STATE prosecutors were on Wednesday left with an egg on their faces after a Supreme Court judge lashed at them for being clumsy in their appeal challenging the acquittal of businessman Wicknell Chivayo.
The youthful businessman was acquires by the High Court in the $5,6 million fraud charge involving Zimbabwe Power Company (ZPC)’s Gwanda Solar Project.
But the state represented by Sharon Fero and Zivanai Macharaga filed an appeal against the High Court decision only to be told that they were behaving like toddlers.
Supreme Court judge, Justice Bharat Patel had no kind words for the two who were seeking leave to appeal against the decision of the High Court absolving the businessman and his company Intratrek Zimbabwe of any criminal liability in the Gwanda solar project.
Justice Patel expressed his anger and disbelief at the state’s heads of argument describing them as “the most appalling heads of arguments I have ever seen.”
After the embarrassing lash from the judge, Fero had to ask for a postponement so that she could file fresh heads of argument as she alleged that she was not the one who had prepared them.
She dissociated herself from the heads of argument, which she also described as “kindergarten stuff”.
“I request your indulgence to file different heads of argument to correct the anomalies that are there,” she said. “There are typographical errors, which are akin to kindergarten stuff.”
Fero, fearing more embarrassing encounters with the court, conceded that the points raised by Chivayo’s lawyers Lewis Uriri and Sylvester Hastiti on the validity of the State’s application were valid and that the Prosecutor-General office would need time to consider the appeal.
“I also looked at the substance of those heads and noted that they do not articulate the issues for purposes of this application. The defence has raised valid points in respect of the validity of the application itself, which I believe in the interest of justice, we need to craft proper heads,” Fero said.
When Justice Patel sought an explanation as to who had crafted the heads of argument, both Ms Fero and Mr Zivanai Macharaga, also from the Prosecutor General’s Office, distanced themselves.
Justice Patel agreed to have the matter postponed after Ms Fero told him that she wanted time consider the matter carefully.
High Court judge Justice Owen Tagu had last month ruled that the charges against Chivhayo “apart from being suggestive of a skirmish, a mere witch hunt and a fishing expedition, tells more of a hidden hand or mala fides intention in the institution of the criminal proceedings brought about by the state in the circumstances.”
Chivayo and his company were facing charges of defrauding ZPC of over $5,6 million he received for the Gwanda solar project.
But the High Court ruled that the allegations were driven by malice.
“The charges against the appellant as revealed by the facts are undoubtedly contrived and were properly excepted to. The relationship between the complaint and both applicants is contractual and therefore any remedy for a dispute arising there from should be civil and in terms of the contract,” Justice Tagu ruled.
The judge said under in whatever circumstances, it was improbable that Chivayo, would be convicted by any reasonable court given the facts availed before him