IntratRek Zimbabwe director Wicknell Chivayo, who is facing
a $5,6 million fraud charge in a botched Zimbabwe Power Company (ZPC) solar
project deal, has petitioned the High Court, seeking a review of the lower
court’s decision to dismiss his application for exception to the charges.
Chivayo, who appeared in court on November 19,
unsuccessfully filed an application for exception to the charges before
magistrate Lazini Ncube, where he argued that facts on the charge sheet and
outline did not disclose a criminal offence.
In his application for review to the High Court, Chivayo
cited Ncube as the respondent. “This is an application for review of the second
respondent’s (Ncube) ruling dismissing my (Chivayo) exception to criminal
charges preferred against me in the court of the provincial magistrates at
Harare under case number CRB P9114-5/2018. The ruling was handed down on
November 19, 2018,” Chivayo said in his founding affidavit.
Chivayo argued that his company won the tender and was
awarded a contract governed by the Public Procurement Act. Following certain
alleged breaches in the contract, his company was sued for specific performance
and the judgment in that matter was reserved by the High Court, he said.
The businessman further said the State made some cosmetic
changes to the charges, which amended charge was put to him, and he challenged
it on the basis that the facts alleged did not disclose the offences alleged.
“The allegations originated from a public procurement
tender. That the allegations amounted to allegations of breach of contract
remedies which are provided for under the public procurement regime. That the
Zimbabwe Power Company (ZPC), the alleged complainant, did not, in fact,
complain and in its opposing affidavit before this court denied being the
complainant or ever having complained against the applicants,” he said.
Chivayo argued that the magistrate did not address his mind
to the question of whether the facts alleged disclosed the offences.
“The exception was never taken on the basis that the charge
was defective or incompetent … the decision of the magistrate was grossly
unreasonable, but also a breach of the law and public policy of Zimbabwe in
that it is a breach of the positive law of Zimbabwe.”
The matter is pending. Newsday
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