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Grace Pfumbidzayi

Daniel Nemukuyu Senior Court Reporter—
Jailed former Air Zimbabwe bosses, Peter Chikumba and Grace Pfumbidzayi, could have been wrongly convicted of criminal abuse of office after it emerged that they were, in fact, not public officers as defined by the law. Criminal abuse of duty as a public officer is only applicable to people employed in public institutions, and the lawyers representing Chikumba now want him acquitted on the basis that Air Zimbabwe Holdings employees are not public officers.

Peter Chikumba

Chikumba and Pfumbidzayi were convicted and jailed for showing favour to Navistar Insurance company and swindling the airline of millions of dollars in an aircraft insurance scam.

Advocate Thabani Mpofu breathed some life into the case after filing amended grounds of appeal at the High Court with instructions from Rubaya and Chatambudza law firm.

He argued that Section 174 of the Criminal Law (Codification and Reform) Act on the conduct of public officers excluded Air Zimbabwe Holdings (Private) Limited workers.

It was argued that Chikumba was an official of a private limited company formed in terms of the Companies Act and that his conviction under Section 174 was therefore a nullity.

“The court a quo erred in coming to the conclusion that appellant was at the relevant time a public officer as contemplated by Section 174 of the Criminal Law (Codification and Reform) Act and so erred in concluding that he had committed the criminal misconduct with which he was charged,” argued Mpofu.

“The court a quo erred at any rate in not finding that Air Zimbabwe Holdings (Private) Limited which employed appellant during the relevant period is not a successor company to the Air Zimbabwe Corporation and hence the public law principles that it applied to it and a fortiori appellant’s alleged conduct were by law of no application,” reads the notice of appeal.

Section 174, according to the lawyers, regulates the conduct of public officers and it reads:

“If a public officer, in the exercise of his or her functions as such, intentionally:

a) Does anything that is contrary to or inconsistent with his or her duty as a public officer, or

b) Omits to do anything which is his or her duty as a public officer to do

For the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level 13 or imprisonment for a period not exceeding 15 years or both.”

A public officer is defined under Section 169 of the Criminal Code as:

a) A Vice President, Minister or Deputy Minister or

b) A Governor appointed in terms of an Act referred in Section 11A of the Constitution or

c) A member of a council, board, committee or other authority which is a statutory body or local authority or which is responsible for administering the affairs or business of a statutory body or local authority or

d) A judicial officer.

Chikumba’s lawyers argued that in the case of Stephen Nhuta vs Air Zimbabwe Holdings, the Supreme Court held that there was a difference between Air Zimbabwe Holdings (Private ) Limited and Air Zimbabwe (Private) Limited.

The Supreme Court, according to the lawyers, ruled that the successor company to the old Air Zimbabwe Corporation is Air Zimbabwe (Pvt) Limited and not Air Zimbabwe Holdings (Pvt) Ltd.

It is now argued that the holding company that employed Chikumba and Pfumbidzayi does not have any public characters and is not obliged to follow a State procurement regime.

The magistrate, the lawyers argued, erred in convicting Chikumba of criminal abuse of duty when she had cleared him of contravening the Procurement Act.

“Having come to the conclusion that appellant had not contravened provisions of the Procurement Act and had to be acquitted on that charge, the court a quo contradicted itself and erred in concluding that he had contravened the main charge whose sole basis was appellant’s alleged failure to comply with the procurement regime,” reads the appeal papers.