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HHH136-11 - THE STATE vs ELTON MANGOMA

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Law of Contract-viz purchase and sale re procurement and tender iro section 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Law of Contract-viz purchase and sale re procurement and tender iro section 30 of the Procurement Act [Chapter 22:14].
Law of Contract-viz purchase and sale re procurement and tender iro section 35 of the Procurement Regulations, SI171 of 2002.
Law of Contract-viz purchase and sale re procurement and tender iro section 5 of the Procurement Regulations, S.I.171 of 2002.
Law of Contract-viz illegal agreements re criminal liability.
Law of Contract-viz illegal contracts re criminal liability iro justifiable criminal conduct.
Administrative Law-viz administrative directives.
Procedural Law-viz onus re burden of proof iro factual issues in doubt.
Procedural Law-viz onus re burden of proof iro issues of fact in doubt.

Contract Law re: Purchase and Sale iro Procurement and Tender


The accused is the Minister of Energy and Power Development. In the main Count he is charged with criminal abuse of duty as a public officer in contravention of section 174(10(a) as read with section 174(2) of the Criminal Law Codification and Reform Act [Chapter 9:23].

He is alleged, during the period extending from the beginning of January 2011 to 12 January 2011, to have intentionally directed the Acting Chief Executive Officer of Petrotrade, one Griefshaw Revanewako, to purchase five million litres of diesel from a South African company known as Nooa Petroleum (Pty) Ltd for the purpose of showing favour to Nooa Petroleum (Pty) Ltd.

In the alternative, and arising from the same facts, he is alleged to have unlawfully instructed Griefshaw Revanewako, the said Acting Chief Executive Officer of Petrotrade, to purchase the five million litres of diesel from Nooa Petroleum (Pty) Ltd without going to tender in contravention of section 30 of the Procurement Act [Chapter 22:14] as read with sections 5(4)(a)(ii) and section 35 of the Procurement Regulations, S.I.171 of 2002.

The facts giving rise to both charges are, to a large extent, common cause.

The undisputed facts are that during the period under review, the accused was the Minister of Energy and Power Development. In that capacity, he was responsible for overseeing the procurement of fuel in terms of the Procurement Act and Regulations. The procurement of petroleum products was done through the National Oil Company of Zimbabwe (NOCZIM) which in turn had Petrotrade as its special purpose vehicle for the importation of fuel.

Petrotrade was, however, not a recognized registered lawful procurement entity at the material time.

In the normal run of things, and all things being equal, section (30)(1) of the Procurement Act and Procurement Regulations prohibits and criminalizes any purchase of commodities in excess of fifty thousand dollars without going to tender.

Subsection (2) of the same section, however, permits the procurement of commodities in excess of the specified amounts without going to tender provided the procuring entity justifies, in writing, the need to purchase such commodities, including fuel, without going to tender. The section reads:

30 Form of procurement proceedings

(1) Except as otherwise provided in this Act, the procurement of -

(a) Goods or construction work by a procuring entity shall be done by means of tendering proceedings in accordance with section thirty-one;

(b) Services by a procuring entity shall be done by a method which complies with section thirty-two.

(2) Where, in accordance with this Act, a procuring entity adopts a method of procurement other than one specified in subsection (1), the procuring entity shall include, in the record of its proceedings, a statement of the grounds and circumstances on which it relied to justify the adoption of that method.”

It is clear from the provisions of section 30 of the Procurement Act that there are two lawful ways of procuring fuel in terms of the Procurement Act:

(i) The first mode of procurement is by going to tender in terms of subsection one.

(ii) The second mode is by purchasing fuel without going to tender in terms of sub-section two.

I now turn to apply the law to the facts of this case.

It is common cause, and a matter of established fact, that during the period in question there was an acute shortage of fuel in the country.

All the State witnesses, comprising Justine Mupamhanga, the Permanent Secretary in the Ministry of Energy and Power Development, Morgan Mudzinganyama, the Director Petroleum in the Ministry, Griefshaw Revanewako, the Acting Chief Executive of Petrotrade, Sikwila Tanaka, the Financial Manager at NOCZIM, and Charles Kawaza, the Chairman of the State Procurement Board all gave incontrovertible evidence to the effect, that, at the material time, the country was experiencing a critical shortage of diesel.

The accused, in his Defence Outline, stated, that, none of their traditional suppliers of fuel had any diesel for sale. The Permanent Secretary confirmed the accused's defence to that effect.

Under cross-examination he was asked:

“Q. Now, Mr. Mupamhanga, in your statement you accept that on or about 11th January 2011 there was a fuel crisis in the fuel sector in the country?

A. That is correct.

Q. How did that crisis come about?

A. That resulted from the difficulties at Beira which led to ships bringing fuel not being able to dock. A major reason, however, was that there was no fuel from our traditional suppliers.”

The admitted critical shortage of fuel on the market prompted the accused, in his capacity as Minister of Energy and Power Development, to write a letter, exhibit one, on 12 January 2011, authorizing the Acting Chief Executive Officer, Petrotrade to purchase fuel without going to tender in a bid to salvage the situation. The letter reads:

“Attention Eng. G Revanewako

AUTHORITY TO PURCHASE 5 MILLION LITRES GASOIL EX-TANK MATOLA FROM NOOA PETROLEUM WITHOUT GOING TO TENDER

Having assessed the fuel supply constrains the country is facing, I authorize that you procure 5 million litres of diesel, being the only fuel available from Nooa Petroleum in Matola at $0.88 per litre landed in Harare. The product should be shipped to cover Masvingo, Midlands, and Matabeleland Provinces which are more affected by the shortage of fuel. Part of the fuel should be swapped with fuel in the pipeline that is owned by oil companies on a litre for litre basis. This will facilitate quick release of product to these companies while at the same time speeding the availability of fuel on the market.

You are required to quickly implement these arrangements.

Signed E.S. Mangoma
(MP) MINISTRY OF ENERGY AND POWER DEVELOPMENT”

Virtually all the State witnesses confirmed, without exception, that, there was no fuel available from their traditional suppliers at the material time.

Whether or not the accused's conduct, in writing the above letter or directive, amounts to a criminal offence in the circumstances of this case depends on the interpretation of section 30(2) of the Procurement Act.

Mr. Kuwaza, as I have already pointed out, is the Executive Chairman of the State Procurement Board.

In his evidence in chief, he gave a comprehensive outline of his duties in this respect. His duties, among others, are to administer the Procurement Act. In that respect, he is responsible for investigating and taking appropriate action against irregular procurement of goods and services for the State in breach of the normal rules and regulations.

The witness gave a detailed explanation of the cumbersome procurement procedures by tender.

It was his testimony, that, if purchases are to be done through the normal tender procedures it takes no less than 30 days just to float the tender and further delays can be incurred through a system of appeals where one or more bidders are aggrieved by any particular award.

Before dollarisation, NOCZIM was experiencing problems in sourcing foreign currency for the procurement of fuel. As a result, in 2004, in a bid to avoid the inevitable delays occasioned by the cumbersome tender procedures and scarcity of foreign currency, it solicited for and was granted permission to procure fuel urgently without going through the normal tender procedures provided it submitted to the State Procurement Board a write-up justifying the need to procure fuel without going through the normal tender procedures.

As a result, NOCZIM was required to gazette an approved list of reputable foreign fuel suppliers from which it could purchase fuel without going through normal tender procedures.

The list was however not cast in stone as NOCZIM was free to update the list from time to time according to the prevailing circumstances.

NOCZIM did not, however, strictly adhere to this directive and would, from time to time, procure fuel from suppliers not on the approved gazetted list.

It is plain that the dispensation granted to NOCZIM, by the State Procurement Board, way back in 2004, accords with the provisions of section 30(2) of the Procurement Act.

It is clear that section 30(2) of the Procurement Act was meant to provide a safety valve to enable State procurement entities to procure commodities expeditiously for the benefit of the State, and the nation at large, in times of dire need and emergencies without following the cumbersome time-consuming normal tender procedures.

Whereas subsection one provides for the general rule, prohibiting procurement without going to tender, sub-section two provides for the exception which permits procurement without going to tender for good cause shown in writing.

The adage, that, for every general rule there is an exception, is therefore apt.

In crafting subsection two, the legislator had undoubtedly foreseen the cropping up of circumstances which may require the urgent purchasing of commodities without going to tender for the common good.

The accused appears to have fallen into trouble because he persisted in buying the fuel from Nooa Petroleum against the advice of his subordinates. This was compounded by the fact that Nooa Petroleum ended up rendering defective service through its agent, Mowhelere.

The mere fact that Nooa Petroleum, through Mowhelere, may have rendered defective service, cannot, however, without more, amount to criminal conduct on the part of the accused.

The advice given to the accused by his Permanent Secretary and Director Petroleum, to the effect, that, any purchases of fuel had to be done through the normal tender procedures, was incorrect and bad at law.

Both the accused and Mr. Kawaza, the Executive Chairman of the Procurement Board, were, however, aware of the provisions of section 30(2) of the Procurement Act. They were therefore aware of the correct legal position.

It is amazing that both the Permanent Secretary, who is responsible for overseeing the procurement of fuel, and the Acting Chief Executive Officer Petrotrade, responsible for procurement of fuel, were ignorant of this vital provision of the law meant to facilitate the procurement of fuel in times of emergency and dire need.

Upon being confronted with the provisions of section 30(2) of the Procurement Act, everyone concerned had no option but to confess, in open Court, that it was not per se unlawful to procure fuel without going to tender.

Thus, in ordering the Acting Chief Executive Officer Petrotrade to procure 5 million litres of diesel from Nooa Petroleum without going to tender, the accused was simply directing the officer to procure the diesel in terms of section 30(2) 0f the Procurement Act.

Once the Acting Chief Executive Officer had been directed, by the accused, to procure fuel without going to tender, it was incumbent upon him to provide the necessary write up to justify the procurement in terms of section 30(2) of the Procurement Act.

If any fault is to be found at all regarding the procurement of the fuel in question, the blame must be laid squarely at the door of the procurement entity for its failure to provide the necessary write-up according to law.

This explains the Chairman of the State Procurement Board, Mr. Kuwaza's attitude when he said, that, apart from what he read in the newspapers, he was not aware of any offence that the accused had committed.

He was, of course, correct in this respect.

Having regard to the provisions of section 30(2) of the Procurement Act, no reasonable Court, in my view, would come to the conclusion, that, by merely directing the Acting Chief Executive Officer to purchase fuel without going to tender, the accused was guilty of any criminal conduct.

Whether or not the accused was abusing his office as a public official when he directed his subordinate to buy fuel from Nooa Petroleum is determined by the motive and surrounding circumstances behind the order.

It is common cause, that, when the accused issued the directive, it was in times of extreme emergency. Strategic fuel reserves were down to less than a day's supply and there was no fuel from traditional suppliers. Queues were beginning to form at fuel outlets.

The situation called for extraordinary measures to avert the emergency.

The accused's motive was clearly to avert the situation which threatened the country with extreme shortage of fuel.

It is difficult to blame the accused for directing the purchase of fuel from Nooa Petroleum when it was the only supplier with fuel at that time.

There is also no logic in suggesting that the fuel was purchased at an exorbitant price in circumstances where there was only one supplier.

In any case, the evidence quite clearly establishes that no one was able to establish if fuel could be found at a cheaper price elsewhere on that day for the simple reason that there was no fuel on offer apart from Nooa Petroleum.

In the final analysis, having regard to the surrounding circumstances and the motive for the directive, it cannot, by any stretch of the imagination, be suggested that the directive was meant to extend any favour to Nooa Petroleum.

In any case, the State was unable to lead any evidence tending to show that the motive for the directive was other than to avert the emergency staring the nation in the face at the material time.

For the foregoing reasons, we were of the unanimous view, that, on the evidence presented before us, the State has failed, at the close of its case, to establish a prima facie case upon which a reasonable court acting carefully might convict the accused on either Count.

That being the case, the Court has no option but to discharge the accused at the closure of the State case.

The accused is accordingly found not guilty and acquitted on both Counts at the closure of the State case.

Unjust Enrichment re: Illegal Contracts, Ex Turpi Causa and In Pari Delicto Rules, Criminal Liability & Just Cause Conduct


The accused is the Minister of Energy and Power Development. In the main Count he is charged with criminal abuse of duty as a public officer in contravention of section 174(10(a) as read with section 174(2) of the Criminal Law Codification and Reform Act [Chapter 9:23].

He is alleged, during the period extending from the beginning of January 2011 to 12 January 2011, to have intentionally directed the Acting Chief Executive Officer of Petrotrade, one Griefshaw Revanewako, to purchase five million litres of diesel from a South African company known as Nooa Petroleum (Pty) Ltd for the purpose of showing favour to Nooa Petroleum (Pty) Ltd.

In the alternative, and arising from the same facts, he is alleged to have unlawfully instructed Griefshaw Revanewako, the said Acting Chief Executive Officer of Petrotrade, to purchase the five million litres of diesel from Nooa Petroleum (Pty) Ltd without going to tender in contravention of section 30 of the Procurement Act [Chapter 22:14] as read with sections 5(4)(a)(ii) and section 35 of the Procurement Regulations, S.I.171 of 2002.

The facts giving rise to both charges are, to a large extent, common cause.

The undisputed facts are that during the period under review, the accused was the Minister of Energy and Power Development. In that capacity, he was responsible for overseeing the procurement of fuel in terms of the Procurement Act and Regulations. The procurement of petroleum products was done through the National Oil Company of Zimbabwe (NOCZIM) which in turn had Petrotrade as its special purpose vehicle for the importation of fuel.

Petrotrade was, however, not a recognized registered lawful procurement entity at the material time.

In the normal run of things, and all things being equal, section (30)(1) of the Procurement Act and Procurement Regulations prohibits and criminalizes any purchase of commodities in excess of fifty thousand dollars without going to tender.

Subsection (2) of the same section, however, permits the procurement of commodities in excess of the specified amounts without going to tender provided the procuring entity justifies, in writing, the need to purchase such commodities, including fuel, without going to tender. The section reads:

30 Form of procurement proceedings

(1) Except as otherwise provided in this Act, the procurement of -

(a) Goods or construction work by a procuring entity shall be done by means of tendering proceedings in accordance with section thirty-one;

(b) Services by a procuring entity shall be done by a method which complies with section thirty-two.

(2) Where, in accordance with this Act, a procuring entity adopts a method of procurement other than one specified in subsection (1), the procuring entity shall include, in the record of its proceedings, a statement of the grounds and circumstances on which it relied to justify the adoption of that method.”

It is clear from the provisions of section 30 of the Procurement Act that there are two lawful ways of procuring fuel in terms of the Procurement Act:

(i) The first mode of procurement is by going to tender in terms of subsection one.

(ii) The second mode is by purchasing fuel without going to tender in terms of sub-section two.

I now turn to apply the law to the facts of this case.

It is common cause, and a matter of established fact, that during the period in question there was an acute shortage of fuel in the country.

All the State witnesses, comprising Justine Mupamhanga, the Permanent Secretary in the Ministry of Energy and Power Development, Morgan Mudzinganyama, the Director Petroleum in the Ministry, Griefshaw Revanewako, the Acting Chief Executive of Petrotrade, Sikwila Tanaka, the Financial Manager at NOCZIM, and Charles Kawaza, the Chairman of the State Procurement Board all gave incontrovertible evidence to the effect, that, at the material time, the country was experiencing a critical shortage of diesel.

The accused, in his Defence Outline, stated, that, none of their traditional suppliers of fuel had any diesel for sale. The Permanent Secretary confirmed the accused's defence to that effect.

Under cross-examination he was asked:

“Q. Now, Mr. Mupamhanga, in your statement you accept that on or about 11th January 2011 there was a fuel crisis in the fuel sector in the country?

A. That is correct.

Q. How did that crisis come about?

A. That resulted from the difficulties at Beira which led to ships bringing fuel not being able to dock. A major reason, however, was that there was no fuel from our traditional suppliers.”

The admitted critical shortage of fuel on the market prompted the accused, in his capacity as Minister of Energy and Power Development, to write a letter, exhibit one, on 12 January 2011, authorizing the Acting Chief Executive Officer, Petrotrade to purchase fuel without going to tender in a bid to salvage the situation. The letter reads:

“Attention Eng. G Revanewako

AUTHORITY TO PURCHASE 5 MILLION LITRES GASOIL EX-TANK MATOLA FROM NOOA PETROLEUM WITHOUT GOING TO TENDER

Having assessed the fuel supply constrains the country is facing, I authorize that you procure 5 million litres of diesel, being the only fuel available from Nooa Petroleum in Matola at $0.88 per litre landed in Harare. The product should be shipped to cover Masvingo, Midlands, and Matabeleland Provinces which are more affected by the shortage of fuel. Part of the fuel should be swapped with fuel in the pipeline that is owned by oil companies on a litre for litre basis. This will facilitate quick release of product to these companies while at the same time speeding the availability of fuel on the market.

You are required to quickly implement these arrangements.

Signed E.S. Mangoma
(MP) MINISTRY OF ENERGY AND POWER DEVELOPMENT”

Virtually all the State witnesses confirmed, without exception, that, there was no fuel available from their traditional suppliers at the material time.

Whether or not the accused's conduct, in writing the above letter or directive, amounts to a criminal offence in the circumstances of this case depends on the interpretation of section 30(2) of the Procurement Act.

Mr. Kuwaza, as I have already pointed out, is the Executive Chairman of the State Procurement Board.

In his evidence in chief, he gave a comprehensive outline of his duties in this respect. His duties, among others, are to administer the Procurement Act. In that respect, he is responsible for investigating and taking appropriate action against irregular procurement of goods and services for the State in breach of the normal rules and regulations.

The witness gave a detailed explanation of the cumbersome procurement procedures by tender.

It was his testimony, that, if purchases are to be done through the normal tender procedures it takes no less than 30 days just to float the tender and further delays can be incurred through a system of appeals where one or more bidders are aggrieved by any particular award.

Before dollarisation, NOCZIM was experiencing problems in sourcing foreign currency for the procurement of fuel. As a result, in 2004, in a bid to avoid the inevitable delays occasioned by the cumbersome tender procedures and scarcity of foreign currency, it solicited for and was granted permission to procure fuel urgently without going through the normal tender procedures provided it submitted to the State Procurement Board a write-up justifying the need to procure fuel without going through the normal tender procedures.

As a result, NOCZIM was required to gazette an approved list of reputable foreign fuel suppliers from which it could purchase fuel without going through normal tender procedures.

The list was however not cast in stone as NOCZIM was free to update the list from time to time according to the prevailing circumstances.

NOCZIM did not, however, strictly adhere to this directive and would, from time to time, procure fuel from suppliers not on the approved gazetted list.

It is plain that the dispensation granted to NOCZIM, by the State Procurement Board, way back in 2004, accords with the provisions of section 30(2) of the Procurement Act.

It is clear that section 30(2) of the Procurement Act was meant to provide a safety valve to enable State procurement entities to procure commodities expeditiously for the benefit of the State, and the nation at large, in times of dire need and emergencies without following the cumbersome time-consuming normal tender procedures.

Whereas subsection one provides for the general rule, prohibiting procurement without going to tender, sub-section two provides for the exception which permits procurement without going to tender for good cause shown in writing.

The adage, that, for every general rule there is an exception, is therefore apt.

In crafting subsection two, the legislator had undoubtedly foreseen the cropping up of circumstances which may require the urgent purchasing of commodities without going to tender for the common good.

The accused appears to have fallen into trouble because he persisted in buying the fuel from Nooa Petroleum against the advice of his subordinates. This was compounded by the fact that Nooa Petroleum ended up rendering defective service through its agent, Mowhelere.

The mere fact that Nooa Petroleum, through Mowhelere, may have rendered defective service, cannot, however, without more, amount to criminal conduct on the part of the accused.

The advice given to the accused by his Permanent Secretary and Director Petroleum, to the effect, that, any purchases of fuel had to be done through the normal tender procedures, was incorrect and bad at law.

Both the accused and Mr. Kawaza, the Executive Chairman of the Procurement Board, were, however, aware of the provisions of section 30(2) of the Procurement Act. They were therefore aware of the correct legal position.

It is amazing that both the Permanent Secretary, who is responsible for overseeing the procurement of fuel, and the Acting Chief Executive Officer Petrotrade, responsible for procurement of fuel, were ignorant of this vital provision of the law meant to facilitate the procurement of fuel in times of emergency and dire need.

Upon being confronted with the provisions of section 30(2) of the Procurement Act, everyone concerned had no option but to confess, in open Court, that it was not per se unlawful to procure fuel without going to tender.

Thus, in ordering the Acting Chief Executive Officer Petrotrade to procure 5 million litres of diesel from Nooa Petroleum without going to tender, the accused was simply directing the officer to procure the diesel in terms of section 30(2) 0f the Procurement Act.

Once the Acting Chief Executive Officer had been directed, by the accused, to procure fuel without going to tender, it was incumbent upon him to provide the necessary write up to justify the procurement in terms of section 30(2) of the Procurement Act.

If any fault is to be found at all regarding the procurement of the fuel in question, the blame must be laid squarely at the door of the procurement entity for its failure to provide the necessary write-up according to law.

This explains the Chairman of the State Procurement Board, Mr. Kuwaza's attitude when he said, that, apart from what he read in the newspapers, he was not aware of any offence that the accused had committed.

He was, of course, correct in this respect.

Having regard to the provisions of section 30(2) of the Procurement Act, no reasonable Court, in my view, would come to the conclusion, that, by merely directing the Acting Chief Executive Officer to purchase fuel without going to tender, the accused was guilty of any criminal conduct.

Whether or not the accused was abusing his office as a public official when he directed his subordinate to buy fuel from Nooa Petroleum is determined by the motive and surrounding circumstances behind the order.

It is common cause, that, when the accused issued the directive, it was in times of extreme emergency. Strategic fuel reserves were down to less than a day's supply and there was no fuel from traditional suppliers. Queues were beginning to form at fuel outlets.

The situation called for extraordinary measures to avert the emergency.

The accused's motive was clearly to avert the situation which threatened the country with extreme shortage of fuel.

It is difficult to blame the accused for directing the purchase of fuel from Nooa Petroleum when it was the only supplier with fuel at that time.

There is also no logic in suggesting that the fuel was purchased at an exorbitant price in circumstances where there was only one supplier.

In any case, the evidence quite clearly establishes that no one was able to establish if fuel could be found at a cheaper price elsewhere on that day for the simple reason that there was no fuel on offer apart from Nooa Petroleum.

In the final analysis, having regard to the surrounding circumstances and the motive for the directive, it cannot, by any stretch of the imagination, be suggested that the directive was meant to extend any favour to Nooa Petroleum.

In any case, the State was unable to lead any evidence tending to show that the motive for the directive was other than to avert the emergency staring the nation in the face at the material time.

For the foregoing reasons, we were of the unanimous view, that, on the evidence presented before us, the State has failed, at the close of its case, to establish a prima facie case upon which a reasonable court acting carefully might convict the accused on either Count.

That being the case, the Court has no option but to discharge the accused at the closure of the State case.

The accused is accordingly found not guilty and acquitted on both Counts at the closure of the State case.

Administrative Law re: Administrative Directives or Declarations and the Doctrine of Legality


The accused is the Minister of Energy and Power Development. In the main Count he is charged with criminal abuse of duty as a public officer in contravention of section 174(10(a) as read with section 174(2) of the Criminal Law Codification and Reform Act [Chapter 9:23].

He is alleged, during the period extending from the beginning of January 2011 to 12 January 2011, to have intentionally directed the Acting Chief Executive Officer of Petrotrade, one Griefshaw Revanewako, to purchase five million litres of diesel from a South African company known as Nooa Petroleum (Pty) Ltd for the purpose of showing favour to Nooa Petroleum (Pty) Ltd.

In the alternative, and arising from the same facts, he is alleged to have unlawfully instructed Griefshaw Revanewako, the said Acting Chief Executive Officer of Petrotrade, to purchase the five million litres of diesel from Nooa Petroleum (Pty) Ltd without going to tender in contravention of section 30 of the Procurement Act [Chapter 22:14] as read with sections 5(4)(a)(ii) and section 35 of the Procurement Regulations, S.I.171 of 2002.

The facts giving rise to both charges are, to a large extent, common cause.

The undisputed facts are that during the period under review, the accused was the Minister of Energy and Power Development. In that capacity, he was responsible for overseeing the procurement of fuel in terms of the Procurement Act and Regulations. The procurement of petroleum products was done through the National Oil Company of Zimbabwe (NOCZIM) which in turn had Petrotrade as its special purpose vehicle for the importation of fuel.

Petrotrade was, however, not a recognized registered lawful procurement entity at the material time.

In the normal run of things, and all things being equal, section (30)(1) of the Procurement Act and Procurement Regulations prohibits and criminalizes any purchase of commodities in excess of fifty thousand dollars without going to tender.

Subsection (2) of the same section, however, permits the procurement of commodities in excess of the specified amounts without going to tender provided the procuring entity justifies, in writing, the need to purchase such commodities, including fuel, without going to tender. The section reads:

30 Form of procurement proceedings

(1) Except as otherwise provided in this Act, the procurement of -

(a) Goods or construction work by a procuring entity shall be done by means of tendering proceedings in accordance with section thirty-one;

(b) Services by a procuring entity shall be done by a method which complies with section thirty-two.

(2) Where, in accordance with this Act, a procuring entity adopts a method of procurement other than one specified in subsection (1), the procuring entity shall include, in the record of its proceedings, a statement of the grounds and circumstances on which it relied to justify the adoption of that method.”

It is clear from the provisions of section 30 of the Procurement Act that there are two lawful ways of procuring fuel in terms of the Procurement Act:

(i) The first mode of procurement is by going to tender in terms of subsection one.

(ii) The second mode is by purchasing fuel without going to tender in terms of sub-section two.

I now turn to apply the law to the facts of this case.

It is common cause, and a matter of established fact, that during the period in question there was an acute shortage of fuel in the country.

All the State witnesses, comprising Justine Mupamhanga, the Permanent Secretary in the Ministry of Energy and Power Development, Morgan Mudzinganyama, the Director Petroleum in the Ministry, Griefshaw Revanewako, the Acting Chief Executive of Petrotrade, Sikwila Tanaka, the Financial Manager at NOCZIM, and Charles Kawaza, the Chairman of the State Procurement Board all gave incontrovertible evidence to the effect, that, at the material time, the country was experiencing a critical shortage of diesel.

The accused, in his Defence Outline, stated, that, none of their traditional suppliers of fuel had any diesel for sale. The Permanent Secretary confirmed the accused's defence to that effect.

Under cross-examination he was asked:

“Q. Now, Mr. Mupamhanga, in your statement you accept that on or about 11th January 2011 there was a fuel crisis in the fuel sector in the country?

A. That is correct.

Q. How did that crisis come about?

A. That resulted from the difficulties at Beira which led to ships bringing fuel not being able to dock. A major reason, however, was that there was no fuel from our traditional suppliers.”

The admitted critical shortage of fuel on the market prompted the accused, in his capacity as Minister of Energy and Power Development, to write a letter, exhibit one, on 12 January 2011, authorizing the Acting Chief Executive Officer, Petrotrade to purchase fuel without going to tender in a bid to salvage the situation. The letter reads:

“Attention Eng. G Revanewako

AUTHORITY TO PURCHASE 5 MILLION LITRES GASOIL EX-TANK MATOLA FROM NOOA PETROLEUM WITHOUT GOING TO TENDER

Having assessed the fuel supply constrains the country is facing, I authorize that you procure 5 million litres of diesel, being the only fuel available from Nooa Petroleum in Matola at $0.88 per litre landed in Harare. The product should be shipped to cover Masvingo, Midlands, and Matabeleland Provinces which are more affected by the shortage of fuel. Part of the fuel should be swapped with fuel in the pipeline that is owned by oil companies on a litre for litre basis. This will facilitate quick release of product to these companies while at the same time speeding the availability of fuel on the market.

You are required to quickly implement these arrangements.

Signed E.S. Mangoma
(MP) MINISTRY OF ENERGY AND POWER DEVELOPMENT”

Virtually all the State witnesses confirmed, without exception, that, there was no fuel available from their traditional suppliers at the material time.

Whether or not the accused's conduct, in writing the above letter or directive, amounts to a criminal offence in the circumstances of this case depends on the interpretation of section 30(2) of the Procurement Act.

Mr. Kuwaza, as I have already pointed out, is the Executive Chairman of the State Procurement Board.

In his evidence in chief, he gave a comprehensive outline of his duties in this respect. His duties, among others, are to administer the Procurement Act. In that respect, he is responsible for investigating and taking appropriate action against irregular procurement of goods and services for the State in breach of the normal rules and regulations.

The witness gave a detailed explanation of the cumbersome procurement procedures by tender.

It was his testimony, that, if purchases are to be done through the normal tender procedures it takes no less than 30 days just to float the tender and further delays can be incurred through a system of appeals where one or more bidders are aggrieved by any particular award.

Before dollarisation, NOCZIM was experiencing problems in sourcing foreign currency for the procurement of fuel. As a result, in 2004, in a bid to avoid the inevitable delays occasioned by the cumbersome tender procedures and scarcity of foreign currency, it solicited for and was granted permission to procure fuel urgently without going through the normal tender procedures provided it submitted to the State Procurement Board a write-up justifying the need to procure fuel without going through the normal tender procedures.

As a result, NOCZIM was required to gazette an approved list of reputable foreign fuel suppliers from which it could purchase fuel without going through normal tender procedures.

The list was however not cast in stone as NOCZIM was free to update the list from time to time according to the prevailing circumstances.

NOCZIM did not, however, strictly adhere to this directive and would, from time to time, procure fuel from suppliers not on the approved gazetted list.

It is plain that the dispensation granted to NOCZIM, by the State Procurement Board, way back in 2004, accords with the provisions of section 30(2) of the Procurement Act.

It is clear that section 30(2) of the Procurement Act was meant to provide a safety valve to enable State procurement entities to procure commodities expeditiously for the benefit of the State, and the nation at large, in times of dire need and emergencies without following the cumbersome time-consuming normal tender procedures.

Whereas subsection one provides for the general rule, prohibiting procurement without going to tender, sub-section two provides for the exception which permits procurement without going to tender for good cause shown in writing.

The adage, that, for every general rule there is an exception, is therefore apt.

In crafting subsection two, the legislator had undoubtedly foreseen the cropping up of circumstances which may require the urgent purchasing of commodities without going to tender for the common good.

The accused appears to have fallen into trouble because he persisted in buying the fuel from Nooa Petroleum against the advice of his subordinates. This was compounded by the fact that Nooa Petroleum ended up rendering defective service through its agent, Mowhelere.

The mere fact that Nooa Petroleum, through Mowhelere, may have rendered defective service, cannot, however, without more, amount to criminal conduct on the part of the accused.

The advice given to the accused by his Permanent Secretary and Director Petroleum, to the effect, that, any purchases of fuel had to be done through the normal tender procedures, was incorrect and bad at law.

Both the accused and Mr. Kawaza, the Executive Chairman of the Procurement Board, were, however, aware of the provisions of section 30(2) of the Procurement Act. They were therefore aware of the correct legal position.

It is amazing that both the Permanent Secretary, who is responsible for overseeing the procurement of fuel, and the Acting Chief Executive Officer Petrotrade, responsible for procurement of fuel, were ignorant of this vital provision of the law meant to facilitate the procurement of fuel in times of emergency and dire need.

Upon being confronted with the provisions of section 30(2) of the Procurement Act, everyone concerned had no option but to confess, in open Court, that it was not per se unlawful to procure fuel without going to tender.

Thus, in ordering the Acting Chief Executive Officer Petrotrade to procure 5 million litres of diesel from Nooa Petroleum without going to tender, the accused was simply directing the officer to procure the diesel in terms of section 30(2) 0f the Procurement Act.

Once the Acting Chief Executive Officer had been directed, by the accused, to procure fuel without going to tender, it was incumbent upon him to provide the necessary write up to justify the procurement in terms of section 30(2) of the Procurement Act.

If any fault is to be found at all regarding the procurement of the fuel in question, the blame must be laid squarely at the door of the procurement entity for its failure to provide the necessary write-up according to law.

This explains the Chairman of the State Procurement Board, Mr. Kuwaza's attitude when he said, that, apart from what he read in the newspapers, he was not aware of any offence that the accused had committed.

He was, of course, correct in this respect.

Having regard to the provisions of section 30(2) of the Procurement Act, no reasonable Court, in my view, would come to the conclusion, that, by merely directing the Acting Chief Executive Officer to purchase fuel without going to tender, the accused was guilty of any criminal conduct.

Whether or not the accused was abusing his office as a public official when he directed his subordinate to buy fuel from Nooa Petroleum is determined by the motive and surrounding circumstances behind the order.

It is common cause, that, when the accused issued the directive, it was in times of extreme emergency. Strategic fuel reserves were down to less than a day's supply and there was no fuel from traditional suppliers. Queues were beginning to form at fuel outlets.

The situation called for extraordinary measures to avert the emergency.

The accused's motive was clearly to avert the situation which threatened the country with extreme shortage of fuel.

It is difficult to blame the accused for directing the purchase of fuel from Nooa Petroleum when it was the only supplier with fuel at that time.

There is also no logic in suggesting that the fuel was purchased at an exorbitant price in circumstances where there was only one supplier.

In any case, the evidence quite clearly establishes that no one was able to establish if fuel could be found at a cheaper price elsewhere on that day for the simple reason that there was no fuel on offer apart from Nooa Petroleum.

In the final analysis, having regard to the surrounding circumstances and the motive for the directive, it cannot, by any stretch of the imagination, be suggested that the directive was meant to extend any favour to Nooa Petroleum.

In any case, the State was unable to lead any evidence tending to show that the motive for the directive was other than to avert the emergency staring the nation in the face at the material time.

For the foregoing reasons, we were of the unanimous view, that, on the evidence presented before us, the State has failed, at the close of its case, to establish a prima facie case upon which a reasonable court acting carefully might convict the accused on either Count.

That being the case, the Court has no option but to discharge the accused at the closure of the State case.

The accused is accordingly found not guilty and acquitted on both Counts at the closure of the State case.

Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt


The accused is the Minister of Energy and Power Development. In the main Count he is charged with criminal abuse of duty as a public officer in contravention of section 174(10(a) as read with section 174(2) of the Criminal Law Codification and Reform Act [Chapter 9:23].

He is alleged, during the period extending from the beginning of January 2011 to 12 January 2011, to have intentionally directed the Acting Chief Executive Officer of Petrotrade, one Griefshaw Revanewako, to purchase five million litres of diesel from a South African company known as Nooa Petroleum (Pty) Ltd for the purpose of showing favour to Nooa Petroleum (Pty) Ltd.

In the alternative, and arising from the same facts, he is alleged to have unlawfully instructed Griefshaw Revanewako, the said Acting Chief Executive Officer of Petrotrade, to purchase the five million litres of diesel from Nooa Petroleum (Pty) Ltd without going to tender in contravention of section 30 of the Procurement Act [Chapter 22:14] as read with sections 5(4)(a)(ii) and section 35 of the Procurement Regulations, S.I.171 of 2002.

The facts giving rise to both charges are, to a large extent, common cause.

The undisputed facts are that during the period under review, the accused was the Minister of Energy and Power Development. In that capacity, he was responsible for overseeing the procurement of fuel in terms of the Procurement Act and Regulations. The procurement of petroleum products was done through the National Oil Company of Zimbabwe (NOCZIM) which in turn had Petrotrade as its special purpose vehicle for the importation of fuel.

Petrotrade was, however, not a recognized registered lawful procurement entity at the material time.

In the normal run of things, and all things being equal, section (30)(1) of the Procurement Act and Procurement Regulations prohibits and criminalizes any purchase of commodities in excess of fifty thousand dollars without going to tender.

Subsection (2) of the same section, however, permits the procurement of commodities in excess of the specified amounts without going to tender provided the procuring entity justifies, in writing, the need to purchase such commodities, including fuel, without going to tender. The section reads:

30 Form of procurement proceedings

(1) Except as otherwise provided in this Act, the procurement of -

(a) Goods or construction work by a procuring entity shall be done by means of tendering proceedings in accordance with section thirty-one;

(b) Services by a procuring entity shall be done by a method which complies with section thirty-two.

(2) Where, in accordance with this Act, a procuring entity adopts a method of procurement other than one specified in subsection (1), the procuring entity shall include, in the record of its proceedings, a statement of the grounds and circumstances on which it relied to justify the adoption of that method.”

It is clear from the provisions of section 30 of the Procurement Act that there are two lawful ways of procuring fuel in terms of the Procurement Act:

(i) The first mode of procurement is by going to tender in terms of subsection one.

(ii) The second mode is by purchasing fuel without going to tender in terms of sub-section two.

I now turn to apply the law to the facts of this case.

It is common cause, and a matter of established fact, that during the period in question there was an acute shortage of fuel in the country.

All the State witnesses, comprising Justine Mupamhanga, the Permanent Secretary in the Ministry of Energy and Power Development, Morgan Mudzinganyama, the Director Petroleum in the Ministry, Griefshaw Revanewako, the Acting Chief Executive of Petrotrade, Sikwila Tanaka, the Financial Manager at NOCZIM, and Charles Kawaza, the Chairman of the State Procurement Board all gave incontrovertible evidence to the effect, that, at the material time, the country was experiencing a critical shortage of diesel.

The accused, in his Defence Outline, stated, that, none of their traditional suppliers of fuel had any diesel for sale. The Permanent Secretary confirmed the accused's defence to that effect.

Under cross-examination he was asked:

“Q. Now, Mr. Mupamhanga, in your statement you accept that on or about 11th January 2011 there was a fuel crisis in the fuel sector in the country?

A. That is correct.

Q. How did that crisis come about?

A. That resulted from the difficulties at Beira which led to ships bringing fuel not being able to dock. A major reason, however, was that there was no fuel from our traditional suppliers.”

The admitted critical shortage of fuel on the market prompted the accused, in his capacity as Minister of Energy and Power Development, to write a letter, exhibit one, on 12 January 2011, authorizing the Acting Chief Executive Officer, Petrotrade to purchase fuel without going to tender in a bid to salvage the situation. The letter reads:

“Attention Eng. G Revanewako

AUTHORITY TO PURCHASE 5 MILLION LITRES GASOIL EX-TANK MATOLA FROM NOOA PETROLEUM WITHOUT GOING TO TENDER

Having assessed the fuel supply constrains the country is facing, I authorize that you procure 5 million litres of diesel, being the only fuel available from Nooa Petroleum in Matola at $0.88 per litre landed in Harare. The product should be shipped to cover Masvingo, Midlands, and Matabeleland Provinces which are more affected by the shortage of fuel. Part of the fuel should be swapped with fuel in the pipeline that is owned by oil companies on a litre for litre basis. This will facilitate quick release of product to these companies while at the same time speeding the availability of fuel on the market.

You are required to quickly implement these arrangements.

Signed E.S. Mangoma
(MP) MINISTRY OF ENERGY AND POWER DEVELOPMENT”

Virtually all the State witnesses confirmed, without exception, that, there was no fuel available from their traditional suppliers at the material time.

Whether or not the accused's conduct, in writing the above letter or directive, amounts to a criminal offence in the circumstances of this case depends on the interpretation of section 30(2) of the Procurement Act.

Mr. Kuwaza, as I have already pointed out, is the Executive Chairman of the State Procurement Board.

In his evidence in chief, he gave a comprehensive outline of his duties in this respect. His duties, among others, are to administer the Procurement Act. In that respect, he is responsible for investigating and taking appropriate action against irregular procurement of goods and services for the State in breach of the normal rules and regulations.

The witness gave a detailed explanation of the cumbersome procurement procedures by tender.

It was his testimony, that, if purchases are to be done through the normal tender procedures it takes no less than 30 days just to float the tender and further delays can be incurred through a system of appeals where one or more bidders are aggrieved by any particular award.

Before dollarisation, NOCZIM was experiencing problems in sourcing foreign currency for the procurement of fuel. As a result, in 2004, in a bid to avoid the inevitable delays occasioned by the cumbersome tender procedures and scarcity of foreign currency, it solicited for and was granted permission to procure fuel urgently without going through the normal tender procedures provided it submitted to the State Procurement Board a write-up justifying the need to procure fuel without going through the normal tender procedures.

As a result, NOCZIM was required to gazette an approved list of reputable foreign fuel suppliers from which it could purchase fuel without going through normal tender procedures.

The list was however not cast in stone as NOCZIM was free to update the list from time to time according to the prevailing circumstances.

NOCZIM did not, however, strictly adhere to this directive and would, from time to time, procure fuel from suppliers not on the approved gazetted list.

It is plain that the dispensation granted to NOCZIM, by the State Procurement Board, way back in 2004, accords with the provisions of section 30(2) of the Procurement Act.

It is clear that section 30(2) of the Procurement Act was meant to provide a safety valve to enable State procurement entities to procure commodities expeditiously for the benefit of the State, and the nation at large, in times of dire need and emergencies without following the cumbersome time-consuming normal tender procedures.

Whereas subsection one provides for the general rule, prohibiting procurement without going to tender, sub-section two provides for the exception which permits procurement without going to tender for good cause shown in writing.

The adage, that, for every general rule there is an exception, is therefore apt.

In crafting subsection two, the legislator had undoubtedly foreseen the cropping up of circumstances which may require the urgent purchasing of commodities without going to tender for the common good.

The accused appears to have fallen into trouble because he persisted in buying the fuel from Nooa Petroleum against the advice of his subordinates. This was compounded by the fact that Nooa Petroleum ended up rendering defective service through its agent, Mowhelere.

The mere fact that Nooa Petroleum, through Mowhelere, may have rendered defective service, cannot, however, without more, amount to criminal conduct on the part of the accused.

The advice given to the accused by his Permanent Secretary and Director Petroleum, to the effect, that, any purchases of fuel had to be done through the normal tender procedures, was incorrect and bad at law.

Both the accused and Mr. Kawaza, the Executive Chairman of the Procurement Board, were, however, aware of the provisions of section 30(2) of the Procurement Act. They were therefore aware of the correct legal position.

It is amazing that both the Permanent Secretary, who is responsible for overseeing the procurement of fuel, and the Acting Chief Executive Officer Petrotrade, responsible for procurement of fuel, were ignorant of this vital provision of the law meant to facilitate the procurement of fuel in times of emergency and dire need.

Upon being confronted with the provisions of section 30(2) of the Procurement Act, everyone concerned had no option but to confess, in open Court, that it was not per se unlawful to procure fuel without going to tender.

Thus, in ordering the Acting Chief Executive Officer Petrotrade to procure 5 million litres of diesel from Nooa Petroleum without going to tender, the accused was simply directing the officer to procure the diesel in terms of section 30(2) 0f the Procurement Act.

Once the Acting Chief Executive Officer had been directed, by the accused, to procure fuel without going to tender, it was incumbent upon him to provide the necessary write up to justify the procurement in terms of section 30(2) of the Procurement Act.

If any fault is to be found at all regarding the procurement of the fuel in question, the blame must be laid squarely at the door of the procurement entity for its failure to provide the necessary write-up according to law.

This explains the Chairman of the State Procurement Board, Mr. Kuwaza's attitude when he said, that, apart from what he read in the newspapers, he was not aware of any offence that the accused had committed.

He was, of course, correct in this respect.

Having regard to the provisions of section 30(2) of the Procurement Act, no reasonable Court, in my view, would come to the conclusion, that, by merely directing the Acting Chief Executive Officer to purchase fuel without going to tender, the accused was guilty of any criminal conduct.

Whether or not the accused was abusing his office as a public official when he directed his subordinate to buy fuel from Nooa Petroleum is determined by the motive and surrounding circumstances behind the order.

It is common cause, that, when the accused issued the directive, it was in times of extreme emergency. Strategic fuel reserves were down to less than a day's supply and there was no fuel from traditional suppliers. Queues were beginning to form at fuel outlets.

The situation called for extraordinary measures to avert the emergency.

The accused's motive was clearly to avert the situation which threatened the country with extreme shortage of fuel.

It is difficult to blame the accused for directing the purchase of fuel from Nooa Petroleum when it was the only supplier with fuel at that time.

There is also no logic in suggesting that the fuel was purchased at an exorbitant price in circumstances where there was only one supplier.

In any case, the evidence quite clearly establishes that no one was able to establish if fuel could be found at a cheaper price elsewhere on that day for the simple reason that there was no fuel on offer apart from Nooa Petroleum.

In the final analysis, having regard to the surrounding circumstances and the motive for the directive, it cannot, by any stretch of the imagination, be suggested that the directive was meant to extend any favour to Nooa Petroleum.

In any case, the State was unable to lead any evidence tending to show that the motive for the directive was other than to avert the emergency staring the nation in the face at the material time.

For the foregoing reasons, we were of the unanimous view, that, on the evidence presented before us, the State has failed, at the close of its case, to establish a prima facie case upon which a reasonable court acting carefully might convict the accused on either Count.

That being the case, the Court has no option but to discharge the accused at the closure of the State case.

The accused is accordingly found not guilty and acquitted on both Counts at the closure of the State case.

Criminal Trial

BHUNU J: The accused is the Minister of Energy and Power Development. In the main count he is charged with criminal abuse of duty as a public officer in contravention of s174(10(a) as read with s174(2) of the Criminal Law Codification and Reform Act [Cap 9:23].

He is alleged during the period extending from the beginning of January 2011 to 12 January 2011 to have intentionally directed the Acting Chief Executive officer of Petrotrade, one Griefshaw Revanewako to purchase five million litres of diesel from a South African company known as Nooa Petroleum (Pty) Ltd for the purpose of showing favour to Nooa Petroleum (Pty) Ltd.

In the alternative and arising from the same facts he is alleged to have unlawfully instructed Griefshaw Revanewako the said Acting Chief Executive Officer of Petrotrade to purchase the five million litres of diesel from Nooa Petroleum (Pty) Ltd without going to tender in contravention of Section 30 of the Procurement Act [Cap 22:14] as read with sections 5(4)(a)(ii) and section 35 of the procurement regulations [S.I. 171 of 2002].

The facts giving rise to both charges are to a large extent common cause.

The undisputed facts are that during the period under review the accused was the Minister of Energy and Power Development. In that capacity he was responsible for overseeing the procurement of fuel in terms of the Procurement Act and Regulations. The procurement of petroleum products was done through the National Oil Company of Zimbabwe (NOCZIM) which in turn had Petrotrade as its special purpose vehicle for the importation of fuel.

Petrotrade was however, not a recognized registered lawful procurement entity at the material time.

In the normal run of things and all things being equal s(30)(1) of the Procurement Act and regulations prohibits and criminalizes any purchase of commodities in excess of fifty thousand dollars without going to tender.

Subsection (2) of the same section however, permits the procurement of commodities in excess of the specified amounts without going to tender provided the procuring entity justifies in writing the need to purchase such commodities including fuel without going to tender. The section reads:

30 Form of procurement proceedings

(1) Except as otherwise provided in this Act, the procurement of -

(a) Goods or construction work by a procuring entity shall be done by means of tendering proceedings in accordance with section thirty one;

(b) Services by a procuring entity shall be done by a method which complies with section thirty-two.

(2) Where in accordance with this Act a procuring entity adopts a method of procurement other than one specified in subsection (1), the procuring entity shall include in the record of its proceedings a statement of the grounds and circumstances on which it relied to justify the adoption of that method”.

It is clear from the provisions of s30 of the Act that there are two lawful ways of procuring fuel in terms of the Procurement Act.

(i) The first mode of procurement is by going to tender in terms of subsection one.

(ii) The second mode is by purchasing fuel without going to tender in terms of subsection two.

I now turn to apply the law to the facts of this case.

It is common cause and a matter of established fact that during the period in question there was an acute shortage of fuel in the country.

All the state witnesses comprising Justine Mupamhanga, the permanent secretary in the ministry of Energy and power development, Morgan Mudzinganyama, the director petroleum in the ministry, Griefshaw Revanewako, the Acting Chief Executive of Petrotrade, Sikwila Tanaka, the financial manager at NOCZIM and Charles Kawaza, the Chairman of the state procurement Board all gave incontrovertible evidence to the effect that at the material time the country was experiencing a critical shortage of diesel.

The accused in his defence outline stated that none of their traditional suppliers of fuel had any diesel for sale. The permanent secretary confirmed the accused's defence to that effect.

Under cross-examination he was asked:

Q. Now Mr. Mupamhanga in your statement you accept that on or about 11th January 2011 there was a fuel crisis in the fuel sector in the country?

A. That is correct.

Q. How did that crisis come about.

A. That resulted from the difficulties at Beira which led to ships bringing fuel not being able to dock. A major reason however was that there was no fuel from our traditional suppliers.”

The admitted critical shortage of fuel on the market prompted the accused in his capacity as Minister of Energy and Power Development to write a letter exhibit one on 12 January 2011 authorizing the Acting Chief executive Petrotrade to purchase fuel without going to tender in a bid to salvage the situation. The letter reads:

Attention Eng. G Revanewako

AUTHORITY TO PURCHASE 5 MILLION LITRES GASOIL EX-TANK MATOLA FROM NOOA PETROLEUM WITHOUT GOING TO TENDER

Having assessed the fuel supply constrains the country is facing, I authorize that you procure 5 million litres of diesel, being the only fuel available from Nooa Petroleum in Matola at $0.88 per litre landed in Harare. The product should be shipped to cover Masvingo, Midlands and Matabeleland Provinces which are more affected by the shortage of fuel. Part of the fuel should be swapped with fuel in the pipeline that is owned by oil companies on a litre for litre basis. This will facilitate quick release of product to these companies while at the same time speeding the availability of fuel on the market.

You are required to quickly implement these arrangements.

Signed E S. Mangoma

(MP) MINISTRY OF ENERGY AND POWER DEVELOPMENT.”

Virtually all the state witnesses confirmed without exception that there was no fuel available from their traditional suppliers at the material time.

Whether or not the accused's conduct in writing the above letter or directive amounts to a criminal offence in the circumstances of this case depends on the interpretation of s30(2) of the Procurement Act.

Mr. Kuwaza as I have already pointed out is the Executive Chairman of the State Procurement Board.

In his evidence in chief he gave a comprehensive outline of his duties in this respect. His duties among others are to administer The Procurement Act. In that respect he is responsible for investigating and taking appropriate action against irregular procurement of goods and services for the state in breach of the normal rules and regulations.

The witness gave a detailed explanation of the cumbersome procurement procedures by tender.

It was his testimony that if purchases are to be done through the normal tender procedures it takes no less than 30 days just to float the tender and further delays can be incurred through a system of appeals where one or more bidders are aggrieved by any particular award.

Before dollarisation NOCZIM was experiencing problems in sourcing foreign currency for the procurement of fuel. As a result in 2004 in a bid to avoid the inevitable delays occasioned by the cumbersome tender procedures and scarcity of foreign currency it solicited for and was granted permission to procure fuel urgently without going through the normal tender procedures provided it submitted to the State Procurement Board a write up justifying the need to procure fuel without going through the normal tender procedures.

As a result NOCZIM was required to gazette an approved list of reputable foreign fuel suppliers from which it could purchase fuel without going through normal tender procedures.

The list was however not cast in stone as NOCZIM was free to update the list from time to time according to the prevailing circumstances.

NOCZIM did not however, strictly adhere to this directive and would from time to time procure fuel from suppliers not on the approved gazetted list.

It is plain that the dispensation granted to NOCZIM by the State procurement Board way back in 2004 accords with the provisions of s30(2) of the Procurement Act.

It is clear that s30(2) of the Procurement Act was meant to provide a safety valve to enable state procurement entities to procure commodities expeditiously for the benefit of the state and the nation at large in times of dire need and emergences without following the cumbersome time consuming normal tender procedures.

Whereas subsection one provides for the general rule prohibiting procurement without going to tender, subsection two provides for the exception which permits procurement without going to tender for good cause shown in writing.

The adage that for every general rule there is an exception is therefore apt.

In crafting subsection two the legislator had undoubtedly foreseen the cropping up of circumstances which may require the urgent purchasing of commodities without going to tender for the common good.

The accused appears to have fallen into trouble because he persisted in buying the fuel from Nooa Petroleum against the advice of his subordinates. This was compounded by the fact that Nooa Petroleum ended up rendering defective service through its agent Mowhelere.

The mere fact that Nooa Petroleum through Mowhelere may have rendered defective service cannot however, without more amount to criminal conduct on the part of the accused.

The advice given to the accused by his permanent secretary and Director Petroleum to the effect that any purchases of fuel had to be done through the normal tender procedures was incorrect and bad at law.

Both the accused and Mr. Kawaza the Executive Chairman of the procurement board were however, aware of the provisions of section 30(2) of the procurement Act. They were therefore aware of the correct legal position.

It is amazing that both the permanent secretary who is responsible for overseeing the procurement of fuel and the Acting Chief Executive officer Petrotrade responsible for procurement of fuel were ignorant of this vital provision of the law meant to facilitate the procurement of fuel in times of emergency and dire need.

Upon being confronted with the provisions of section 30(2) of the Procurement Act everyone concerned had no option but to confess in open Court that it was not per see unlawful to procure fuel without going to tender.

Thus In ordering the Acting Chief Executive Officer Petrotrade to procure 5 million litres of Diesel from Nooa Petroleum without going to tender the accused was simply directing the officer to procure the diesel in terms of s30(2) of the procurement Act.

Once the Acting Chief Executive officer had been directed by the accused to procure fuel without going to tender it was incumbent upon him to provide the necessary write up to justify the procurement in terms of s30(2) of the Act.

If any fault is to be found at all regarding the procurement of the fuel in question the blame must be laid squarely at the door of the procurement entity for its failure to provide the necessary write up according to law.

This explains the chairman of the state Procurement Board Mr. Kuwaza's attitude when he said that apart from what he read in the newspapers he was not aware of any offence that the accused had committed.

He was of course correct in this respect.

Having regard to the provisions of s30(2) of the Act no reasonable Court in my view would come to the conclusion that by merely directing the Acting Chief Executive officer to purchase fuel without going to tender the accused was guilty of any criminal conduct.

Whether or not the accused was abusing his office as a public official when he directed his subordinate to buy fuel from Nooa Petroleum is determined by the motive and surrounding circumstances behind the order.

It is common cause that when the accused issued the directive it was in times of extreme emergency. Strategic fuel reserves were down to less than a day's supply and there was no fuel from traditional suppliers. Queues were beginning to form at fuel outlets.

The situation called for extraordinary measures to avert the emergency.

The accused's motive was clearly to avert the situation which threatened the country with extreme shortage of fuel.

It is difficult to blame the accused for directing the purchase of fuel from Nooa Petroleum when it was the only supplier with fuel at that time.

There is also no logic in suggesting that the fuel was purchased at an exorbitant price in circumstances where there was only one supplier. In any case the evidence quite clearly establishes that no one was able to establish if fuel could be found at a cheaper price elsewhere on that day for the simple reason that there was no fuel on offer apart from Nooa Petroleum.

In the final analysis having regard to the surrounding circumstances and the motive for the directive it cannot by any stretch of the imagination be suggested that the directive was meant to extend any favour to Nooa Petroleum.

In any case, the state was unable to lead any evidence tending to show that the motive for the directive was other than to avert the emergency staring the nation in the face at the material time.

For the foregoing reasons we were of the unanimous view that on the evidence presented before us, the state has failed at the close of its case to establish a prima facie case upon which a reasonable court acting carefully might convict the accused on either count.

That being the case the Court has no option but to discharge the accused at the closure of the state case.

The accused is accordingly found not guilty and acquitted on both counts at the closure of the state case.




The Attorney General's Office, the State's legal Practitioners

Mtetwa & Nyambirai, the defendant's legal practitioners

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