THE High Court erred in various respects when it cleared
businessman Wicknell Chivayo of fraud in a case he allegedly swindled
Government of $5,6 million and that the State has excellent prospects of
success on appeal, the Supreme Court ruled this week.
High Court judge, Justice Owen Tagu, recently cleared
Chivayo of any liability in the $5,6 million fraud charge involving Zimbabwe
Power Company (ZPC)’s Gwanda project.
Prosecutor General Mr Kumbirai Hodzi successfully sought
leave to contest the decision at the Supreme Court. Supreme Court judge Justice
Bharat Patel this week allowed the PG to appeal the High Court decision saying
Justice Tagu had erred.
Justice Patel ruled that all the four grounds of appeal
raised by the State were meritorious.
“To conclude, I am satisfied that all the grounds of appeal
in this matter, as amended, carry good prospects of success as the intended
appeal before this court. The application for leave to appeal accordingly
succeeds…”
Justice Patel found that the charge sheet and State outline
in Chivayo’s case disclosed an offence and that the High Court had erred in
ruling otherwise.
“In the premises, I take the view that the learned judge a
quo misdirected himself in finding that the facts alleged in the charge sheet
and State outline do not disclose an offence. Consequently, he erred by
upholding the exception to the charges of fraud levelled against the
respondents, quashing those charges and acquitting the respondents, on a view
of the facts that could not reasonably be entertained…
“On a proper view of those facts, he could not reasonably
have inferred the innocence of the respondents,” he said.
It was also the Supreme Court’s finding that the High Court
also erred in finding that the matter was civil and that criminal charges could
not be preferred against Chivayo.“I am of the firm view that the learned judge
a quo misdirected himself at law and in making the foregoing findings and
consequently holding that the State could not resort to the institution of
criminal proceedings in circumstances where the facts alleged, if proven,
clearly demonstrated the commission of fraud by the respondents. I am satisfied
that the second ground of appeal has excellent prospects of success on appeal,”
ruled Justice patel.
The Supreme Court also held that Justice Tagu had
interfered with unterminated proceedings in the magistrate’s court, which is
another strong ground of appeal. “In short, the learned judge a quo erred at
law in interfering with unterminated criminal proceedings, in the absence of
exceptional circumstances warranting such intervention,” the Supreme Court
ruled.
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