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Daniel Nemukuyu Senior Court Reporter
MDC-T deputy national chairperson Morgan Komichi has filed opposing papers in the Supreme Court case in which the State is challenging the High Court’s decision barring it from appealing against the community service imposed on him for breaching the Electoral Act.
Komichi was last year ordered to perform 350 hours of community service for fraudulently obtaining a special voting ballot paper which he marked, sealed and re-opened.
The State, which views the sentence as too lenient, on February 7 this year filed a chamber application at the Supreme Court for leave to appeal against the dismissal of their application for condonation of late filing of appeal papers.
Chief Law Officer Mr Michael Mugabe said he received a copy of the transcribed record of proceedings from the magistrates’ court after the 10-day period stipulated in filing an appeal had lapsed.
He then filed an application for condonation of late filing at the High Court, which was thrown out on January 29.
The High Court ruled that the delay was self-induced and that there were no prospects of success in the appeal.
In the notice of opposition filed by Komichi’s lawyer Mr Aleck Muchadehama of Mbidzo Muchadehama and Makoni law firm, it is argued that the application was incompetent because Section 13(1) (a) of the Supreme Court relied upon by the State only allowed the Prosecutor General to appeal on a point of law under the circumstances.
He argued that no point of law had been raised and that the chamber application did not state precisely the grounds upon which the appeal was based.
Komichi argued that the State should have first approached the High Court seeking leave to appeal at the Supreme Court, adding that the prosecution had no automatic right of appeal.
It is also argued that the application is defective on the basis that the High Court judgment that is being challenged and the record of proceedings was never attached to the application papers.
Komichi argued that the State did not attach a draft notice of appeal to the application and that the application was never served on the Registrar of the High Court or the clerk of criminal court, thereby making the application defective.
The matter is yet to be heard at the Supreme Court.
Komichi was sentenced to eight months in jail for electoral fraud and another 10 months for contravening Section 85(1) (e) of the Electoral Act.
The eight months were suspended on good behaviour, while the remaining 10 months were set aside on condition Komichi performed 350 hours of community service.
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