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Fidelis Munyoro, Chief Court Reporter
FORMER Registrar General in the Civil Registry Department, Clemence Masango, has been acquitted on charges of criminal abuse of office over the supply of vehicles to the RG’s office by CMED.
This came after the High Court intervened at the close of the State’s case and agreed that there was no evidence to show the CMED had chosen the supplier on the instructions of Masango. Masango had lost his bid for discharge in the magistrate’s court at the close of the State’s case after the trial magistrate ruled that he had a case to answer and should be placed on his defence. Unhappy with that decision, Masango appealed to the High Court seeking a review of the lower court proceedings.
He argued that the State had failed to establish a case against him and that he should not be put on his defence.
Central to his argument was that by the close of the State case, no evidence had established at least a single essential element of the offence.
In order to establish a prima facie case of criminal abuse of duty as a public officer, the State was required to prove that Masango deliberately acted contrary to his duties with the intention of showing favour to Duly’s Motors and CMED, which it failed to do, the High Court ruled.
He had denied committing the offence claiming that the vehicles in question were ordered and paid for by his predecessor before he took office, with the Civil Registry Department buying the cars from CMED through a shared procurement arrangement.
Following the appointment of the CMED by his predecessor as the procuring agent in the purchase of these vehicles, Masango argued that CMED became the accounting agency for the deal with Duly’s.
That meant, contended Masango, that the CMED was responsible for ensuring compliance with the Public Procurement and Disposal of Public Assets Act.
Since the purchase of the vehicles in question was done before he came into office, CMED was accountable for the procurement method used and the selected suppliers.
So Masango argued that he did not play any part in the procurement which resulted in the charge of the alleged corruption.
But Masango’s application for discharge was rejected prompting him to seek a review of the trial magistrate’s decision at the High Court.
The State had opposed Masango’s application insisting that it had established a prima facie case.
Essentially, the State argued that Masango tampered with the procurement process by authorising the accountant to purchase a Ford Ranger with funds from an FBC account and that he did not adhere to the procedures of the Procurement Regulatory Authority of Zimbabwe (PRAZ).
The State argued that no authority from PRAZ had been sought as required by the Public Procurement and Disposal of Public Assets Act.
The Act states that where the value of an item to be procured is at or above the threshold, written authority from PRAZ is required. If such authority is not available, bias towards the supplier can be inferred.
While the general rule is that superior courts should not interfere until the lower court’s proceedings are completed before intervening in any interlocutory decision made during the proceedings, the superior court can intervene earlier than a subsequent appeal where there has been a gross irregularity which goes to the heart of the proceedings, vitiating the proceedings irreparably.
It was on that basis that High Court judge Justice Webster Chinamora upheld the contentions by Masango and found that the evidence adduced by the State showed that CMED was in charge of the actual procurement of the vehicles in question.
He ruled that there was no evidence presented to show that CMED acted on Masango’s specific instruction when procuring the vehicles from Duly”s Motors or that he directed CMED to favour Duly’s Motors or disfavour the other suppliers who could have provided the vehicles.
“Clearly, putting the applicant (Masango) on the stand in his defence to explain if he had authority to initiate the procurement of the said vehicles would in my view be a gross irregularity,” said Justice Chinamora.
He said this would entail putting the applicant on defence merely to answer a newly formulated charge of procurement without authority, which the applicant did not plead to because the State outline does not address that charge. “In my opinion, placing the applicant on his defence when the prosecution has not attempted to prove the charge or an essential element of the charge would be highly irregular.
“It is clearly wrong and unconscionable to put an accused person to their defence where the prosecution has not attempted to prove the charge or an essential element of charge.
“The accused person, Clemence Masango, be and is hereby found not guilty, discharged and acquitted at the close of the State case”, ruled Justice Chinamora.
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