Sunday News Reporter
A LAWYER who accused a magistrate of bias and taking a bribe “displayed lamentable disrespect and a complete disdain of the integrity of the court”, the High Court has found.
Lawyer Mr Prayer Muzvuzvu of Muzvuzvu and Mguni Law Chambers, made “wild and unproven comments imputing corrupt or improper motives” on the part of Filabusi resident magistrate Mr Mzingaye Moyo in a criminal case, said Justice Nicholas Mathonsi.
“Without leading any sworn evidence or producing any proof and indeed without taking an oath himself, the legal practitioner launched a volley of unmitigated and very serious accusations against the trial magistrate,” Justice Mathonsi said in a judgement released recently, after Muzvuzvu had appealed the magistrate’s refusal to recuse himself from a case in which his client, Mr Nqobile Khumalo, was facing contempt of court charges.
Justice Mathonsi went on: “In the practice of law the world over, it is an accepted principle that legal practitioners are officers of the court. As such, they assist the court in dispensing justice and owe the court a duty to not only bring to its attention legal pronouncements on the law that are useful in the resolution of disputes but also to disclose to the court the truth which, in any event, is the cornerstone of the justice delivery system.
“In that regard, legal practitioners, as members of the noble profession, are expected to treat the court with respect . . .”
Khumalo was involved in a legal dispute with Claver Masiiwa over the control of a mine in Filabusi. Masiiwa won a High Court order in November 2015 interdicting Khumalo from interfering with operations at the mine.
But the High Court heard that Khumalo violated the court order leading to his arraignment before the magistrate in November last year. Khumalo’s lawyer, the court heard, immediately launched an application for recusal of the trial magistrate.
Said Justice Mathonsi as he threw out Khumalo’s application for a review: “Firstly, Mr Muzvuzvu claimed that on 8 November 2016 the magistrate had been spotted at Filabusi Shopping Centre conducting a conversation with one Councillor Ngwenya in the presence of the complainant. He did not say what was wrong with a magistrate conversing with a local councillor.
“Secondly, he stated that sometime before, the trial magistrate had presided over a civil case involving two parties, namely Mhandu and Mswela, in which he found in favour of Mswela. He claimed that Mswela is a friend of the complainant (Masiiwa) in the criminal case and that he had since established that the magistrate was later ‘roped into the mining business that Mswela had taken from Mhandu’.
“Mr Muzvuzvu did not even suggest that the decision of the magistrate in that civil matter was wrong and whether it was ever contested. He, however, suggested that the aspect of the magistrate going into business with a former litigant was the instance of the complaint.
“Thirdly, the legal practitioner claimed that upon the arrest of his client on the charge he is facing the Officer in Charge had disclosed to him that he was under pressure from ‘court officials’ to take the matter to court. As a result, the docket had been processed and taken to court in one day.”
However, Justice Mathonsi noted that Khumalo had been taken to court on a summons, “at no time was he detained”. The lawyer, the judge noted, had produced no evidence that it was the trial magistrate who had “put the Officer in Charge under pressure, or that the magistrate had any interest in the matter.”
After the court adjourned briefly to allow the prosecutor to investigate the lawyer’s claims, Justice Mathonsi said Mr Muzvuzvu “turned the entire proceedings into a circus, making further allegations against the magistrate and public prosecutor.”
The lawyer claimed he had seen Masiiwa going to his vehicle and making a phone call during which he was overheard saying “we need to increase the amount of money, may you get ready”. The lawyer claimed Masiiwa was preparing to increase the bribe money presumably paid to the magistrate or prosecutor.
Both the magistrate and prosecutor strongly rejected the claims. The magistrate said he was not involved in any mining business as he refused to recuse himself, prompting the lawyer to approach the High Court for a review.
Justice Mathonsi said superior courts should be “slow to intervene in undetermined proceedings in a court below and should generally speaking confine the exercise of its power to rare cases where grave injustice might otherwise result or where justice might not be obtained by any other means”.