- Part VII: Observations of the Committee
The Committee was mindful that the inquiry was not of a criminal nature where the burden of proof is beyond any reasonable doubt. The task of the Committee was to decide whether a case had been established on a preponderance of probabilities. On a conspectus of the evidence adduced, the Committee made the following observations –
7.1. The Committee noted some inconsistencies in both written and oral submissions. Messrs. Goddard and Steyn advised that their affidavits were only a summary of events that took place and that they would give more detail in oral evidence in amplification to their affidavits. Mr. Tundiya, however, changed evidencein his oral testimony.
7.2. From the submissions of Messrs. Goddard and Tundiya, the Committee observed that it was clear that they travelled all the way from Shangani, in the belief that they would meet Honourable Members of the Portfolio Committee on Mines and Mining Development to discuss the Hwange Colliery mining proposal. They indicated that it was important for them to meet the Committee on that day since the Committee was travelling to Hwange Colliery the following day. This was confirmed by Mr. Goddard when he requested his Mining Director to join him from Selous on his way to meet the Hon. Members of the Committee on Mines and Mining Development in Harare. The meeting took place at night in Mr. Goddard’s Borrowdale Office and the issue of Hwange Colliery mining contract was discussed. Indeed, the Committee travelled to Hwange Colliery and this evidence was not contested.
7.3. During the meeting of 15 of November 2018, Mr. Goddard stated that Hon. Mliswa intimated that His Excellency, the President, was supportive of joint ventures between the private sector and parastatals. Again, this was not challenged by any of the Hon. Members. In this case, he was trying to emphasize the point that it was in that spirit that Mr. Goddard’s company needed to enter into a joint venture with Hwange Colliery. Hon. Mliswa also indicated that Mr. Goddard would need to approach the Minister of Justice, Legal and Parliamentary Affairs to finalize the matter since Hwange Colliery was under reconstruction. The Committee found that all the witnesses were in agreement that the issue of the alleged bribe or a facilitation fee did not arise during the discussion that took place in Mr. Goddard’s office.
7.4 Prior to the meeting at Mr. Goddard’s Offices, three Honourable Members namely, Hon. Sibanda, Hon. Ndebele and Hon. Chikomba met Mr. Tundiya at Bronte Hotel. In his affidavit, Mr. Tundiya indicated that that the three Honourable Members requested to meet Mr. Goddard, Hon. Mliswa was not present at the Bronte Hotel meeting, but only joined them in the subsequent meeting at Mr. Goddard’s Borrowdale offices.
7.5. Mr. Goddard stated that as soon as Hon. Mliswa arrived, he proceeded to Chair the meeting and distributed his business cards which showed that he was the Chairperson of the Mines and Mining Development Committee.
7.6. The Honourable Members did not explain why they ended up discussing the proposal for mining at Hwange Colliery by Mr. Goddard’s company instead of discussing the debt when they got to Mr. Goddard’s office. Two Members, Hon. Ndebele and Hon. Sibanda initially submitted that the debt was discussed in Mr. Goddard’s office but later clarified their submissions in line with what was submitted by other witnesses. The submissions confirmed that the issue of the debt was discussed after Hon. Mliswa had departed and outside Mr. Goddard’s office.
7.7. While three of the Honourable members, namely, Hon. Chikomba, Hon.Ndebele, and Hon.Sibanda indicated that the main purpose of the meeting was in pursuit of the debt owed to Hon. Chikomba, the Committee finds the explanation disingenuous as the issue was never discussed in Mr. Goddard’s office. During the enquiry, Hon. Mliswa indicated he was unaware of the debt in question as well as the agenda of the meeting.
7.8. There was lack of clarity on the exact amount owed by Mr. Tundiya to Hon. Chikomba as different figures were mentioned during the course of the inquiry. Mr. Tundiya himself accepted that he owed the money when he testified. Mr. Goddard who was supposed to pay on behalf of Mr. Tundiya, professed ignorance about it and stated that he only became aware of the issue during the enquiry.
7.9. There was conflicting information about what was owed to Hon. Chikomba. Whereas Hon. Chikomba stated that the amount was USD 2100, Mr. Tundiya said that he owed USD 1600. In response to a question why USD 2100 had risen to $400 000 Hon. Chikomba characterized it as a casual comment. The Committee also noted that some of the evidence by Mr. Tundiya relating to the alleged sharing of the money by Honourable Members was not in his affidavit and in light of other contradictions in his submissions, the Committee observed that it was unsafe to accept this evidence as incriminating the Honourable members.
7.10. The conduct of the Honourable Members in meeting with Messrs Tundiya, Goddard and Steyn at night in Borrowdale outside the normal Parliamentary decorum created a negative impression about their intentions and adherence to the Code of Conduct of Parliament, however in an inquiry of this nature, it is important for the evidence against them to be clear, unambiguous and convincing.
7.11. Mr. Goddard conceded that he was not very conversant with the Shona language and he had to rely on Mr. Steyn who had a better understanding of the language. He could not independently follow the entire conversation in the car park between Mr. Tundiya and Hon. Chikomba. Consequently, he had difficulties explaining precisely what transpired both in his evidence and under cross examination.
7.12. It was noted that Mr. Goddard indicated that he had hearing problems. His evidence clearly exonerated Hon. Mliswa and Hon. Ndebele. While his submission is in conflict with Hon. Chikomba’s submission, it was also not clear what role Hon. Sibanda is alleged to have played.
7.13. The Committee notes that Mr. Tundiya subsequently clarified his earlier submission as contained in his affidavit and oral evidence and categorically stated that no issue of an alleged facilitation fee or bribe was ever raised. In his clarification he stated that the alleged request by Hon. Chikomba was for a loan.
7.14. Mr. Tundiya was not clear on the figures involved and the Committee was not impressed with him as a witness. He clearly failed to indicate in any way how any of the Honourable members could be implicated in having tried to solicit for the alleged bribe or facilitation fee. In fact, his evidence was to exonerate them on this aspect. His departure from the contents of his affidavit is fatal to the allegations against the four Honourable Members.
7.15. Regarding the alleged solicitation of a bribe, Mr. Tundiya denied during oral evidence that anything of that sort ever happened. The fact that Mr. Goddard indicated that he had some hearing problems and was not conversant with the Shona language, entails that his evidence could not be relied upon.
7.16. The Committee concluded that the evidence by both Mr. Goddard the complainant and Mr. Tundiya, a key and material witness, clearly exonerated Hon. Mliswa and Hon. Ndebele on the allegation of solicitation of bribe. Members of the Committee noted that the role of Hon. Sibanda in the alleged solicitation of the bribe was unclear as Messrs Tundiya, Goddard and Steyn could not proffer any precise, cogent and plausible explanation and information on his contribution to the allegation.
7.17. There is also a possibility that Hon. Chikomba submitted account details through which his debt could be settled. Mr. Tundiya’s character had been called into question and there was a possibility that he was attempting to set up the Honourable Members and the Goddard Team. His intention was not only to benefit from the high production of coal at Hwange but also from Mr. Goddard after facilitating his meeting with the Members of the Mines Committee.
7.18. In view of the foregoing, the Committee observed that at the time the four Hon Members attended the meeting, the Committee on Mines was deliberating Hwange Colliery Company in its oversight capacity. Thus, in discussing Hwange Colliery Company, they were in violation of Rule 16(2) of Appendix A of the Standing Orders. The Committee however noted that the terms of reference of the Committee did not empower the Committee to address the other ancillary and incidental issues beyond the allegation of solicitation of bribe.
7.19. The Committee also observed that Appendix A Rule 16(2) of the Standing Orders states that;
“For the purposes of this rule ‘publication’ includes the taking of extracts from, making copies of, any transcript sent to a witness for correction, in the imparting of the contents of such transcription and the imparting of any information concerning the deliberations of the Committee”.
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