In the alternative, and arising from the same facts, the
accused 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 ...
In the alternative, and arising from the same facts, the
accused 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 [Chapter 22:14] 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 section 30 of the Procurement
Act [Chapter 22:14] that there are two lawful ways of procuring fuel in terms
of the Procurement Act [Chapter 22:14]. The first mode of procurement is by
going to tender in terms of subsection one. 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 the National Oil Company
of Zimbabwe (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 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 of 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 [Chapter
22:14].
Mr. Kuwaza…, 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 [Chapter 22:14]. 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 dollarization, the National Oil
Company of Zimbabwe (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, the National Oil Company of Zimbabwe (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 the National Oil Company of Zimbabwe (NOCZIM) was
free to update the list from time to time according to the prevailing
circumstances. The National Oil Company of Zimbabwe (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 the National
Oil Company of Zimbabwe (NOCZIM) by the State Procurement Board way back in
2004 accords with the provisions of section 30(2) of the Procurement Act [Chapter
22:14].
It is clear that section 30(2) of the Procurement Act [Chapter
22:14] 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,
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 (Pty) Ltd against the
advice of his subordinates. This was compounded by the fact that Nooa Petroleum
(Pty) Ltd ended up rendering defective service through its agent Mowhelere. The
mere fact that Nooa Petroleum (Pty) Ltd, 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 [Chapter
22:14]. 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 of 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 [Chapter 22:14] 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 of
Petrotrade to procure 5 million litres of diesel from Nooa Petroleum (Pty) Ltd,
without going to tender, the accused was simply directing the officer to
procure the diesel in terms of section 30(2) of the Procurement Act [Chapter
22:14]. 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 [Chapter 22:14]. 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 [Chapter 22:14] 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….,.
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.
