Source: Mpofu, Chimombe found guilty of US$7m fraud…as State moves to forfeit properties -Newsday Zimbabwe
Zanu PF members and business partners Moses Mpofu and Mike Chimombe have been found guilty by High Court Judge Justice Pisirayi Kwenda in a case they are accused of defrauding the government of US$7 million in a botched goats deal.
The State also filed a notice to file for forfeiture of tainted properties acquired using the stolen funds.
The two have been languishing in jail for over a year following their arrest in June last year.
The two are now awaiting their sentence.
While convicting them, Justice Kwenda said the first accused, Mpofu, “shot himself in the foot. He said all he did was in his capacity as a director and that he was directed to do so. So there was no further proof needed by the State.”
The judge also said Chimombe had argued that his case was “strange because the State closed its case without mentioning how he was involved in the misrepresentation.”
His closing submission was that “the State failed to bring him any closer to the case,” insisting that he was implicated merely by association.
Kwenda said there was no basis for invoking the doctrine of association, as “no law was cited.”
“We accepted the submission by the State that Blackdeck was not registered. Was the use of that name meant to deceive? Could it be said that the intention was to bring perjury? We believe the name was used to attract some colour, not to deceive the ministry, although different names were used interchangeably,” said the judge.
Kwenda noted that Mpofu’s failure to call witnesses “affected his credibility and his defence.”
“He knew these witnesses were important as he was being charged in his personal capacity. His decision not to call these witnesses was his own, except that one witness had died, which was not verified by production of evidence,” the judge said.
“Where a litigant threatens to call witnesses to confirm his defence and later abdicates, the usual inference is there was no intention to call that witness, or that the witness, if called, would not confirm that defence.”
Kwenda dismissed Mpofu’s explanation that he changed his mind after realising he was being charged personally, describing it as “lame because he knew that from the beginning.”
He explained that a company is a legal fiction: “A company is just a person in terms of the law. It’s really not a natural person created by God. It being a fiction, you can’t touch it. It does not have a brain of its own, so it’s very difficult to separate the acts of a company from the acts of the person who represents it.”
Kwenda said a corporate body might be liable, “but the State may choose not to use the body. The fact that one is a director gives rise to that liability.”
He added, “Mpofu must have been aware of his obligation. He submitted a bid that contained falsified information, which confirms that he was liable. He should have called witnesses to confirm that he was not involved in the submission, but he did not do so.”
Kwenda said that where presumption gives rise to criminal liability, “the onus is on a litigant to prove that he did not play a part.”
Regarding the second accused (Chimombe), the judge said: “The second accused person strenuously denied he had much involvement in this scheme. We were faced with a situation where we had a threatened case against his denial. We must resolve that factual dispute, and that can be rectified by reference to the testimony of witnesses.”
“The witnesses John Bhasera and Nhundurwa said they would attend meetings together. We therefore found that he participated. We did not find his explanation convincing. If he said he attended meetings with Nhundurwa, that would have nothing to do with lobbying for an award for Blackdeck because it had already been awarded.”
Kwenda rejected the claim that the second accused attended meetings merely to resolve disputes as a member of EEG. “There was clearly another reason for this. Why would he be there to attend a business meeting?”
“It shows he had a mandate,” said the judge.
Kwenda concluded: “We found that the version of the first accused person — that Chimombe was co-opted to represent the company — is binding. To that extent, we found that the second accused was controlling the affairs of the entity. His liability flows from his participation.”
On January 16 this year, Kwenda said the pair risk being caged for 20 years if they get convicted.
The judge said this while turning down the application for bail by the two friends.
Mpofu and Chimombe face allegations of corruption over the Presidential Goat Scheme, in which it is alleged that they defrauded the Ministry of Lands of US$7 million after applying and securing a tender using a non-existent firm.
Kwenda said that because of the severity of the sentence the two are facing, they were likely to abscond.
“Regarding the seriousness of the offence, I have looked at the penalty, and the presumptive penalty for fraud is 20 years.
“If a fraud involves public funds and involves a huge prejudice, the sentence will be severe.
“I’m persuaded that the presumptive sentence knowledge of the penalty remains, and is likely to influence the applicants to flee,” Kwenda said at the time.
Kwenda said the court should be guided by the presumptive sentence of an offence when dealing with a bail application.
“It must consider that sentence first; it can go down, it can go up, it can go down.
“These sentencing guidelines have to be followed.
“Where the item, funds, or property is of high value or state funds, this will be an aggravating factor.
“If the fraud is committed by an offender who is a holder of a public office, it is an aggravating factor, and the court should start from there.
“If it involves public funds, it is an aggravating factor and the court should start from there,” he said before dismissing the application by the two, the judge once said.
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