By Desmond Chingarande
The trial of two Harare men who illegally who illegally erected billboard in Borrowdale has failed to kick off yesterday after their lawyer filed a notice to apply for stay of proceedings.
Granted Russell and Mark Strathen who are represented by Tendai Biti had had their last application for review dismissed by the High Court.
The matter was deffered to June 8 for ruling in the application for stay of proceedings after the def nice told the court that it will file it’s application before end of day.
On their previous appearance Harare magistrate Shane Kubonera dismissed the duo’s application for exception saying they must stand trial to answer to their allegations.
Aggrieved by the dismissal of their application the duo filed a review of Kubonera’s determination at the High Court.
However, Justice Bachi Muzawazi dismissed their application saying she find no reason to interfere with the incomplete proceedings before the primary court.
According to the court documents Russell is a director of Fairclot Investments while Strathen is the director of Paragon Printing and Packaging services company.
Russell and Strathen are the applicants together with their companies as first applicant to fourth respectively.
They cited magistrate Kubonera and the State prosecutor Shambidzeni Fungura as respondents.
The duo had challenged that the contents of the billboard did not disclose an offence. They further said they argued that the contents of the billboard did not interfere with the ordinary comfort, convenience, peace or quite of the public or any section of the public thereof.
Magistrate Kubonera turned down the application on the defective charge, and did not make a determination on the Constitutional arguments ruling that, a determination on the appropriateness of the charge, whether it disclosed an offence or not cannot be made at that stage but only after hearing evidence.
After that decision by Kubonera the duo filed an urgent chamber application for stay of those proceedings pending the review.
Kubonera and Fungura however challenged the applicants saying the words used by the duo fall within the ambit of criminal nuisance hence it discloses an offence and that his dicision was not grossly irregular or irrational.
“However, as a general rule courts are reluctant to interfere with the un-terminated proceedings of a lower court unless there is a gross miscarriage of justice. In essence, incomplete criminal proceedings are prone to intervention by the Upper Courts in isolated but deserving circumstances,”Justice Mzawazi ruled.
“Whilst superior courts play an oversight role over the subordinates courts and judicial bodies by ensuring the necessary checks and balances as earlier stated, to safeguard the interests of justice, they can only interfere with interlocutory proceedings of the lower courts if continuation will result in irreversible gross miscarriage of justice.”
In analyzing the matter Justice Mzawazi ruled that the court’s decision was that it was premature to make a determination, at the initial stage of the trial, on whether the charge against the backdrop of the contents of the billboard disclosed an offence or not saying in its discretion the court felt it wise to make that decision after hearing evidence.
The billboard erected was discouraging people from buying land fromm a developing company in Borrowdale.
“The degree and extent of the repugnance, discomfort and inconvenience, like the court of first instance noted can only be tested after hearing evidence. Accordingly, the trial court had the discretion to make a finding on whether the words disclosed a charge at the initial stage and preempt the trial or to make a decision at the conclusion of the state case or the trial. Either way. I am not convinced that its decision was irrational or grossly irregular to warrant the interference of this court,” the judge ruled.
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