HARARE – Defence lawyers traded barbs with a judge at the Harare High Court on Wednesday as the corruption trial of business partners Mike Chimombe and Moses Mpofu got underway.
The two businessmen are accused of forging papers to win a US$7 million tender to supply goats to the ministry of lands and agriculture. They deny the charges.
Justice Pisirayi Kwenda appeared keen to move proceedings along as the trial got underway, but defence lawyers immediately raised objections about the composition of the court over the advanced ages of the two assessors.
Tapson Dzvetero, for Mpofu, and the pair of Prof Lovemore Madhuku and Norman Mugiya for Chimombe also said there were constitutional issues arising from the duo’s arrest which required ventilation at the Constitutional Court before the trial commenced.
Justice Kwenda said the issues about the composition of the court and infringement of rights at the time of arrest should have been included in the defence outlines prior to the trial.
“You don’t just take the court by surprise,” Kwenda quipped.
Witness Mabhaudhi, for the National Prosecuting Authority, said the prosecution should have been given notice of the new defence outline.
“There is no indication of when they got to know about those constitutional issues,” he said.
Dzetero said in response: “Upon learning that one of the initial assessors had been replaced, we realised there was need to raise our concerns.”
Justice Kwenda said the court cannot stray from the lawful procedure and the case should “flow as expected at law.”
The judge ordered Dzvetero to read his client’s defence outline.
“The first accused (Mpofu) would object to the reading of his defence outline as it is because I would need to amend it as it does not outline his entire defence due to the matter that has arisen,” said Dzvetero.
“You should not vent your frustration on me,” said the judge. “It is my first time I have seen an officer of the court objecting to court’s instructions. We don’t want to hear anything other than his defence.
“If you continue disrupting proceedings we might take corrective procedures. I’m in charge of these proceedings. The defence outline is already before us and the law says whatever is on paper should be read so that the electronics can capture it. I don’t know why you are inhibiting progress.”
Justice Kwenda objected when Dzvetero asked to consult Mpofu, prompting the lawyer to begin reading their defence outline as amended.
“The first accused person pleads not guilty to the charge,” the lawyer said.
Mpofu will challenge the “legality, regularity and constitutionality of his detention, continued detention and prosecution; he will also challenge the constitutional validity of certain provisions of the Criminal Procedure and Evidence Act and a permanent stay of this prosecution is also being sought,” Dzvetero said.
Some of the issues the lawyer said the Constitutional Court should examine is whether the decision to hold Mpofu and Chimombe without bail, after they voluntarily attended court, amounts to a violation of the rights of accused persons and their right to be heard before any adverse decision is made.
They also want the apex court to determine if the refusal by the High Court to hear their bail appeal on the basis that the appeal was moot amounts to a violation of their rights to equal protection and benefit of the law.
Turning to Mpofu’s substantive defence, the lawyer said the issue was a civil matter following a contractual disagreement between his company Blackdeck (Pvt) Ltd and the ministry of lands and agriculture.
“He denies ever making any misrepresentation to the ministry of lands in any tender documents… Personally he never presented any bidding documents to the ministry. He did not commit any fraud as alleged. The state is put to the strictest proof,” Dzvetero said.
Mpofu will state that while he is a director of Blackdeck (Pvt) Ltd, “he is not solely in control of the company alone. Rather, there are other directors and shareholders who make decisions collectively in the interests of the company.”
The prosecution case rests on tender documents submitted to the ministry for the winning bid, which carried forged ZIMRA and NSSA certificates.
Mpofu “was never the custodian and of the alleged forged documents,” his lawyer said.
“He did not participate in the compiling and submission of the bidding documents,” said Dzvetero.
Mpofu will further argue that to his knowledge “Blackdeck (Pvt) Ltd did not misrepresent that it had capacity to supply 6,320,011 goats because it has the capacity, notwithstanding the cancellation of the contract.”
“The unlawful and improper cancellation of the contract by the ministry of lands shows that this matter is a contractual dispute. He will state that the state has not yet exhausted all remedies available to it in terms of the contract. The ministry of lands has not even pursued the recovery of any money from the guarantor since there is a guarantee. Resorting to criminal procedures against Mpofu is wrong, misplaced and unfounded,” the lawyer said.
“There is a third hand or interested parties who are prosecuting him for ulterior motives.”
Mpofu’s lawyer argues that the Zimbabwe Anti-Corruption Commission reacted to social media posts and acted upon them, when there was no complaint from the ministry.
Prof Madhuku said Chimombe had similar constitutional issues to raise as Mpofu.
“The view of the second accused is that he is not before the High Court sitting as a criminal court. Although we have pleaded, this in our view is a serious breach of the law. We cannot go into a trial before a thing which is not a court. We certainly wish to challenge the composition of the bench,” Prof Madhuku said.
“We will only plead so that we can start. But we take the view that in terms of the constitution, the position is that the mandatory age of the judge should be 70. If it applies to judge, it surely applies to assessors [who are above 70].
“There was also a change which was announced in the morning that the assessor who was sitting yesterday is not the one who is sitting today. This is an important criminal trial and it should start correctly.”
Mugiya said Chimombe, who is not a Blackdeck director, has no knowledge how the company drafted documents for the tender and how the agreement was made.
“He never received any money from Blackdeck from what was part of the proceeds paid by the ministry,” Mugiya said.
Chimombe, according to the lawyer, only got involved in the matter as a member of a pressure group Economic Empowerment Group after a dispute had arisen between Blackdeck and the ministry.
“The meeting was way after the alleged offence had been committed and he was simply trying in that capacity for the two parties to find each other,” Mugiya said.
“The accused will further bring it to the attention of the court that he is a director and a shareholder of Millytake Enterprises (Pvt) Ltd and the company responded to the invitation for bids and competed in the bidding process but lost. He therefore could never have advanced the interests of a competitor by helping Blackdeck (Pvt) Ltd in preparation of its bids or to negotiate for the contract.”
It was only after Blackdeck won the tender that it approached Millytake Enterprises, among other companies, to supply it with goats which it readily had.
“This arrangement had nothing to do with the contract between Blackdeck (Pvt) Ltd and the ministry of lands,” Mugiya said.
Chimombe’s lawyer says they are also contesting the decision by the prosecution to withdraw consent for bail under pressure from the ZAAC.
“There has been some interference from some forces. Some very powerful,” the lawyer said.
The two men say their legal troubles began when audios circulated online which appeared to suggest that ex-convict businessman Wicknell Chivayo had bribed senior government officials to win election-related tenders worth over US$100 million. They say Chivayo and his powerful supporters, believing Mpofu and Chimombe leaked the audios, caused their arrest and subsequent denial of bail as “punishment.”
The trial continues on Thursday.
