplained wealth order only if all of the requirements are complied with; and
references to the day of compliance are to the day on which the requirements imposed by the order are complied with (or, if the requirements are complied with over more than one day, the last of those days); and
where an order requires the sending of information in writing to, or the production of documents at, an address specified in the order, compliance with the order (so far as relating to that requirement) occurs when the written information is received, or the documents are produced, at that address; and in paragraphs (a) to (c) references to compliance include purported compliance.
37F Making false or misleading statements in response to unexplained wealth order
(1) A person who, in purported compliance with a requirement imposed by an unexplained wealth order—
makes a statement that the person knows to be false or misleading in a material particular; or
makes a statement that is false or misleading in a material particular knowing that there is a real risk or possibility that it may be so false or misleading;
shall be guilty of an offence and liable to a fine not exceeding twenty per centum of the value of the property that is the subject of the unexplained wealth order or, if no such value specified, not exceeding twenty thousand United States dollars (US$20 000) or the equivalent in Zimbabwe dollars at the prevailing interbank rate of exchange) or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment.
37G Uses in criminal proceedings of statements in response to unexplained wealth order
(1) A statement made by a person in response to a requirement imposed by an unexplained wealth order may not be used in evidence against that person in criminal proceedings.
(2) Subsection (1) does not apply—
in the case of proceedings under Chapter IV (“Conviction-based Confiscation and Benefit Recovery Orders and Investigative Powers Appurtenant Thereto”); or
on a prosecution for an offence under section 37F; or
on a prosecution for an offence of perjury (section 183 of the Criminal Law Code); or
on a prosecution for some other offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in subsection (1).
(3) A statement may not be used by virtue of subsection (2)(d) against a person unless—
evidence relating to it is adduced; or
a question relating to it is asked;
by the person or on the person’s behalf in proceedings arising out of the prosecution.
37H Disclosure of information, copying of documents, etc
(1) An unexplained wealth order has effect in spite of any restriction on the disclosure of information (however imposed), but does not confer the right to require a person to—
answer any privileged question, that is to say a question which the person would be entitled to refuse to answer on grounds of legal professional privilege in proceedings in the High Court; or
provide any privileged information, that is to say, information which the person would be entitled to refuse to provide on grounds of legal professional privilege in proceedings in the High Court; or
produce any privileged document, that is to say, any document which the person would be entitled to refuse to produce on grounds of legal professional privilege in proceedings in the High Court;
(however, a legal practitioner may be required to provide the name and address of a client of his or hers).
(3) The enforcement authority may take copies of any documents produced by the respondent in connection with complying with the requirements imposed by an unexplained wealth order.
(4) Documents so produced may also be retained for so long as it is necessary to retain them (as opposed to a copy of them) in connection with an investigation of a kind mentioned Chapter IV (“Conviction-based Confiscation and Benefit Recovery Orders and Investigative Powers Appurtenant Thereto”) in relation to the property in respect of which the unexplained wealth order is made, but if the enforcement authority has reasonable grounds to believe that the documents—
may need to be produced for the purposes of any legal proceedings; and
might otherwise be unavailable for those purposes;
they may be retained until the proceedings are concluded.
