Online Reporter
Nyore Madzianike
Senior Reporter
THE Supreme Court has dismissed an appeal by former Zvishavane Town Council secretary Tinoda Mukutu and council engineer Dominic Mupwashike against their conviction and sentence for criminal abuse of duty as public officers.
Mukutu and Mupwashike are serving two-year prison sentences imposed after their conviction by the Gweru Magistrates Court.
The High Court previously upheld their conviction and sentence.
Their co-accused, former Housing director Nhlanhla Ngwenya, who had been the second appellant before the High Court, did not participate in the appeal before the Supreme Court.
On December 17, 2019, they acted contrary to their duties by failing to follow mandatory procurement procedures set out in the Procurement and Disposal of Public Assets Act.
The case arose from a partnership agreement concluded on May 23, 2016, between the Zvishavane Town Council and Monitor Enterprises trading as J.M Construction for the servicing of 27 Central Business District stands valued at US$2 772 258,30.
The project was scheduled for completion within two years.
However, Monitor Enterprises failed to meet its contractual obligations, prompting the council to issue a notice of cancellation in October 2018.
Despite the cancellation, Mukutu signed a new contract with the company on December 17, 2019 on behalf of the council, while Mupwashike and Ngwenya signed as witnesses.
The agreement was concluded without the knowledge or authorisation of the council and without going through a competitive tender process or obtaining a council resolution.
The State said that the conduct was unlawful and was calculated to favour Monitor Enterprises while disadvantaging other potential bidders who could have participated had the tender been re-advertised.
The two had denied the charges arguing that they lacked the intention to act unlawfully.
Mukutu initially claimed that after Monitor Enterprises failed to fulfil its obligations under the 2016 contract, he sought legal advice from the council’s lawyer, one Ms Chigariro, who allegedly advised that the contract could be cancelled and replaced without going through a new tender process.
Mupwashike, on the other hand, argued that he merely signed the 2019 agreement as a witness and not as a contracting party.
He maintained that the new agreement was only an addendum to the original 2016 contract.
During the trial, however, Mukutu altered his account, claiming that the 2016 agreement had not been cancelled and contained a clause allowing its extension.
He also told the court that the council’s lawyer had chaired a meeting where the matter was discussed, but alleged that the minutes of the meeting had been lost due to a mysterious computer crash.
The trial court rejected the defence, finding that the wording of the 2019 agreement clearly showed that the 2016 contract had been cancelled and replaced with a new stand-alone agreement.
The court also noted that the appellants failed to produce any council resolution authorising the signing of the new contract and did not call the council’s lawyer to confirm that legal advice had been given.
It concluded that the appellants knowingly bypassed the required procurement procedures and acted outside their authority, thereby demonstrating criminal intent.
The trial court also rejected Mupwashike’s claim that he was merely a witness, ruling that his role as council engineer included monitoring and evaluating progress on the project, which made him directly involved in the process.
Following their conviction, the magistrates’ court sentenced each of them to two years’ imprisonment, stating that their conduct undermined the proper functioning of the public service.
Mukutu and Mupwashike subsequently appealed to the High Court, arguing that the 2019 agreement was not a new contract but merely an addendum to the 2016 agreement.
They also argued that the trial court failed to properly consider that they had sought legal advice before signing the document and that State witnesses had given contradictory evidence.
They further argued that the two-year custodial sentence was too harsh and that the court should have considered community service.
The High Court dismissed the appeal, ruling that the 2019 agreement was a new contract entered into after the earlier one was cancelled.
The court also found that the appellants were aware that they required a council resolution before entering into such an agreement.
The High Court further ruled that the claim that they had relied on legal advice could not excuse their conduct, noting that ignorance of the law is not a valid defence under Section 236 of the Criminal Law Code.
Dissatisfied with that outcome, the appellants approached the Supreme Court.
In dismissing the appeal, the Supreme Court held that both the trial court and the High Court had properly analysed the evidence and correctly concluded that the 2019 document constituted a new contract entered into in violation of procurement regulations.
The court also ruled that the appellants’ reliance on alleged legal advice was untenable and could not negate criminal intent.
In one sentence, the Supreme Court said the trial court had carefully considered the seriousness of the offence, the statutory framework and the appellants’ personal circumstances.
Although the court acknowledged that both men had family responsibilities and had been involved in charitable activities, it held that a non-custodial sentence would have trivialised the offence, given their senior positions in public office.
The court emphasised that public officers occupy positions of trust and that deterrent sentences are necessary to discourage abuse of authority.
It found no misdirection by the trial court and upheld the High Court’s decision.
“The appeal is hereby dismissed,” ruled the Supreme Court.
