News / National
Court tosses Biti bid to stop assault trial
17 Mar 2023 at 07:34hrs | Views
The High Court has dismissed Tendai Biti's urgent chamber application for stay of proceedings in a matter in which the opposition lawmaker is being tried for verbal assault against Harare businesswoman Tatiana Aleshina.
Biti recently filed an urgent chamber application seeking to stop the trial so as to allow the court to determine his main application for referral to the Constitutional Court.
He is accused of verbally assaulting Aleshina at the Harare magistrates' court back in 2020.
Biti has challenged the charge, arguing the claims did not constitute any criminal offence.
The politician filed the challenge after magistrate Vongai Guuriro Muchuchuti dismissed his application for referral of his case to the Constitutional Court.
In dismissing his application, High Court judge Rodgers Manyangadze said Biti's review could be determined before the trial resumed.
"The perusal of the applicant's papers shows that the gravamen of the application is that proceedings in the lower court be stayed pending the hearing and determination of the review application," said the judge.
"It has now been agreed that the review be disposed of on an urgent basis, with timelines that place it before the resumption of trial.
"Clearly, it is anticipated that the substantive matter will be resolved before trial continues.
"It defeats the argument, strenuously advanced on behalf of the applicant, that the review application will be rendered moot or academic."
The judge said this implies that a fundamental requirement for the grant of an urgent interdict has not been met.
He added that the requirement, as highlighted in Biti's papers, is that irreparable harm will occur if the interdict is not granted.
"The harm being that the relief may be granted after the trial, thus rendering it a brutum fulmen.
"For reasons already indicated, that contention cannot be upheld," ruled the judge, adding that the very basis on which the application is predicated has fallen away.
He said it is his considered view that the application should fail on this basis alone.
He added, "Other considerations, such as the prospects of success, become unnecessary.
"If anything, they place the judge in a somewhat invidious position, it having been agreed that the same judge shall urgently hear and determine the review application."
The judge said it is therefore in the interests of justice that the merits or otherwise of the review matter be determined after they are fully ventilated at the hearing.
Biti recently filed an urgent chamber application seeking to stop the trial so as to allow the court to determine his main application for referral to the Constitutional Court.
He is accused of verbally assaulting Aleshina at the Harare magistrates' court back in 2020.
Biti has challenged the charge, arguing the claims did not constitute any criminal offence.
The politician filed the challenge after magistrate Vongai Guuriro Muchuchuti dismissed his application for referral of his case to the Constitutional Court.
In dismissing his application, High Court judge Rodgers Manyangadze said Biti's review could be determined before the trial resumed.
"The perusal of the applicant's papers shows that the gravamen of the application is that proceedings in the lower court be stayed pending the hearing and determination of the review application," said the judge.
"It has now been agreed that the review be disposed of on an urgent basis, with timelines that place it before the resumption of trial.
"Clearly, it is anticipated that the substantive matter will be resolved before trial continues.
The judge said this implies that a fundamental requirement for the grant of an urgent interdict has not been met.
He added that the requirement, as highlighted in Biti's papers, is that irreparable harm will occur if the interdict is not granted.
"The harm being that the relief may be granted after the trial, thus rendering it a brutum fulmen.
"For reasons already indicated, that contention cannot be upheld," ruled the judge, adding that the very basis on which the application is predicated has fallen away.
He said it is his considered view that the application should fail on this basis alone.
He added, "Other considerations, such as the prospects of success, become unnecessary.
"If anything, they place the judge in a somewhat invidious position, it having been agreed that the same judge shall urgently hear and determine the review application."
The judge said it is therefore in the interests of justice that the merits or otherwise of the review matter be determined after they are fully ventilated at the hearing.
Source - Newsday Zimbabwe
