In a ruling made on April 12, 2023, Justice Garainesu
Mawadze who reviewed the case in concurrence with Justice Sunsleey Zisengwe
ordered that the case be taken to a different magistrate and be heard afresh.
He said the case was just as good as there is no trial to
talk about.
Justice Mawadze expressed surprise at the magistrate’s
‘haste’ to convict Councillor Roger Chikonye. He said the haste resulted in a
serious misdirection of the case. Justice Mawadze wondered in his ruling
whether it was overzealousness, keenness to convict the accused or sheer
ignorance that led to such a serious departure from the legal procedure.
The name of the erring magistrate is not mentioned in court
papers in accordance with review processes that seek to protect the dignity of
the court. The Mirror however, established that the case between the State and
Chikonye was handled by Brian Munyaradzi.
According to the correction sought, the accused applied for
discharge at the end of the State case and instead of granting the discharge or
placing the accused on his defense, the erring magistrate made a the State case
and instead of granting the discharge or placing the accused on his defence,
the erring magistrate made a final judgment and declared the accused guilty.
This means that the accused was convicted without being afforded an opportunity
to say his side of the story or calling his witnesses.
On realising or being alerted of his mistake, the
magistrate wrote to the High Court to help him correct it.
“I humbly place the record before the Honourable Judge. The
accused applied for discharge at close of State case and in error the court
pronounced a final judgment and pronounced verdict guilty.
The trial magistrate concedes to this regrettable error and
seeks the Justice’s directions,” read Magistrate Munyaradzi’s application to
the High Court.
Justice Mawadze however, had no kind words for the error
which baffled even natural justice.
“The proceedings in this matter cannot be allowed to stand.
This is so because the procedural irregularity is so fundamental it goes to the
root of trial itself. As things stand one may even venture to say as things
stand there is no trial at all to talk about,” said Justice Mawadze.
According to the State case Chikonye was arrested for
convening a meeting in his ward in Melbourne Park where about 25 people
attended. Police acting on a tip-off asked him to produce the authority of
convening the meeting which he could not and was arrested.
The accused who is represented by Ross Chavi of Chavi Law
Firm however, pleaded not guilty and argued that he did not require to give a
notice under the Maintenance of Order and Peace Act as he was merely discharging
his duties as an elected local councillor by giving residents feedaback.
Masvingo Mirror
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