PM’s drivers seek charge review

Court Reporter
Prime Minister Morgan Tsvangirai’s two drivers who are facing allegations of driving cars with blue beacon lights, want their case at the magistrates court to be set aside, while the High Court reviews the charges.
Joshua Mhuriyengwe (44) and Clifford Sanyika (38) are facing charges of contravening Section 29 (3) of Statutory Instrument 154/2010 (use of a motor vehicle fitted with a blue beacon light when the vehicle is not for the police or the Zimbabwe National Army or authorised by the President).
They are also facing an alternative charge of contravening Section 29 (1) (10) of the same Statutory Instrument (driving on any road a vehicle equipped with a lamp cable, which can be taken for a beacon light).
In their application for review filed at the High Court, the duo through their lawyer Mr Chris Mhike want their charge and trial quashed arguing that the charge is invalid.
They are also arguing that the decision by magistrate Mr Carrington Karidzagundi to dismiss their application for exception should be set aside.
“The decision by the 2nd respondent (Mr Karidzagundi) in dismissing the applicant’s exception to the charge is clearly wrong . . . and not legally tenable to the extent that it has led to great prejudice and a gross injustice against the applicants.
“Further at the earlier stages of the case, that is for the production of the warned and cautioned statement at the police station and at the commencement of court proceedings, applicants were presented with charges under a repealed statute, and then under a statute that was not in force and effect at the material date, respectively,” read part of the application.
They further argued that the failure by the magistrate to appreciate the prejudice and injustice occasioned by the use of ineffective statutes in criminal proceedings, amounted to a procedural defect that can be reviewed by the High Court.
“The manner in which the State proceeded against the accused persons and in which the court presided over early proceedings in the matter, and later determined the exception against the proceedings, was all procedurally and grossly irregular, thereby giving rise to a miscarriage of justice which cannot now be redressed by any other means except by way of review,” read part of the submissions.

 

Opposing the application, law officer Mr Edmore Nyazamba said that the trial magistrate did not err in dismissing the exception arguing that it was based on a wrong understanding of the law in force at the time of the commission of the offence.
“It is trite that statutory instrument (SI) 602/1972, under which the applicants were arraigned before the trial court and pleaded not guilty, was repealed by SI 154/2011 whose date of commencement is July 1 2011 according to the Road Traffic (Construction Equipment and Use).
“What this means is that the legislation that was in force at the material time is SI 602/1972. It follows therefore that the purported exception had no legal basis.
“The mere fact that the police officers warned and cautioned the applicants on a charge under SI154/10 does not in itself take away the duty of the prosecutor to correct the charge sheet and cause the applicants to plead to a charge under the correct and applicable legislation,” said Mr Nyazamba.
He added: “It is accordingly for the above reasons submitted that there is nothing irregular in the proceedings of the court in quo which warrant the setting aside of the trial proceedings, for the law applicable at the time of the alleged commission of the offence is SI 602/1972.” The two drivers are yet to respond to the State’s opposing papers before the matter is set down before a judge for hearing.