BY XOLISANI NCUBE
The Supreme Court has permitted prosecutors who are fighting the acquittal of Wicknell Chivayo to file their papers and that they have to pay the businessman’s legal fees.
Justice Bharat Patel ordered that the prosecutor-general Kumbirai Hodzi pays legal fees incurred by Chivayo while permitting the State to file its appeal after an initial attempt was adjudged to be faulty and wrongly done.
According to the order issued yesterday, Justice Patel ordered Hodzi to pay Chivayo legal fees by May 31 or face consequences.
“The application for condonation for non-compliance with the Supreme Court rules 2018 as read with the High Court rules 1971 be and is hereby granted. The applicants (prosecutor-general) shall pay the costs of this application on the ordinary scale by not later than 4:00pm on the 31 of May 2019,” Justice Patel ruled.
The appeal comes after the High Court freed Chivayo on allegations of defrauding the Zimbabwe Power Company of $5,6 million in a solar project.
The State represented by Sharon Fero and Zivanai Macharaga filed an appeal against the High Court decision to free Chivayo, but their papers and approach to the courts was described a childish by the Supreme Court judge, who had no kind words for the State lawyers.
High Court judge Justice Owen Tagu had in March ruled that the charges against Chivayo “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”.
Chivayo and his company, Intratrek were facing charges of defrauding ZPC of over $5,6 million he received for the Gwanda solar project.
But the High Court ruled that the allegations were driven by malice.
“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,” Justice Tagu ruled.
The judge said under whatever circumstances, it was improbable that Chivayo, would be convicted by any reasonable court given the facts availed before him.
The State now wants the last court of appeal to overturn such a ruling and this will come with a cost on them for their shoddy job.
“In the event that the applicant (prosecutor General) fails to comply with paragraph 4 (pay Chivayo legal fees) above, the respondent (Chivayo) be and hereby given leave to proceed against the applicant by way of proceedings for contempt of court,” the judge ruled.