On
28 April 2009, I granted a provisional order and gave brief reasons for my
decision. One of the parties has requested full reasons. These are the full
reasons.
This
matter has a bit of history which I propose to highlight.
The
applicant was appearing in a criminal trial before the first respondent, a
senior magistrate in Kwekwe, charged with contravening section 3(3) of the
Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. On 26 March 2009
the trial commenced before the first respondent. During the lunch break, the
applicant fell ill and ended up at a Dr. Dondo's rooms. After lunch, the
applicant's legal practitioner, after being informed of this development, went
to explain to the court. She applied that the matter be stood so that she could
rush to Dr. Dondo's clinic to investigate.
The
first respondent stood down the matter for thirty (30) minutes.
The
legal practitioner rushed to the doctor's rooms but failed to locate the
applicant. She went to explain this to the first respondent's court. On
arrival, the first respondent issued a warrant of arrest of the applicant.
The
legal practitioner later came to know that the applicant been referred to a
specialist in Bulawayo, a Dr. Cohen. In Bulawayo, the applicant was, instead,
attended to by another specialist, a Dr. G.P.Pretorius, who recommended that
the applicant “rest for two weeks.”
In
short, the applicant has produced these medical reports which evince that he
was diagnosed with hypertension requiring two (2) weeks bed rest.
On
2 April 2009, the applicant, under HC502/09, filed with this court an urgent
application for stay of the aforesaid criminal proceedings in the Kwekwe
Magistrates Court. Simultaneously, he filed a court application for review of
the same proceedings, under HC503/09. KAMOCHA J directed that the respondents
under HC502/09 (these are, incidentally, the same respondents in this matter)
be served for a hearing on 7 April 2009 at 0900 hours. In compliance with the
above directive, on 6 April 2009, the applicant's legal practitioner served the
respondents with court papers in both cases under HC502/09 and HC503/09,
together with a notice of set down setting the matter for 7 April 2009.
On
the same day, i.e. 6 April 2009, the applicant's legal practitioner was picked
up by one Inspector Sibanda, of Kwekwe Central Police, on allegations of
defeating, or obstructing, the course of justice. The allegations were that she
filed with this court, under HC502/09 and HC503/09, applications,
notwithstanding her knowledge that the applicant was under a warrant of arrest,
without first of all bringing him to court for cancellation of the warrant of
arrest.
This
arrest was at the behest of the first respondent, after he was served with
papers under HC502/09 and HC503/09, and the notice of set down.
The
legal practitioner was in police custody from 1530 hours to 1930 hours.
It
seems that the first respondent's complaint was only reduced to writing on 7
April 2009 according to the Kwekwe Magistrates' Court date stamp next to the
first respondent's signature.
The
applicant's legal practitioner eventually appeared before KAMOCHA J on 7 April
2009, who granted a provisional order staying proceedings in the Kwekwe
criminal court pending finalization of proceedings in this court.
The
applicant's legal practitioner eventually appeared before a Gweru Magistrates'
Court who refused to place her on remand.
On
16 April 2009, after the applicant had been certified fit by the doctor, his
legal practitioner took him to Kwekwe Magistrates' Court for cancellation of
the warrant of arrest. The Clerk of Court approached the first respondent for
the record of proceedings as the latter had it in his possession. The Clerk of
Court informed the legal practitioner that the first respondent said the
warrant of arrest could not be dealt with since the proceedings in the matter
had been stayed by this court under HC502/09.
The
legal practitioner requested audience with the first respondent, in the company
of a local public prosecutor, one Zashure. The first respondent maintained the
position that as the court had stayed proceedings in the matter, the warrant of
arrest could not be dealt with. The legal practitioner requested that the
matter be dealt with by the other magistrate at the station since the first
respondent was an interested party to the proceedings following his abovementioned
complaint to the police against her.
The
first respondent refused.
She
enquired whether the first respondent would instruct the police to stay the
arrest as well, but the first respondent declined.
The
legal practitioner took the applicant to the police station and explained the
circumstances pertaining to the warrant of arrest. She also approached the
public prosecutor and the Chief Magistrates' Office about the matter – all in
vain. All she got was sympathy and no clarity, or undertaking, that the warrant
of arrest's operation was suspended as well. The applicant's fear is that he
may be arrested and incarcerated up till this court either confirms or
discharges the provisional order under HC502/09.
Counsel
for the applicant argued that I deal with the warrant of arrest issued by the
first respondent and cancel it in these proceedings. I am not going to consider
whether this is legally possible.
This
issue will be rendered unnecessary if this court, under HC503/09, orders that
the first respondent recuse himself from the proceedings.
It
is against this background that I felt that the best interests of justice will
be served by the suspension of the operation of the warrant of arrest pending determination
of the substantive issues.
Counsel
for the respondents did not oppose the granting of the provisional order, per
se. What he submitted was that I make an order that the first respondent be
granted leave to deal with the issue of the warrant of arrest only, i.e. the
stay of proceedings under HC502/09 should not apply to the issue of the warrant
of arrest.
Weighing the interests of both sides, I granted
a provisional order in terms of the amended draft.
