A FULL Constitutional Court (ConCourt) bench has set aside a Supreme Court ruling which upheld a forensic audit report linking former National Social Security Authority (Nssa) chairperson, Robin Vela, to alleged corruption — giving life to a High Court ruling that dismissed the audit report.
In March 2019, BDO Zimbabwe Chartered Accountants, after having been contracted by then Auditor-General Mildred Chiri, released a damning forensic audit report which implicated Vela in several cases of corruption.
The former Nssa boss applied for a review of the audit report and won the matter at the High Court after arguing that the findings were biased, incompetent and targeted at him in a witch-hunt exercise.
The High Court agreed with him.
BDO Zimbabwe and the Auditor-General took the matter to the Supreme Court challenging the High Court’s ruling and it was duly set aside, implying that the audit report was upheld.
On Wednesday, the ConCourt (using its powers of review) dismissed the Supreme Court ruling and ordered a fresh hearing by different judges.
“As agreed to by the full bench of this court, the operative part of the judgment, in the exercise of the court’s powers as stated in section 19 of the court’s rules, the judgment in the Supreme Court in SC 61/22 be and is hereby set aside,” part of the ConCourt judgment delivered by Justice Paddington Garwe read.
“The matter is remitted to the Supreme Court for a hearing (afresh) before a different panel of judges.”
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The High Court had ruled that the audit report by BDO was “biased”, “incompetent” and riddled with “inaccuracies”.
Then High Court judge, Justice Webster Chinamora ruled that auditors BDO Zimbabwe Chartered Accountants had “failed to apply their mind to the issue before them and nullified the audit findings as they relate to Vela”.
Vela successfully argued before the High Court that he was not yet board chairperson when Nssa allegedly bought properties from MetBank at inflated prices and also proved that the auditors were biased because they failed to make adverse findings against former Public Service ministers Patrick Zhuwao and Petronella Kagonye, who were being accused of issuing directives that were contrary to board resolutions.
Kagonye, Vela told the court, forced Nssa to sponsor a disability conference in her Goromonzi South constituency for US$200 000 and to make a further donation of US$200 000 to a school in the same constituency.
The auditors “did not criticise the minister for the abuse of pensioners’ funds for vote buying for a private benefit,” Vela charged.
But the Supreme Court, in the now set aside order, did not entertain the matter on merit, but rather dismissed the issue on a technicality.
The purported technicality being that the report was not subject to review.
The now retired Justice Chinamora said the lack of impartiality on the part of an auditor “is material to the credibility and validity of the entire forensic investigation”.
The judge said evidence of an agreement between the Auditor-General, who commissioned the auditors and BDO that the latter would send representatives to testify for a fee in court if the audit report resulted in criminal proceedings and disciplinary action “caused concern”.
“Thus, a reasonable person in the position of the applicant would be forgiven for thinking that the auditors were compromised as they were essentially touting for business relating to future proceedings to either prosecute him or dismiss him from his job,” Justice Chinamora said.
Vela also argued before the judge that a conclusion that Nssa had suffered a potential loss of US$104 million in a housing scheme implemented with the Housing Corporation of Zimbabwe wrongly assumed that completed houses would have no takers.
No such funds ever left Nssa’s coffers.
The court also found that the auditors rejected and/or failed to take notice of Vela’s responses to their questionnaire.
“The court is minded to make a few inferences,” Justice Chinamora said.
“Either the auditors were biased against the applicant, or they did not apply their minds to the facts before them when conducting their forensic audit. In the end, the court is compelled to conclude that it was a case of incompetence.”
The judge said Vela’s right to administrative conduct that was lawful, reasonable, impartial and both procedurally and substantively fair had been breached, before ordering: “It is ordered that the forensic audit of Nssa for the period January 1, 2015 to February 28, 2018 produced on behalf of the Auditor-General of Zimbabwe by BDO Chartered Accountants be reviewed and set aside in all those reports that pertain whether directly or indirectly to the applicant.”
The Nssa forensic audit released in July 2019 led to the arrest of former Public Service, Labour and Social Welfare minister Priscah Mupfumira, who has since been acquitted of the allegations of misappropriating US$95 million she was facing.
Given the directive of the ConCourt, the High Court judgment has been brought to life although it is subject to an appeal process at the Supreme Court.
Advocate Method Ndlovu, representing Vela, said the “net effect of the Constitutional Court judgment sets aside the judgment of the Supreme Court, which means now we have a live judgment. The judgment of the High Court as per Chinamora J, is now alive, but subject to an appeal at the Supreme Court.”
