Chivayo trial hits snag

THE trial of Intratrek Zimbabwe and its managing director, Wicknell Chivayo, due to start yesterday, was postponed after the State said it needed time to attend to issues the businessman raised through a letter addressed to the prosecution.

Mr Tafara Chirambira and Mrs Tendai Shonhai, appearing for the State, asked for postponement to October 24 saying they needed time to attend to issues that were raised by Chivayo's legal counsel before the trial opens.

The State wants to prosecute Chivayo and his company on charges of fraud involving US$5,6 million, which the Zimbabwe Power Company paid towards feasibility tests for the Gwanda solar project.

But his lawyer Mr Wilson Manase wrote to the Prosecutor-General's office on Wednesday asking the office to reconsider its decision to prosecute the businessman on matters that he said were of a purely civil nature.

Mr Manase, in his letter dated August 30, argued that the summons served on Chivayo to appear in court yesterday, were not founded upon the essential requirements of the crime of fraud.

"There is uncontroverted evidence which proves that the entire amount paid by ZPC was used in accordance with the requirements of the engineering procurement and construction contract."

The lawyer 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.

Mr Manase argued that 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.

He 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 acceptance by ZPC that our clients over delivered its obligations in accordance with the engineering procurement and construction contract and used the advance payment for pre-commencement activities places beyond any reasonable doubt that no party was defrauded. That contract was still valid," said Mr Manase.

Cabinet in July 2020 resolved to have the Gwanda Solar Project be implemented.

"It boggles the mind how our clients can still be competently charged of criminal misdemeanour of fraud in respect of a civil agreement that has been endorsed by Cabinet and awaits implementation by the parties after negotiation in 2020," said Mr Manase.

The Gwanda solar project has courted controversy after the contractor, Intratrek Zimbabwe, failed to deliver within agreed time-lines citing failure by Zesa to fulfil certain 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 judgement 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.