High Court sets aside Prophet Magaya witness protection ruling

The High Court has overturned a decision by Harare regional magistrate Ester Chivasa that allowed three women accusing preacher Walter Magaya of rape to testify in a Victim Friendly Court.

Justice Tawanda Chitapi ruled that Chivasa had failed to properly apply the legal test for determining whether witnesses qualified as vulnerable before granting them special protection.

The matter has been remitted to the regional court, where the prosecution and Magaya's lawyers may raise the issue again, this time with the magistrate applying the requirements of the Criminal Procedure and Evidence Act (CPEA).

Magaya, the founder and leader of PHD Ministries, is facing three counts of rape involving former congregants of his church. The alleged offences are said to have occurred at the Yadah Hotel in Waterfalls, Harare.

The prosecution alleges that the first complainant was raped in Villa 13 at the hotel in July 2020, while the second and third complainants were allegedly raped in the Presidential Suite in July 2023 and December 2023 respectively. The complainants were aged 24, 22 and 21 at the time of the alleged offences.

Magaya's trial was scheduled to begin before Chivasa on February 16 in the Victim Friendly Court at the Harare Magistrates Court complex.

The specially equipped courtroom is generally used for matters involving vulnerable witnesses, particularly children.

Magaya's lawyers objected to the trial being conducted there before he could plead, arguing that proceedings should take place in the ordinary open court where he had previously appeared during remand proceedings.

Prosecutor Clemence Chimbari subsequently applied under section 319B of the CPEA for the trial to be conducted in the Victim Friendly Court and for the complainants to give evidence in camera.

Chimbari argued that the complainants were vulnerable witnesses who had experienced significant mental and emotional distress and that some had expressed reservations about coming into direct contact with Magaya.

The prosecution also argued that the complainants were former members of Magaya's church and that the presence of other church members following the proceedings could place additional pressure on them.

Magaya's lawyers opposed the application, arguing that the State had not produced medical or psychological evidence demonstrating that the complainants were vulnerable.

They argued that the prosecution was neither a medical doctor nor a psychologist and urged the magistrate to personally interview the complainants in accordance with section 319C(2), rather than rely solely on submissions made by the prosecutor.

The defence further argued that preventing Magaya from directly facing his accusers would undermine his constitutional right to a fair trial.

Chivasa dismissed the objection and granted the State's application.

In her ruling, she held that a vulnerable witness was someone who required special protection because giving evidence in an ordinary courtroom could cause serious distress or trauma.

She found that vulnerability did not have to be established with certainty and that medical evidence was not necessarily required.

The magistrate also concluded that witnesses in rape cases were vulnerable and should not be forced to testify in an open courtroom.

Justice Chitapi disagreed with that reasoning.

He noted that it was an overstatement to suggest that all witnesses in rape cases are vulnerable, although he agreed with Chivasa that the use of the Victim Friendly Court did not amount to a secret trial.

Magaya would still retain his right to attend the proceedings, be legally represented and cross-examine the complainants.

The central issue in the High Court proceedings was instead whether Chivasa had followed the statutory process for determining vulnerability.

Justice Chitapi said section 319C(1) of the CPEA requires a court to consider several factors before granting protective measures, including the witness's age, mental and physical condition, cultural background, relationship with the accused and the interests of justice.

The judge held that those factors must be considered collectively rather than allowing one factor to determine the outcome.

"Because the factors are joined by the word 'and', they must therefore be considered cumulatively and interdependently with no one factor having an overriding effect on the others," Chitapi ruled.

He found that Chivasa had failed to properly engage with the statutory requirements.

"She did not even advert to the section by reference," the judge said.

Chitapi also highlighted what he described as an inconsistency in the magistrate's treatment of age as a relevant factor.

The magistrate had acknowledged that a child, adult or elderly person could potentially be a vulnerable witness, but subsequently concluded that age was not a factor to consider in the particular application.

The judge said magistrates dealing with applications for protective measures must actively investigate the relevant factors rather than simply rely on submissions from the parties.

"The court's role in such applications is therefore not a passive one," he said. "The court must enquire into the listed factors… all must be traversed and findings of fact made."

However, Chitapi rejected Magaya's argument that the magistrate's failure automatically rendered the proceedings a nullity.

"The applicant misses the point," he said. "The first respondent (magistrate) did not do anything which the law prohibits. The first respondent omitted to do what the law requires."

The judge therefore found that Chivasa had not committed an unlawful or void act, but had failed to comply with the statutory requirements governing the determination of vulnerable witnesses.

The High Court also declined Magaya's request for the matter to be transferred to another magistrate.

Chitapi said Magaya had not provided sufficient justification for Chivasa to recuse herself from continuing to preside over the trial.

The judge consequently set aside Chivasa's February 16 ruling and remitted the matter to the regional court.

Both the prosecution and defence may raise the vulnerable-witness issue again, with Chivasa directed to reconsider it while properly applying the relevant provisions of the CPEA.

There was no order as to costs.

Magaya was represented by Advocate Thabani Mpofu, assisted by Admire Rubaya and Everson Chatambudza, instructed by Rubaya & Chatambudza.

Clemence Chimbari appeared for the Prosecutor-General alongside Tendayi Shonhayi, Angeline Munyirwa, Kudakwashe Chigwedere and Foelane Chipo Muronda, instructed by the National Prosecuting Authority.