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Fidelis Munyoro
Chief Court Reporter
Prosecutor-General Kumbirai Hodzi has filed an application for rescission of a default judgment granted against the prosecution that led to the acquittal of journalist-cum political activist Hopewell Chin’ono on charges of publishing falsehoods.
Chin’ono had approached the High Court seeking a review of the Harare Magistrates Court decision to place him on remand arguing that the Constitutional Court had since nullified the section of the law under which he was charged.
The State did not file opposing papers to Chin’ono’s application. It was on that basis that Justice Jester Charewa treated the matter as an unopposed and granted the default judgment.
According to an affidavit deposed by prosecutor Mr Fungai Nyahunzvi, he failed to file the opposing papers to Chin’ono’s application for review because of a mix up as he was involved in another case in which the prosecution intended to appeal at the Supreme Court involving the same person.
The prosecutor said after he took over the case in which the prosecution was appealing against the High Court decision to have Chin’ono’s passport temporarily released, he also became seized with the review application involving the same actor, resulting in a mix up of files.
He said when a decision was reached that the appeal case be withdrawn since it had been overtaken by events, the prosecutor inadvertently married two files in error treating both cases as one.
Mr Nyahunzvi went on to prepare a withdrawal notice for the Supreme Court appeal case and erroneously closed his file.
“It totally eclipsed my mind that I was then also supposed to attend to the application for review that is filing my opposing papers,” said Mr Nyahunzvi in his papers.
“It was always intended to oppose the application for review. My error of failing to attend to the matter only came to my attention when the default judgment was passed on April 28 as no opposing papers had been had been filed and the error is deeply regretted.
“The view is also held that if the matter had been decided after hearing all the parties, especially the second respondent (State), that application for review would have failed.”
The charges against Chin’ono stemmed from a Twitter post in which he said a police officer had beaten and killed a child strapped to its mother’s back using a baton after a video of the alleged incident went viral.
Police later said investigations showed the baby was alive.
Chin’ono said at the time the charge fell under an “unconstitutional” law.
The journalist-turned political activist was first arrested in July last year on charges of inciting through social media, violent anti-government protests against alleged State corruption.
He was arrested again in November on charges of obstructing justice, after tweeting about a gold-smuggling case involving political elites. He is out on bail on the other two charges, which he denies and is accusing the Government of persecuting him.
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