Ms Makwande was responding to the application by the duo
filed at the High Court seeking a review of the trial on the grounds that she
conducted herself in an unprofessional manner in dealing with the various
interlocutory applications made before her, by the duo’s lawyers.
The trial of Mamombe, Chimbiri and Netsai Marova on
allegations of faking their abductions sometime last year, was last week
suspended until determination by the High Court, of their urgent application.
Through their lawyers Mr Alec Muchadehama and Mr Jeremiah
Bhamu, Mamombe and Chimbiri are denying the charges of publishing falsehoods
prejudicial to the State.
Ms Makwande who is listed as one of the respondents in the
trio’s High Court application says she stands by her decision and critised the
defence team antics of grandstanding.
It is understood that the trio wants postponement of their
trial on various grounds deemed to be delaying tactics which include claims of
suffering temporary insanity.
But in her response, Ms Makwande set the record straight on
what transpired in the various applications made in the trial court.
On the alleged existence of an order by consent, Ms
Makwande said applicants submitted before her on March 28, prior to
commencement of the trial that there was an order granted by High Court judge,
Justice Happias Zhou, which had the effect of setting aside the separation of
the trials.
“Most importantly, they highlighted that the Judge had
ordered my recusal from the trial,” she said.
“Since the ruling was not contained in the record, I asked
the applicants to provide the court with same but they failed. They submitted
that they could only do so in the afternoon.
“Out of abundance of caution, I asked the Clerk of Court to
obtain a copy of the ruling from the Registrar of the High Court. The Clerk of Court indicated to me that there
was no such order granted by the Hon. Judge.”
Ms Makwande said it was at that point that she realised
that Mr Bhamu appeared to have mislead the court that there was such an order.
On further inquiry, Ms Makwande said the lawyer made a
u-turn alleging that the “consent order” was agreed to outside court between
him and counsel for the State, Mr Richard Chikosha.
She said for the avoidance of doubt, she attached an
affidavit of the Registrar of the High Court to her affidavit, which is
self-explanatory.
After Ms Makwande ruled that the matter would proceed for
trial as scheduled, the applicants made various interlocutory applications
which she entertained and gave the State an opportunity to respond.
Amongst the applications was that they wanted their matter
referred to the Constitutional Court and demanded that their application be
heard on the very day over the bar.
But Ms Makwande advised them that the procedure for
referral in terms of the Constitution of Zimbabwe compelled the party making
the application for referral to give the other side notice. Since this had not
been done, Ms Makwande said she directed the applicants to comply with the
provisions of the Constitutional Court Rules, 2016 particularly give adequate
notice to the other party after which they could properly make their application.
“I advised Applicants that they were not barred from making
their request since this application could be made at any stage,” she said. “It
is, therefore, spurious for applicants to allege that I was dismissive.”
Still on the same day, the lawyers further made an
application for Ms Makwande’s recusal from the matter.
She, however, brought it to their attention that the manner
in which they raised their application was not proper, as they had not even
attempted to give notice to the court or the State that such an application
would be raised.
“In this regard it is misleading for one to allege that I
was dismissive, biased or in any way malicious towards the applicants as
alleged or at all.”
The lawyers also requested for further documents arguing that
they were hamstrung to continue with the trial as they had not been provided
with the material court documents by the State despite demand.
However, the State produced a detailed schedule showing
that Mr Bhamu, the lawyer for the trio had signed for the documents after
receiving them on their behalf in 2020, in addition the State produced another
letter which showed that it had provided further particulars upon demand.
“It is unfortunate that because I dismissed some of the
applications then the applicants attribute such dismissals to some form of
unprofessionalism or bias on my part,” she said.
“If applications of this nature are entertained litigants
who appear in court may easily raise many spurious applications before a
judicial officer well knowing that such will be dismissed but in preparation
for making an application for recusal on the basis of the dismissal of such
applications.
“The grave implication of such a scenario is that trials in
courts will not proceed. Litigants will be allowed to forum shop, the end
result being that justice will not be served.”
The registrar of the High Court Mr Don Ndirowei also filed
his affidavit in support of Ms Makwande. Herald
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