Businessman challenges fraud conviction

Zvikomborero Parafini

A Harare businessman has approached the High Court to challenge his conviction and sentence by former regional magistrate Mr Clever Tsikwa.

This comes just days after Mr Tsikwa’s elevation to judge of the Labour Court.

Tinaapi Nyawo was convicted of fraud in a judgment delivered by Regional Magistrate Feresy Chakanyuka on the same day Tsikwa was taking his oath of office. Nyawo received an effective three-year sentence.

Through his lawyer, Admire Rubaya, Nyawo argues that the proceedings, which continued from July 2 to July 7 — days after Justice Tsikwa’s appointment by President Mnangagwa — should be set aside. The review application cites Magistrate Chakanyuka as the first respondent and the Prosecutor General as the second.

Nyawo contends that Chakanyuka’s decision to proceed with the case, despite objections regarding the legality of the proceedings, should be overturned. The State has countered that Tsikwa became a judge only after taking his oath of office, not merely upon the publication of his name in the Government Gazette.

Nyawo’s legal team argues that Tsikwa’s appointment meant he ceased to be a magistrate, making it improper for Chakanyuka to continue the case. They assert that a judicial officer cannot serve in more than one court simultaneously, unless otherwise stipulated by the Constitution.

“The previous judicial officer had become functus officio, rendering the proceedings a nullity due to an abortive trial,” the application states. “The decisions of the first respondent (Chakanyuka) are invalid and grossly irregular, warranting this Honourable Court’s review.”

Rubaya argues that the proceedings should have been halted upon Tsikwa’s appointment as a judge. “The appointment automatically terminated his role as a magistrate by operation of law. He could not serve as both judge and magistrate within the same body,” he said.

Nyawo claims that Magistrate Chakanyuka ignored the objection and proceeded to sentence him to three years in prison. He insists that Chakanyuka lacked jurisdiction and had continued with proceedings that became a nullity on July 2, 2025.

“If the proceedings on July 2 and 3 are null, then those on July 4, including the guilty verdict, are also void. The sentencing from July 7 suffers the same fate, and thus should be set aside,” Nyawo argues.

“I am currently imprisoned based on a sentence passed by the first respondent, which should be annulled; otherwise, I will serve the next three years unjustly.”

Nyawo’s lawyers have advised him that the matter that began before Tsikwa became abortive upon his elevation to the Labour Court. He contends that the State has violated constitutional provisions by pursuing him further in light of Tsikwa’s appointment.