Fungai Lupande Court Reporter
Suspended Zimbabwe Broadcasting Holdings chief executive Happison Muchechetere yesterday sought referral to the Constitutional Court of his matter in which he is accused of breaching the Procurement Act, insisting that his charge is based on a non-existing entity. Represented by Advocate Thabani Mpofu, Muchechetere told the court that the Zimbabwe Broadcasting Corporation cited in the papers ceased to exist in 2002.
“Therefore, Muchechetere cannot be the accounting officer of an entity that does not exist, making the charge invalid and defect,” said Adv Mpofu.
“The new entity, Zimbabwe Broadcasting Holdings (Pvt) Ltd at law is not a procuring entity.
“The accused has the right to resist prosecution whose charge is ultra vires the main Act. How are we seriously to deal with the charge if we don’t know the penalty?
“I request the court to make its discretion on the matter or refer it to the Constitutional Court for its determination on the validity of the provisions.”
Responding to the application the State led by Mr Beaven Murevanhema and Ms Farai Zachariah urged the court to dismiss Muchechetere’s application.
“The accused is aware of the company he was working for,” said Ms Zachariah.
“The oversight of the company name does not prejudice him. His allegations and the charge are clear and the oversight can be cured by evidence, there is nothing missing there.
“What changed is just the company name, but the company remained the same, its corporate colour and shareholders, it was a cosmetic change. ZBH (Pvt) Ltd is a public entity because it is wholly-owned by the Government, thus the Procurement Act is not ultra vires the Public Finance Act.”
Ms Zachariah submitted that the charge was not fatal or ultra vires the Constitution.
She said that the matter should proceed to trial.
Harare magistrate Mr Adonia Masawi will make a ruling on Muchechetere’s application on July 28.
Muchechetere is facing charges of contravening the Procurement Act emanating from the importation of an Outside Broadcasting Can from China.
The complainant in the matter is the State Procurement Board represented by Mr Samson Mutanhaurwa.
The State alleged that on January 18 last year, Muchechetere, without going through a formal tender, entered into a procurement agreement to buy an OB van with the China National Instruments Imports and Exports Corporation at a price of US$1 050 000.
In the agreement, Muchechetere was representing ZBC as the accounting officer.
On June 28, Muchechetere concluded the purchase deal alone, which resulted in the Chinese firm issuing a commercial invoice and the OB van was delivered on August 8.