Jailed businessmen Moses Mpofu and Mike Chimombe Wednesday claimed that there are external forces behind their prosecution which has seen them stay in jail for months.
The two said this when their trial commenced before High Court judge, Justice Pisirayi Kwenda amid tensions which resulted in the judge threatening to take action against Mpofu's lawyer Tapson Dzvetero who had insisted on amending his client's defense outline to include constitutional matters and other issues which arose just before trial commencement.
The judge in many instances reminded the lawyer that he was the one in charge of the proceedings.
Mpofu denied the charges against him with his lawyer noting that he wants the matter referred to the Constitutional Court.
He said he wants to challenge the correctness of the Magistrates Court's decision relating to his liberty and bail and to equal protection and benefit of the law.
He also wants the court to determine "whether these charges in so far as they relate to the failure to supply goats as per the contract with the ministry amounts to violation of his rights not to be imprisoned on the ground of inability to fulfil a contractual obligation as provided for under section 49 (2) of the Constitution."
He feels he is being punished by people who believe he leaked controversial businessman Wicknell Chivayo's voice messages. In the audios, Chivayo fingered President Emmerson Mnangagwa in his expansive and shadowy dealings that included millions paid for printing and delivery of last year's voting material.
Mpofu wants the Constitutional Court to determine "whether his selective prosecution in respect of these cherry-picked charges not being instigated in the quest of justice but a punishment being meted out wrongly on the accused by certain individuals who believe incorrectly that the accused is responsible for leaking certain texts, audios, pictures and videos wherein one Wicknell Chivhayo is seen and heard discussing how he intended to bribe certain government officials and the total disregard of other charges on the basis upon which the current charges were instigated amounts to a violation of his right to equal protection and benefit of the laws enshrined in section 56 (1) of the Constitution of Zimbabwe," he said.
Mpofu said he never made any misrepresentations to the ministry.
"He neither made any misrepresentation personally nor in common purpose with anyone to Ministry of Lands, Agriculture, Water, Fisheries and Rural Development, he never haboured any intention to deceive the said Ministry nor did he ever realize that there was real risk or possibility of deceiving it or to cause the Ministry to act upon any such alleged misrepresentation to the prejudice of the Ministry.
"He denies ever making any misrepresentation to the Ministry of Lands, Agriculture, Water, Fisheries and Rural Development in any tender documents.
"He never made any representations to the effect that a company called Blackdeck Livestock Poultry and Farming was a registered company in Zimbabwe with a valid Tax Clearance Certificate and a valid NSSA compliance certificate," Dzvetero.
In his defense, Chimombe said he had nothing to do with Black Deck.
"He never made a misrepresentation to the ministry on any of the essential facts as outlined in the state case," his lawyer Ashiel Mugiya said.
Chimombe said he does not know why he was dragged to court because there is no evidence linking him to the alleged offense.
"Chimombe will say that the doctrine of common purpose which the State seeks to invoke in attaching liability to him does not apply in the circumstances, the state has not shown how he is associated with the alleged forged documents, it has not shown how he is associated with the Bid submitted by Black deck (Pvt) Ltd or by the alleged unregistered entity, there is no connection between his actions and that of his alleged accomplice between the time that the bid documents were prepared and the time upon which the contract was then effectively entered into.
"Under the doctrine of common purpose it is not enough to simply allege in state papers both charge shit and summary of the state case that both accused person in connivance did this, it must be clear from the onset what each accused person did, it must be clear that the foot prints of each and one of them can be ascertained from the whole crime scene or plot and it must be made clear that each accused person was aware of what the other one was doing in order to achieve their common objective it is only under these circumstances that the doctrine can be applied.
Mugiya said Chimombe has no knowledge on how Black deck (Pvt) Ltd prepared its documents drew then up and submitted the bid, he has no knowledge on how the contract between the Ministry of Lands and Blackdeck.
"He was nowhere near when the agreement was entered into, he was not present when the goats were supplied to the Ministry by Black deck (Pvt) Itd, he never received any money from Black deck (Pvt) Itd which were party of the proceeds from what was paid by the Ministry.
"The only time that he recalls is when he attended a meeting at the Ministry of Lands after a dispute had already arisen between Blackdeck (Pvt) Ltd and the Ministry he did so in his capacity as the Chairperson of a local pressure group called Economic Empowerment Group (EEG) which advocates for amongst other things that governments prioritize local companies wl̸ entering into agreements for the supply of good and services.
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"The meeting was way after the alleged offense had been committed and he was simply trying in that capacity for the two parties to find each other," Mugiya said.
Lovemore Madhuku who is taking instructions from Mugiya told the judge that they were not happy with the composition of the bench.
"We cannot go into a trial before a thing which is not a court. We certainly wish to challenge the composition of the bench.
"We will only plead so that we can start. But we take the view that in terms of the Constitution the position that the mandatory age of the judge should be 70. If it applies to judge it surely applies to assessors.
"This is an important criminal trial and it should start correctly," said Madhuku.
Court is expected to deal with the Constitutional issues during the next two before a determination is made on whether trial should proceed or be reffered to the Constitutional Court.
Witness Mabhaudhu is representing the State.
