Prominent property developer George Katsimberis has approached the Supreme Court challenging a ruling by the High Court blocking attempts to put former prosecutor Michael Reza on the witness stand over his alleged unprofessional conduct during a trial.
Reza, who is now the Zimbabwe Anti-Corruption Commission (Zacc) chairperson, was the prosecutor in Katsimberis’ trial where he is being accused of defrauding rival businessman Ken Sharpe’s Pokugara Properties in a botched joint venture deal.
Katsimberis’s application before the closing of his hearing for referral to the Constitutional Court (ConCourt) was dismissed by High Court Judge Justice Mutevedzi, who ruled that it would be improper for Reza to be forced to testify in the same trial he was handling.
Mutevedzi said putting Reza on the witness stand would mean that the prosecution would no longer be directing the proceedings.
He argued that such precedence would undermine the integrity of the court, but said it was in the interest of justice for the land developer to appeal his ruling on the case where there is no judicial precedence at the Supreme Court.
In his Supreme Court application, Katsimberis argued that the High Court misdirected itself by dismissing his application.
He said his application for referral to the High Court was done in desperation because the prosecutor in the criminal trial was not a competent and compellable witness in terms of section 244 of the Criminal Procedure and Evidence Act (Chapter 9.07).
Katsimberis said the court also erred in equating the prosecutor to a judicial officer, who cannot be a compellable witness.
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He also queried the judge’s conclusion that a lawyer cannot testify in a case where he or she is representing a litigant.
Katsimberis said the law does not exclude prosecutors from section 244 of the Criminal Procedure and Evidence Act (Chapter 9.07) and this meant that Reza should be summoned “to clarify his falsehoods.”
The property developer has repeatedly accused Reza and the presiding magistrate Vongai Guvuriro Muchuchiti of being biased towards Sharpe and his company Pokugara Properties.
He wanted them to recuse themselves from his fraud trial.
The two have, however, refused to recuse themselves from the case despite the allegations of bias. Muchuchuti dismissed Katsimberis’ application to force Reza to take the witness stand.
The trial was halted pending the High Court ruling and has been on hold again until July 2 to allow Katsimberis to pursue his appeal on an urgent basis.
“The applicant's application for stay of proceedings has been granted by the first respondent on the grounds argued and on the understanding that the applicant will seek by way of chamber application to the Supreme Court the urgent set down of his appeal before the Supreme Court,” Katsimberis said in his chamber application dated June 7, 2024.
“The trial will resume on 2 July 2024 unless the appeal has not by then been set down, in which case the applicant would need to satisfy the magistrate's court that he had taken all steps to try and ensure that it was set down.
“This is that application.”
In his application for Reza to be summoned to the witness stand, Katsimberis’ lawyer, Tinomuda Chinyoka, argued that it was common cause that the prosecutor’s conduct in the case was very biased and unprofessional.
He said Reza’s actions fell short of the customary standards of fairness and detachment demanded of a prosecutor and “instils a belief that there is a real risk that he has not conducted the trial with due regard to the basic rights and dignity of the applicant and impacts on the right to a fair hearing.”
Chinyoka said failure to put Reza on the witness stand would prejudice his client because his case would be referred to the ConCourt without crucial evidence.
Katsimberis wants Reza to explain his decision to refuse to give him state papers, declaring that no one, "big or small, tall or short, dead or alive" would force him to produce the document.
He also wants the prosecutor to be cross-examined about his alleged falsehoods where he claimed that Pokugara reported the fraud case to the police first yet evidence showed that Katsimberis was the first one to make a police report.
Two cases ended up running into court where Kasimberis was a complainant in one case and an accused in another, a development the land developer claims amounted to a miscarriage of justice.
