BY DESMOND CHINGARANDE
CONTROVERSIAL businessman Wicknell Chivhayo was on Wednesday acquitted of US$10 000 bribery allegations by Harare magistrate Ngoni Nduna who ruled that the State failed to prove a prima facie case against him.
Chivhayo, and his company Intratek (Pvt) Ltd were on trial for allegedly paying a bribe of US$10 000 to former Zimbabwe Power Company (ZPC) board chairperson Stanley Kazhanje in order to get awarded the US$100 million Gwanda Solar project tender.
In his ruling on Wednesday, Nduna said the State failed to prove that the money paid to Kazhanje was a bribe.
“I have no doubt that an accused person (whether or not he is represented) is entitled to be discharged at the close of the case for the prosecution if there is no possibility of a conviction other than if he enters the witness box and incriminates himself. The failure to discharge an accused in those circumstances, if necessary mero motu, is in my view a breach of the rights that are guaranteed by the Constitution, and will ordinarily vitiate a conviction based exclusively upon his self-incriminatory evidence, “Nduna said.
“Accordingly, it is ordered as follows that the State is found to have failed to establish a prima facie case against both accused persons. They are both found not guilty and acquitted,” he said.
Nduna said Chivhayo participated in a tender and won. He said although Kazhanje was the ZPC board person, the State failed to prove that he influenced the awarding of the tender since he did not share the US$10 000 with other board members.
“The starting point after having stated the law is to look at the essential elements of the offence. It is that which the accused persons claim was not established by the evidence tendered by the state. The following are common cause. The two accused persons are into commerce and participated in the tenders for the Gwanda Solar Project. They won the bid.
“The bid had certain conditions which were supposed to be met before they are advanced any money. Money was paid before the said conditions were fully met. Kazhanje was a board member, its (ZPC) chairperson at the time the payment of USD 10 000 was made to his account by the accused persons. Kazhanje had done some consultancy work on the Gwanda Solar Project before becoming the board chair of ZPC,” Nduna said.
He said the accused persons in their defence outline stated that the payment was for past jobs done for them by the recipient.
“It was adequately given in evidence that Kazhanje did some consultancy work for the accused persons. That work could not have been done for free, “Nduna said.