Online Reporter
Fidelis Munyoro
Chief Court Reporter
Jailed business partners Moses Mpofu and Mike Chimombe are now escalating their case to the Supreme Court challenging the High Court decision to deny them permission to approach the Supreme Court on appeal.
This follows Monday’s ruling by High Court judge Justice Kwenda dismissing the applications for leave to appeal against conviction and sentence by the two, accused of orchestrating a fraudulent scheme that siphoned millions of dollars in public funds under the guise of the Presidential Goat Pass-On Scheme.
The defence under the stewardship of Professor Lovemore Madhuku, has declared its unequivocal intention to escalate the matter to the Supreme Court.
This, he said will be pursued through a formal application challenging the judgment rendered by the lower court.
Within the legal framework of Zimbabwe, such applications for leave to appeal to the Supreme Court—including those necessitated by a refusal from a lower tribunal—are processed as chamber applications.
These are adjudicated by a single judge, predominantly on the strength of written submissions.
The procedural architecture governing these applications, encompassing leave to appeal, condonation, and extensions of time, is firmly rooted in the Supreme Court Rules, 2018, complemented by Practice Direction No. 1 of 2017.
Under this regime, a single judge of the Supreme Court, sitting in chambers, wields the authority to deliberate on and resolve such applications.
Applications for leave to appeal follow a prescribed process, employing designated forms such as Form 4, and are typically determined without the necessity of an oral hearing. However, the adjudicating judge retains discretion to permit personal appearances or representation by a legal practitioner where warranted.
Crucially, for the appeal to advance to the Supreme Court, the application must persuasively establish that the intended appeal carries “reasonable prospects of success”.
This threshold serves as a pivotal safeguard, ensuring that only meritorious cases ascend to the apex of judicial scrutiny.
Justice Kwenda on Monday ruled that the applications lacked substance and described the arguments presented as frivolous and vexatious.
At the heart of the case lies the fictitious entity, Blackdeck Livestock and Poultry Farming, which the accused falsely presented as a legitimate company. Through fraudulent submissions, including counterfeit tax and compliance certificates, the accused secured a government contract valued at over $87 million to supply goats.
Justice Kwenda noted that the fraudulent bid sailed through various government verification processes due to deliberate misrepresentations. “The applicants were aware that Blackdeck Livestock and Poultry Farming was not a registered company and lacked the capacity to act,” he said.
The court heard that $7.7 million, disbursed by the government, was deposited into the bank account of Blackdeck (Pvt) Ltd, a company with no connection to the fictitious entity.
The funds were promptly transferred to other companies controlled by the accused and traded on the black market. Justice Kwenda highlighted that none of the proceeds were accounted for, and only a fraction of the promised goats were supplied.
“The goats delivered were valued at a mere $331,445, leaving a glaring shortfall,” the judge said.
Justice Kwenda rejected Mpofu’s claims that he had no knowledge of the fraudulent activities, pointing to his admissions during the trial.
“He attended meetings, signed the contract, and provided the bank account used to receive the funds. His role in the scheme was undeniable,” the judge stated.
Chimombe, who is also a director of Millytake Enterprises, was found to have similarly participated in the fraud, with his company receiving $200 million Zimbabwean dollars of the illicit proceeds.
In dismissing the appeals, Justice Kwenda criticised the applicants’ legal counsel for reviving arguments that had no factual basis. “A company exists only in the eyes of the law after formalities of incorporation are fulfilled. Insisting that a fictitious entity had legal standing is an abuse of the court process,” he said.
The judge further condemned the conduct of the accused and their lawyers, stating that advancing baseless arguments to the court was “dishonourable” and caused unnecessary annoyance.
Regarding the sentences, Justice Kwenda upheld the trial court’s decision to impose custodial terms, noting that the fraud involved public funds and was committed in aggravating circumstances.
He emphasised that the sentencing guidelines under Zimbabwean law prescribe harsher penalties for cases involving significant public funds, breaches of trust, and unrecovered proceeds.
“The presumptive penalty of 20 years is appropriate given the gravity of the offence,” the judge ruled.
Efforts by the accused to argue that their sentences were excessive were dismissed. The judge pointed out that the trial court had followed the prescribed sentencing guidelines to the letter and that the penalties imposed were neither excessive nor inappropriate. “If the court erred at all, it erred on the side of leniency,” Justice Kwenda remarked.
