News / National
Magistrates, prosecutors fight over houses
25 Feb 2013 at 07:32hrs | Views
THE battle over a Government house pitting magistrates and prosecutors in Beitbridge has taken a new twist with the former taking the latter to court for defying their directive to vacate the property following the expiry of an eviction order.
The judicial workers have since last year been locked in a row over the occupation of the house in the border town which saw the magistrates engaging their employers, the Judicial Service Commission (JSC) over the issue.
The house at the centre of controversy is being occupied by the prosecutor-in-charge of the Beitbridge station, Mr Muchihwande Sithole and his colleague, Mr Reason Mutimba.
Last year in November, the JSC issued the two prosecutors with a notice to urgently vacate the house they are sharing with two other staff members, to pave way for two new magistrates who had been transferred to the border town.
The two magistrates who are reportedly supposed to occupy the house, Ms Gwineth Drawo and Mr Innocent Bepura are currently renting accommodation elsewhere. They were recently transferred from Marondera and Gwanda respectively to replace Mr Carrington Karidzagundi and Mrs Auxilia Chiumburu.
According to an official letter seen by Chronicle, the JSC issued an ultimatum ordering Mr Sithole and Mr Mutimba to vacate the house by 31 January.
"Notice is hereby given that you are supposed to vacate the magistrates' residence you are currently occupying by 31 January 2013. The Judiciary Service Commission would like to renovate the house from 1 February 2013. The house situated on Stand Number 38 Flamboyant Drive, was allocated to the magistrates by the local district administrator and more so magistrates cannot share the same house with prosecutors and other subordinate staff members for obvious ethical and professional reasons...." read part of the letter signed by Matabeleland South provincial magistrate, Mr Vakayi Douglas Chikwekwe.
Messers Mutimba and Sithole have since been served with summons to appear at the Gwanda magistrate's courts on 27 February for defying the eviction order.
In his court application on behalf of the JSC, Mr Chikwekwe said:
"Muchihwande Sithole and Reason Mutimba who in this case are the respondents are illegally occupying Stand Number 38 Flamboyant Road, Beitbridge as they are neither lease holders nor supported by any form of documentation warranting their continued unlawful stay at the house."
He further argued that the JSC entered into an agreement with the local district administrator in 2010 to occupy the house.
"On 24 September 2010, JSC was offered on loan basis the house in question by the Beitbridge District Administrator and the agreement still stands. We have supporting documents and the offer is quite clear and it does not need any extrinsic evidence or formula to interpret."
The applicant further accused the respondents of illegally occupying the house despite the expiry of the ultimatum to vacate the property.
"The two respondents took advantage of the transfer of some magistrates from Beitbridge to other stations and took it upon themselves to illegally occupy the house. They have nothing to support their illegal occupation other than groundless and unfounded defences which cannot be sustained at any court of law," Mr Chikwekwe said.
He also alleged that the DA's office was not amused at the illegal occupation of the house by the two prosecutors, adding that they were causing "untold suffering" to the "affected magistrates" through their alleged illegal occupation of the house.
"We need to repair the house and this is being blocked by the respondents and this is prejudicing our two magistrates who are supposed to occupy the house forthwith.
"The courts should therefore not condone such conduct which is bad at law by people expected to be the guardians of that law. In view of that I am praying for the eviction of the two prosecutors," read part of Mr Chikwekwe's affidavit.
In his founding affidavit, Mr Sithole described the actions by JSC as an "act of self-assertiveness," adding that they were willing to share the house with the two magistrates.
"The behaviour of the applicant is similar to that of a street bully who attempts to chase away other street kids from a bin which is not even his precisely purporting to be the bin master."
He further argued that house in question belonged to the Ministry of National Housing and Social Amenities, not the DA's office.
As a result neither the DA's Office nor the JSC had the powers to evict them.
"It is rather shocking that the applicant is creating his own chaos, takes his chaos to the court and wants to preside over the same chaos. In fact this is typical of a spectator of his own proceedings, which is wrong at law because you can't be a player and referee at the same time," Mr Sithole said.
Mr Mutimba said the application was legally defective.
"The applicant lacks locus standi to represent JSC and cannot dispose to an affidavit on its behalf as he has not annexed proof of authority to his application.
"The magistrate who would preside over this matter is an employee of the JSC and therefore it is clear that he or she would have peculiar interest in the matter. It therefore follows the nemo judex insua principle that no court should preside over its own case.
"It is trite in law that an application stands or falls with his or her founding papers. There are fundamental defects in the application and it is also wrong to apply for eviction in an application one would proceed by way of summons," he said.
The respondents also challenged the authenticity of the loan letter agreement, arguing that it was written and signed by an accountant in the DA's office instead of the DA himself.
"The loan letter agreement was written and issued by a mere accountant who has no authority whatsoever to allocate Government houses. She wrote those letters in a bid to secure accommodation for her brother- in-law who intended to occupy the same house."
Mr Mutimba said the prosecutors occupied the house before the loan agreement was made, adding that they were sharing the property with the previous magistrates without problems.
"No one ever signed the lease or sub-lease and the documents in applicant's possession do not warrant either lease or sub-lease and the applicant's letter does not have any significance in terms of the law.
"The applicant does not have capacity and right to evict or give notice to vacate as his department equally possesses the same rights as the respondents and the notice therefore becomes a nullity."
The respondents further argued that the local resident magistrate, Ms Gloria Takundwa occupied a full house with a cottage hence she was supposed to share it with her counterparts. They vowed that they would not vacate the controversial house.
"The applicant is a misdirected missile who is making a lot of noise out of nothing. In fact, he is the one causing untold suffering by his hallucinations in which he claims that magistrates only are the ones who are supposed to occupy the entire house yet there are three unoccupied rooms specifically set aside for the magistrates.
"Our worry is that we are being evicted from the house in question yet the resident magistrate is occupying a full house and a cottage on her own, which in essence she was supposed to share it with her colleagues and leave us in this house. JSC has no right to evict us from the house unless they are able provide us with an alternative accommodation," said the respondents.
Mr Patrick Tererai of Masawi and Partners is representing the respondents.
The judicial workers have since last year been locked in a row over the occupation of the house in the border town which saw the magistrates engaging their employers, the Judicial Service Commission (JSC) over the issue.
The house at the centre of controversy is being occupied by the prosecutor-in-charge of the Beitbridge station, Mr Muchihwande Sithole and his colleague, Mr Reason Mutimba.
Last year in November, the JSC issued the two prosecutors with a notice to urgently vacate the house they are sharing with two other staff members, to pave way for two new magistrates who had been transferred to the border town.
The two magistrates who are reportedly supposed to occupy the house, Ms Gwineth Drawo and Mr Innocent Bepura are currently renting accommodation elsewhere. They were recently transferred from Marondera and Gwanda respectively to replace Mr Carrington Karidzagundi and Mrs Auxilia Chiumburu.
According to an official letter seen by Chronicle, the JSC issued an ultimatum ordering Mr Sithole and Mr Mutimba to vacate the house by 31 January.
"Notice is hereby given that you are supposed to vacate the magistrates' residence you are currently occupying by 31 January 2013. The Judiciary Service Commission would like to renovate the house from 1 February 2013. The house situated on Stand Number 38 Flamboyant Drive, was allocated to the magistrates by the local district administrator and more so magistrates cannot share the same house with prosecutors and other subordinate staff members for obvious ethical and professional reasons...." read part of the letter signed by Matabeleland South provincial magistrate, Mr Vakayi Douglas Chikwekwe.
Messers Mutimba and Sithole have since been served with summons to appear at the Gwanda magistrate's courts on 27 February for defying the eviction order.
In his court application on behalf of the JSC, Mr Chikwekwe said:
"Muchihwande Sithole and Reason Mutimba who in this case are the respondents are illegally occupying Stand Number 38 Flamboyant Road, Beitbridge as they are neither lease holders nor supported by any form of documentation warranting their continued unlawful stay at the house."
He further argued that the JSC entered into an agreement with the local district administrator in 2010 to occupy the house.
"On 24 September 2010, JSC was offered on loan basis the house in question by the Beitbridge District Administrator and the agreement still stands. We have supporting documents and the offer is quite clear and it does not need any extrinsic evidence or formula to interpret."
The applicant further accused the respondents of illegally occupying the house despite the expiry of the ultimatum to vacate the property.
"The two respondents took advantage of the transfer of some magistrates from Beitbridge to other stations and took it upon themselves to illegally occupy the house. They have nothing to support their illegal occupation other than groundless and unfounded defences which cannot be sustained at any court of law," Mr Chikwekwe said.
He also alleged that the DA's office was not amused at the illegal occupation of the house by the two prosecutors, adding that they were causing "untold suffering" to the "affected magistrates" through their alleged illegal occupation of the house.
"We need to repair the house and this is being blocked by the respondents and this is prejudicing our two magistrates who are supposed to occupy the house forthwith.
"The courts should therefore not condone such conduct which is bad at law by people expected to be the guardians of that law. In view of that I am praying for the eviction of the two prosecutors," read part of Mr Chikwekwe's affidavit.
"The behaviour of the applicant is similar to that of a street bully who attempts to chase away other street kids from a bin which is not even his precisely purporting to be the bin master."
He further argued that house in question belonged to the Ministry of National Housing and Social Amenities, not the DA's office.
As a result neither the DA's Office nor the JSC had the powers to evict them.
"It is rather shocking that the applicant is creating his own chaos, takes his chaos to the court and wants to preside over the same chaos. In fact this is typical of a spectator of his own proceedings, which is wrong at law because you can't be a player and referee at the same time," Mr Sithole said.
Mr Mutimba said the application was legally defective.
"The applicant lacks locus standi to represent JSC and cannot dispose to an affidavit on its behalf as he has not annexed proof of authority to his application.
"The magistrate who would preside over this matter is an employee of the JSC and therefore it is clear that he or she would have peculiar interest in the matter. It therefore follows the nemo judex insua principle that no court should preside over its own case.
"It is trite in law that an application stands or falls with his or her founding papers. There are fundamental defects in the application and it is also wrong to apply for eviction in an application one would proceed by way of summons," he said.
The respondents also challenged the authenticity of the loan letter agreement, arguing that it was written and signed by an accountant in the DA's office instead of the DA himself.
"The loan letter agreement was written and issued by a mere accountant who has no authority whatsoever to allocate Government houses. She wrote those letters in a bid to secure accommodation for her brother- in-law who intended to occupy the same house."
Mr Mutimba said the prosecutors occupied the house before the loan agreement was made, adding that they were sharing the property with the previous magistrates without problems.
"No one ever signed the lease or sub-lease and the documents in applicant's possession do not warrant either lease or sub-lease and the applicant's letter does not have any significance in terms of the law.
"The applicant does not have capacity and right to evict or give notice to vacate as his department equally possesses the same rights as the respondents and the notice therefore becomes a nullity."
The respondents further argued that the local resident magistrate, Ms Gloria Takundwa occupied a full house with a cottage hence she was supposed to share it with her counterparts. They vowed that they would not vacate the controversial house.
"The applicant is a misdirected missile who is making a lot of noise out of nothing. In fact, he is the one causing untold suffering by his hallucinations in which he claims that magistrates only are the ones who are supposed to occupy the entire house yet there are three unoccupied rooms specifically set aside for the magistrates.
"Our worry is that we are being evicted from the house in question yet the resident magistrate is occupying a full house and a cottage on her own, which in essence she was supposed to share it with her colleagues and leave us in this house. JSC has no right to evict us from the house unless they are able provide us with an alternative accommodation," said the respondents.
Mr Patrick Tererai of Masawi and Partners is representing the respondents.
Source - TH
