Monday, 22 June 2020

LAWYERS NOW SHOPPING FOR HIGH COURT JUDGES

Lawyers and litigants are now shopping for a High Court station, sometimes preferring to go halfway across Zimbabwe from anyone connected with the case hoping for a favourable judgment.

Every judge of the High Court has “full original criminal and civil jurisdiction over all persons and matters throughout the country”, according to the High Court Act, so in theory a High Court judge in Mutare can hear a case involving a land row in Mangwe on the Botswana border.

The High Court has sat in Harare with a small number of judges permanently in Bulawayo for many years, largely dealing with criminal cases in the western half of the country and civil cases where both parties came from there.

Judges did go on circuit to other centres, but largely to hear criminal cases where the defendant, the victims, the witnesses and the investigating officers all came from the same city.

It was cheaper to move the judge than move a dozen or so people to Harare.

The opening of permanent High Court stations in Masvingo and Mutare was meant to make it easier for people to access this court, and so cut down costs and bring justice to the people, rather than bring people to justice.
  
However, in recent times there have been those who now shop for a court where they think they might get a more favourable judgment, or even to get a second chance without going through the delays of an appeal.

Recently, some criminals seeking bail pending their appeals, who separately lost bail applications at the High Court in Bulawayo, quickly engaged new lawyers and fraudulently misled the High Court in Harare into freeing them without disclosing their initial bail attempts.

Litigants and lawyers end up abusing the law, literally cherry-picking judicial officers who should handle their cases.

In some civil cases, a plaintiff who stays in Bulawayo together with the defendant, may for suspicious reasons, file summons at the High Court in Harare or Mutare.

Such leeway has fuelled corruption and is likely to defeat the spirit of decentralising the courts.

Judicial Service Commission (JSC) spokesperson Ms Rumbidzai Takawira confirmed the abuse of the system by some litigants and legal representatives saying processes were underway to amend the High Court Act. 

“We are aware of the problem. The Chief Justice and the Judge President of the High Court are seized with the matter,” she said.

An investigation by The Herald revealed that three convicted persons were granted bail pending appeal by the High Court in Harare through misrepresentation.

Despite losing their bail applications in Bulawayo where they were convicted of their crimes, the convicts approached the High Court in Harare where they were treated as first-timers.

The High Court had to revoke their bail orders after staff at the Bulawayo Magistrates’ Court discovered the scandal when the relatives of the convicts were paying bail money.

Matthias Mutemabundo who was convicted of nine counts of theft and jailed 48 months at Bulawayo Magistrates Court (Tredgold) lost his initial bid for bail pending appeal at the High Court before fraudulently approaching the High Court in Harare where Justice Msithu freed him on bail.

Mutemabundo was being represented by Mr Simon Chabuka of Magaya-Mandizvidza Legal Practitioners.

It was never brought to the court’s attention that the convicted person had been denied by the same court, sitting in Bulawayo. Bail was revoked on December 13 last year. 

In terms of the law, he could have appealed to the Supreme Court or filed an application for bail on changed circumstances.

In another bail scandal Norest Ushe, a Zimra official who was jailed in Bulawayo for over a vehicle importation scam involving criminal abuse of office, lost his bail application at the High Court in Bulawayo.

Without disclosing his first bail attempt, Ushe through Mr Admire Rubaya of Rubaya and Chatambudza Legal Practitioners, filed another bail application before Harare judge Justice Foroma who freed him on $5 000 bail.

It also later turned out that bail had been fraudulently granted, resulting in the Harare High Court revoking the bail order.

Jefat Chagadama who was also convicted of a criminal offence and jailed by a Bulawayo magistrate, had his application for bail pending appeal thrown out but approached the High Court in Harare where he was freed on $500 bail by Justice Tawanda Hebert Chitapi.

He was represented by Mr Oliver Marwa of Rubaya and Chatambudza Legal Practitioners. 
Bail was revoked after it came to light that the convict had misled the court.

A mining dispute involving Border Timbers Limited (under judicial management) and Kuguta Kushinga Mining Syndicate was determined by Manicaland provincial mining director in Mutare on March 10 this year but the appeal, for unclear reasons, found its way to Masvingo High Court.

The Herald understands the case had been set down for hearing in Masvingo but the judge noticed the anomaly and referred the matter back to Mutare.

The MDC-A, which is headquartered in Harare, for unclear reasons, sued President Mnangagwa and the Reserve Bank of Zimbabwe (RBZ) at the High Court in Masvingo under Masvingo HC424/19.

In that suit the opposition party was challenging the constitutionality of Statutory Instrument 212/2019 which restated the exclusive use of the Zimbabwean dollars for all domestic transactions.

Mr Tendai Biti represented the MDC-A. The MDC-A also challenged SI 213 which criminalises the trade in foreign currency through civil penalties.

In another case the Harare lawyer Ms Beatrice Mtetwa sued the Judicial Service Commission, which is headquartered in Harare and President Mnangagwa in Masvingo under Masvingo HC282/18.

Ms Mtetwa was contesting the outcome of the public interviews for four Supreme Court judges held on September 29 2016.

In the application, Ms Mtetwa was seeking an order compelling the commission to produce scoring sheets in respect of all candidates interviewed and a copy of the list of qualified nominees. Herald

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