Gospel musician Ivy Kombo and her husband Andy Kasi accused of illegally acquiring certificates to practice law in Zimbabwe without requisite process have taken the matter to the High Court challenging the magistrate’s decision to allow the State to call a new witness in the middle of the trial.
The two are charged with fraud together with Huggins Duri, an official from the Council for Legal Education who believes the magistrate is descending into the arena to help the State in amending their collapsing case.
Represented by Admire Rubaya and Everson Chatambudza, the two have cited the magistrate, Feresi Chakanyuka, the prosecutor General and Duri as respondents.
This comes after the magistrate made a ruling to allow the State to call High Court judge Justice Sylvia Chirau Mugomba as a witness in the matter despite opposition by the defence that it would prejudice their clients.
They argued that they gave a defence without the evidence of the judge and bringing her now would render their defence useless.
The magistrate, however, ruled in favour of the State, giving them room to call the Judge, a decision the couple wants the High Court to review.
This also came after the magistrate initially declined the State’s application to call the Judge which the defence now says is a review of its own decision.
“The 1st Respondent’s (Chakanyuka) decision to allow the 2nd Respondent (State) to call Honourable Justice Chirawu-Mugomba as a State Witness in circumstances where she had previously dismissed an application for her to testify as a witness is outrageous in its defiance of logic. . .
“The 1st Respondent had no jurisdiction to lawfully revisit, review and renege on her original decision barring the 2nd respondent (the State from calling Honourable Justice Chirawu-Mugomba a witness considering the court a quo had already made an extant final decision on that legal issue, making her functus officio on that subject matter,” the lawyers wrote in their grounds for appeal.
They argue that the court’s decision was irregular and constituted a miscarriage of justice, violating their rights.
The couple says the magistrate’s decision to condone the State to bring the witness midway renders the proceedings a farce as it is in direct violation of the provisions of the law which prescribe the State to serve evidence to the suspects before commencement.
“The 1st Respondent’s (magistrate Chakanyuka) decision to overrule the Applicants’ objection relating to the calling of Honourable Justice Chirawu-Mugomba as a State witness whose statement had been recorded midway through the trial was grossly irregular in a manner which constitutes a brazen miscarriage of justice which has the effect of vitiating the proceedings.
“The 1st Respondent’s conduct of descending into the arena to assist the State in proving a case against the Applicants in its decision to allow the 2nd Respondent to lead viva voce evidence from a witness whose evidence was irregularly and illegally obtained, in a manner which is contrary to constitutional guarantees is grossly irregular as it unlawfully causes grave prejudice to the rights of Applicants,” the said.
NewZimbabwe
