via Judge blasts Tomana’s pursuit of Mtetwa – NewZimbabwe 27/01/2016
THE Prosecutor General’s (PG) office, led by Johannes Tomana, has come under fire for bringing defective cases before the courts of law.
High Court Judge Garainesu Mawadze slammed the PG’s office after hearing an application for leave to appeal a case in which human rights lawyer, Beatrice Mtetwa, was cleared on charges of obstructing or defeating the course of justice.
The judge told Tomana he had no right to delay appeals, after he took five months to approach the court.
“I have no doubt in my mind after considering the facts of this matter that it should be made abundantly clear to the Prosecutor General that the Prosecutor General is not at liberty to come to this court any time the Prosecutor General so wishes and seek leave to appeal.
“Such conduct should be frowned upon by this court and ought to be admonished without any hesitation by dismissing such an application for leave to appeal,” ruled Justice Mawadze.
The judge also accused Tomana of persecuting the award-winning human rights lawyer.
“I wish to clearly point out that such a delay should always be juxtaposed with the rights of an accused person who would have been acquitted by a competent court ..
“Such an accused person would have gone home to celebrate with family and friends only to be told some five months later that the celebration is premature and that the battle has just begun.
“The inference one can therefore draw is that such conduct ceases to be prosecution but persecution, as such delay is not only unreasonable and prejudicial to an accused person but flies in the face of Section 69 of the Constitution,” the judge said.
Mtetwa was claimed to have obstructed the course of justice “by resisting, hindering b or disturbing a police officer in the execution of his or her duties”.
It was the state’s case that on 17th March 2013, the Harare attorney responded to a distress call from Thabani Mpofu, then a senior official in MDC-T leader Morgan Tsvangirai’s office.
Police had swooped on Mpofu’s Westgate home seizing documents and on arrival Mtetwa is said to have demanded a search warrant that officers could not provide.
The fiery human rights campaigner is alleged to have tried to hinder police detectives from leaving the house.
Her actions, the state alleged delayed police officers from getting to number 4 Bath Road in Belgravia where they also wanted to confiscate computers and other materials. The place was used as a private office by Tsvangirai’s staff.
In the ensuing scuffle, Mtetwa is alleged to have shouted obscenities at the officers.
“Stop whatever you are doing, it’s unconstitutional, illegal and undemocratic. You are confused cockroaches. You are Mugabe’s dogs,” state papers alleged.
Despite being shown the search warrant Mtetwa is said to have continued with her antics including take photographs and videos of the officers.
In her defence Mtetwa denied ever uttering obscenities at the officers and that the state outline did not indicate an offence.
Instead, Mtetwa said she had been arrested while performing her lawful duties as a legal practitioner and “even if she uttered the words as alleged that would not constitute an offence”.
She also challenged the Prosecutor General’s application for leave to appeal her acquittal.
She argued that “There was no proper application before the court as the applicant has brought this application for leave to appeal in terms of Section 6 of the magistrates Court Act (Chapter 7:10) instead of Section 198 (4) of the Criminal Procedure and Evidence Act (Chapter 9:07)”.
Secondly, the human rights lawyer argued that the application for leave to appeal was defective as the founding affidavit by one “Mr Mapfuwa is irregular and was improperly commissioned by an officer of the Zimbabwe Republic Police (ZRP) an institution that has substantial interest in this matter”.
The legal practitioner also argued that there had been an inordinate delay in bringing the appeal to court hence it would have prejudiced her right to a fair hearing.
Justice Mawadze agreed with Mtetwa on two of her arguments but threw away the second point pointing out that the Prosecutor General’s office and the police are two different institutions.
In her ruling Mawadze said: “Since I have upheld two of the three point in lime raised by the first respondent, it is now necessary for me to go into the merits of the application.
“I am not persuaded that this is a proper case for which I should award costs against the applicant on a higher scale. Accordingly, it is ordered that the application for leave to appeal be and is hereby dismissed with costs.”