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Prosper Dembedza Herald Correspondent
The State is opposed to the application for the recusal of the magistrate presiding over the fraud trial of Georgios Katsimberis since the grounds given have nothing to do with Katsimberis but involved a conversation between a stand-in lawyer and the magistrate over the absence of the main defence lawyer.
Deputy Prosecutor General Mr Micheal Reza said lawyer Ms Milliscent Moyo had misled the court in an application for a postponement of the trial of Katsimberis in February.
Mrs Moyo is seeking US$170 000 damages from Harare magistrate Mrs Vongai Guwuriro Muchuchuti for allegedly mischaracterising her application for a postponement in a trial after the lead counsel was absent. It is this dispute that is being used to seek Mrs Guwiriro’s recusal from presiding over the Katsimberis trial.
The Deputy Prosecutor General was responding after Mrs Moyo, who had been standing in for Advocate Tino Chinyoka representing property developer George Katsimberis, accused magistrate Mrs Guwuriro of lying that she said Advocate Chinyoka had gone to South Africa.
Moyo had applied for the postponement of the trial in February after saying Adv Chinyoka developed an emergency and had to fly out to South Africa for medical attention.
Mrs Guwuriro then reprimanded Ms Moyo after Adv Chinyoka came to court on hearing that the postponement had been denied.
Now Adv Chinyoka has filed an application for recusal of the magistrate from handling the fraud trial saying she was now conflicted.
However, Mr Reza opposed the application and responded that the defence created an artificial crisis by suing the magistrate for an alleged infraction which was not an infraction at all.
He said Mrs Guwuriro was within her right to advise the counsel to in future explain to the court clearly where the court had not heard the submission by the counsel.
“Had the proper explanation been made, there would have been no need for the magistrate to advise counsel. In any case, at no point did the magistrate mention the accused (Katsimberis). She did not advise him of anything. The magistrate realised that the conversation was strictly between herself and the lawyer, who incidentally was only standing in for Katsimberis’s lawyer of choice. How then does the accused (Katsimberis) feel that the magistrate will be biased against him?” Mr Reza asked.
“The State contends that the application for recusal of the magistrate on the basis that she is biased against accused is far fetched baseless, tenuous, sketchy, dubious, vague, nebulous, hazy, frivolous, vexatious and is devoid of logic. Consequently, the state urges the court to dismiss the application.”
On explaining what happened in court, the State blamed Ms Moyo saying Adv Chinyoka had chosen to make a mountain out of a molehill in that a reading of what transpired in court on the day does not even hint at defamation. Mr Reza said Ms Moyo’s words were: “Your worship, we are seeking a postponement for this matter and the reason is that Advocate Chinyoka who was supposed to be handling the matter together with Mr Kanengoni is not feeling well so he has to urgently fly to South Africa today. He has written a letter seeking the postponement and l beg leave to tender a copy of it.”
Mrs Guwuriro responded: “We do not have anything showing that he has travelled to South Africa before the court. Do you have?”
Ms Moyo replied: “No, your worship there is nothing.”
“Do you have anything to show that he is being attended to by the doctor?” Mrs Guwuriro further asked.
“We do not have anything Your Worship but we undertake to provide the documents as soon as they are available if the court is amenable,” Ms Moyo replied.
Mr Reza said a reading of the above exchanges shows that the magistrate clearly said there was nothing to show that Advocate Chinyoka had travelled to South Africa. The Deputy Prosecutor General said the magistrate had heard defence counsel say that the advocate was not in the country at that time.
Mr Reza said even when Adv Chinyoka arrived at court on that same day he asked the magistrate if he could to fully explain his failure to appear in court that day saying he knew his colleagues had not fully explained to the magistrate.
“What full information was he (Adv Chinyoka) talking about? It can only mean that the counsels fully understood that the magistrate was labouring under the mistaken impression that Advocate Chinyoka was in South Africa. They did not correct her but went on to tell this to Advocate Chinyoka.
“This can only explain why the advocate had come to explain to the magistrate that he was yet to travel to South Africa. Again the State says if counsels in court had brought the correct state of affairs to the magistrate, all this would not have arisen,” Mr Reza said.
Mr Reza said there was no need for recusal of the magistrate since the defence created their own crisis.
Peter Tanyanyiwa
Online Reporter