The
accused is the Minister of Energy and Power Development. In the main count he
is alleged to have directed one of his subordinates, Griefshaw Revanewako, to purchase 5 million litres of
diesel 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 35 of the
Procurement Regulations [S.I.171 of 2002].
Mr.
Justin Mupamhanga, the Ministry's Permanent Secretary, gave evidence on behalf
of the State. Under cross-examination he was subjected to the following
questions by counsel for the defence.
“Q.
Now, Mr. Mupamhanga, in your statement you accept that on or about 11th
January 2011 there was a 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 were no
supplies from our traditional suppliers.
Q.
Your suppliers are in the NPC?
A.
No my Lord.
Q.
Who are your traditional suppliers?
A.
I am talking of those from whom oil companies in Zimbabwe buy from. This
includes IPG of Kuwait, Trafigura, Glencore, Litasso.
Q.
You say these are your traditional suppliers?
A.
Among others.
Q.
But you say they are not in your National Procurement Committee NPC?
A.
These my Lord are international fuel refiners or suppliers they are not
registered in Zimbabwe.
Q.
So a crisis arose because you had not taken into account possible shortages
with your traditional suppliers is that what you are saying?”
Arising
from that line of questioning the witness went on to state that there is an
approved list of foreign fuel suppliers. The alleged approved list of foreign
suppliers had, however, not been annexed to the charge sheet.
The
prosecutor now seeks leave to clarify the existence or otherwise of the
approved list of foreign fuel suppliers under re-examination.
The
application is vigorously opposed on the basis that the proposed list is
unknown to the defence. Its introduction will therefore be prejudicial to the
defence case because it had prepared its case without taking into account that
list.
The
purpose of re-examination was ably articulated by HOFFMANN and ZEFFERTT, South
African Law of Evidence, third Edition…., where the learned authors state that:
“The
main purpose of re-examination is to enable the witness to explain matters of
which his answers in cross-examination are thought to have left a misleading
impression. Questions must therefore be confined to matters arising from the
cross-examination. If a witness has been cross-examined on part of a statement
which he made, orally or in a document, he may be re-examined on as much of the
rest of the statement as is necessary to explain the portion elicited in
cross-examination or the motive with which the statement was made. He may not,
however, be re-examined on other parts of his statement unconnected with the
matters referred to in cross-examination…,.”
It
is self-evident, as I have already demonstrated above, that when
cross-examining the witness defence counsel elicited answers which adverted to
the existence of an approved list of foreign fuel suppliers. The witness went
on to enumerate some of the names of such suppliers. What this means is that
some of the names of such foreign suppliers have already been permanently
placed on record.
That
being the case, the State is entitled, as of right, to clarify, through
re-examination, the veracity of its witness' statement elicited during
cross-examination regarding the existence or otherwise of the disputed approved
list of foreign fuel suppliers. Doing otherwise will amount to muzzling the State.
Having
come to that conclusion, the application can only succeed. It is accordingly
ordered that:
1.
The application for leave to re-examine the witness on the existence or
otherwise of the approved list of foreign fuel suppliers be and is hereby
granted.
2. That the defence be and is hereby granted
leave to amend its case in line with the new issues arising from such
re-examination.
