How many years will Mike Chimombe and Mpofu get?

..Yesterday Sir Wicknell Chivayo made social comment suggesting 20 years in jail in a joking manner

HOW many more years will businessmen Moses Mpofu and Mike Chimombe spend in jail?

That was the BIG question yesterday after the two were convicted of fraud after a lengthy trial which has already seen them spend 16 months in custody.

The two were convicted after a full trial by Justice Pisirayi Kwenda.

They are now likely to know their fate, in terms of the time they will spend in prison serving their sentence, next week.

In his findings, Justice Kwenda said Mpofu, “shot himself in the foot.”

The judge ruled:

“He (Mpofu) 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 second accused Chimombe 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.”

Justice 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 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.”

Justice 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.”

Justice 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 was a legal entity.

“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.”

Justice 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.”

“Mpofu must have been aware of his obligation. He submitted a bid which contained falsified information, so that 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.”

Justice 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.”

Turning to 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 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.”

Justice Kwenda rejected the claim that Chimombe attended meetings merely to resolve disputes as a member of the Economic Empowerment Group.

“There was clearly another reason for this. Why would he be there to attend a business meeting?

“It shows he had a mandate.

“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.”

The State, represented by Witness Mabhaudhi, proved that in 2021, the Government – as part of the Rural Development Agenda – introduced the Presidential Goat Pass-On scheme to alleviate poverty among the less privileged households across the country’s 10 provinces.

The Government had targeted to buy special goat breeds for households and their village heads and it anticipated to procure more than 500,000 goats for this scheme.

The Government mandated the Ministry of Lands, Agriculture, Water, Fisheries and Rural Development to implement this programme and the Ministry flighted a tender for the supply and delivery of the goats.

Four companies – Kotrum Enterprises Private Limited, Blackdeck Livestock and Poultry Farming, Millytake Enterprises Private Limited and Zvikomborero Farms Private Limited – responded to the Ministry by submitting their bids.

The two businessmen participated in the tender knowing that Blackdeck Livestock and Poultry Farming was not registered and did not have a valid ZIMRA Tax Clearance certificate and National Social Security Authority compliance certificate required for a company to be eligible to bid in that tender.

The State proved that they forged a ZIMRA Tax clearance certificate (ITF263) bearing business partner number 0200158956 and a [NSSA] compliance certificate number 4798/21 in the name of Blackdeck Private Limited bearing Social Security registration number 0197190L.

These documents were attached to a bidding document which was submitted to the Ministry of Lands misrepresenting that the company was in full compliance with ZIMRA and NSSA Laws.

The duo won the tender and the two parties entered into an agreement for the supply and delivery of 632 001 goats for the scheme valued at US$87 757 168.

On the contract Blackdeck Livestock and Poultry Farming was represented by Moses Mpofu and Tinashe Chimombe, who was his witness.

As per Clause 29.1 of the contract agreement, the Ministry of Lands had agreed to make a 30% advance payment to Blackdeck Livestock and Poultry Farming.

The Ministry transferred ZWL$901 294 200 and ZWL$698 705 800 on April 21, 2022, and June 29, 2022.

This added up to ZWL$1.6 billion which was equivalent to US$7 712 197 into Blackdeck Private Limited CABS bank account towards the purchasing of the said goats.

After delays in delivery, the Ministry made some follow-ups and discovered that the duo had no capacity to deliver the goats as they had only 3713 goats in their holding sites.

Altogether they delivered 4 208 goats, valued at US$331 445, from the US$7 712 197 paid by the Ministry and went on to convert the US$7 380 751 to their personal use.

The duo is expected back in court on October 31 for the pre-sentence hearing and the subsequent sentencing.

*_H-metro_*