Undenge loses appeal against jail term
FORMER Energy and Power Development minister Samuel Undenge will now serve 30 months in jail after his appeal against both conviction and sentence were thrown out by the High Court on Monday.
Undenge was in July 2018 sentenced by Harare regional magistrate Hoseah Mujaya to an effective two-and-a-half years in prison after being convicted for prejudicing the Zimbabwe Power Company of $12 650.
But Undenge appealed against the conviction and sentence, arguing that the 30 months were harsh and excessive. He also claimed he was a victim of political games after the change of government in 2017.
He also wanted the court to consider community service or a fine as appropriate sentences, but Justice Joseph Musakwa, sitting with Justice Phildah Muzofa, upheld both conviction and sentence imposed on Undenge.
The rejection of the appeal against both conviction and sentence in the High Court, means Undenge will now serve the full sentence, for which he unsuccessfully argued in his appeal hearing.
However, Undenge could still appeal to the Supreme Court, but in that case he would first have to seek leave to appeal and unless there was even a small possibility of a reversal of conviction or reduction of sentence, it is unlikely that such leave would be granted.
The judge said the seriousness of the crime that Undenge was convicted for arose from undermining public confidence in public administration and the subversion of corporate governance.
Meanwhile, the Supreme Court has reversed the acquittal by the High Court of Intratrek managing director Wicknell Chivayo, who is facing fraud involving a Gwanda solar panel deal worth US$5,6 million.
The appeal by the Prosecutor-General (PG) came after Justice Owen Tagu ruled that the matter was more of a civil case than criminal.
Justice Tagu had granted an application for review by Chivayo and he ruled that the decision by the trial court to dismiss Chivayo’s application for exception in November 2018 was defective.
Chivayo was facing fraud charges and of contravening sections of the Exchange Control Act.
The PG, however, appealed Tagu’s ruling to the Supreme Court and a three-judge panel comprising Deputy Chief Justice Elizabeth Gwaunza, Justice Rita Makarau and Justice Susan Mavangira unanimously allowed the appeal.
The trio ruled that the High Court erred in interfering with the unterminated criminal proceedings before the trial magistrate Lazini Ncube and ruled that the fraud trial should proceed.
“The court erred in interfering with the unterminated criminal proceedings. It erred by failing to make a finding that the ground of review raised by the Intratrek and Chivayo had been proved and that having been so proved it brought out a miscarriage of justice that not only went to the root matter. The court erred in taking a wrong approach in the matter,” they ruled.
“The appeal must be allowed and judgment of the court set aside, the trial of the first and second respondents before the third respondents must proceed.”
Chivayo had won a tender for the construction of the US$200 million Gwanda solar power project in 2015, but is yet to show any meaningful progress apart from a few cabins and buildings, despite receiving a US$5 million advance from the government in irregular circumstances.