DRAX International representative Delish Nguwaya, who has been languishing in remand prison since his arrest last month on allegations of defrauding the government in a US$60 million drug supply deal, was yesterday released on $50 000 bail after the High Court ruled that he played no major role warranting incarceration.
BY CHARLES LAITON
High Court judge Justice Pisirayi Kwenda made the remarks in a judgment released a week after Nguwaya approached the High Court challenging the magistrate’s decision to deny him freedom on allegations of having misrepresented to government.
The judge said Nguwaya was just a businessman who could not be held accountable for the ills that were conducted by government officials.
He said when his offer for due diligence in the drug supply deal was presented, “the State officials packaged it as a ‘loan facility’ for the ‘funding of the health sector development’, whereas the company (Drax International) was not offering financial assistance but to sell medicines which would and did result, in the disbursement of US$2 million by the Zimbabwean Treasury”.
“In that event, the procurement may have been tainted. It is such deception or conduct short of the transparency required in administering public funds which would be of concern to the Anti-Corruption Court. The duty to safeguard public funds and property is bestowed on government agencies/employees,” Justice Kwenda said.
“However, the appellant (Nguwaya) had no role to play in that apparent deception or in administration of public funds. The appellant was not part of the procurement process undertaken by the State officials. The appellant is charged with fraud and its seriousness should be assessed based on the extent of the alleged potential or actual prejudice occasioned by the misrepresentation attributed to him.”
The judge further said Nguwaya was alleged to have misrepresented that the Drax Consult SAGL and Drax International LLC were medical drug manufacturers, thereby inducing State officials to contract his companies to the prejudice of good governance.
However, the judge said exaggerated marketing/business talk commonly referred to as “puffery”, was in a way misrepresentation but a person who engages in exaggerated business talk would only be guilty of fraud if the other party acted on the misrepresentation to his/her/its prejudice.
“It is not the State’s case that the appellant actions caused financial prejudice. If there was any other form of deception which resulted in financial prejudice, then that could only have been as a result of a flawed procurement process.
“The appellant is not a State official. The fact that the medicines were overpriced should have been picked by the State officials during due diligence or a competitive bidding process,” the judge said.
The judge added: “The financial prejudice ensuing from lack of diligence could not be blamed on the appellant but, perhaps, on the persons who procured on behalf of the State. This court and the court a quo have no authority to prosecute or investigate crime.
“The courts only deal with the charge(s) before them. It is up to the Prosecutor-General to direct the ZRP (Zimbabwe Republic Police) to investigate or the Zimbabwe Anti-Corruption Commission to investigate any other anomalies that may be affecting the procurement.”
As part of his bail conditions, Nguwaya was ordered to reside at his given address in Harare until his trial is concluded, not interfere with State witnesses, surrender all his travel documents to the clerk of court at Harare Magistrates Court and to provide surety in the form of his immovable property ordinarily known as 148 Mt Hampden, Harare and the title deed duly registered in his name.