Senior Court Reporter
THE Judicial Services Commission (JSC) has acceded to the restarting of former Cabinet minister Prisca Mupfumira and former Public Service, Labour and Social Welfare permanent secretary Ngoni Masokas’ trial on corruption-related charges.
This follows a High Court order directing the Commission to come up with a position in relation to the case.
High Court judges, Justice Benjamin Chikowero sitting with Justice Pisirayi Kwenda, on March 3 directed that the JSC decide on the way forward regarding the case involving the two, after Mupfumira approached the upper court requesting to know how the matter would proceed.
Mupfumira argued that the then Chief Magistrate, Justice Munamato Mutevedzi who was handling the matter, could no longer hear the case after being elevated to the High Court as a judge.
The Judiciary, through its secretary Mr Walter Chikwana, complied with the High Court order and decided that Mupfumira and Masoka’s case be heard anew.
Mupfumira had cited Justice Mutevedzi, Ngoni Masoka and the Prosecutor General as respondents when she approached the High Court.
She is jointly charged with Masoka on criminal abuse of office and concealing a transaction from a principal.
Mr Chikwana, in an affidavit responding to Justice Chikowero and Justice Kwendas’ directive said: “The first respondent (Justice Mutevedzi) was employed by the Judicial Service Commission as the Chief Magistrate.
“He was subsequently appointed to become a Judge in the High Court of Zimbabwe on September 29, 2021.
“I am advised, which advice I consider as correct, that when a magistrate is appointed to become a High Court judge, he retires from the office of the magistrate and he becomes functus officio (no longer having power or jurisdiction) as regards to the matters which he was handling during their tenure as a magistrate.
“On his appointment to the position of Judge, the first respondent relinquished all his power and jurisdiction as a magistrate. This effectively means that he can no longer entertain any matters which he was handling in the Magistrates Court as he is now a Judge of the High Court.
“Effectively, the proceedings which he left off maybe regarded as a nullity and the matters must be heard de novo (anew).
“The Judicial Service Commission submits that once the first respondent was appointed to become a High Court Judge, he could no longer sit and entertain any matter which he handled in the Magistrates Court as he is not part to the proceedings,” he said.
Mupfumira, in her heads of arguments prepared by Advocate Mr Thabani Mpofu on instructions from lawyer Mr Admire Rubaya, argued that upon being elevated to the High Court, Justice Mutevedzi was no longer able to bestow a verdict on her.
She pointed out that the proceedings would therefore become a nullity.
“First respondent has ascended to a higher judicial office. He can no longer sit as a magistrate and is unable to bestow a verdict upon applicant.
“That being the case, the proceedings have become nullity, they ought to be recommenced and this court ought to hold as such,” she said.
Mupfumira said Justice Mutevedzi permanently lost jurisdiction to relate to the criminal matter she is charged with at the time of his appointment to the position of a judge.
She also equated Justice Mutevedzi’s elevation to a resignation from being a magistrate.
“By constitutional command, he cannot hold two judicial offices at the same time. At the same time, it would be a juridical impurity for first respondent to be both a magistrate and Judge,” she said.
The JSC’s decision to restart the case came at a time when Mupfumira was awaiting a determination in the case where she appealed against the then Chief Magistrate, Justice Mutevedzi’s decision to dismiss her application for separation of trials with Masoka.
Mupfumira had applied for separation of trials with Masoka, saying her co-accused is her chief witness since he was the accounting officer at the time the offence was allegedly committed. Mupfumira and Masoka are expected back in court on April 22.