Nembaware was presiding over a case involving three
men—Shelton Dube (21), Sibangiswani Ncube (48), and Gilbert Ncube—who faced
stock theft charges after allegedly stealing 18 cattle.
He denied bail to the accused and ordered the case to
proceed to trial.
The suspects, represented by lawyer Nqobani Sithole, then
applied for Nembaware to recuse himself, alleging bias. Nembaware rejected the
application, prompting the suspects to seek a High Court review.
While the High Court was considering their review
application, the trial began in the lower court.
However, Justice Moyo, hearing the unopposed review
application, ruled in favour of the suspects and ordered that a different
magistrate take over the case.
On October 9, Nembaware sought clarification from the High
Court Registrar, questioning whether the trial should restart.
“On the 3rd of October 2024, the Honourable Judge Mrs.
Justice Moyo J issued an order ordering the 1st Respondent (Nembaware) to
recuse himself from presiding over the above matter. The trial of the matter
had already commenced and the state had closed its case. The Honourable Judge
ordered that the trial be commenced before a different Magistrate. The
Honourable Judge, however, did not order a trial de novo. Kindly bring this to
the attention of the Judge so that she gives directions,” Nembaware wrote.
In her response, Justice Moyo provided a detailed
explanation.
“The effect of the order is to set aside the proceedings
before first respondent and to have them commenced before a different
magistrate as the order speaks to that. It’s either proceedings are ordered to
commence, which means to start, to begin before a different magistrate or the
term de novo is used without the term commence as the 2 cannot be used
together, they become superfluous. It is either the proceedings commence before
a different magistrate or a trial de novo is ordered before a different magistrate.
De novo itself is a Latin term which means anew, start
again, to begin which is a synonym of commence, which is to begin or start. So,
the proceedings must be initiated by a different magistrate, the order is very
clear. Moreso, the order has already set aside what has been done so far by 1st
Respondent, so it is no longer there for another magistrate to continue with
except to commence(start)”.
The state alleges that on January 28, at Lydead Farm, the
accused had plotted to steal cattle from grazing paddocks. Acting on a tip-off,
police intercepted the trio as they were driving the cattle away, leading to
their arrest. CITE
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