Lawyers warned against approaching High Court in pending criminal trials

High Court judge Justice Pisirayi Kwenda has warned lawyers against challenging the dismissal of their clients’ applications for discharge at the close of the State’s case, saying the move was largely detrimental to suspects since it invites the opinion of the superior courts in pending trials.

Justice Kwenda made the remarks in his judgment in which former Zimbabwe Power Company (ZPC) chairperson, Stanley Nyasha Kazhanje, had petitioned the High Court with an application for review after regional magistrate Hosea Mujaya threw away his application for discharge and ordered him to be put to his defence.

“A trial must be free from outside interference, whatever the source. The problem does not arise if the intervention is on procedural issues only. However, applications of this nature based on the submission that ‘a decision by a court aquo (lower court) is so outrageous in its defiance of logic…’ invites a superior court and experienced mind to express an opinion on the evidence in proceedings that are pending in another court, thereby breaching the sub judice principle,” the judge said, before proceeding to dismiss Kazhanje’s application, saying he had a case to answer.

The trial will proceed on July 16, 2019.

Kazhanje is facing charges of concealing a personal interest in a transaction from his principal after he allegedly received a $10 000 bribe from Intratrek Zimbabwe (Pvt) Ltd director, Wicknell Chivayo on the Gwanda solar project.

In his defence, Kazhanje had denied he was influenced or corruptly motivated to act in favour of Intratrek and Chivayo, but when his application was dismissed he decided to petition the High Court, which also dismissed the same, albeit with a warning to the legal fraternity.

“In terms of section 198(3) of the Criminal Procedure and Evidence Act, an accused is not entitled to an acquittal if the proven facts expose him to a possible conviction on a permissible verdict,” Justice Kwenda said.

“Not only courts should be slow, but counsel must be wary of inviting the High Court to comment on the evidence adduced in a matter before another court. That tends to make inroads in the accused’s right to a fair trial before an impartial court.”

Justice Kwenda further said it is not advisable for lawyers to purport to waive their clients’ right to a fair trial as enshrined in section 69 of the Constitution, while at the same time exposing them to the opinion of the superior courts.

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