HARARE – Musician Ivy Kombo and her husband Admire Kasi have taken magistrate Feresi Chakanyuka who is handling their fraud trial to the High Court challenging her decision to allow a judge who was not lined as a witness, to testify against them.
The UK-based couple is accused of illegally acquiring certificates to practise law in Zimbabwe.
Chakanyuka recently allowed the State to add Justice Sylvia Chirau-Mugomba as a witness, midway the couple’s trial, a decision they say impairs justice in their case.
Mugomba’s statement was recorded over five months after the trial started.
Kombo and Kasi said the trial is now a farce because the magistrate is assisting the State.
“The 1st Respondent’s (Chakanyuka) decision to allow the second 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.
“Chakanyuka had no jurisdiction to lawfully revisit, review and renege on her original decision barring 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 couple said through lawyers Admire Rubaya and Everson Chatambudza of Rubaya and Chatambudza legal practitioners.
The two are charged with fraud together with Huggins Duri, an official from the Council for Legal Education.
They cited the Prosecutor General and Duri as respondents.
The magistrate made a ruling to allow the State to call Justice Chirawu-Mugomba as witness in the matter despite opposition by the defence that it would prejudice their clients.
The two said they prepared their 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.
The magistrate initially declined the State’s application to call the judge which the defence now says is a review of its own decision.
“Chirau’s 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 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 couple argued.
The matter is yet to be heard.
