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Prosper Dembedza
The State has opposed an application by two Harare men for the withdrawal of charges of erecting an illegal billboard in Borrowdale with allegedly defamatory remarks against a property development company.
The court said the two wanted to resurrect through the back door, exception proceedings which were dismissed. Exception is the legal term for having the charges quashed by the court itself.
Grant Russel and Mark Strathen, who are facing criminal nuisance charges, wrote through their lawyers to the State on June 6, 2022 asking for withdrawal of the charges against them before plea.
In their application, the pair stated that if the State was not prepared to withdraw charges, the court should order their removal from further remand.
The State opposed the application saying: “The State is opposed to such procedure being adopted and insists that the accused persons be subjected to trial whereupon their guilt or innocence will otherwise be proved.
“The accused’s attempts to resurrect exception to the charge was dismissed by magistrate Shane Kubonera and as such, this court is functus officio and cannot decide on whether the facts as laid do disclose a charge against the accused persons because such matter had already been dealt with by this court.”
The State further stated that it was whimsical for the accused persons to simply allege that they were entitled to an acquittal because the charges did not disclose an offence. “It must be noted that the accused persons entered a not guilty plea and excepted to the charge which exception was heard and dismissed by Mr Kubonera.
“There exists no legal basis to unwind the legal clock and resurrect through the back door the exception proceedings heard by Mr Kubonera with a decision made thereto,” the State said. Grant and Strathen are currently challenging a High Court order to proceed to trial in their matter after they unsuccessfully sought the court to quash their charges.
The duo had filed their application for exception at the lower court saying the charges were defective and must be quashed but Harare magistrate Mr Shane Kubonera dismissed their application saying they raised triable issues.
Aggrieved by the dismissal of their application, they approached the High Court for review but that court again ordered them to proceed to trial and defend themselves.
Prosecutor Mrs Shambadzeni Fungura said on December 10, 2020 at around 2pm on the opposite side of Celebration Church in Borrowdale, Harare the Grant and Strathen erected a billboard with allegedly damaging statements against West Properties and this being done allegedly in a bid to tarnish the company’s image.
It is alleged that Russell and Strathen caused false alarm to the public through the statements written on the billboard.
The State alleges that the billboard erected by the two had contents which were likely to interfere with the ordinary comfort or convenience of the complainant’s clients.
West Properties made a report to the police leading to the pair’s arrest.
Online Reporter