Tomana cites wrong section in Mtetwa case

via Tomana cites wrong section in Mtetwa case – NewsDay October 30, 2015

Human rights defender Beatrice Mtetwa yesterday appeared at the High Court challenging Prosecutor-General (PG) Johannes Tomana’s bid to overturn her acquittal on charges of obstruction of justice.

BY CHARLES LAITON

The magistrates’ court absolved Mtetwa on allegations of obstructing law enforcement agents conducting a search at the residence of former Prime Minister Morgan Tsvangirai’s director of research, Thabani Mpofu, in March 2013, a decision Tomana was now challenging.

However, just before Justice Garainesu Mawadze could hear the main matter, Mtetwa raised some points in limine (as preliminary), arguing Tomana had cited a wrong section in seeking to have her incarcerated over the charges.

PG’s representative Edmore Makoto conceded the errors.

The human rights lawyer said instead of approaching the court under Section 198(4) of the High Court Rules, the PG had apparently done so under Section 61 of the Magistrates’ Act, which had nothing to do with what he intended to achieve.

“I have noted that Section 61 of the Act is a wrong citation, I do concede that the application ought to have been made in terms of Section 198 of the High Court Rules,” Makoto said.

“Having made that concession, it is my humble submission that the error is not a fatal error because the standards that apply in Section 61 are the same for Section 198.”

Mtetwa also argued the application was not properly before the court, given that prosecutor Tozivepi Mapfuwa, who deposed to an affidavit forming part of the PG’s application, was not privy to what had actually transpired during the trial as he was not part of the prosecution team.

“Every application has to be accompanied by an affidavit which must be from a person who is able to say they have personal knowledge of the facts. Mapfuwa does not say why he is entitled to make such an affidavit. He was not part of the prosecutorial team and there is no reason why he deposed to that affidavit,” Mtetwa said.

“He says he based his knowledge through reading, but the record of proceedings does not tell about the demeanour of the witnesses and yet he says they were shaken. He cannot talk about the credibility of the witnesses; he is not a suitable person to depose to such an affidavit.”

In response to Mapfuwa’s involvement, Makoto insisted the former was an officer of the PG’s Office attached to the civil division and had based his knowledge on the “four corners of the record”.

The hearing continues today.