admin
Court Reporter
THE trial of Intratrek Zimbabwe and its managing director Wicknell Chivayo was further deferred on Monday to the end of next month to give the State time to attend to legal issues the businessman raised through a letter to the National Prosecuting Authority.
Mr Tafara Chirambira, appearing for the State, asked for postponement to November 30 saying the prosecution needed time to attend to issues that were raised by Chivayo’s lawyers before the trial resumes.
Chivayo and his company are facing fraud charges involving US$5,6 million, which the Zimbabwe Power Company allegedly paid towards feasibility tests for the Gwanda solar project.
But his lawyers argue in their letter to the Prosecutor-General querying the decision to prosecute him, when the lawyers see the dispute as purely civil in nature. The legal dispute has run through several courts.
Intratrek and Chivayo first appeared before a magistrate in 2018. They applied to have charges dropped, but the magistrate declined. On appeal the High Court agreed with Chivayo that it was a purely civil dispute and cleared him of all criminal charges.
On appeal by the State, the Supreme Court ruled that there was a criminal case to answer. Now the defence is seeking to have the prosecution dropped.
The defence lawyers argued that the summons served on Chivayo to initially appear in court was not founded upon the essential requirements of the fraud offence.
Chivayo’s lawyers 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.
They said 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.
They 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 Gwanda solar project has courted controversy after Intratrek Zimbabwe failed to deliver within agreed time-lines citing failure by Zesa to fulfil some 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 judgment 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.
Yesterday, Chivayo and his company appeared before Harare magistrate Mr Lazini Ncube.
Online Reporter