Online Reporter
Zvikomborero Parafin
THE High Court has quashed the conviction and three-year jail term which had been slapped on a local businessman.
Tinaapi Nyawo approached the High Court challenging his conviction and sentencing by former regional magistrate Clever Tsikwa, just before he left to take up a post as a judge of the Labour Court.
The judgment was delivered by regional magistrate Feresi Chakanyuka, on behalf of Tsikwa.
Nyawo, represented by Advocate Garikai Sithole, instructed by Admire Rubaya, took the matter up for appeal.
He argued that the proceedings, which were held on July 2 and completed on July 7 last year, were outside the law as Tsikwa had been appointed a Judge.
The appointment was published in the Government Gazette.
The lawyers said the conviction was an exercise in futility, adding that Magistrate Chakanyuka acted outside the law, and in borrowed robes, while being cheered by the State.
The lawyers argued that Tsikwa’s appointment and publication of his name in the Government Gazette meant he was now a judge and ceased to be a magistrate.
This, they said, meant criminal the proceedings had to be stopped and restarted before a new judicial officer as Tsikwa could not be a magistrate and a judge at the same time.
“The appointment as a judge automatically terminated the appointment as a magistrate by operation of law,” the lawyers argued.
“He could not be a judge and a magistrate at the same time in the same body.
“The previous judicial officer had become functus officio, and proceedings were now a nullity.
“The decisions of Chakanyuka cannot withstand scrutiny in terms of the law. They are invalid and grossly irregular as to implicate this Honourable Court’s powers of review.
“The grossness of the errors of Magistrate Chakanyuka, who was being cheered on by the State, is self-evident as she exercised non-existent powers and/or jurisdiction which is undoubtedly and brazenly invalid.”
Appeal court judges, Justice Benjamin Chikowero and Justice Takuva ruled in favour of Nyawo – quashing both the conviction and sentence.
The judges took the State to task, asking if the prosecutor Fortunate Kachidza appreciated the process relating to appointment of judges in this country.
The judges agreed with Nyawo’s lawyers that one becomes a judge, even before taking the oath of office, and said an oath is taken by someone who is already a judge.
This meant Justice Tsikwa lost the jurisdiction to deal with Nyawo’s criminal trial the moment he was appointed Judge on July 2, before taking oath on July 4, 2025.
“In the exercise of the court’s powers of review the conviction is quashed and the sentence set aside,” the High Court ruled.
Mathew Masinge