BY XOLISANI NCUBE
HIGH Court judge Justice Owen Tagu yesterday acquitted businessman Wicknell Chivayo on a $5,6 million fraud charge that emanated from a botched Zimbabwe Power Company (ZPC) solar project deal.
Justice Tagu yesterday ruled that the charges against Chivayo were driven by malice and any dispute between the power utility and the businessman could be dealt with through civil litigation and not the criminal route that had been undertaken by the State.
“The charges against the appellant, as revealed by the facts, are undoubtedly contrived and were properly excepted to. The relationship between the complaint and both applicants is contractual and, therefore, any remedy for a dispute arising there from should be civil and in terms of the contract,” the judge ruled.
The decision by the High Court judge comes as another judge, Justice Joseph Musakwa, had ruled that the businessman should face three other counts of fraud after he dismissed the case involving money-laundering.
But Justice Tagu said he was not blind to that ruling, but the decision was “his prima facia opinion, which are not binding on this court having heard the full submissions and read the papers presented before me”.
“Apart from being suggestive of a skirmish, a mere witch-hunt and a fishing expedition, tells more of a hidden hand or mala fides intention in the institution of the criminal proceedings brought about by the state in the circumstances,” Tagu ruled.
Chivayo and his Intratrek company were facing charges of defrauding ZPC of over $5,6 million he received for the Gwanda solar project.
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The judge said it was improbable that Chivayo, who was represented by Advocate Lewis Uriri, would be convicted by any reasonable court given the facts availed before him.
It was the State’s case that Intratrek Zimbabwe, was fraudulently advanced $5 607 814,24 by ZPC following a directive from former Energy and Power Development minister Samuel Undenge.
The businessman approached the higher court challenging the magistrates’ court decision to dismiss his application for exception of charges on the grounds that they did not disclose an offence.
Contacted for comment after the High Court decision, Chivayo said: “We would like to take this opportunity to sincerely apologise to the first citizen His Excellency, the President of the Republic of Zimbabwe, The Minister of Energy, The Prosecutor-General, ZPC and the nation as a whole for the delayed implementation of this solar project of national importance. With this development, we remain committed to execute the project and feed in 100 megawatts of clean energy into the national grid within the shortest possible time.”
