Businessperson Wicknell Chivayo has been acquitted together with his company Intratrek Zimbabwe (Private) Limited of misappropriating US$5,6 million for the abortive 100MW Gwanda Solar Project after Harare Magistrates Court agreed that there had been an unreasonable delay in the prosecution.
Harare magistrate Mr Lazini Ncube cleared Chivayo and his company after he upheld their application for refusal of further remand and their request for a not guilty verdict after noting that the State had "unreasonably delayed its prosecution."
In the application prepared by Advocate Sylvester Hashiti and Advocate Lewis Uriri, Chivayo and his company had argued that it had been close to eight months after the State had summoned them back to court without any trial.
Chivayo and his company had also argued that there was no point in them continuing to attend court without progress in their trial.
The State led by Mr Tafara Chirambira and Mrs Tendai Shonhai had opposed the application saying they wanted two weeks to allow them to respond to the application.
They told the court that they were waiting for a response from former Energy Minister Fortune Chasi for them to make an informed response.
Magistrate Ncube ruled that the State had ample time to engage Mr Chasi before summoning Chivayo and his company back to court for trial.
He said although part of the delay in prosecuting the matter could be attributed to Chivayo, the State shoulders a better chunk of the reasons for failing to prosecute the matter in time.
Chivayo and his company were initially charged with four counts of fraud, money laundering, and violation of exchange control regulations upon his arrest.
The money laundering and exchange control charges were quashed after the court upheld his applications for exception. Chivayo was then left with the two counts of fraud that he was cleared of yesterday.
He was alleged to have failed to fulfil contractual obligations of the 100MW Gwanda Solar project, defrauding Zimbabwe Power Company, a Zesa subsidiary, in the process.
According to letters addressed to the prosecution Intratrek Zimbabwe indicated that between 2016 and 2019 it executed pre-commencement of works as agreed with ZPC under Schedule 11 of the Engineering Procurement and Construction contract.
Intratrek Zimbabwe also indicated that it used US$5 811 224 paid by ZPC towards the project.
The company claimed that the amount was five percent of the overall contract price which was pegged at US$172 848 597,60.
On June 30 last year, the Cabinet pronounced that the contract between Intratrek Zimbabwe and ZPC was still valid and was supposed to be put into effect.
In the letters addressed to the prosecution, Chivayo and his company attached a report on the valuation of the pre-commencement works jointly carried out and ratified by Zimbabwe Power Company and Intratrek on July 13, 2020.
The evaluation report said that they had not only discharged their contractual mandate in full with respect to the pre-commencement works, but went further to use their own resources to complete some of the required works.
Chivayo and his company claimed that ZPC actually owed Intratrek and Chivayo, as of July 13, 2020 US$609 693,87 arising from works which have been "over delivered."
He said the acceptance by ZPC that Intratrek Zimbabwe "over delivered" its obligations in accordance with the engineering procurement and construction contract and that it used the advance payment for pre-commencement activities cast no doubt that no one was defrauded.