BHUNU
J: The accused is the Minister of Energy and Power
Development. In the main count he is charged with criminal abuse of duty as a
public officer in contravention of s 174 (10 (a) as read with s 174 (2) of the
Criminal Law Codification and Reform Act [Cap
9:23].
He
is alleged during the period extending from the beginning of January 2011 to 12
January 2011 to have intentionally directed the Acting Chief Executive officer
of Petrotrade, one Griefshaw Revanewako to purchase five million litres of
diesel from a South African company known as Nooa Petroleum (Pty) Ltd for the
purpose of showing favour to Nooa Petroleum (Pty) Ltd.
In
the alternative and arising from the same facts he is alleged to have
unlawfully instructed Griefshaw Revanewako the said Acting Chief Executive
Officer of Petrotrade to purchase the five million litres of diesel from Nooa
Petroleum (Pty) Ltd without going to tender in contravention of Section 30 of
the Procurement Act [Cap 22: 14] as
read with sections 5 (4) (a) (ii) and section 35 of the procurement regulations
[S.I. 171 of 2002].
The
facts giving rise to both charges are to a large extent common cause. The
undisputed facts are that during the period under review the accused was the
Minister of Energy and Power Development. In that capacity he was responsible
for overseeing the procurement of fuel in terms of the Procurement Act and
Regulations. The procurement of petroleum products was done through the
National Oil Company of Zimbabwe (NOCZIM) which in turn had Petrotrade as its
special purpose vehicle for the importation of fuel. Petrotrade was however,
not a recognized registered lawful procurement entity at the material time.
In
the normal run of things and all things being equal s (30) (1) of the
Procurement Act and regulations prohibits and criminalizes any purchase of
commodities in excess of fifty thousand dollars without going to tender.
Subsection
(2) of the same section however, permits the procurement of commodities in
excess of the specified amounts without going to tender provided the procuring
entity justifies in writing the need to purchase such commodities including
fuel without going to tender. The section reads:
“30
Form of procurement proceedings
(1) Except as otherwise provided in this Act,
the procurement of -
(a) Goods or construction work by a procuring
entity shall be done by means of tendering proceedings in accordance with
section thirty-one;
(b) Services by a procuring entity shall be
done by a method which complies with section thirty-two.
(2) Where
in accordance with this Act a procuring entity adopts a method of procurement
other than one specified in subsection (1), the procuring entity shall include
in the record of its proceedings a statement of the grounds and circumstances
on which it relied to justify the adoption of that method”.
It is clear from the provisions
of s 30 of the Act that there are two lawful ways of procuring fuel in terms of
the Procurement Act. The first mode of procurement is by going to tender in
terms of subsection one. The second mode is by purchasing fuel without going to
tender in terms of subsection two.
I
now turn to apply the law to the facts
of this case. It is common cause and a matter of established fact that during
the period in question there was an acute shortage of fuel in the country. All
the state witnesses comprising Justine Mupamhanga, the permanent secretary in
the ministry of Energy and power development, Morgan Mudzinganyama, the
director petroleum in the ministry, Griefshaw Revanewako, the Acting Chief
Executive of Petrotrade, Sikwila Tanaka , the financial manager at NOCZIM and
Charles Kawaza, the Chairman of the state procurement Board all gave
incontrovertible evidence to the effect that at the material time the country
was experiencing a critical shortage of diesel.
The accused in his defence
outline stated that none of their traditional suppliers of fuel had any diesel
for sale. The permanent secretary confirmed the accused's defence to that
effect. Under cross-examination he was asked:
“Q. Now Mr. Mupamhanga in your statement you
accept that on or about 11th January 2011 there was a fuel crisis in
the fuel sector in the country
A. That is correct.
Q. How did that crisis come about.
A. That resulted from the difficulties at Beira which led to
ships bringing fuel not being able to dock. A major reason however was that
there was no fuel from our traditional suppliers.”
The admitted critical shortage
of fuel on the market prompted the accused in his capacity as Minister of
Energy and Power Development to write a letter exhibit one on 12 January 2011
authorizing the Acting Chief executive Petrotrade to purchase fuel without
going to tender in a bid to salvage the situation. The letter reads:
“Attention
Eng. G Revanewako
AUTHORITY TO PURCHASE 5 MILLION LITRES GASOIL
EX-TANK MATOLA FROM NOOA PETROLEUM WITHOUT GOING TO TENDER.
Having assessed the fuel supply constrains the
country is facing, I authorize that you procure 5 million litres of diesel,
being the only fuel available from Nooa Petroleum in Matola at $0.88 per litre
landed in Harare.
The product should be shipped to cover Masvingo,
Midlands and Matabeleland Provinces which are more affected by the shortage of
fuel. Part of the fuel should be swapped with fuel in the pipeline that is
owned by oil companies on a litre for litre basis. This will facilitate quick
release of product to these companies while at the same time speeding the
availability of fuel on the market.
You are required to quickly implement these
arrangements.
Signed
E S. Mangoma (MP)
MINISTRY OF ENERGY AND POWER DEVELOPMENT.”
Virtually all the state
witnesses confirmed without exception that there was no fuel available from
their traditional suppliers at the material time. Whether or not the accused's
conduct in writing the above letter or directive amounts to a criminal offence
in the circumstances of this case depends on the interpretation of s 30 (2) of
the Procurement Act.
Mr. Kuwaza as I have already
pointed out is the Executive Chairman of the State Procurement Board. In his evidence
in chief he gave a comprehensive outline of his duties in this respect. His
duties among others are to administer The Procurement Act. In that respect he
is responsible for investigating and taking appropriate action against
irregular procurement of goods and services for the state in breach of the
normal rules and regulations.
The witness gave a detailed
explanation of the cumbersome procurement procedures by tender. It was his
testimony that if purchases are to be done through the normal tender procedures
it takes no less than 30 days just to float the tender and further delays can
be incurred through a system of appeals where one or more bidders are aggrieved
by any particular award.
Before dollarisation NOCZIM was
experiencing problems in sourcing foreign currency for the procurement of fuel.
As a result in 2004 in a bid to avoid the inevitable delays occasioned by the
cumbersome tender procedures and scarcity of foreign currency it solicited for
and was granted permission to procure fuel urgently without going through the
normal tender procedures provided it submitted to the State Procurement Board a
write up justifying the need to procure fuel without going through the normal
tender procedures.
As a result NOCZIM was required
to gazette an approved list of reputable foreign fuel suppliers from which it
could purchase fuel without going through normal tender procedures. The list
was however not cast in stone as NOCZIM was free to update the list from time
to time according to the prevailing circumstances. NOCZIM did not however,
strictly adhere to this directive and would from time to time procure fuel from
suppliers not on the approved gazetted list.
It is plain that the
dispensation granted to NOCZIM by the State procurement Board way back in 2004
accords with the provisions of s 30 (2) of the Procurement Act.
It is clear that s 30 (2) of
the Procurement Act was meant to provide a safety valve to enable state
procurement entities to procure commodities expeditiously for the benefit of
the state and the nation at large in times of dire need and emergences without
following the cumbersome time consuming normal tender procedures.
Whereas subsection one provides
for the general rule prohibiting procurement without going to tender,
subsection two provides for the exception which permits procurement without
going to tender for good cause shown in writing. The adage that for every
general rule there is an exception is therefore apt.
In crafting subsection two the
legislator had undoubtedly foreseen the cropping up of circumstances which may
require the urgent purchasing of commodities without going to tender for the
common good.
The accused appears to have
fallen into trouble because he persisted in buying the fuel from Nooa Petroleum
against the advice of his subordinates. This was compounded by the fact that
Nooa Petroleum ended up rendering defective service through its agent Mowhelere.
The mere fact that Nooa Petroleum through Mowhelere may have rendered defective
service cannot however, without more amount to criminal conduct on the part of
the accused.
The advice given to the accused
by his permanent secretary and Director Petroleum to the effect that any
purchases of fuel had to be done through the normal tender procedures was
incorrect and bad at law. Both the accused and Mr. Kawaza the Executive
Chairman of the procurement board were however, aware of the provisions of
section 30 (2) of the procurement Act. They were therefore aware of the correct
legal position.
It is amazing that both the
permanent secretary who is responsible for overseeing the procurement of fuel
and the Acting Chief Executive officer Petrotrade responsible for procurement
of fuel were ignorant of this vital provision of the law meant to facilitate
the procurement of fuel in times of emergency and dire need. Upon being
confronted with the provisions of section 30 (2) of the Procurement Act
everyone concerned had no option but to confess in open Court that it was not per see unlawful to procure fuel without
going to tender
Thus In ordering the Acting
Chief Executive Officer Petrotrade to procure 5 million litres of Diesel from
Nooa Petroleum without going to tender the accused was simply directing the
officer to procure the diesel in terms of s 30 (2) 0f the procurement Act.
Once the Acting Chief Executive
officer had been directed by the accused to procure fuel without going to
tender it was incumbent upon him to provide the necessary write up to justify
the procurement in terms of s 30 (2) of the Act.
If any fault is to be found at
all regarding the procurement of the fuel in question the blame must be laid
squarely at the door of the procurement entity for its failure to provide the
necessary write up according to law. This explains the chairman of the state
Procurement Board Mr. Kuwaza's attitude when he said that apart from what he
read in the newspapers he was not aware of any offence that the accused had
committed. He was of course correct in this respect.
Having regard to the provisions
of s 30 (2) of the Act no reasonable Court in my view would come to the
conclusion that by merely directing the Acting Chief Executive officer to
purchase fuel without going to tender the accused was guilty of any criminal
conduct.
Whether or not the accused was
abusing his office as a public official when he directed his subordinate to buy
fuel from Nooa Petroleum is determined by the motive and surrounding
circumstances behind the order.
It is common cause that when
the accused issued the directive it was in times of extreme emergency. Strategic
fuel reserves were down to less than a day's supply and there was no fuel from
traditional suppliers. Queues were beginning to form at fuel outlets. The
situation called for extraordinary measures to avert the emergency.
The accused's motive was
clearly to avert the situation which threatened the country with extreme
shortage of fuel. It is difficult to blame the accused for directing the
purchase of fuel from Nooa Petroleum when it was the only supplier with fuel at
that time.
There is also no logic in suggesting
that the fuel was purchased at an exorbitant price in circumstances where there
was only one supplier. In any case the evidence quite clearly establishes that
no one was able to establish if fuel could be found at a cheaper price elsewhere
on that day for the simple reason that there was no fuel on offer apart from
Nooa Petroleum.
In the final analysis having
regard to the surrounding circumstances and the motive for the directive it
cannot by any stretch of the imagination be suggested that the directive was
meant to extend any favour to Nooa Petroleum. In any case, the state was unable
to lead any evidence tending to show that the motive for the directive was
other than to avert the emergency staring the nation in the face at the
material time.
For the foregoing reasons we
were of the unanimous view that on the evidence presented before us, the state
has failed at the close of its case to establish a prima facie case upon which a reasonable court acting carefully
might convict the accused on either count. That being the case the Court has no
option but to discharge the accused at the closure of the state case.
The accused is accordingly
found not guilty and acquitted on both counts at the closure of the state case.
The Attorney General's Office, the State's Legal Practitioners.
Mtetwa &
Nyambirai, the defendant's legal practitioners