Biti loses application to restart assault trial

Prominent lawyer and opposition former MP Tendai Biti has lost his application to have his trial on assault charges against Ms Tatiana Alishina set aside and a new trial to start before a different magistrate and with a new prosecutor.

Justice Tawanda Chitapi at the High Court in Harare dealt with what he described as a lengthy application to start the trial afresh after matters arose over postponements and availability of lawyers with arguments made that the magistrate had erred and even that the magistrate exhibited bias.

In the end, Justice Chitapi ruled that the trial must resume before Regional Magistrate Ms Vongai Muchuchuti-Guwuriro at the point proceedings were stayed to allow the High Court application, with no bar on Mr Michael Reza prosecuting.

Biti is free to use any legal representative of his choice, including Mr Alec Muchadehama who has been representing him through the trial so far and whose absence on other matters on one day last year triggered the row Justice Chitapi had to sort out.

The trial follows a complaint by Ms Alishina of a confrontation with Biti in and around Harare Magistrates' Court complex after court proceedings in 2020.

During the trial there were applications for postponement and other applications, including one to have a point of law referred to the Constitutional Court. Some were granted but most were not.

On October 13 last year, the trial was supposed to resume, after being postponed for almost a week. When the court came into session a fill-in defence lawyer sought a postponement because Mr Muchadehama had been called to the office of the Master of the High Court over another matter he was handling.

After establishing that he should be free later in the morning Ms Muchuchuti-Guwuriro allowed a delay until 11.15am. When the lawyer was still missing she allowed the fill-in lawyer to contact Mr Muchadehama and the Master's office several times.

It was established that while the original matter had ended well before the 11.15am trial restart time, Mr Muchadehama had stayed back for discussion on the Master's fees.

Justicie Chitapi noted in passing that the Master of the High Court, was not a court and was not a judicial officer and so matters in his office could not be given priority over a matter in an actual court.

As a consequence of finding that Mr Muchadehama should be free, Ms Muchuchuti-Guwuriro said the trial had priority on that lawyer's time and ordered the trial to restart.

 The fill-in lawyer said he could not take part as he was unfamiliar with the case and would need a postponement to study the record, leaving Biti to defend himself. This is when Biti made his High Court application for a restart of the trial.

Justice Chitapi initially stayed the proceedings until the application could be thrashed out and decided in the High Court. Yesterday's judgment basically found Ms Muchuchuti-Guwuriro had made an unbiased decision she was judicially authorised to make and so it stood.

Justice Chitapi dimissed the argument by Biti that Ms Muchuchuti-Guwuriro was biased, and dismissed his allegation that she had herself contacted someone at the Master's office trying to track down Mr Muchadehama as there was no evidence of this and no affidavit from the named officer.

The judge said Mr Reza, as prosecutor and so the other counsel in the trial, had every right to try and track down his colleague. He agreed that the trial record sometimes showed intemperate remarks by Mr Reza but noted it also showed some of Biti's statement were even more so. He found there was no collusion between magistrate and prosecutor in this matter.

The judge said higher courts were very reluctant to intervene in a matter properly before a lower court while the trial or suit were in progress. If every decision by a presiding officer that one party disagreed with could go to a higher court on review or appeal while the matter was still in progress then delays would be intolerable. In rare cases where someone's rights could be seriously infringed otherwise, a higher court could intervene, but the judge stressed this was very rare.

Normally, these matters would come up in any application for review or appeal after the matter was concluded and usually any problems had by that stage self-corrected.