Wicknell gets his passport back

Intratrek Zimbabwe Private Limited director Wicknell Chivayo got his passport back last week to enable him to travel to South Africa on business.

Chivayo is facing charges of defrauding the Zimbabwe Power Company (ZPC) of over $5 million, money-laundering and violation of exchange control regulations. He is out on bail pending trial.

The businessman had applied to get his passport back to enable him to travel to South Africa to finalise contract negotiations with an unnamed company based in that country on energy projects to be undertaken within the sub-region.

In granting the application, the High Court considered that the State did not deny that the businessman and his company had business ties with the South African company. "The applicant has demonstrated on a balance of probabilities that his attendance is required in South Africa for purposes of furthering the business interest of his company," read the High Court ruling.

The court also took into account that granting of bail is made in recognition of the principle that a suspect is presumed innocent until proven guilty.

"Therefore, the correct approach is that the accused, who is on bail, must be allowed to continue to go about his life and the State should promote and be supportive of the applicant's endeavours to earn a livelihood through lawful means, as long as allowing the applicant that latitude does not defeat the administration of justice."

The South African company filed an affidavit in which it confirmed that Chivayo's Intratreck Holdings SA (Pvt) Ltd was engaged in contract negotiations in that country that were at the stage where Chivayo should attend in person.

The State strenuously opposed the application, arguing that Intratrek had other directors who could represent Chivayo, but the court saw the need for him to be granted the relief he sought.

"Contract negotiations in the world of business are delicate and it is not uncommon that hard and concrete decisions are made from the top," said the court.

"To argue that any director can represent the applicant's company in circumstances where the other negotiating party has clearly indicated that it can only engage and finalise negotiations with the principal would amount to taking too simplistic a view of the matter and intricacies of contract negotiations."

The court also disagreed with the State that the release of Chivayo's passport would result in him evading trial. In August, the High Court granted Chivayo bail saying he was not a flight risk and there were no other court findings contrary to that.

It ruled that Chivayo had travelled virtually to every corner of the world and returned to Zimbabwe at a time his case was under investigation and was involved in the investigations.

Further, the court ruled that there was no compelling evidence to render Chivayo's conviction a foregone conclusion in view of the charges he is facing.

Meanwhile, Chivayo's trial failed to kick-off yesterday after the State indicated that it was not ready. It was then moved to November 7. Representing the State, Mrs Venaranda Munyoro indicated to the court that she needed time to go through a document compiled by the defence team before commencement of trial.

Defence lawyer Advocate Lewis Uriri, instructed by Mr Wilson Manase, insisted that the matter proceeds to trial, but Mrs Munyoro said under the circumstances, it was impossible and proposed November 7 as the new trial date. On the last remand, the prosecution indicated that it wanted to amend the charges against Chivayo and his company.

The State then informally furnished the defence with a draft of the amended charges, which was then formally tendered before the court yesterday.

Adv Uriri then served the State with a 42-page application, which he said would stand if the State amends its charges. Mrs Munyoro told the court that the defence had furnished her with a new 17-page application for exception, hence needed time to go through it before responding.

Adv Uriri on the other hand said what was contained in the new document was not different from the contents of the first, adding that they only removed constitutional issues which had been raised previously. Magistrate Mr Lazini Ncube remanded the matter to November 7.

In the application for exception, Adv Uriri said the facts as alleged in the charge and the outline of the State case do not disclose an offence. "All the charges emanate from a public procurement contract, being an Engineering, Procurement and Construction (EPC) contract and are said to have taken place in the implementation of the said contract," he said.

"The EPC is regulated by the Procurement Act and has its own terms of enforcement and remedies for conduct that does not comply therewith as well as the overriding statutory provisions. "The criminal law is not a procedure for the enforcement or the remedy of alleged breach of contract.

"There are specific measures provided for this. "It has been held that the State does not need the help of the criminal law to relate to the enforcement and remedy of public contracts," Adv Uriri said. "The ZPC is a procurement entity regulated by the procurement regime and wholly-owned by the State in its commercial activity," he said.