By Andrew Kunambura
The High Court has quashed an attempt by Prosecutor-General (PG) Kumbirai Hodzi to prevent it from hearing a case in which chief law officer Chris Mutangadura is challenging his decision to unilaterally transfer him to Guruve Magistrates Court.
Barely a month into his new job, Hodzi ordered Mutangadura’s transfer without stating reasons on Friday last week.
However, Mutangadura on Monday filed an urgent chamber application through his lawyers, G Sithole Law Chambers, seeking an order staying the transfer.
Mutangadura contends that Hodzi usurped the powers of the National Prosecuting Authority (NPA) board in violation of the National Prosecuting Authority Act, which specifies that such a decision can only be done by the full board. He also argued that Hodzi’s decision was “outrageous and unreasonable” since he did not make arrangements to cater for his family’s relocation.
In his opposing affidavit, Hodzi argued that the court was not supposed to hear the case because Mutangadura rushed to approach the court without exhausting internal remedies available to him.
Hodzi wanted the court to refer the former director of economic crimes back to the NPA. He also argued that the case was not urgent. Hodzi was listed as the first respondent while the NPA was the second respondent.
High Court judge Happias Zhou, however, dismissed all of Hodzi’s submissions and allowed the case to be heard on an urgent basis. He is expected to make a ruling today.
“If the relief for the suspension of the decision is to be dealt with as an ordinary court application after the applicant has already relocated to Guruve, the relief sought would be nothing but academic since the decision would have already taken effect,” Zhou said.
“The issue of the prejudice which the applicant would suffer is highlighted in the founding affidavit. The validity of the allegations of prejudice has to be tested in the determination of the merits of this application for the purposes of inquiring into whether it is urgent or not.”
Zhou ruled that: “It is sufficient to accept the argument of the applicant that no arrangement has been made for his family if they are to be moved to Guruve. The memorandum to the applicant does not state where he will stay. For these reasons, the matter is urgent. The objection therefore that the matter is not urgent is therefore dismissed.”
The judge said Hodzi’s submission that the court should not entertain the case because Mutangadura did not exhaust domestic remedies had no merit as there was no guarantee he would be treated fairly since the PG would chair the same hearing.
“The first respondent argued that the application was not urgent because the applicant does not have the rights to which he seeks to enforce and that the application should not be entertained because the applicant did not exhaust domestic remedies available to him. The principle is that he must exhaust domestic remedies available to him in terms of the law before approaching this court.
“However, the court has the discretion as to whether or not to entertain the application where the applicant does not exhaust domestic remedies. The domestic channels available must provide an effective remedy to the grievances raised and the relief sought in the application. It was not until the applicant’s counsel had made its submissions that respondent then sought to rely on the grievance procedure outlined in section 24 of the NPA Act.
“Before that, there had been a submission that the applicant ought to have approached the first respondent for audience after receiving the memorandum transferring him to Guruve before instituting the urgent application. That submission is startling given that the first respondent is the one who made the decision.
“Also when consideration is given to the fact that the decision being complained against is that of the first respondent, who is the head of the second respondent, it is inconceivable that the grievance procedure would provide an effective remedy which this urgent chamber application seeks. The submission is therefore dismissed,” Zhou ruled.