adminpossessing diamonds, saying the State was ambushed in a review application.
Chiadzwa – who was jailed for five years by a Mutare Magistrates’ Court in March 2010 for breaching the Precious Stones Act – on June 29 this year walked out of prison after High Court judge Justice
Andrew Mutema passed a default judgment quashing the lower court’s conviction and sentence on review.
The State argues that it was not served with the set down notice for the review application at the High Court and on that basis, it is now seeking Chiadzwa’s re-committal to prison through an application for rescission of the judgment.
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No one appeared for the State in the review proceedings conducted last month in Harare. The order by Justice Mutema, according to the State, was passed without concurrence with another judge as required by the law in such applications.
On behalf of the AG, law officer Mr Albert Masamha last Friday filed the rescission application at the High Court arguing that the default judgment entered on June 29 was not factually and legally substantiated or sustainable. Harare lawyer Mr Piwai Chiutsi of P Chiutsi Legal Practitioners represented Chiadzwa. If the application succeeds, Chiadzwa might be re-committed to prison to complete
his sentence. The review application was heard in Justice Mutema’s chambers without the AG’s knowledge, the State argues.
“Unknown to the applicant (AG) and against the background narrated above, Messrs P Chiutsi proceeded to file notices of set down on the unopposed roll without any further notification to the applicant’s office, until the matter was heard on June 29.
“Honourable Justice Mutema heard the application and he proceeded to quash the proceedings and set aside the conviction and sentence.
“Applicant also notes that the court order on the criminal review by the Honourable Justice Mutema was made without the concurrence of another judge, as provided in terms of Section 29 of the High Court Act (Chapter 7:06).
“As demonstrated above, there were no valid reasons for the default judgment to be entered. If anything is to go by, it was respondent (Chiadzwa) whose papers were not in order,” read the application.
Mr Masamha stated in the application that he strongly felt the matter should be heard on merits rather than on unfounded technicalities. According to the State, the grounds adopted by Chiadzwa in his application for review were the same as those in his failed application for bail pending review.
On that basis, it is the State’s contention that the AG’s prospects on the review application if it is heard on merits were bright.
“Wherefore applicant submits that the court order of June 29 be rescinded as the applicant has made a good case for the relief sought to be granted in terms of the attached draft order,” read the papers.
On May 18 2010, Justice Yunus Omerjee threw out an application for bail pending review by Chiadzwa for lack of prospects of success on review, Mr Masamha said.
“The grounds respondent raised in that application are the same in every respect with the ones this court has proceeded to quash the proceedings,” he said.
derick.khumalo