Mr Tafara Chirambira and Mrs Tendai Shonhai, appearing for
the State, asked for postponement to October 24 saying they needed time to
attend to issues that were raised by Chivayo’s legal counsel before the trial
opens.
The State wants to prosecute Chivayo and his company on
charges of fraud involving US$5,6 million, which the Zimbabwe Power Company
paid towards feasibility tests for the Gwanda solar project.
But his lawyer Mr Wilson Manase wrote to the
Prosecutor-General’s office on Wednesday asking the office to reconsider its
decision to prosecute the businessman on matters that he said were of a purely
civil nature.
Mr Manase, in his letter dated August 30, argued that the
summons served on Chivayo to appear in court yesterday, were not founded upon
the essential requirements of the crime of fraud.
“There is uncontroverted evidence which proves that the
entire amount paid by ZPC was used in accordance with the requirements of the
engineering procurement and construction contract.”
The lawyer also attached a report on the valuation of the
pre-commencement works jointly carried out and ratified by Zimbabwe Power
Company, Zesa’s generation subsidiary, and Intratek and Chivayo on July 13
2020.
Mr Manase argued that the evaluation report confirmed that
his clients not only discharged their contractual mandate in full with respect
to the pre-commencement works, but went further to use their own resources to
complete some of the required works.
He further argued that the present position was that
Zimbabwe Power Company actually owed Intratek and Chivayo by 13th July 2020
US$609 693,87 arising from works which have been “over delivered.”
“The acceptance by ZPC that our clients over delivered its
obligations in accordance with the engineering procurement and construction
contract and used the advance payment for pre-commencement activities places
beyond any reasonable doubt that no party was defrauded. That contract was
still valid,” said Mr Manase.
Cabinet in July 2020 resolved to have the Gwanda Solar
Project be implemented.
“It boggles the mind how our clients can still be
competently charged of criminal misdemeanour of fraud in respect of a civil
agreement that has been endorsed by Cabinet and awaits implementation by the
parties after negotiation in 2020,” said Mr Manase.
The Gwanda solar project has courted controversy after the
contractor, Intratrek Zimbabwe, failed to deliver within agreed time-lines
citing failure by Zesa to fulfil certain of its obligations as well as funding
hurdles arising from Zimbabwe’s historical debts to China, the source of
funding.
The dispute spilled into the High Court, which ruled that
the parties should not waste precious time “merry dancing in boardrooms and
courts” while the whole country faced a crippling power crisis.
Justice Tawanda Chitapi, while ruling on a contractual
dispute between Zesa and Intratrek over delays to the project, which Zesa lost,
pointed out that electricity was not generated in courts and board rooms, but
at power stations and urged the feuding parties to dialogue and stop being
“dilatory” in their approach.
Chivayo was summonsed back to court on criminal charges
following the Supreme Court’s decision to reverse his acquittal by the High
Court, which was contested by the National Prosecuting Authority.
The prosecution had appealed against the High Court
decision absolving Chivayo and his company of any criminal liability in the
botched multimillion dollar deal with the power company.
High Court Judge Justice Owen Tagu cleared him of all his
charges, including money laundering, in a July 2018 judgment saying they were
civil matters, ruling that the decision of the trial court in dismissing
Chivayo’s application for exception in November 2018 was defective as the facts
could not sustain a criminal suit.
He said allowing the businessman’s prosecution or his
conviction would amount to violation of the Constitution, which provides
protection upon the doctrine of sanctity of contracts.
His judgement underscored that criminal sanctions would not
apply in inherently civil cases. Chivayo had in the lower court attempted to
quash the charges through an application for exception, but this was rejected.
The Prosecutor-General took the matter up to the Supreme
Court on appeal.
A three-judge panel comprising Deputy Chief Justice
Elizabeth Gwaunza, Justice Rita Makarau and Justice Susan Mavangira allowed the
appeal, finding that the High Court erred in interfering with the unterminated
criminal proceedings and ruled that the fraud trial could proceed. Herald
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