HARARE – Wicknell Chivayo is the victim of malicious prosecution, a High Court judge ruled on Friday as he threw out fraud charges against the Harare businessman involving $5,6 million.

Justice Owen Tagu said the criminal charges against Chivayo were a “high sounding nothing” because at the heart of the matter was a civil dispute which should have never been taken to a criminal court.

Chivayo was on trial at the Harare Magistrates Court over a long delayed solar power project in Gwanda, Matabeleland South. The Zimbabwe Power Company (ZPC) accused the businessman of defrauding it after it released $5,6 million for pre-commencement works on a $200 million tender to deliver 100 megawatts of electricity, money which it said quickly vanished into the businessman’s many accounts without much work being carried out on site.

Chivayo faced charges of contravening sections of the Money Laundering and Proceeds of Crime Act and the Exchange Control Act.

His lawyer, Advocate Lewis Uriri, applied for an exception to the charges at the High Court after a magistrate declined to grant their application.

Justice Tagu, in a ruling made available on Friday, said the ZPC could have sued Chivayo for breach of contract in the civil court, if that was the case.

“The charges against the appellant as revealed by the facts are undoubtedly contrived and were properly excepted to. The relationship between the complaint and both applicants is contractual and therefore any remedy for a dispute arising therefrom should be civil and in terms of the contract,” Justice Tagu said.

The case, “apart from being suggestive of a skirmish, a mere witch hunt and a fishing expedition, tells more of a hidden hand or mala fides intention in the institution of the criminal proceedings brought about by the State in the circumstances.”

The judge noted that two other High Court judges had dealt with matters arising from Chivayo’s trial in separate sittings and both took the view that the criminal case could not be sustained. This, he said, was no coincidence.

“Rather, it demonstrates the extent of common acceptance that the criminal case is at best a causa non grata, a high sounding nothing,” the judge said in a 21-page judgment.

Chivayo, speaking after the ruling, apologised to the country for delays in the project, partly blaming the criminal proceedings.

Intratek Zimbabwe, his company which won the tender, will now proceed to work on the project in fulfilment of its contract with ZPC, he said.