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Illegal billboard: 2 directors further remanded


THE matter of directors of two Harare companies accused of erecting an illegal billboard in Borrowdale, Harare, discrediting WestProperty, has been further remanded to April 14 for a possible trial date.

The accused, Paragon Printing director Mark Strathen and Fairclotte Investments director Grant Russell, were represented by Tendai Biti when they appeared before magistrate Yeukai Dzuda this afternoon.

Recently they had their application for review dismissed by  High Court judge Justice Bachi Muzawazi.

The duo filed the application for exception to charges of criminal nuisance last year but was dismissed by former Harare magistrate Shane Kubonera on the grounds that it was marred by triable issues.

In dismissing their application for exception, Kubonera said the duo must answer to their allegations.

Aggrieved by the dismissal of their application, Russell and Strathen filed a review of Kubonera's determination at the High Court.

Justice Muzawazi dismissed their application saying she found no reason to interfere with the incomplete proceedings before the primary court.

"However, as a general rule courts are reluctant to interfere with the un-terminated proceedings of a lower court unless there is a gross miscarriage of justice. In essence, incomplete criminal proceedings are prone to intervention by the Upper Courts in isolated but deserving circumstances," Justice Mzawazi ruled.

“The degree and extent of the repugnance, discomfort and inconvenience, like the court of first instance noted can only be tested after hearing evidence.

"Accordingly, the trial court had the discretion to make a finding on whether the words disclosed a charge at the initial stage and preempt the trial or to make a decision at the conclusion of the state case or the trial. Either way, I am not convinced that its decision was irrational or  irregular to warrant the interference of this court.

"Whilst superior courts play an oversight role over the subordinates courts and judicial bodies by ensuring the necessary checks and balances as earlier stated, to safeguard the interests of justice, they can only interfere with interlocutory proceedings of the lower courts if continuation will result in irreversible gross miscarriage of justice," she ruled.

The duo had challenged that the contents of the billboard did not constitute an offence.

They further argued that the contents of the billboard did not interfere with the ordinary comfort, convenience, peace or quite of the public or any section of the public thereof.

Magistrate Kubonera turned down the application on the defective charge, and did not make a determination on the constitutional arguments ruling that a determination on the appropriateness of the charge, whether it disclosed an offence or not could not be made at that stage but only after hearing the evidence.

After that ruling by Kubonera, the duo filed an urgent chamber application for stay of proceedings pending the review.

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