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The National Prosecuting Authority (NPA) is studying the judgment in which former ZESA Holdings group chief executive Joshua Chifamba was acquitted of criminal abuse of office without having to present his defence after the High Court overturned a decision by the lower court to put him on his defence.
Mr Chifamba was jointly charged with former Energy and Power Development Minister Elton Mangoma and Zesa Enterprise managing director Tererai Luis Mutasa for engaging a South Korean electricity company in a local project without Treasury and board approval.
Mr Chifamba, who was being represented by lawyer Admire Rubaya, was acquitted at the High Court after he sought a review of the trial court’s decision to dismiss his application for discharge at the close of the State’s case.
The State can still appeal to the Supreme Court if there are grounds to dispute the High Court decision.
Deputy Prosecutor-General Mr Nelson Mutsonziwa said the prosecution was studying the judgment to see if there are grounds for appeal.
“If we find good grounds, we will certainly appeal,” he said.
In his application for discharge at the close of the State’s case in the magistrates court Mr Chifamba, through his lawyer Rubaya argued that the State had failed to establish a prima facie against him.
Mr Chifamba also submitted that Zesa Enterprises was not a procurement entity and it was not a statutory corporation.
He argued that it was not a legal requirement to go to tender before the partnership agreement between Techpro and Zesa Enterprises was entered into.
Thus no one acted in a way that was contrary to or inconsistent with their duties by engaging the South Korean company without going to tender.
High Court judge Justice Benjamin Chikowero ruled that the trial magistrate Mr Mapfumo erred when he rejected Mr Chifamba’s argument.
Zesa Enterprises (Pvt) Ltd, said the judge, was not a procuring entity, was not listed in the schedule to the Procurement Regulations and the State could not produce evidence that it had been added to the list before 24 October 2011.
“The State’s view that Zesa Enterprises is a successor company is misplaced. It is therefore not a statutory board so at the signing of the agreement with Techpro ZENT was not a procurement entity to which the provisions of Procurement Act and Regulations apply,” he said.
Justice Chikowero in his ruling also said the procurement regulation can only be violated by a procuring entity and its employees who are officers. But since the company was not a procuring entity there was no way Chifamba, Mangoma and Mutasa could have violated the regulations.
Justice Chikowero noted that the State alleged that Chifamba, Mangoma and Mutasa violated a board resolution by not going to tender, but there was no board member who testified in court to that effect.