HARARE – Business partners Moses Mpofu and Mike Chimombe were on Wednesday convicted of defrauding the agriculture ministry of US$7 million in an US$87 million goat supply tender using a non-existent company. The pair, appearing before Justice Pisirayi Kwenda, had entered “not guilty” pleas. Mpofu denied the allegations insisting that the dispute was a civil matter, and the state erred in charging him in his personal capacity instead of their company, Blackdeck.
Chimombe denied being involved in the foiled deal arguing that he was only there to assist with deliberations as a member of a black empowerment pressure group. Their lawyers insisted that the two men had been targeted in a complex capture of the legal system by their former business partner, Wicknell Chivayo, who blamed them for leaking audios on which he was heard stating that he had bribed several government officials to secure contracts for the supply of election materials, including chief cabinet secretary Martin Rushwaya, former Central Intelligence Organisation boss Isaac Moyo and Zimbabwe Electoral Commission chairperson Justice Priscilla Chigumba, among others. Kwenda said the two acted in common purpose, and shared the guilt.
“A company is just a person in terms of the law. It being a fiction, you can’t touch it. It does not have a brain of its own, it does not think or act on its own, so it’s very difficult to separate the acts of a company from the acts of the person who represents it,” the judge said.
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“Mpofu must have been aware of his obligation. He submitted a bid which 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.” The judge also criticised Mpofu for failing to call witnesses to support his defence, despite having promised to do so initially, ruling that this showed that he had no defence at all.
“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 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 Chimombe, the judge said the businessman tried to hide behind a finger by denying involvement, yet witnesses confirmed that he would attend meetings.
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