The trial of Intratrek managing director Mr Wicknell Chivayo on a criminal fraud charge of US$5,6 million fraud involving Zimbabwe Power Company’s Gwanda solar project, will now proceed after the Supreme Court yesterday reversed his acquittal by the High Court..
The National Prosecuting Authority yesterday won its appeal to prosecute.
The prosecution had appealed against the High Court decision absolving Chivayo and his company of any criminal liability in the botched multimillion dollar deal with the power company.
Chivayo was facing three counts of fraud when High Court Judge Justice Owen Tagu cleared him of all the charges in July 2018 ruling that it was a civil matter rather than a criminal case.
The Prosecutor-General took the matter up to the Supreme Court on appeal and a three-judge panel comprising Deputy Chief Justice Elizabeth Gwaunza, Justice Rita Makarau and Justice Susan Mavangira yesterday unanimously allowed the appeal.
Writing the judgment for the three, Justice Makarau said the High Court erred in interfering with the unterminated criminal proceedings before the trial magistrate Mr Lazini Ncube and ruled that the fraud trial could now proceed.
Granting the application for review by Chivayo at the High Court, Justice Tagu ruled that the decision of the trial court in dismissing Chivayo’s application for exception in November last 2018, was defective as the facts could not sustain a criminal suit.
He added that allowing the businessman’s prosecution, or at worst his conviction, would amount to violation of the constitution, which provides protection upon the doctrine of sanctity of contracts. His judgement underscored that criminal sanctions would not apply in inherently civil cases.
Chivayo had in the lower court attempted to quash the charges through an application for exception, but this was thrown out by the trail court.
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. Ms Sharon Fero and Mr Zivanai Macharaga appeared for the State.