Mpofu, Chimombe's request refused

High Court judge Justice Pisirayi Kwenda has dismissed an application by businessmen Moses Mpofu and Mike Chimombe to refer their fraud case to the Constitutional Court. The ruling, handed down on Thursday, emphasized that the accused had failed to raise their concerns at the magistrate court during earlier proceedings.

The businessmen sought referral on grounds including claims that the High Court lacked jurisdiction and objections to the age and qualifications of the assessors assigned to their trial.

Justice Kwenda rejected the arguments against the assessors, particularly claims by Chimombe's lawyer, Lovemore Madhuku, that the assessors' advanced age compromised their effectiveness. He described the assertions as discriminatory and unsubstantiated.

"The description was not based on any study, science, knowledge, or attributes of the assessors in this case," Kwenda said. "There was no evidence that they are incapacitated because of age. Their appointment is based on their experience."

Kwenda also noted that constitutional developments in Zimbabwe have raised the retirement age for judges from 65 to 70, reflecting trust in their capabilities.

The judge criticized the accused for failing to utilize available remedies, such as filing objections with the court registrar if they had issues with the assessors' appointments.

"The decision not to utilize remedies available shows a lack of seriousness on the part of the accused," he ruled.

Kwenda added that many of the constitutional issues raised in the application were matters for the lower court and should have been addressed there.

"Timing is important. The accused had an opportunity to challenge the law during their bail application at the magistrate court, but they did not do so," Kwenda stated.

Kwenda described several issues raised by the accused as "frivolous and vexatious," including objections to bail withdrawal and claims of interference by the Zimbabwe Anti-Corruption Commission (ZACC).

"The issues relating to their appearance in the magistrate court, withdrawal of bail consent, and accusations against the National Prosecuting Authority and ZACC are matters the court cannot address now. They are in the past," he ruled.

While noting the accused had claimed not to contest the assessors' involvement, Kwenda acknowledged their repeated objections suggested otherwise. Despite this, he found no basis to remove the assessors.

The application for referral was dismissed in its entirety, with Kwenda declaring all the issues raised as lacking merit.

The case highlights the judiciary's insistence on procedural adherence and the importance of addressing objections at the appropriate stage of legal proceedings. Mpofu and Chimombe's next steps remain to be seen as they face trial for the fraud charges.