Chivayo walks free over $5,6m fraud case

INTRATREK managing director Wicknell Chivayo was yesterday absolved of any criminal liability in the $5,6 million fraud charge involving the Zimbabwe Power Company’s (ZPC) Gwanda solar project deal.

Chivayo was on trial facing three counts of fraud while the other two counts of breaching the Exchange Control regulations suffered a stillbirth, shortly before the trial commenced.

It was also the court’s finding that considering the curcumstanes of Chivayo’s case, allowing prosecution or at worst his conviction would amount to violation of Section 42 of the Constitution, which provides protection upon the doctrine of sanctity of contracts while the judgment underscored that criminal sanctions would not apply in inherently civil cases as the present.

Chivayo had in the lower court attempted to quash the charges through an application for exception but this was thrown out by magistrate Mr Lazini Ncube, presiding over the trial.

This prompted Chivayo, who was being represented by Advocate Lewis Uriri instructed by Mr Wilson Manase, to challenge the decision at the High Court, seeking a review of the lower court’s proceedings.

Justice Owen Tagu ruled that the decision of the lower court in dismissing Chivayo’s application for exception in November last year, was defective as the facts could not sustain a criminal suit.

He cleared Chivayo of any wrong doing and threw out the State’s case for want of merit.

“It is ordered that the second respondent’s ruling of 19 November 2018 in case Number CRB p91145/18 be and is hereby set aside. In the result the exception succeeds. The charges be and are hereby quashed. Consequent to the accused’s plea, both accused be and are hereby acquitted”.

In his ruling, Justice Tagu noted that in the civil suit in which Chivayo won against ZPC, the complainant denied ever instituting criminal suit against the businessman and his company.

He said it is a pinnacle of criminal procedure that for a person to be competently charged and tried of a criminal offence, there should be a person (natural or juristic) who should complain of a criminal conduct of the accused.