This is an application for extension of time within which to apply for leave to appeal. After hearing submissions from both parties I reserved judgment.FACTUAL BACKGROUNDThe applicant is the former Minister of Energy and Power Development. He, amongst other things, supervised Zimbabwe Power Company (ZPC). On 14 January 2016, the ...
This is an application for extension of time within which to apply for leave to appeal. After hearing submissions from both parties I reserved judgment.
FACTUAL BACKGROUND
The applicant is the former Minister of Energy and Power Development. He, amongst other things, supervised Zimbabwe Power Company (ZPC). On 14 January 2016, the applicant authored a letter in terms of which he directed ZPC to work with an entity known as Fruitful Communications (fronted by Oscar Pambuka and Psychology Mazivisa) until 2018. The engagement was for publicity work relating to the Zimbabwe Agenda for Sustainable Socio-Economic Transformation (Zimasset) programmes.
It is common cause that the letter did not state whether or not there was any payment to be made in respect of services rendered. However, Fruitful Communications approached Zimbabwe Power Company (ZPC) with that letter claiming to have been chosen to do the publicity campaign and then invoiced ZPC for the work it alleged to have done.
Subsequently, the applicant was charged with criminal abuse of duty by a public officer in terms of section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Act”). His directive was deemed unlawful and contrary to his duties as a public officer as it favoured Fruitful Communications, enabling it to bypass the mandatory internal tender procedures to be followed by any procuring entity.
The applicant pleaded not guilty to the charge. He denied directing Zimbabwe Power Company (ZPC) to improperly engage Fruitful Communications without following tender procedures.
The applicant stated that the letter did not bar Zimbabwe Power Company (ZPC) from engaging with other media companies.
He indicated that the work to be done by Fruitful Communications was for free as it did not involve the expenditure of public funds, thus, it did not require tender approval. He submitted that Oscar Pambuka and Psychology Mazivisa had done free work for the Ministry before and it is in that context that the letter was drawn.
The applicant further submitted that if the issue for payment arose, Zimbabwe Power Company's accounting officer ought to have followed the required procedures.
He contended that Fruitful Communications and its counterparts were the ones who intended to defraud Zimbabwe Power Company (ZPC).
As such, he stated that the charges against him were influenced by a political agenda targeted at perceived political opponents. He also stated that he did not benefit from the letter.
After trial proceedings before a Regional Magistrate, the applicant was found guilty as charged.
The court opined that the determinant factor was that the applicant accepted to have authored the letter. It further held that the letter, taken in its context, was an order meant to govern the operations of Zimbabwe Power Company (ZPC).
In the result, the court sentenced the applicant to four years imprisonment, of which eighteen months were suspended on condition the applicant does not within that period commit any offence involving corruption.
Aggrieved by that decision, the applicant noted an appeal to the High Court against his conviction and sentence.
The appeal was dismissed in its entirety....,.
The court..., found the custodial sentence imposed by the trial court to be appropriate as the crime committed is serious because it undermines public administration and subverts corporate governance....,.
Counsel for the applicant submitted that the sentence imposed by the trial court, and upheld by the court a quo, is shocking and insensitive...,. He states that the circumstances warranted the imposition of a fine or other lesser punishments other than a custodial sentence....,.
Counsel for the respondent...,. conceded that the question of sentence needs guidance from this Court as this Court last pronounced itself on sentences for corruption in the case of S v Chogugudza 1996 (1) ZLR 28 (S) - more than 20 years ago....,.
In respect of the appropriateness of the sentence imposed, the respondent's counsel conceded that there is need for the Supreme Court to give guidance on sentences for corruption as the last case was considered more than 20 years ago.
He, therefore, agreed that there is need for this case to be considered by the Supreme Court on the appropriateness of the sentence imposed by the trial court and upheld by the court a quo.
The concession by the respondent's counsel justifies giving the appellant a chance to apply for leave to appeal against sentence....,.
1. The applicant's application for extension of time within which to apply for leave to appeal against sentence is granted.
2. The applicant shall file his application for leave to appeal against sentence within five (5) days of the date of this order.
