Hold your horses, Tomana told

Daniel Nemukuyu Senior Court Reporter
The Supreme Court has barred the Prosecutor-General (formerly Attorney General) from contesting the acquittal of Harare lawyer Mr Alec Muchadehama and a High Court clerk, Ms Constance Gambara, on charges of contempt of court.
Mr Muchadehama of Mbidzo, Muchadehama and Makoni law firm and Justice Chinembiri Bhunu’s clerk, Ms Gambara, were cleared of facilitating the release of three suspects on bail when there was a court order prohibiting their freedom.

A Harare magistrate on December 14, 2009 discharged Mr Muchadehama and Ms Gambara at the close of the State case, but the National Prosecuting Authority filed an application for leave to appeal at the High Court which then dismissed the application on the basis that there were no prospects of success on appeal.

Eleven months later, the same office filed a Supreme Court application for condonation and extension of time within which to appeal against the High Court decision. On Wednesday, Deputy Chief Justice Luke Malaba threw out the application, saying the Prosecutor-General had no right to appeal under the circumstances.

“Applying the principles in the determination of the question raised by this application, it is clear that there is no legislative enactment which gives the Attorney-General (now Prosecutor- General) a right of appeal to the Supreme Court from the refusal by a judge of the High Court of leave to appeal to that court, from a decision of a magistrate finding an accused not guilty of a criminal offence at the close of the State’s case,” he said.

“The effect of a refusal by a judge of the High Court of leave to appeal to that court renders the decision by the magistrate final.”
Justice Malaba ruled that there was no legal basis for the application for “condonation and extension of time within which to appeal” by the NPA.

Ms Gambara, being the clerk to Justice Bhunu, handed over a copy of the signed order to Mr Muchadehama which directed the release of his three clients on bail.

Using the order, Mr Muchadehama’s clients paid bail money at the Harare Magistrates’ Court and were freed. The State, in prosecuting the two, argued that the order granting them leave to appeal against bail in respect of the three suspects meant that the bail order had to be suspended.