Online Reporter
Fidelis Munyoro
Chief Court Reporter
TWO former Zvishavane Town Council officials have lost their appeal in a ruling upholding their convictions for criminal abuse of office, along with their two-year prison sentences.
The ruling, handed down by a Supreme Court three-judge panel of Justices Susan Mavangira, Chinembiri Bhunu and Joseph Musakwa, concluded a drawn-out legal battle stemming from allegations that the two officials bypassed proper procurement procedures in awarding a lucrative contract.
The appellants, Tinoda Mukutu, the former Town Secretary, and Dominic Mupwashike, the former Council Engineer, were convicted in 2023 by the provincial magistrates’ court in Gweru for signing a US$2,7 million contract with a construction company without adhering to procurement laws or obtaining a council resolution.
The High Court previously dismissed their appeal, prompting the case to reach the Supreme Court.
The charges against the two arose from their actions in 2019 when they signed a new contract with Monitor Enterprises, a company that had previously failed to deliver on a similar agreement in 2016.
While the original contract was awarded through a competitive bidding process, the new agreement was signed without public tendering or formal council approval.
The State argued that the move favoured Monitor Enterprises, while excluding other potential bidders.
During the trial, witnesses from the Zvishavane Town Council testified that no council resolution had been passed to authorise the new agreement.
The court heard that the appellants failed to produce minutes of any meeting approving the deal, with Mukutu claiming the minutes had been lost due to a “mysterious computer crash.”
The court found these explanations insufficient to justify their actions, concluding that the appellants had knowingly acted outside the law.
The appellants argued in their defence that Mukutu had acted on legal advice from the council’s lawyer and that Mupwashike’s role was limited to signing the contract as a witness.
However, the Supreme Court dismissed these claims, ruling that the appellants had a duty to ensure compliance with procurement laws.
Justice Mavangira, delivering the court’s judgment, stated, “Mens rea is established where senior officials, knowledgeable of procurement procedures, knowingly circumvent mandatory requirements. The appellants’ actions reflected a deliberate departure from their statutory obligations.”
The court noted that the appellants had attempted to portray the 2019 contract as an addendum to the original 2016 agreement, despite the new contract explicitly stating that the earlier deal had been cancelled.
The judgment emphasised that the appellants’ actions demonstrated an awareness of the need for council approval, which they bypassed.
The appellants also challenged their sentences, arguing that the trial court had failed to consider non-custodial options such as community service.
The superior court dismissed this argument, stating that the custodial sentences were appropriate given the seriousness of the offence.
“Public officers occupy positions of trust and responsibility,” the court ruled. “A custodial sentence reflects the gravity of undermining public procurement processes and serves as a deterrent.”
The court further rejected claims that the trial process was flawed, finding that the alleged differences in the prosecution’s outline did not materially prejudice the appellants.
It also ruled that the omission of certain cross-examination questions from the trial record did not affect the fairness of the proceedings.
The ruling brings to a close a case that has drawn significant attention from the public, highlighting the challenges of enforcing accountability in public procurement.
