Tomana is 'incompetent and bad at law', says Telecel

Telecel Zimbabwe (Private) Limited has said attempts by the Prosecutor General Mr Johannes Tomana to appeal against the Supreme Court ruling forcing him to issue a certificate for the private prosecution of the company's shareholder Jane Mutasa is 'incompetent and bad at law'.

The Herald reports that the mobile phone company last month obtained an order against Mr Tomana to issue the certificate for the prosecution of Mutasa on fraud charges involving more than $1,7 million in airtime recharge vouchers.

Mutasa was arrested in 2010 along with the company's commercial director, Naguib Omar, for allegedly stealing airtime vouchers worth over $1,7 million.

The order awarded against Mr Tomana was coupled with a five-day ultimatum which has since lapsed.

Responding to Mr Tomana's application filed at the Constitutional Court two weeks ago challenging the superior court's decision, Telecel lawyer Mr Isaiah Mureriwa argued that his client was improperly cited.

He said it was clear that the relief sought by Mr Tomana at the apex court had nothing to do with Telecel, but with the court of final jurisdiction (Supreme Court).

"To the extent that the application seeks no competent relief against the respondent (Telecel), then the respondent has been wrongly cited... wherefore prays that the application against it be dismissed with costs," argues Mr Mureriwa.

In the event the court does not find favour with the point raised, Mr Mureriwa wants the apex court to consider that the Supreme Court, being the court of final instance in the present case, has made its decision which could not be appealed against.

Mr Mureriwa wanted the Supreme Court to invoke the doctrine of 'dirty hands' against Mr Tomana, saying he had not issued the certificate in compliance with the court ruling.

"The applicant still has not given the required certificate and is therefore approaching the court in utter defiance of the court and law, as pronounced hence his hands are dirty," said Mr Mureriwa.

He further argues that Mr Tomana's attempt to block the prosecution of Mutasa by a third party 'colours his conduct with shades of impartiality and begs the question if the applicant himself is not guilty of violating section 261(of the Constitution), which requires him to act impartially...'

Last week, Mr Tomana through his lawyers, Mambosasa Legal Practitioners, filed an application at the Constitutional Court challenging the superior court decision.

He argued that the court order awarded against him sought to interfere with the powers vested upon him in terms of the provisions of the Constitution.

Mr Tomana further argued that he declined to issue the certificate on the basis that police investigations had revealed that no offence had been committed by Mutasa and her three accomplices.

The constitutional challenge by Mr Tomana comes after Justice Bharat Patel opened the avenue for Mutasa's prosecution when he quashed a High Court decision refusing to grant the mobile phone services provider an order forcing Mr Tomana to issue the certificate for private prosecution.

He ruled that a private corporate was entitled at law to institute private prosecution, adding that Mr Tomana failed to exercise his statutory powers on a proper legal footing.