Court name
Supreme Court of Zimbabwe
Case number
SC 133 of 2004
Crim. Appeal 361 of 2002

S v Muchero (61/02) (SC 133 of 2004, Crim. Appeal 361 of 2002) [2005] ZWSC 133 (04 May 2005);

Law report citations
Media neutral citation
[2005] ZWSC 133













DISTRIBUTABLE
(119)


Judgment
No. SC. 133/04


Crim.
Appeal No. 361/02








MARTIN
TICHAONA MUCHERO v THE STATE








SUPREME
COURT OF ZIMBABWE


SANDURA
JA, MALABA JA & GWAUNZA JA


HARARE,
MAY 12 & JULY  21, 2003 & MAY 5, 2005








J
Wood
, for the appellant





M Nemadire,
with him, J Jagada, for the respondent






MALABA JA: On 22 May
2002 the appellant was charged, together with Mrs Dorothy Chasakara
(“Chasakara”), before
the High Court in Harare with three counts
of contravening s 4(a) of the Prevention of Corruption Act
[Chapter 9:16] (“the Act”) and two counts of fraud.
He was convicted on Count One, involving the contravention of
s 4(a) of the
Act and sentenced to six months’ imprisonment
with labour, of which three months was suspended for five years on
conditions of
good behaviour and a further three months was suspended
on condition he completed one hundred and fifty hours of community
service.
Having been acquitted on the other charges, the appellant
now appeals against conviction only on Count One. The ground
of
appeal is that the court a quo misdirected itself in
holding that the facts had established his guilt beyond reasonable
doubt.





Section 4(a)
of the Act, the contravention of which the appellant was charged
with, makes it an offence for a public officer,
in the course of his
employment as such, to do anything that is contrary to or
inconsistent with his duty as a public officer for
the purpose of
showing favour or disfavour to any person. The gist of the
allegations against the appellant was that in his capacity
as the
general manager of the Grain Marketing Board (“the GMB”), and in
the course of his employment as such, he authorised the
purchase of
twenty-three panga panga doors by the GMB from Chax’s World
(Private) Limited trading as Mum’s Pride (“Chax’s World”), a
company in which Chasakara
had an interest, in breach of the laid
down procurement procedures and facilitated payment for the doors
before some of them had
been delivered and before the expiry of the
period after which the GMB’s creditors were paid for the purpose of
showing favour
to Chax’s World.





It
is common cause that the appellant was employed by the GMB as the
general manager. The GMB is a parastatal established in terms
of
the Grain Marketing Act [Chapter 18:14], which vested the
responsibility for the day-to-day management of its operations in the
appellant, who was answerable to a Board
of Directors.





The
appellant was a public officer as defined in s 2 of the Act.
It was part of his duties to ensure that the GMB as a parastatal
procured the goods and services it required in accordance with
procedures contained in circulars produced by the Government Tender
Board under the Audit and Exchequer Act [Chapter 22:03].
One such instrument defining the procurement procedures all
parastatals, including the GMB, had to follow in purchasing goods
and
services for their requirements was Treasury Circular No. 2 of
1994 (“the circular”).





It
was also not in dispute that Chasakara was at the relevant time
employed by the GMB as the finance and administrative manager
in
charge of the purchasing department. She was answerable to the
appellant. She was a co-director with her husband of Chax’s
World
operating from Juru Growth Point.






Towards
the end of 1997 renovations were being carried out to certain
sections of Dura Building, which is the GMB’s Head Office
in
Harare. Work was also underway at Aspindale, Rusape and Kwekwe,
where regional offices were being built. The engineering
department,
headed by a property manager, Mr Gabriel Mutsotso
(“Mutsotso”), who was answerable to the appellant, was
responsible for
the identification of the materials and services
needed for the execution of the renovations at Dura Building and
the construction
of regional offices at the other centres.





During
the first week of January 1998 Chasakara approached Mutsotso and
suggested that the doors in the appellant’s office and
corridors be
removed and replaced with hard wood doors to enhance the new image of
the GMB. Mutsotso instructed his department
to look for suppliers
of these doors. On 7 January 1998 Chasakara brought to
Mutsotso five doors and said they were the type
of doors she had in
mind when she made the suggestion that they should replace the old
ones.





Mutsotso
said he asked Chasakara for the name of the suppliers of the doors.
She said she got them from a company called Mum’s
Pride in
Borrowdale owned by the appellant’s friend. The two of them moved
to the appellant’s office, where it was agreed that
the five doors
be ordered. The doors cost $3 300 each.





Mutsotso
said it was in the appellant’s office that a suggestion was made
that in order to standardise the new image of the GMB,
it was
necessary to acquire the same type of doors for the regional offices
at Aspindale, Rusape and Kwekwe. It was in that office
that they
agreed that eighteen more such doors be obtained from Mum’s Pride.
The instruction to him was that the doors had to
be paid for before
delivery, as Mum’s Pride had no account with the GMB. A cheque
requisition was raised on 7 January 1998
for $59 400 which
was paid to the supplier the same day, whilst the doors were
delivered to the GMB a week later. Mutsotso
said he did not know
that Chasakara had an interest in the company supplying the doors
until the investigating officer told him.





What
had happened was that soon after the meeting in the appellant’s
office Chasakara drew up a document to serve as an invoice
issued by
Mum’s Pride and stating that eighteen doors at $3 300 each had
been supplied to the GMB. The appellant affixed
his signature to
the body of the document on the day it was drawn up. This he did in
spite of the fact that the doors had not been
delivered. No
internal requisition and purchase order had been raised by the
engineering department and purchasing department respectively.





Chasakara
forwarded the invoice to the purchasing manager, Mr Joseph Mukarati
(“Mukarati”). She attached a note instructing
him to process
payment for the eighteen doors.





Payment
in the circumstances would have been in violation of the procurement
procedures contained in the circular as well as para 8.9
of the
GMB’s own Accounting Systems Manual, to the effect that quotations
should be invited from at least six suppliers for the
purchase of
goods and services valued at more than $30 000 but below
$500 000. As the doors were valued at $59 400,
Mukarati
wrote a note to Chasakara drawing her attention to the value of the
doors and suggesting that the procurement be subjected
to competitive
bidding.





Mukarati
said he took this note personally to Chasakara. Whilst they were
discussing the matter, she received a telephone call.
He heard her
tell the caller that the cheque for the doors was not ready because
he (Mukarati) was insisting on outdated procurement
procedures being
followed in the purchase of the doors. At the end of the telephone
conversation, Chasakara told him that it was
the appellant who had
called asking for the cheque for the doors. She told him to forget
about the need to follow procurement procedures
and process payment
as instructed. Thereafter he drew up a purchase order and had a
cheque requisition for $59 400 raised.
Mukarati said he did
not know that Chasakara had an interest in the company supplying the
doors to the GMB.





A
cheque requisition for $59 400 was raised. It was signed by
Mutsotso, who was one of the two authorised signatories.
It was
then given to the appellant, who endorsed on it the word “approved”
before affixing his signature and the date, 7 January
1998, next
to it. He also wrote the figures and the word “$3 300 each”
on the cheque requisition before affixing his signature
and the date
next to them.





Abigail Muziti
(“Muziti”) was the authorised second signatory together with
Mutsotso. She said when the cheque requisition
was placed before
her it already had the endorsements made by the appellant.
According to her, the endorsement by the appellant
of the word
“approved” meant that payment for the doors could be made on the
same day on which the invoice, purchase order and
cheque requisition
were raised. She said payment was made to Mum’s Pride on
7 January 1998, instead of thirty days later,
as would have been
the case with any other of the GMB’s creditors, because of the
appellant’s endorsement which made it a matter
of urgency.





Formal
admissions of all the facts contained in the evidence of this witness
contained in the summary of the State case were made
just after
Muziti had taken oath but before giving evidence-in-chief. As a
result, she was excused from giving viva voce evidence.





As
to the five doors that had been delivered to the GMB, Chasakara drew
up an invoice. A cheque requisition was raised and signed
by
Mutsotso and Muziti the same day. Payment of $16 500 by cheque
was made to Mum’s Pride on 9 January 1998. The
purchase
order had been issued by Mukarati on 7 January 1998 on
instructions from Chasakara, as the value of the doors was less
than
$30 000. On 12 January 1998 the appellant signed the
purchase order, invoice and cheque requisition.






The
procurement procedure that ought to have been followed in the
purchase of the doors valued at $59 400 would have had the
purchasing manager inviting quotations from at least six suppliers
after receiving an internal requisition for the type and number
of
doors required by the engineering department. The quotations would
have been placed before a committee for adjudication and
selection of
the supplier of the best items at the cheapest price. The committee
would have been made up of the finance and administrative
manager,
the human resources manager, the property manager, the audit manager
and the purchasing manager.





Once
a supplier had been selected by the committee, a purchase order would
have been issued by the purchasing manager. The doors
would have
had to be delivered to the GMB, accompanied by an invoice drawn by
the supplier. A goods received voucher would have
been issued by
the engineering department. The goods received voucher, invoice and
purchase order would have justified the drawing
of the cheque
requisition authorised by Mutsotso and Muziti. Payment by cheque
would have been made to the supplier within thirty
days.





For
the purchase of the doors valued at $16 500, the procedure would
have been that quotations from at least three suppliers
would have
been obtained by the purchasing manager after receipt of an internal
requisition from the engineering department. He
would have chosen
the supplier of the best items at the cheapest price from the
competitive bids. Thereafter the same procurement
documents as are
required for the purchase of goods and services valued at more than
$30 000 would have been raised and payment
made within thirty
days.





In
his defence outline, the appellant said he knew that Chasakara had an
interest in the company that was supplying the panga panga
doors to the GMB. He alleged that she had disclosed her interest in
the company to him verbally before she sold the doors to the
GMB.
His evidence-in-chief contradicted the defence outline, in which he
denied that he knew that the doors came from a company
in which
Chasakara was a director. He said he did not know that Mum’s
Pride was selling the doors to the GMB. He said Mutsotso
authorised
the procurement of the doors without his involvement. He endorsed
the word “approved” and signed the cheque requisition
as
acknowledgement of the fact that Chasakara had disclosed her interest
in Mum’s Pride. According to him, it was for the same
reason that
he signed the invoice drawn up by Chasakara for doors that had not
yet been delivered to the GMB.





The
court a quo found that the State witnesses had given
credible evidence, which was not challenged by the appellant. It
found as a fact that
the appellant knew that the doors were being
sold to the GMB by a company in which Chasakara had an interest. It
found that he
authorised the breach of the procurement procedures and
approved payment for the eighteen doors before they had been
delivered to
the GMB. The court a quo also found that
the appellant showed favour to Chax’s World.





On
appeal it was contended that the evidence adduced by the State had
not proved beyond reasonable doubt that the appellant authorised
the
purchase of the panga panga doors from Chasakara’s company.
I do not agree.





Mutsotso’s
evidence was that the decision to purchase the eighteen doors in
addition to the five that Chasakara had brought to
the GMB on
7 January 1998 was taken in the appellant’s office. The
justification for the decision was that the GMB needed
to standardise
its image. That was a policy decision that Mutsotso and Chasakara
could not take without the knowledge and consent
of the appellant.





The
effect of Mutsotso’s evidence was that the appellant was present in
the office and took part in the deliberations. Although
Ms Wood
sought to argue that the evidence did not prove that the appellant
was in the office at the time and took part in the discussion,
it was
not challenged by the appellant in the court a quo.





The
subsequent conduct of the appellant supports the finding that he was
in the office and took part in the discussions. Soon
after the
meeting, Chasakara drew up an invoice for the supply of eighteen
panga panga doors to the GMB at a price of $3 300 each.
Notwithstanding the fact that the invoice did not bear a purchase
order number,
the appellant affixed his signature to its body. He
must have known that the doors had not yet been delivered.





The
appellant’s defence outline suggested that he signed the document
as acknowledgement of the fact that Chasakara had verbally
declared
to him her interest in Mum’s Pride. He did not tell any of his
subordinates involved in the procurement process that
Chasakara had
an interest in Mum’s Pride, which she had declared to him. It was
because of the fact that knowledge of her interest
in the company
that supplied the doors to the GMB remained his closely guarded
secret that he gave the company special treatment
in breach of
procurement regulations.





Mukarati’s
evidence of the substance of the telephone conversation between
Chasakara and the caller at the time he was in her
office to discuss
the duty to comply with laid down procurement procedures in the
purchase of the doors, supported the finding that
the appellant
authorised the purchase of the doors from Chax’s World. The
effect of that evidence was that Mukarati’s insistence
on the
procurement procedures being followed was overruled by the appellant.





After
that telephone conversation, the appellant endorsed on a cheque
requisition the word “approved”, which was understood
by the
creditors’ department to mean that payment for the doors on the
same day on which the invoice, purchase order and cheque
requisition
were raised had been authorised. Payment of $59 400 was made
by cheque to Mum’s Pride on the day the other documents
were
raised. Payment was made before the doors had been delivered to the
GMB. There was an element of favour being shown to the
company.





Whilst
the appellant said that he had endorsed the word “approved” as
acknowledgement that Chasakara had declared her interest
in Mum’s
Pride to him, as opposed to approving quick payment, the evidence of
Muziti was that the payment was expedited because
the appellant made
it a matter of urgency. It had the effect of speeding up the
payment for the doors. That fact had been formally
admitted by the
appellant. Where his evidence as to the intended effect of the
endorsement of the word “approved” on the cheque
requisition
differed from that given by Muziti, the court a quo was
bound to accept the facts established by formal admission.





If
the appellant had endorsed the word “approved” on the cheque
requisition for the purpose suggested by him, there would have
been
no reason at all for recording the figures and the word “$3 300
each” and affixing his signature next to them. He
was in effect
confirming the reasonableness of the price at which the doors were
being sold by Chax’s World to the GMB. The appellant
had to give
ostensible authority to the irregular procurement procedure
undertaken for the purpose of showing favour to Chax’s
World.





The
authorisation of the purchase of the doors from a company in which
one of the senior employees was a director without competitive
bids
being invited from other suppliers contrary to procurement
regulations put that company in a situation in which it became the
sole supplier of the doors at a price it dictated.







Approving payment to the company
for some of the doors before they had been delivered was prima
facie
evidence of favour being shown to Chax’s World. The
appellant’s conduct was grossly irregular because it placed money
at the
disposal of the company, with which the company bought the
doors before delivering them to the GMB.





There
is no doubt that the appellant was a public officer. He had
committed these acts in the course of employment. They were
inconsistent with the duty of ensuring that procurement procedures
were complied with in the course of his employment with the GMB.

The State had in the circumstances established beyond reasonable
doubt the facts constituting the actus reus of the offence
charged against the appellant.





By
virtue of s 15(2)(e) of the Act, there was then a presumption of
the fact that the appellant acted in the manner he did for
the
purpose of showing favour to Chax’s World.





In
S v Chogugudza 1996 (1) ZLR 28 (S) GUBBAY CJ at 34F said:





“The
plain language of s 15(2)(e) mandates that the presumption will
stand unless proof to the contrary is adduced by the public
officer
who is the accused. It is a presumption rebuttable at his instance.
It imposes a legal burden upon him which must be
discharged on a
balance of probabilities. It is not discharged merely by raising a
reasonable doubt.”






The
appellant’s defence was such that once it was proved beyond
reasonable doubt that he had authorised the purchase of the doors
from Chax’s World contrary to the procurement procedures, which
required competitive bids to be invited, and had approved payment
for
doors which had not been delivered to the GMB, it became almost
impossible for him to rebut the presumption of the mens rea
element of the offence.





The
appeal is without merit. It is accordingly dismissed.





SANDURA
JA: I agree.








GWAUNZA
JA: I agree.








Byron
Venturas & Partners
, appellant's legal practitioners