Deputy Prosecutor-General Michael Reza came to the defence of a Harare magistrate who is being sued for US$170 000 by a local lawyer for alleged mischaracterisation of her application for postponement.
Reza said the lawyer had, indeed, misled the court and should not create an artificial crisis.
Reza’s response came after Harare lawyer Milliscent Moyo, who was standing in for advocate Tino Chinyoka representing property developer George Katsimberis, accused magistrate Vongai Muchuchuti-Guwuriro of lying that she had said Chinyoka had gone to South Africa.
Moyo had applied for the postponement of the matter after saying Chinyoka had to fly out to South Africa for a medical emergency.
However, Chinyoka surprisingly came to court after hearing that the postponement had been denied, and Muchuchuti-Guwuriro reprimanded Moyo for misleading the court.
The Law Society of Zimbabwe was not impressed, and asked Moyo to explain her actions or face disciplinary action.
The lawyer then sued the magistrate and publications that reported the story, alleging that they had published wrong information.
Chinyoka also applied for recusal of the magistrate from handling the trial involving Katsimberis, saying she was now conflicted.
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But Reza opposed the application, saying the defence had created an artificial crisis by suing the magistrate for an alleged infraction that did not take place.
Reza said Muchuchuti-Guwuriro was within her right to advise the counsel to explain fully to the court when the court had not heard the submission by the counsel.
“Had the proper explanation been made, there would have been no need for the magistrate to advise counsel. In any case, at no point did the magistrate mention the accused (Katsimberis).
“She did not advise him of anything. The magistrate realised that the conversation was strictly between herself and the lawyer, who incidentally, was only standing in for Katsimberis’s lawyer of choice. How then does the accused (Katsimberis) feel that the magistrate will be biased against him?” Reza questioned.
“The State contends that the application for recusal of the magistrate on the basis that she is biased against the accused is far-fetched, baseless, tenuous, sketchy, dubious, vague, nebulous, hazy, frivolous, vexatious and is devoid of logic. Consequently, the State urges the court to dismiss the application.”
On explaining what happened in court, the State blamed Moyo and accused Chinyoka of choosing to make a mountain out of a molehill given that a reading of what transpired in court on the day does not point to defamation.
Reza said Moyo’s words were: “Your worship, we are seeking a postponement for this matter and the reason is that Advocate Chinyoka, who was supposed to be handling the matter, is not feeling well. So, he has to urgently fly to South Africa today. He has written a letter seeking the postponement and I beg leave to tender a copy of it.”
Muchuchuti-Guwuriro then responded: “We do not have anything showing that he has travelled to South Africa before the court, do you have any?”
Moyo replied: “No, your worship, there is nothing.”
“Do you have anything to show that he is being attended to by a doctor?” Muchuchuti-Guwuriro further asked.
“We do not have anything your worship, but we undertake to provide the documents as soon as they are available if the court is amenable,” Moyo responded.
Reza said a reading of the above exchanges shows that the magistrate clearly says there was nothing to show that Chinyoka had travelled to South Africa.
When Chinyoka eventually attended court on that same day, he asked the magistrate for permission to explain his failure to appear in court earlier, saying he knew his colleague had not “fully explained to the magistrate”.
“What full information (Chinyoka) was he talking about? It can only mean that the counsels fully understood that the magistrate was labouring under the mistaken impression that advocate Chinyoka was in South Africa,” Reza said.
“They did not correct her, but went on to tell this to advocate Chinyoka. This can only explain why the advocate had to come to explain to the magistrate that he was yet to travel to South Africa. Again, the State says if counsels in court had brought the correct state of affairs to the magistrate, all this would not have arisen.”
Reza said there was no need for recusal of the magistrate since the defence had created the crisis.
Muchuchuti-Guwuriro is expected to deliver the ruling on her recusal on June 7, 2023.