By Mary Taruvinga
THE case in which Prosecutor General (PG), Kumbirai Hodzi is challenging a High Court judgement clearing Intratrek Zimbabwe and its director, Wicknell Chivayo of any criminal liability in the latter’s US$5,6 million fraud charge has been set for March 2 2020.
The fraud stemmed from the contract entered between Intratrek and Zimbabwe Power Company (ZPC) five years ago.
Hodzi was given the green light to contest a High Court judgment in July last year and the case was set to be heard Monday.
It was however postponed at National Prosecuting Authority (NPA)’s instance.
“Kindly take note that the hearing of this matter has been moved to March 2020 at 9:30 am. We apologise for any inconvenience caused,” wrote NPA to Manase’s lawyers Advocates Lewis Uriri and Sylvester Hashiti instructed by Wilson Manase of Manase and Partners.
Chivayo was facing three counts of fraud, while the other two counts of breaching Exchange Control regulations suffered a stillbirth, shortly before the trial commenced.
It was also the court’s finding that considering the circumstances of Chivayo’s case, allowing prosecution or at worst his conviction would amount to violation of Section 42 of the Constitution, which provides protection upon the doctrine of sanctity of contracts while the judgment underscored that criminal sanctions would not apply in inherently civil cases as the present.
Chivayo had in the lower court attempted to quash the charges through an application for exception, but this was thrown out by magistrate Lazini Ncube, presiding over the trial.
This prompted Chivayo to challenge the decision at the High Court, seeking a review of the lower court’s proceedings after which Justice Owen Tagu ruled that the decision of the lower court in dismissing his application for exception was defective as the facts could not sustain a criminal suit.
Tagu cleared Chivayo of any wrongdoing and threw out the State’s case for lack of merit.
In his ruling, Tagu noted that in the civil suit in which Chivayo won against ZPC, the complainant denied ever instituting criminal suit against the businessman and his company.
He said it is a pinnacle of criminal procedure that for a person to be competently charged and tried of a criminal offence, there should be a person (natural or juristic) who should complain of a criminal conduct of the accused.
Tagu also noted that two different judges of the same court in separate sittings and dealing with different issues, but relating to a similar cause of action concurred on the lack of merit in the criminal case.
“This was no coincidence,” said the judge.
He said the charges, which arose from a civil dispute and incapable of being resolved through the criminal justice system, were contrived and properly excepted to.
The judge also ruled that if the courts allowed such prosecutions to occur in this country, no investor would open themselves to the extreme exigencies of having the fate of their investment determined by a criminal court where, inter alia, the standard of evidence should be beyond reasonable doubt.
Hodzi then approached the Supreme Court to appeal against the judgement.