News / National
Mamombe lawyers outed for misleading High Court
12 May 2021 at 06:37hrs | Views
Deputy Chief Magistrate Ms Bianca Makwande has castigated lawyers representing MDC Alliance legislator Joana Mamombe and party member Cecilia Chimbiri for misleading the High Court that she was biased and malicious towards them.
Ms Makwande was responding to the application by the duo filed at the High Court seeking a review of the trial on the grounds that she conducted herself in an unprofessional manner in dealing with the various interlocutory applications made before her, by the duo's lawyers.
The trial of Mamombe, Chimbiri and Netsai Marova on allegations of faking their abductions sometime last year, was last week suspended until determination by the High Court, of their urgent application.
Through their lawyers Mr Alec Muchadehama and Mr Jeremiah Bhamu, Mamombe and Chimbiri are denying the charges of publishing falsehoods prejudicial to the State.
Ms Makwande who is listed as one of the respondents in the trio's High Court application says she stands by her decision and critised the defence team antics of grandstanding.
It is understood that the trio wants postponement of their trial on various grounds deemed to be delaying tactics which include claims of suffering temporary insanity. But in her response, Ms Makwande set the record straight on what transpired in the various applications made in the trial court. On the alleged existence of an order by consent, Ms Makwande said applicants submitted before her on March 28, prior to commencement of the trial that there was an order granted by High Court judge, Justice Happias Zhou, which had the effect of setting aside the separation of the trials.
"Most importantly, they highlighted that the Judge had ordered my recusal from the trial," she said.
"Since the ruling was not contained in the record, I asked the applicants to provide the court with same but they failed. They submitted that they could only do so in the afternoon.
"Out of abundance of caution, I asked the Clerk of Court to obtain a copy of the ruling from the Registrar of the High Court. The Clerk of Court indicated to me that there was no such order granted by the Hon. Judge."
Ms Makwande said it was at that point that she realised that Mr Bhamu appeared to have mislead the court that there was such an order.
On further inquiry, Ms Makwande said the lawyer made a u-turn alleging that the "consent order" was agreed to outside court between him and counsel for the State, Mr Richard Chikosha. She said for the avoidance of doubt, she attached an affidavit of the Registrar of the High Court to her affidavit, which is self-explanatory.
After Ms Makwande ruled that the matter would proceed for trial as scheduled, the applicants made various interlocutory applications which she entertained and gave the State an opportunity to respond.
Amongst the applications was that they wanted their matter referred to the Constitutional Court and demanded that their application be heard on the very day over the bar. But Ms Makwande advised them that the procedure for referral in terms of the Constitution of Zimbabwe compelled the party making the application for referral to give the other side notice.
Since this had not been done, Ms Makwande said she directed the applicants to comply with the provisions of the Constitutional Court Rules, 2016 particularly give adequate notice to the other party after which they could properly make their application.
"I advised Applicants that they were not barred from making their request since this application could be made at any stage," she said.
"It is, therefore, spurious for applicants to allege that I was dismissive."
Still on the same day, the lawyers further made an application for Ms Makwande's recusal from the matter. She, however, brought it to their attention that the manner in which they raised their application was not proper, as they had not even attempted to give notice to the court or the State that such an application would be raised.
"In this regard it is misleading for one to allege that I was dismissive, biased or in any way malicious towards the applicants as alleged or at all." The lawyers also requested for further documents arguing that they were hamstrung to continue with the trial as they had not been provided with the material court documents by the State despite demand.
However, the State produced a detailed schedule showing that Mr Bhamu, the lawyer for the trio had signed for the documents after receiving them on their behalf in 2020, in addition the State produced another letter which showed that it had provided further particulars upon demand.
"It is unfortunate that because I dismissed some of the applications then the applicants attribute such dismissals to some form of unprofessionalism or bias on my part," she said.
"If applications of this nature are entertained litigants who appear in court may easily raise many spurious applications before a judicial officer well knowing that such will be dismissed but in preparation for making an application for recusal on the basis of the dismissal of such applications.
"The grave implication of such a scenario is that trials in courts will not proceed. Litigants will be allowed to forum shop, the end result being that justice will not be served."
The registrar of the High Court Mr Don Ndirowei also filed his affidavit in support of Ms Makwande,
Ms Makwande was responding to the application by the duo filed at the High Court seeking a review of the trial on the grounds that she conducted herself in an unprofessional manner in dealing with the various interlocutory applications made before her, by the duo's lawyers.
The trial of Mamombe, Chimbiri and Netsai Marova on allegations of faking their abductions sometime last year, was last week suspended until determination by the High Court, of their urgent application.
Through their lawyers Mr Alec Muchadehama and Mr Jeremiah Bhamu, Mamombe and Chimbiri are denying the charges of publishing falsehoods prejudicial to the State.
Ms Makwande who is listed as one of the respondents in the trio's High Court application says she stands by her decision and critised the defence team antics of grandstanding.
It is understood that the trio wants postponement of their trial on various grounds deemed to be delaying tactics which include claims of suffering temporary insanity. But in her response, Ms Makwande set the record straight on what transpired in the various applications made in the trial court. On the alleged existence of an order by consent, Ms Makwande said applicants submitted before her on March 28, prior to commencement of the trial that there was an order granted by High Court judge, Justice Happias Zhou, which had the effect of setting aside the separation of the trials.
"Most importantly, they highlighted that the Judge had ordered my recusal from the trial," she said.
"Since the ruling was not contained in the record, I asked the applicants to provide the court with same but they failed. They submitted that they could only do so in the afternoon.
"Out of abundance of caution, I asked the Clerk of Court to obtain a copy of the ruling from the Registrar of the High Court. The Clerk of Court indicated to me that there was no such order granted by the Hon. Judge."
Ms Makwande said it was at that point that she realised that Mr Bhamu appeared to have mislead the court that there was such an order.
On further inquiry, Ms Makwande said the lawyer made a u-turn alleging that the "consent order" was agreed to outside court between him and counsel for the State, Mr Richard Chikosha. She said for the avoidance of doubt, she attached an affidavit of the Registrar of the High Court to her affidavit, which is self-explanatory.
Amongst the applications was that they wanted their matter referred to the Constitutional Court and demanded that their application be heard on the very day over the bar. But Ms Makwande advised them that the procedure for referral in terms of the Constitution of Zimbabwe compelled the party making the application for referral to give the other side notice.
Since this had not been done, Ms Makwande said she directed the applicants to comply with the provisions of the Constitutional Court Rules, 2016 particularly give adequate notice to the other party after which they could properly make their application.
"I advised Applicants that they were not barred from making their request since this application could be made at any stage," she said.
"It is, therefore, spurious for applicants to allege that I was dismissive."
Still on the same day, the lawyers further made an application for Ms Makwande's recusal from the matter. She, however, brought it to their attention that the manner in which they raised their application was not proper, as they had not even attempted to give notice to the court or the State that such an application would be raised.
"In this regard it is misleading for one to allege that I was dismissive, biased or in any way malicious towards the applicants as alleged or at all." The lawyers also requested for further documents arguing that they were hamstrung to continue with the trial as they had not been provided with the material court documents by the State despite demand.
However, the State produced a detailed schedule showing that Mr Bhamu, the lawyer for the trio had signed for the documents after receiving them on their behalf in 2020, in addition the State produced another letter which showed that it had provided further particulars upon demand.
"It is unfortunate that because I dismissed some of the applications then the applicants attribute such dismissals to some form of unprofessionalism or bias on my part," she said.
"If applications of this nature are entertained litigants who appear in court may easily raise many spurious applications before a judicial officer well knowing that such will be dismissed but in preparation for making an application for recusal on the basis of the dismissal of such applications.
"The grave implication of such a scenario is that trials in courts will not proceed. Litigants will be allowed to forum shop, the end result being that justice will not be served."
The registrar of the High Court Mr Don Ndirowei also filed his affidavit in support of Ms Makwande,
Source - the herald
