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Nyore Madzianike Senior Court Reporter
Dynamos Football Club chairman Benard Marriot Lusengo has filed a notice to approach the High Court saying his right to fair hearing has been violated after a magistrates’ court ordered his lawyer, Mr Hebert Mutasa, to stop representing him because of conflicting interests.
He wants the High Court to allow him to take his case to the Constitutional Court.
Mr Mutasa is said to been involved in Dynamos issues and was not eligible to represent him in the matter.
Marriot is charged with fraud after he allegedly fraudulently changed Dynamos’ shareholding structure in a bid to take control of the club.
His trial has been set for May 26 at the Harare Magistrates Court.
In an application prepared by Advocate Tawanda Zhuwarara, Marriot said he has a long lasting relationship with Mr Mutasa, and wants him to represent him during trial. He argued that although Adv Zhuwarara was a fine lawyer, he prefers Mr Mutasa.
Mr Mutasa stopped representing Marriot after the State led by Mr Tapuwanashe Zvidzai had successfully applied for his recusal from representing Marriot.
“On the appointed day of trial the first respondent (NPA) through its functionary Tapuwanashe Zvidzai proceeded to apply for the recusal of my legal practitioner on the spurious basis that he was ‘conflicted’.
“Such alleged conflict precipitated from the allegation that the said Mr Mutasa had on previous occasion represented Dynamos Football Club (Pvt) Ltd.
“The application for recusal was at the behest of the first respondent and no evidence was led or tendered. The first respondent simply made representations from the bar and called no witness nor tendered any document,” he said.
Marriot claimed that he tendered a Board Resolution of Dynamos Football Club (Pvt) Ltd which evidenced the absence of any conflict of interest.
“I want to be represented by Mr Herbert Mutasa who is duly registered and qualified to offer me such legal representation. I do not intend to use any other lawyer for the purpose of the trial and that is a conscious decision I have taken,” he said.
“Mr Mutasa is ready to conduct my defense at the trial as outlined in his affidavit attached hereto. I also reiterate that the Board of Dynamos Football Club (Pvt) Ltd has already confirmed that they too seek that I be represented by the said Herbert Mutasa.
“The ruling by the second respondent (Magistrate Mrs Barbra Mateko) negates and abrogates my constitutional right to choose legal representation of my choice. There is no statute or regulation that I am aware of that gave the second respondent the power to remove the legal practitioner of my choice.”
Marriot said apart from Mrs Mateko denying him the opportunity to refer the matter to the Constitutional Court, she referred his matter to trial without his lawyer of choice.
“While advocate Zhuwarara is a fine lawyer, I have only engaged him to deal with the preliminary matters and not the trial.
“I still desire the trial to be handled by Mr Mutasa whom I have a longer relationship with and has handled the criminal allegations from inception.
“The second respondent violated my fundamental right without any lawful authority and proceeded to refuse my right to be vindicated by referral to a superior Court, in such circumstances the trial should be terminated.
“I cannot fathom a fair hearing can ever actuate where a Magistrate refuses an accused the right to be represented by a lawyer of his or her choice.
“More so when the same Magistrate goes on to compound the violation by refusing me the opportunity for my right to be vindicated by a Superior Court,” he said.
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