No. SC. 133/04
Appeal No. 361/02
TICHAONA MUCHERO v THE STATE
COURT OF ZIMBABWE
JA, MALABA JA & GWAUNZA JA
MAY 12 & JULY 21, 2003 & MAY 5, 2005
Wood, for the appellant
with him, J Jagada, for the respondent
MALABA JA: On 22 May
2002 the appellant was charged, together with Mrs Dorothy Chasakara
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
good behaviour and a further three months was suspended
on condition he completed one hundred and fifty hours of community
Having been acquitted on the other charges, the appellant
now appeals against conviction only on Count One. The ground
appeal is that the court a quo misdirected itself in
holding that the facts had established his guilt beyond reasonable
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
general manager of the Grain Marketing Board (the GMB), and in
the course of his employment as such, he authorised the
twenty-three panga panga doors by the GMB from Chaxs World
(Private) Limited trading as Mums Pride (Chaxs 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 GMBs creditors were paid for the purpose of
to Chaxs World.
is common cause that the appellant was employed by the GMB as the
general manager. The GMB is a parastatal established in terms
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
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
services for their requirements was Treasury Circular No. 2 of
1994 (the circular).
was also not in dispute that Chasakara was at the relevant time
employed by the GMB as the finance and administrative manager
charge of the purchasing department. She was answerable to the
appellant. She was a co-director with her husband of Chaxs
operating from Juru Growth Point.
the end of 1997 renovations were being carried out to certain
sections of Dura Building, which is the GMBs Head Office
Harare. Work was also underway at Aspindale, Rusape and Kwekwe,
where regional offices were being built. The engineering
headed by a property manager, Mr Gabriel Mutsotso
(Mutsotso), who was answerable to the appellant, was
the identification of the materials and services
needed for the execution of the renovations at Dura Building and
of regional offices at the other centres.
the first week of January 1998 Chasakara approached Mutsotso and
suggested that the doors in the appellants office and
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
said he asked Chasakara for the name of the suppliers of the doors.
She said she got them from a company called Mums
Borrowdale owned by the appellants friend. The two of them moved
to the appellants office, where it was agreed that
the five doors
be ordered. The doors cost $3 300 each.
said it was in the appellants office that a suggestion was made
that in order to standardise the new image of the GMB,
necessary to acquire the same type of doors for the regional offices
at Aspindale, Rusape and Kwekwe. It was in that office
agreed that eighteen more such doors be obtained from Mums Pride.
The instruction to him was that the doors had to
be paid for before
delivery, as Mums 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.
had happened was that soon after the meeting in the appellants
office Chasakara drew up a document to serve as an invoice
Mums 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
internal requisition and purchase order had been raised by the
engineering department and purchasing department respectively.
forwarded the invoice to the purchasing manager, Mr Joseph Mukarati
(Mukarati). She attached a note instructing
him to process
payment for the eighteen doors.
in the circumstances would have been in violation of the procurement
procedures contained in the circular as well as para 8.9
GMBs own Accounting Systems Manual, to the effect that quotations
should be invited from at least six suppliers for the
goods and services valued at more than $30 000 but below
$500 000. As the doors were valued at $59 400,
wrote a note to Chasakara drawing her attention to the value of the
doors and suggesting that the procurement be subjected
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
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.
cheque requisition for $59 400 was raised. It was signed by
Mutsotso, who was one of the two authorised signatories.
then given to the appellant, who endorsed on it the word approved
before affixing his signature and the date, 7 January
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.
(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
were raised. She said payment was made to Mums Pride on
7 January 1998, instead of thirty days later,
as would have been
the case with any other of the GMBs creditors, because of the
appellants endorsement which made it a matter
admissions of all the facts contained in the evidence of this witness
contained in the summary of the State case were made
Muziti had taken oath but before giving evidence-in-chief. As a
result, she was excused from giving viva voce evidence.
to the five doors that had been delivered to the GMB, Chasakara drew
up an invoice. A cheque requisition was raised and signed
Mutsotso and Muziti the same day. Payment of $16 500 by cheque
was made to Mums Pride on 9 January 1998. The
order had been issued by Mukarati on 7 January 1998 on
instructions from Chasakara, as the value of the doors was less
$30 000. On 12 January 1998 the appellant signed the
purchase order, invoice and cheque requisition.
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
doors required by the engineering department. The quotations would
have been placed before a committee for adjudication and
the supplier of the best items at the cheapest price. The committee
would have been made up of the finance and administrative
the human resources manager, the property manager, the audit manager
and the purchasing manager.
a supplier had been selected by the committee, a purchase order would
have been issued by the purchasing manager. The doors
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
the purchase of the doors valued at $16 500, the procedure would
have been that quotations from at least three suppliers
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
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
His evidence-in-chief contradicted the defence outline, in which he
denied that he knew that the doors came from a company
Chasakara was a director. He said he did not know that Mums
Pride was selling the doors to the GMB. He said Mutsotso
the procurement of the doors without his involvement. He endorsed
the word approved and signed the cheque requisition
acknowledgement of the fact that Chasakara had disclosed her interest
in Mums Pride. According to him, it was for the same
he signed the invoice drawn up by Chasakara for doors that had not
yet been delivered to the GMB.
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
the GMB. The court a quo also found that
the appellant showed favour to Chaxs World.
appeal it was contended that the evidence adduced by the State had
not proved beyond reasonable doubt that the appellant authorised
purchase of the panga panga doors from Chasakaras company.
I do not agree.
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 appellants office. The
justification for the decision was that the GMB needed
its image. That was a policy decision that Mutsotso and Chasakara
could not take without the knowledge and consent
of the appellant.
effect of Mutsotsos evidence was that the appellant was present in
the office and took part in the deliberations. Although
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,
not challenged by the appellant in the court a quo.
subsequent conduct of the appellant supports the finding that he was
in the office and took part in the discussions. Soon
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
the appellant affixed his signature to its body. He
must have known that the doors had not yet been delivered.
appellants defence outline suggested that he signed the document
as acknowledgement of the fact that Chasakara had verbally
to him her interest in Mums Pride. He did not tell any of his
subordinates involved in the procurement process that
an interest in Mums 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
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
authorised the purchase of the doors from Chaxs World. The
effect of that evidence was that Mukaratis insistence
procurement procedures being followed was overruled by the appellant.
that telephone conversation, the appellant endorsed on a cheque
requisition the word approved, which was understood
creditors department to mean that payment for the doors on the
same day on which the invoice, purchase order and cheque
were raised had been authorised. Payment of $59 400 was made
by cheque to Mums Pride on the day the other documents
raised. Payment was made before the doors had been delivered to the
GMB. There was an element of favour being shown to the
the appellant said that he had endorsed the word approved as
acknowledgement that Chasakara had declared her interest
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
differed from that given by Muziti, the court a quo was
bound to accept the facts established by formal admission.
the appellant had endorsed the word approved on the cheque
requisition for the purpose suggested by him, there would have
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 Chaxs World to the GMB. The appellant
had to give
ostensible authority to the irregular procurement procedure
undertaken for the purpose of showing favour to Chaxs
authorisation of the purchase of the doors from a company in which
one of the senior employees was a director without competitive
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 Chaxs World. The
appellants conduct was grossly irregular because it placed money
disposal of the company, with which the company bought the
doors before delivering them to the GMB.
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.
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
purpose of showing favour to Chaxs World.
S v Chogugudza 1996 (1) ZLR 28 (S) GUBBAY CJ at 34F said:
plain language of s 15(2)(e) mandates that the presumption will
stand unless proof to the contrary is adduced by the public
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
appellants defence was such that once it was proved beyond
reasonable doubt that he had authorised the purchase of the doors
from Chaxs World contrary to the procurement procedures, which
required competitive bids to be invited, and had approved payment
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.
appeal is without merit. It is accordingly dismissed.
JA: I agree.
JA: I agree.
Venturas & Partners, appellant's legal practitioners