Marriot loses ConCourt bid in Dynamos fraud case

DYNAMOS Football Club board chairperson Bernard Marriot Lusengo yesterday lost his bid for referral of his matter, involving the club's shareholding, to the Constitutional Court after a Harare magistrate ruled that his application "lacks merit and is frivolous and vexatious".

Marriot had applied for the referral of the matter to the ConCourt saying he wanted the apex court to determine whether magistrate Mrs Barbra Mateko's decision to have his lawyer Mr Hebert Mutasa recuse himself from representing him was not in violation of his constitutional right.

He wanted the ConCourt to ascertain whether Mrs Mateko's ruling was not in violation of his right to a fair trial.

In dismissing Marriot's application, Mrs Mateko said it was not only his side that should be looked at, but all parties involved in the matter.

Mrs Mateko said Mr Mutasa once represented Dynamos in other cases and was privy to other issues, which would disadvantage the other parties if he appears on behalf of Marriot.

The State led by Mr Tapiwanashe Zvidzai had opposed the application saying Marriot could not attack the conduct of the magistrate, who acted in terms of the law.

"The Constitution and the Magistrate Court Act empowers the magistrate to decide any matter before him/her as long as he/she has the jurisdiction to handle that matter.

"Therefore challenging the constitutionality of the conduct of a judicial officer without challenging the law that empowers her to act as such is improper," he said.

Mr Zvidzai said if Marriot wanted to seek a remedy, it was supposed to be associated with the law relating to recusal and not the outcome of the proceedings.

"The court has already made a determination that the lawyer should recuse himself. So, it is improper to proceed by way of constitutional referral," he said.

Mr Zvidzai said Marriot's application lacked seriousness and it was "manifestly groundless" arguing that upholding such application would open flood gates for other baseless applications to the ConCourt rendering it nugatory.

"The application is being put forward for the purposes of causing annoyance to the State by the accused persons with the full appreciation that it would not succeed because he has raised something which is not bona fide.

"The court must not allow this application for referral to stand because it would permit the State to be vexed under a form of legal process that is baseless.

"This honourable court must be guided by the doctrine of constitutional avoidance which gives credence to the concept that the constitution does not operate in isolation or a vacuum.

"It has to be interpreted and applied in conjunction with applicable subsidiary legislation together with other available remedies.

"The doctrine holds that where there are alternative remedies, the preferred route is to apply such remedies before resorting to the constitution.

"The accused person cannot rush to the Constitutional Court where there are several remedies under the Criminal Procedure & Evidence Act (Chapter 9.07), which he has not yet exhausted for example exception, review, pleading not guilty and other remedies which are under the Act," he said.

Marriot is expected back in court on November 29 for trial.