By Staff Reporter
BUSINESSMAN Wicknell Chivayo has been cleared in a case he was accused of defrauding the Zimbabwe Power Company (ZPC) US$5,6 million in the controversial Gwanda Solar project.
This followed a successful application for refusal of further remand.
The businessman through his lawyer, Advocate Slyvester Hashiti argued the state was taking too long to prosecute him, an argument which was upheld by the presiding magistrate Lazini Ncube.
Ncube ruled there was unreasonable delay on part of the State considering that he was back before the court on summons.
His case was remitted back for trial following an appeal by the then Prosecutor General Kumbirai Hodzi after he was cleared two years ago.
The present ruling according to his lawyers means that his contract with ZPC remains valid.
The same verdict was granted by the High Court earlier this year.
In this case Chivayo was facing four counts including fraud, money laundering, violation of exchange control regulations and confiscation of profits.
The magistrate said there was no evidence incriminating him.
Chivayo and his company Intratrek were facing three counts of fraud, while the other two counts of breaching exchange control regulations and money laundering were dropped shortly before the trial commenced.
The magistrate said he had not committed any criminal offenses but participated and won a public tender that was advertised and available for everyone to bid.
The state required of him to answer to charges pertaining the 100MW Gwanda Solar project, where allegations arose that he failed to perform in terms of the contract and thereby committed an act of fraud against the ZPC.
It was established that between 2016 and 2019 Intratrek indeed executed the pre-commencement works as agreed under Schedule 11 of the EPC Contract.
These works were executed utilising funds paid by ZPC under contract and in the sum of USD$ 5 811 224.00.
This amount constitutes less than 5% of the contract price of US$172 848 597.60.
It invites “confusion and uncertainty on how the state formulated these charges preferred against the accused persons if the known complainant has denied ever instituting the same,” said the magistrate.
The State on the 30th of June 2022 through Cabinet already ordered that the contract between the accused persons and Zimbabwe Power Company is valid and must be carried into effect.
Court said this was public knowledge hence the approval and endorsement for parties to continue.
“There can neither be reasonable suspicion nor probable cause on which accused persons can therefore be brought to court.
“There was no misrepresentation, prejudice nor fraud establishing any criminal charge against them.
“The criminal charges preferred against the accused persons are exculpable as they do not disclose any criminal act or that warrants the adjudication of our criminal justice system.”
The court ruled the cause of action arises from a contractual arrangement between accused persons and ZPC, which arrangement provides for all the applicable remedies in the event of breach, whether actual or perceived.
He said on a charge of fraud the intention to deceive must exist at the time that the misrepresentation is made.
“In this case such intention must be alleged to have existed on each of the dates on which invoices were presented to ZPC for payment.
“The non-existence of such intention immediately becomes apparent if one considers that the relationship between the parties was regulated by an Engineering Procurement and Construction Contract (EPC) which authorised payment before works had been done.
“Consequently the allegations are neither founded upon nor do they meet the essential requirements of the crime of fraud as defined in the Criminal Law (Codification and Reform) Act [Chapter 9:23].
“The conduct complained against both accused persons as constituting fraud is frivolous and cannot be supported by the factual circumstances under which the amount of USD$ 5 811 224.00 was utilised.
“There is uncontroverted evidence which proves that the entire amount paid by ZPC was utilised in accordance with the requirements of the EPC Contract.
“The comprehensive report on the evaluation of the pre-commencement works which was jointly carried out and ratified by ZPC and accused persons on 13 July 2020 is clear.
“The importance of this evaluation report confirms that accused persons not only discharged their contractual mandate in full with respect to the pre-commencement works, but went further to utilise their own resources to complete some of the required works. The Report vindicates them from all the unfounded allegations that it short-changed or in the least, defrauded ZPC.”
The magistrate said the contract must be the beginning and the end in resolving whatever dispute that might arise between the parties.
“Accordingly I hereby find both accused persons not guilty and acquitted on all five counts.
Chivayo and Intratrek Zimbabwe (Pvt) Ltd were represented by Advocates Lewis Uriri and Sylvester Hashiti respectively, both instructed by Wilson Tatenda Manase of Manase & Manase Legal Practitioners while the state was represented by Tafara Chirambira and Tendayi Shonhayi from the Prosecutor General’s office.