Mpofu, Chimombe dealt a major blow

THE Supreme Court has dealt a major blow to businessmen Moses Mpofu and Mike Chimombe, dismissing their applications for leave to appeal against the lengthy prison sentences imposed following their conviction in the US$7.7 million Presidential Goat Pass-on Scheme fraud case.

In a judgment delivered by Justice of Appeal George Chiweshe, with Justices of Appeal Susan Mavangira and Hlekani Mwayera concurring, the country's highest appellate court ruled that neither applicant had reasonable prospects of successfully challenging the sentences imposed by the High Court.

The ruling leaves Mpofu serving an effective 15-year prison sentence and Chimombe an effective 12-year term, unless any future appeals on limited questions of law succeed in overturning their convictions.

Justice Chiweshe held that the trial court had properly exercised its sentencing discretion and that there was no basis for appellate interference.

The judgment marks a significant milestone in one of Zimbabwe's highest-profile corruption cases, which stemmed from the Presidential Goat Pass-on Scheme, a government programme aimed at improving rural livelihoods through the distribution of goats to vulnerable households.

The Supreme Court found that the offences involved serious aggravating factors, including the misuse of public funds intended for poverty alleviation.

"This was a fraud involving public funds meant to alleviate poverty across the country. The amounts involved ran into millions of United States dollars or equivalent local currency. The actual prejudice to the fiscus was thus enormous," Justice Chiweshe said.

The court rejected arguments that the prison terms were excessive, ruling that the sentences were consistent with the Criminal Procedure (Sentencing Guidelines) Regulations, 2023, which prescribe severe penalties for fraud involving public resources.

It further held that the aggravating circumstances outweighed the mitigating factors presented by the defence.

"The aggravating features clearly outweighed the mitigatory factors. Under the circumstances, the court a quo cannot be faulted in determining that a custodial sentence was called for. The sentence imposed was consistent with the sentencing guidelines," the judge said.

The court also dismissed Mpofu's challenge to the restitution order requiring repayment in United States dollars, finding no reasonable prospects of success.

Although the Supreme Court dismissed the applications for leave to appeal against sentence and factual findings, it ruled that both businessmen retain the right to pursue narrowly defined appeals on questions of law.

Mpofu may appeal, without seeking leave, on three legal issues relating to the interpretation of the fraud charge and corporate liability.

Chimombe similarly retains the right to appeal on a single legal question concerning whether the High Court correctly found that he possessed the criminal intent required for conviction.

However, the court stressed that these appeals are confined to legal questions and cannot be used to revisit factual findings made during the trial.

The judgment upheld the High Court's conclusion that the two businessmen knowingly participated in a fraudulent scheme that induced the Government to release millions of dollars through false representations.

According to the court, evidence established that tender documents included fraudulent tax clearance and NSSA compliance certificates and falsely portrayed the contracting company as legally compliant and capable of supplying the required livestock.

The court also found that only a fraction of the contracted goats were delivered after advance payments had been made before the agreement was terminated, resulting in substantial financial losses to the State.

In its ruling, the Supreme Court also upheld the application of Section 277 of the Criminal Law (Codification and Reform) Act, affirming that company directors who knowingly participate in criminal conduct cannot escape liability by relying on the separate legal personality of a company.

The judgment also provides important guidance on Zimbabwe's criminal appeals process, reaffirming that appeals on questions of law may proceed without leave, while appeals challenging factual findings or mixed questions of law and fact require leave and will only be entertained where there are genuine prospects of success.

Legal analysts described the judgment as largely procedural but said it sends a strong signal that the Supreme Court considers the factual basis of the convictions to be firmly established.

One legal expert, who declined to be named, said the ruling demonstrates the court's confidence in the trial court's factual findings.

"Although the remaining grounds raise genuine questions of law capable, in principle, of affecting the convictions, the judgment strongly signals that the Supreme Court regards the factual foundation of the convictions as overwhelming," the expert said.

Another criminal law specialist noted that while the remaining legal challenges could theoretically result in the convictions being overturned, the prospects appear limited.

"The surviving appeals are narrowly confined legal challenges rather than an opportunity to re-open the factual merits of the case," the expert said.

For now, the Supreme Court's decision effectively closes the door on any challenge to the lengthy prison sentences imposed on Mpofu and Chimombe, leaving only limited legal appeals available in one of Zimbabwe's most closely watched corruption prosecutions.