Wicknell Chivayo Escapes Jail
Harare regional magistrate Mr Ngoni Nduna yesterday acquitted businessman Mr Wicknell Chivayo and his company, Intratrek Zimbabwe, on allegations of bribing ex-Zimbabwe Power Company board chairperson Stanley Kazhanje with US$10 000.
The State had said the money was meant to influence awarding of the Gwanda Solar Project tender, but Mr Nduna said no evidence was placed before the court to show that the money was paid following some illicit agreements.
Mr Nduna, who described the bribery charges as poorly framed and failing to reveal any extended favour, discharged Mr Chivayo and his company at the close of the State’s case.
This was after Mr Chivayo and Intratrek applied for discharge after the State led all its witnesses, arguing that there was no evidence that warranted their conviction.
Said Mr Nduna is his ruling: “I would make a passing comment on the charge as framed. It is poorly framed. It can be seen that the charge does not reveal the said favours allegedly advanced to accused 1 (Mr Chivayo) and 2 (Intratrek Zimbabwe) as intended by the alleged inducement.”
Mr Nduna said the State was supposed to be clear on actions that Mr Chivayo and his company were said to have committed on the offence.
He said it was agreed that Mr Chivayo and Intratrek were into business and participated in the tenders for the Gwanda Solar project and won.
“The bid had certain conditions which were supposed to be met before they advanced any money,” said Mr Nduna.
“Money was paid before the said conditions were fully met.
“Mr Kazhanje was a board member, its chairperson at the time the payment of US$10 000 was made to his account by the accused persons. Mr Kazhanje had done some consultancy work on the Gwanda Solar Project before becoming the board chair of ZPC.
“When issues to do with the Gwanda Solar Project came to the board, Mr Kazhanje did not declare his prior dealings with the two accused persons.”
“Having stated the issues that are common cause between the parties, it is important to then look at the point of divergence.
“The State now says the US$10 000 payment was a bribe for the two to get favours in their relationship with ZPC. No direct evidence was placed before the court to show that the money followed some illicit agreement between the accused persons (Mr Chivayo and Intratrek) and Mr Kazhanje.”
Mr Nduna said one of the ZPC board members told the court that they were not responsible for awarding tenders.
“The totality of the evidence is that the Board of Directors was not responsible for the conclusion of the tender which awarded the two accused persons the contract,” he said.
“Their evidence is that the contract was handed over to ZPC by the State Procurement Board. They again say the contract was signed by management and the board had no input into that.”
Mr Nduna said evidence placed before the court proved that the ZPC board was not involved in the tendering decision.
“That was a decision made by the management of ZPC,” he said.
Mr Nduna said it would be wrong for the State to infer that the US$10 000 made by Mr Chivayo and Intratrek to Mr Kazhanje should be viewed as a bribe under the circumstances.
“It would be wrong for the State that an inference must be drawn that the US$10 000 made by the accused persons to Mr Kazhanje should be viewed as a bribe,” he said.
“The decisions being fouled were not made by the recipient of the alleged bribe and there is no evidence that Mr Kazhanje influenced the decision.
“We have direct evidence of what transpired, hence there is no reason to draw conclusions by inference. It would have been different had the impugned decision been made by Mr Kazhanje’s board.”
Mr Nduna said it was adequately proven in court that Mr Kazhanje performed some consultancy work for Mr Chivayo and Intratrek Zimbabwe and the work could not have been done for free.
“The State has shown no evidence at all that no legitimate work had been previously done by Mr Kazhanje to the accused persons,” he said.
“The claim that consultancy work was done and the payment was for that job has not been disputed by tendering any evidence to the contrary.
“Further to that, as stated elsewhere in this ruling: Mr Kazhanje did not make any decision as the decision was made by management of ZPC. It is clear that the two essential elements of the offence have not been established by the time the State closed its case.”
Speaking after Mr Chivayo’s acquittal, Intratrek Zimbabwe company secretary and lawyer Mr Wilson Manase said their focus was now on full execution of the Gwanda Solar Project.
“We are now shifting all our focus from this unwarranted setback to full execution of the Gwanda Solar Project,” he said.
“The court case was an albatross to the implementation of the project. The case having been now finally settled by the courts, we reaffirm our readiness to sign the amended and restated EPC contract necessary to pave the way for implementation of the project.”
“The Gwanda project remains of national importance as seen by Cabinet’s resolution in June to underwrite and guarantee it’s execution.”