This urgent chamber application was brought before me on 19 February 2020 in chambers. I adjudged that the application was not urgent.On 11 February 2020, the applicant's counsel wrote to the Registrar seeking audience with the court and address it on the aspect of urgency.The matter was set down for ...
This urgent chamber application was brought before me on 19 February 2020 in chambers. I adjudged that the application was not urgent.
On 11 February 2020, the applicant's counsel wrote to the Registrar seeking audience with the court and address it on the aspect of urgency.
The matter was set down for hearing on 17 February 2020.
On the date of hearing, the first respondent indicated, that, it was more concerned about the order of costs being prayed against the cited magistrate....,.
The applicant is seeking the following relief:
“TERMS OF FINAL ORDER SOUGHT
That you show cause to this Honourable Court why a final order should not be made in the following terms:
1. That the criminal matter under case number MTC129/18 be and is hereby stayed pending outcome of the review application under case number HC30/20.
2. That the respondents shall pay costs of this application jointly and severally the one paying the other to be absolved in the event of anyone of them opposing the application.
INTERIM RELIEF GRANTED
Pending finalisation of this matter, an interim order is hereby granted on the following terms:
3. Pending the finalisation of the matter, the respondents be and are hereby interdicted from continuing with the trial under case number MTC129/18 scheduled for the 10th of March 2020.”
BACKGROUND OF THE APPLICATION
The background of the matter, preceding the commencement of the urgent chamber application, is contained in the founding affidavit of the aggrieved applicant from paragraph 5.2 following:
“5.2 The trial proceedings started on the 15th of December 2018 and the State led one witness. Unfortunately, the second State witness was not available and the matter was postponed to the 18th December to allow the State to bring its witness.
5.3 On the 18th December 2018, the second witness was in default and the matter was postponed to the 22nd of January 2019, nonetheless, the second State witness was in default again.
5.4 My legal representative made an application for my removal from remand, which was declined, and the matter was postponed to the 12th of February 2019. First respondent ruled that she was affording the State a final opportunity to call its witness. This was the third postponement occasioned by the State. These postponements were made in order to ensure that the State would bring its second witness.
5.5 On the 12th February 2019, unfortunately, my legal representative, Mr Zviuya, was unable to attend court due to a personal emergency which resulted in him travelling to South Africa on that morning. On the day of the hearing, Mr Zviuya sent a junior lawyer, Ms Cresentia Tatenda Gutuza, to seek a postponement. Notwithstanding that it was the first time I sought a postponement, it was declined. The matter was stood down to 2:15 for continuation. At 2:15pm, first respondent allowed the second State witness to testify. After the State finished leading evidence, Ms Gutuza again applied for a postponement to enable Mr Zviuya, my legal practitioner of choice, an opportunity to cross-examine the witness. I did not understand why the first request for a postponement was refused given that my legal representative was absent due to reasons beyond my control.
5.6 Due to the fact that Ms Cresentia Tatenda Gutuza is not a criminal lawyer and does not have experience to cross-examine, she sought a postponement to allow Mr Zviuya to attend to the cross examination. The application was again declined and the 1st respondent indicated that the trial was to continue the following day with or without my legal representative notwithstanding that when the matter was postponed on the 18th December 2018 it was never agreed that the matter would roll over onto the 13th February 2019.
5.7 On the 13th of February 2019, Ms Cresentia Tatenda Gutuza could not attend due to other commitments. I was assisted by Mr Jakazi from Maunga Maanda and Associates to seek a postponement. I also furnished the 1st respondent with a letter attached herein marked 'A'. Again, the application for a postponement was declined and the matter was stood down to 11:15am.
5.8 In the meantime, Mr Zviuya dictated a letter from South Africa to the Provincial Magistrate in a bid to stop the injustice which was taking place in my case. I annexed hereto the letter marked 'B'.
5.9 I returned to court at 11:15am; however, the court only resumed at 12:45 and the matter, surprisingly, without any application for a postponement, was postponed to the 22nd February 2019.”
The applicant then instructed his lawyers to refer the matter to the Constitutional Court based on the violation and impartial court.
The applicant indicates, in his founding affidavit, that, he instructed his lawyers to apply for the recusal of the magistrate due to the manner she had conducted the applicant's trial.
On 12 March 2019, an application for the recusal of the magistrate was dismissed.
The applicant also requested for transcription of the record.
The first respondent informed the applicant that the matter was going to be proceeded with on 27 March 2019 whether the applicant had a lawyer or not.
In March 2019, the applicant filed an urgent chamber application for stay of proceedings pending an application for review of the proceedings within a period of 30 days.
The matter was continuously postponed, the last date of postponement was 5 February 2020.
The transcribed record was availed to the applicant on an unspecified date in December 2019 and the applicant filed an application for review.
Meanwhile, the initial urgent chamber application, under HC77/19, was withdrawn after it had been initially removed from the roll of urgent matters.
The reference for the application for review is HC30/20.
The criminal trial has now been set for 10-11 March 2020.
According to the applicant, the given dates are still not ideal for him for Mr Zviuya will be engaged in the High Court on that date.
In his view, the first respondent is no longer fit to deal with the trial; to him, the first respondent has ceased to be neutral and objective in her conduct of the trial proceedings.
