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Court Correspondent
The High Court has dismissed the application for review filed by two Harare men facing charges of public nuisance by erecting a billboard in Borrowdale with allegedly damaging information of a development company, open the way for the resumption of their trial next month.
High Court Judge Justice Bachi Muzawazi has dismissed the application for review filed by Grant Russell and Mark Strathen, who are represented by Tendai Biti.
Last year they filed an application for exception to charges of criminal nuisance which was dismissed by Harare magistrate Mr Shane Kubonera on the grounds that it was marred by triable issues. Mr Kubonera said the two must stand trial to answer to the allegations.
So Russell and Strathen wanted the High Court to review this decision. Justice Bachi Muzawazi dismissed their application saying she found no reason to interfere with the incomplete proceedings before the magistrate in the primary court.
According to court documents, Russell is a director of Fairclot Investments while Strathen is the director of Paragon Printing and Packaging Services company.
The two have asserted that the contents of the billboard did not disclose an offence and did not interfere with the ordinary comfort, convenience, peace or quiet of any section of the public. So they argued they should not be on trial.
Magistrate Mr Kubonera ruled that whether the billboard constituted a public nuisance offence would depend on the evidence led.
After that decision by Mr Kubonera, the duo went to the High Court and their trial was halted while that court did its review. .
Justice Muzawazi followed the standard argument when delivering her judgment.
“As a general rule, courts are reluctant to interfere with the un-terminated proceedings of a lower court unless there is a gross miscarriage of justice.
“In essence, incomplete criminal proceedings are prone to intervention by the upper courts in isolated but deserving circumstances,” said Justice Muzawazi.
The degree and extent of the repugnance, discomfort and inconvenience, like the court of first instance noted, can only be tested after hearing evidence. Accordingly, the trial court had the discretion to make a finding on whether the words disclosed a charge at the initial stage and preempt the trial or to make a decision at the conclusion of the State case or the end of trial.
“Either way, I am not convinced that its decision was irrational or irregular to warrant the interference of this court.
“Whilst superior courts play an oversight role over the subordinate courts and judicial bodies by ensuring the necessary checks and balances as earlier stated, to safeguard the interests of justice, they can only interfere with interlocutory proceedings of the lower courts if continuation will result in irreversible gross miscarriage of justice,” ruled Justice Muzawazi.
The billboard erected was allegedly discouraging people from buying land from a development company in Borrowdale.
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