Zimbabwe legislators must display zero tolerance to corruption-Parliamentary Committee

6.3    Analysis of the Submissions by Mr. Tundiya

6.3.1 Mr. Tundiya was the architect of the entire bribery allegations. He arranged the meetings between Mr. Goddard and management at Hwange Colliery. He held two meetings with Hon. Chikomba, Hon. Ndebele and Hon. Sibanda at Bronte Hotel in Harare. Hon. Mliswa did not attend those meetings. The three Hon. Members of Parliament confirmed meeting him at Bronte Hotel. However, it was their position that the encounters were purely coincidental and, therefore, neither planned nor pre-scheduled.

6.3.2 Mr. Tundiya was again the convener of the meeting of 15 November 2018 at JR Goddard Borrowdale offices. He was described as a “conman” by Hon. Mliswa and his role in these bribery allegations appears to lend credence to that description. He wanted Mr. Goddard to secure a mining contract at Hwange Colliery. To ensure that this was successful, he orchestrated meetings of relevant stakeholders, including the Hwange Colliery management and the Hon. Members of the Parliamentary Portfolio Committee on Mines and Mining Development.

6.3.3 In his submission, he stated that he knew and was connected to Mr. Goddard in relation to the mining contract at Hwange. It could be inferred that his meetings with the Honourable Members of the Portfolio Committee on Mines and Mining Development and Mr. Goddard and his company were predominantly in relation to the Hwange mining contract. However, reference was made to the debt owed to Hon. Chikomba. In the submission, the amount he owed Hon. Chikomba was either $1600 or $2100, but the evidence is unclear as to the circumstances and origin of the debt in question.

6.3.4 In his submission, when the alleged figure of $400 000 was stated to Mr. Goddard, he (Mr. Goddard) complained that it was “too much” and that he could afford $ 200 000.

6.4 Analysis of the Submissions by Hon. Chikomba and Hon. Sibanda

6.4.1 The evidence of these two accused Honourable Members of Parliament is discussed together because their defence to the allegations and the witnesses’ evidence against them are largely similar.

6.4.2 Their testimonies were to the effect that Mr. Tundiya had testified before the Committee on Mines and Mining Development on account of his association with Hwange Colliery. At that appearance, he incidentally mentioned that Hon. Chikomba owed him money.

6.4.3 They then met him at Bronte Hotel but denied that it was a planned meeting. On 15 November 2018, they went to meet Mr. Tundiya at JR Goddard offices in Borrowdale with a view to collect Hon. Chikomba’s debt. Hon. Sibanda provided a vehicle while Hon. Ndebele, as a legal practitioner, attended as legal counsel for Hon. Chikomba.

6.4.4 Hon. Sibanda and Hon. Ndebele indicated that the venue of the meeting of 15 November 2018 was changed three times for reasons that were not clear. Hon. Chikomba further stated that they met Mr. Tundiya along Borrowdale Road where his car was parked with hazard indicators flashing. He also stated that when they identified Mr. Tundiya, he led them to Mr. Goddard’s Office. There was no mention of the changes in venue as alleged by Hon Sibanda and Hon Ndebele.

6.4.5. On their version, there was discussion with Mr. Tundiya about Mr. Goddard attending the meeting as Mr. Tundiya’s business partner who was going to assist in the settlement of Hon. Chikomba’s debt.

6.4.6 They said this discussion took place before they got to the venue. However, there was information that Mr. Goddard, Mr.  Steyn and Mr. Tundiya arrived at the venue ahead of all the accused Hon. Members of the Committee on Mines and Mining Development. This aspect was corroborated by Hon. Mliswa and Hon. Sibanda who confirmed that when they arrived, Mr. Goddard and his team were already at the offices.

6.4.7 The two further deposed in their affidavits that Mr. Goddard chaired the meeting and undertook to settle Mr. Chikomba’s debt. Mr. Goddard was said to have been surprised that the debt was in United States dollars and that it had been outstanding since 2007.

6.4.8. The Committee had reservations about the nature of a debt that will draw Hon. Members of a Parliamentary Portfolio Committee to convene an emergency meeting at night.

6.4.9. What had become urgent with regards to the debt is not explained, considering it was said to have been owed from as far back as 2007.  This, of necessity, begs the question would a debt of US$2100 have taken a business person of Mr. Goddard’s stature to travel all the way from Shangani Harare at night, accompanied by his Mining Director to only give an assurance to four (4) Members of Parliament that he would take over and pay the debt on behalf of Tundiya. This puts to credence the allegations relating to solicitation.

6.4.10. It is of the essence to note that Hon. Mliswa who chaired the meeting had a different version of what transpired. He testified that at the meeting, the only issue discussed was the Hwange Colliery where he outlined government policy that encouraged public- private partnerships between the government and private players. Hon. Ndebele also confirmed that Hon. Mliswa left before the alleged $400 000 was mentioned in the car park. This however creates the impression that the debt issue could have been a smokescreen for convening the meeting at night.

6.4.11. A conspectus of these submissions by the Honourable Members, when taken cumulatively cast doubt on whether the sole subject of discussion was the debt owed to Hon. Chikomba or about issues related to the mining contract at Hwange Colliery.

6.5. Analysis of the Submissions by Hon. Ndebele

6.5.1. All the evidence against Hon. Chikomba and Hon. Sibanda relate to Hon. Ndebele in equal measure. He attended the meetings with Mr.Tundiya at Bronte Hotel as well as the one at Mr. Goddard’s offices.

6.5.2. The explanation for his presence was that, as a lawyer, he was there to give legal advice to Hon. Chikomba. Questions were raised as to why he conducted his legal work at night? The Committee notes that there was no submission confirming Hon. Ndebele’s capacity as legal representative of Hon. Chikomba. The Committee further notes that there is no law prohibiting a lawyer from consulting with a client at night. It could also be plausible that he may have been acting on a pro-amico basis.

6.5.3.Two grounds, however, set him apart from Hon. Chikomba and Hon. Sibanda. Firstly, when the alleged request for payment of the $400 000 was made in the car park, he was in his car and did not participate in that discussion. That he sat in the car is fortified by all the other witnesses.

6.5.4. The alleged acts of Hon. Chikomba and Hon. Sibanda could only be imputed on him where applicable on the basis of the doctrine of common purpose. That doctrine is a criminal law concept which the Committee doubts has a place in this inquiry. Even if it does, there is no evidence on record to establish such common purpose. Nothing either shows that he foresaw or knew that the other Hon two members would engage in any other conducts as alleged.

6.5.5. Secondly, Hon. Ndebele allegedly called Mr. Goddard the following morning and advised him that he was distancing himself from all that was alleged to have transpired the previous night. Disassociation from a criminal enterprise is a complete defence to a crime. In S v Ndebu & Another 1985 (2) ZLR 45 (SC), it was held that;

“in order to afford himself a defence to the crime with which the principal offender is charged, a socius criminis who is present, abetting in the commission of a crime, must do more than merely withdraw from the scene of the crime; in particular, he must do something positive to avert the danger which his recklessness has brought about.”

Further in S v Beahan 1991 (2) ZLR 98 (SC), the court held that;

“An accomplice who wishes to dissociate himself from a criminal common purpose must, if he is to escape liability, take reasonable steps to frustrate the purpose where his contribution has been anything more substantial than assent prior to the event. Mere withdrawal will only avail him where he has done no overt act toward the completion of the crime.”

6.5.6 Hon. Ndebele’s call to Mr. Goddard, therefore, operated to effectively disassociate himself from the alleged acts of Hon. Chikomba and Hon. Sibanda. By intimating to Mr. Goddard that he was distancing himself from all that had allegedly transpired the previous night, he effectively afforded himself complete indemnity on any alleged misconduct.

6.6. Analysis of the Submissions by Hon. Mliswa

6.6.1 The only part he played in this matter was attending the meeting on 15 November 2018 at JR Goddard offices. Even then, it appears that his attendance was well-intentioned. It cannot be gainsaid that what was discussed during his presence was government policy on partnerships in mining between government and private players. He and Hon. Ndebele advised Mr. Goddard that he was supposed to meet the Minister of Justice, Legal and Parliamentary Affairs since Hwange Colliery was under reconstruction.

6.6.2 He indicated that Mr. Tundiya was not known to him but had appeared before the Mines Committee. He went on to label Mr. Tundiya as person of questionable character and for that reason he prevented him from speaking at the meeting.

6.6.3 He indicated that he had to chair the meeting because he did not want Mr. Goddard to misunderstand the purpose of the meeting. This statement is in line with other submissions confirming that the meeting was predominated with discussions concerning the Hwange mining contract.

6.6.4 What sticks out like a sore thumb from the evidence before the Committee is that Hon. Mliswa left before the meeting ended. What transpired in the car park cannot by any stretch of imagination be imputed to him. There is nothing on record to show that he knew that his colleagues had remained to discuss the payment of any alleged “facilitation fee” and as such should be fully exculpated.

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