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Mr Kurotwi

Daniel Nemukuyu Senior Court Reporter
Core Mining and Mineral Resources director Mr Lovemore Kurotwi and former Zimbabwe Mining Development Corporation chief executive Dominic Mubaiwa were on Wednesday cleared of defrauding Government of $2 billion in a diamond mining deal.

The judgment questioned the competence of Government lawyers who scrutinised the papers and blindly advised the nation into forming a joint venture mining firm Canadile Miners with a company that did not have the capacity to raise the required $2 billion to fund the diamond mining project in Marange.

The lawyers, the judge ruled, could have picked up that Government was only dealing with Core Mining, which did not have the capacity to raise the $2 billion required for the diamond mining operations.

Mr Kurotwi and Mr Mubaiwa, for the past six years, were being accused of conniving to mislead the Government into signing a joint venture diamond mining agreement with an undeserving Core Mining, which later failed to raise the required $2 billion to bankroll the project.

It was the prosecution’s case that Mr Kurotwi and Mr Mubaiwa made former Mines and Mining Development Minister Obert Mpofu, believe that Core Mining was a special purpose vehicle for an internationally recognised mining giant Benny Steinmeitz Group Resources (BSGR) and that it had the capacity to inject $2 billion into the joint venture company Canadile Miners.

The duo was then charged with fraud and the criminal case dragged for six years before defence lawyers Mrs Beatrice Mtetwa and Advocate Lewis Uriri, successfully applied for the discharge of the pair at the end of the prosecution’s case.

Acquitting the duo in the High Court yesterday, Justice Chinembiri Bhunu (now Supreme Court judge) blasted Government lawyers who were involved in scrutinising the agreement papers, saying they could have picked up that BSGR was never part of the agreement.

The judge said the papers clearly showed that BSGR communicated to Government stating its conditions in order for it to fund the deal, but Government did not meet them.

Failure by Government to meet the set conditions and the non-involvement of BSGR in the signing of the agreement, clearly proved that the mining giant had already moved out of the picture.

If the lawyers had properly applied their minds to the documents, the judge said, they could have picked up that they were dealing with Core Mining and not BSGR.

“Considering that the contractual document was subjected to scrutiny by Government lawyers before execution, it is highly unlikely and not in the least probable that they too could have been mistaken that BSGR were the guarantors for Core Mining when the written contract stipulated in clear and unambiguous terms that Sibithry Naidoo and Litch Yehuda were the guarantors.

“It is wholly unbelievable that Government, ZMDC and Marange Resources could have genuinely believed that BSGR was standing as guarantor for Core Mining with the full knowledge that they had not accepted its counter offer.

“It therefore boggles the mind how all these three eminent entities backed up by proficient lawyers could have entertained the idea of contracting with BSGR without the contractual basics of offer and acceptance,” ruled Justice Bhunu.

The judge found that Mr Kurotwi never misrepresented to Minister Mpofu in any way because BSGR later confirmed its willingness to fund the operations, but set some conditions first before the agreement was signed.

The court also found that Mr Mubaiwa had not done anything criminal in the process leading to the signing of the joint venture agreement.

Justice Bhunu said most of the evidence led from State witness was not credible and not helpful at all in coming up with the judgment.

“As already pointed out at the beginning of this judgment, I have elected to base my judgment mainly on irrefutable documentary evidence and matters, which are common cause.

“This is because I consider the bulk of viva voce evidence in this case to be coloured and tainted by self-interest as most of such evidence is from suspect co-conspirators.

“I have also disregarded character evidence as intrusive and unhelpful in the determination of this case,” he said.

The court also found that former ZMDC chairman and lawyer Mr Goodwills Masimirembwa also failed to interpret the law during court proceedings.

“Confronted by Mrs Mtetwa, counsel for the first accused (Kurotwi), with the difficult question how there could have been a valid contract when BSGR’s conditions were never met, Mr Masimirembwa the erstwhile ZMDC chairman, a lawyer by training, retorted that the counter-offer merely amounted to a suspensive condition.

“That response is misplaced and erroneous at law. A suspensive condition can only come into play where the parties are in agreement and they agree to suspend the operation of the contract until the happening of a particular event,” said Justice Bhunu.