Chimombe, Mpofu backtrack on request to have Chivayo testify

High Court Judge Justice Pisirayi Kwenda on Tuesday expressed frustration with business partners Moses Mpofu and Mike Chimombe, who withdrew a subpoena against their former business partner, Wicknell Chivayo, in their ongoing fraud case. The two had previously requested Chivayo to testify as part of their application to refer their case to the Constitutional Court but made a dramatic U-turn, admitting that his evidence would not be beneficial to their defense.

During the court session, Mpofu and Chimombe's lawyers informed the court that they had reassessed the situation and realized that Chivayo's testimony would not assist in their case. As a result, Justice Kwenda withdrew the subpoena and ordered the two defendants to pay costs related to Chivayo's attendance and legal representation.

"The subpoena issued to Mr. Chivayo be and is hereby set aside. The first and second accused shall meet costs associated with the attendance of Mr. Chivayo and his legal counsel," Kwenda ruled.

Advocate Sylvester Hashiti, who was representing Chivayo, emphasized that his client was not a necessary witness, as he had no knowledge or involvement in the matter at hand. Hashiti explained that Chivayo was unaware of the case and had not been provided with any notice or summary of the proceedings, making his testimony irrelevant.

"Mr. Chivayo knows nothing about the case. He was completely unaware of the case, he was not given notice, and he was not given a summary of the case to testify on. There is basically nothing he could have brought before the court," Hashiti said.

Justice Kwenda, visibly displeased, took the opportunity to criticize the prolonged delay in the application for referral to the Constitutional Court, which has now dragged on for over a month without substantial progress.

"The application for referral is taking longer than it should have. You should take these proceedings seriously. We really need to move on," Kwenda remarked. The judge noted that such applications typically do not take this long and expressed his dissatisfaction with how the case had been handled.

In response, Professor Lovemore Madhuku, representing the accused, downplayed the judge's remarks, asserting that the withdrawal of Chivayo as a witness was a strategic decision. "You call a witness when you want certain facts to be established... but after engaging everyone else, we realized the evidence we wanted to call was not relevant," Madhuku explained. He also defended the pace of the application, saying there was no cause for concern.

Mpofu and Chimombe had initially sought to summon other individuals, including Zimbabwe Anti-Corruption Commission (ZACC) chairperson Michael Reza and Provincial Public Prosecutor Tendai Shonhai. However, Madhuku clarified that the subpoenas for Reza and Shonhai were no longer necessary, as the evidence they intended to present had been reconsidered and deemed irrelevant.

The case continues to unfold, with further delays expected as the accused seek to move the matter to the Constitutional Court. The court's decision to withdraw the subpoena and impose costs reflects the mounting frustrations over the handling of the case.


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