Biti's Magistrate in trouble

HARARE regional magistrate Gloria Takundwa, who is presiding over the trial of MDC deputy chairperson Tendai Biti, has landed herself in a messy situation after she unsuccessfully tried to recant her earlier ruling allowing for media livestreaming of the trial, saying she had made the decision in "error".

Takundwa, who this week was labelled "very stupid or very brave or both" by a senior prosecutor for allowing livestreaming of the case before consulting her boss, filed for a review of her decision before the High Court, saying she had erred.

However, her bid hit a brickwall, with the High Court saying her earlier decision should stand.

Biti, who stands accused of illegally announcing results of the July 30 poll, had through his lawyer Beatrice Mtetwa applied for livestreaming of the matter, arguing it was of public interest.

Chief law officer prosecutor Michael Reza, who was recused from the case, in a leaked message early this week, allegedly described the magistrate as "very stupid or very brave or both" for allowing livestreaming of the case without consulting Chief Justice Luke Malaba.

Mtetwa then complained to Takundwa seeking to have Reza held in contempt of court, but the magistrate postponed the matter, saying she wanted to seek guidance from the High Court.

In her letter to the High Court, Takundwa said she granted the order for livestreaming in error.

"May you urgently place before a judge to review these proceedings on the grounds as stated that I am of the firm view that jurisdiction was absent in light of the fact that the application for media livestreaming was done in terms of the right to access to information," she said.

"I granted the order in error in that no specific media house was appointed nor mentioned and whether such media house is licensed. There is no law regulating such an application, so the court acted outside the confinement of the law."

But High Court judge Justice Joseph Musakwa declined to consider the review, saying Takundwa filed her letter without submissions of the proceedings for the State and defence.

Musakwa said he had no idea of what Takundwa considered in granting the application and said she should have accompanied her letter with detailed reasons that had been cited in court.

"I also note in passing that the trial magistrate granted livestreaming to unspecified media houses. Apart from that, there are no conditions governing the livestreaming. It is also apparent despite the State having opposed the application, it does not seem to be aggrieved by the order," he ruled.

"Two issues arise from this referral. The first is that the trial magistrate does not specify the provision she relied upon in referring the record of proceeding for review."

Musakwa said he was not aware of any provision that empowers a magistrate who thinks they had erred to refer such matters to the High Court for review before the proceedings have been concluded, saying it was akin to seeking legal opinion from the High Court.

He ordered that Takundwa should proceed with the trial on January 21, 2019.