'Court erred in clearing Chivayo'

THE High Court erred in various respects when it cleared businessman Wicknell Chivayo of fraud in a case he allegedly swindled Government of $5,6 million and that the State has excellent prospects of success on appeal, the Supreme Court ruled this week.

High Court judge, Justice Owen Tagu, recently cleared Chivayo of any liability in the $5,6 million fraud charge involving Zimbabwe Power Company (ZPC)'s Gwanda project.

Prosecutor General Mr Kumbirai Hodzi successfully sought leave to contest the decision at the Supreme Court. Supreme Court judge Justice Bharat Patel this week allowed the PG to appeal the High Court decision saying Justice Tagu had erred.

Justice Patel ruled that all the four grounds of appeal raised by the State were meritorious.

"To conclude, I am satisfied that all the grounds of appeal in this matter, as amended, carry good prospects of success as the intended appeal before this court. The application for leave to appeal accordingly succeeds," Justice Patel found that the charge sheet and State outline in Chivayo's case disclosed an offence and that the High Court had erred in ruling otherwise.

"In the premises, I take the view that the learned judge a quo misdirected himself in finding that the facts alleged in the charge sheet and State outline do not disclose an offence. Consequently, he erred by upholding the exception to the charges of fraud levelled against the respondents, quashing those charges and acquitting the respondents, on a view of the facts that could not reasonably be entertained."

"On a proper view of those facts, he could not reasonably have inferred the innocence of the respondents," he said.

It was also the Supreme Court's finding that the High Court also erred in finding that the matter was civil and that criminal charges could not be preferred against Chivayo.

"I am of the firm view that the learned judge a quo misdirected himself at law and in making the foregoing findings and consequently holding that the State could not resort to the institution of criminal proceedings in circumstances where the facts alleged, if proven, clearly demonstrated the commission of fraud by the respondents. I am satisfied that the second ground of appeal has excellent prospects of success on appeal," ruled Justice patel.

The Supreme Court also held that Justice Tagu had interfered with unterminated proceedings in the magistrate's court, which is another strong ground of appeal.

"In short, the learned judge a quo erred at law in interfering with unterminated criminal proceedings, in the absence of exceptional circumstances warranting such intervention," the Supreme Court ruled.