The Sunday News
Vusumuzi Dube, Online News Editor
MATABELELAND North provincial magistrate Mr Victor Mpofu has dismissed an application by the lawyer for three Kershelmar directors, Siphosami Malunga, Zephania Dhlamini and Charles Moyo, Mr Josphat Tshuma of Webb Low and Barry Legal Practitioners for exception.
In his application Mr Tshuma had argued that the charge against the trio did not disclose any offense.
The trio is charged with unlawful occupation of Esidakeni Farm in Umguza District, Matabeleland North Province.
In dismissing the application last Tuesday, Mr Mpofu noted that it is imperative to restate that the court sits as a Magistrates Court. It is constituted in terms of the law; the Magistrates Court Act Chapter 7;10.
“It is a creature of stature; its powers therefore are created by a legislative process. I have no power to create an offence. Even so I find this issue not even relevant to the exception petition. The above- cited provisions raised by the prosecution in the instant case have explicit and unequivocal penalty provisions in case of breaching the provisions of the law. This therefore leaves no room for guessing as regards the existence of the law.
“The accused insist that the complainants in this present criminal matter should pursue civil process for the eviction of the accused person in terms of Section nine of the Gazetted Land Act Chapter 20:10. This is not the legal instrument which the State chose to use in prosecuting the accused persons,” reads part of the ruling.
The magistrate further noted that the State has got the prerogative to prosecute anyone who provokes the laws of the land, stating that he would not agree with the accused’s argument for as long as what the State is armed with is binding as the law.
Farm in Umguza-District
Mr Mpofu further stated that in the event that accused want to apply for the quashing of the current charges they could do so through the superior courts.
“If it was for an amendment simpliciter, then this court has the jurisdiction to entertain such an application in terms of Section 170 (2) of the Criminal Procedure and Evidence Act as read together with Section 171 (1) of the same Act. The crux of the so called exception by the accused persons in the instant case is basically that the charge raised by the prosecution is not a criminal offence and the court cannot infer a criminal offence where it is not existent.
“The effect of their prayer were it going to be upheld is not one to amend the charges to the appropriate one but to have an abrupt end to these impending prosecution, this will be synonymous to quashing the charges.
In view of the above reasoning, the exception is hereby overruled consequently dismissing the request for quashing of the same charge,” reads the judgement.
In their initial session in court the trio, through their lawyer, also had an application for the postponement of proceedings also dismissed by the magistrate.
In his application for postponement of proceedings, Mr Tshuma had said:
“The accused submits that it will be necessary and expedient for the trial to be postponed without any future date being designated, pending the finalisation of the matter at the High Court under 1054/21 as it is a violation of the principles governing the proper administration of justice for the Magistrate’s Court to be seized with a matter that is already pending before the High Court.”
He argued that the High Court is a superior court and has original jurisdiction over all civil and criminal matters throughout Zimbabwe and has the jurisdiction to supervise magistrate’s courts and to review their jurisdictions.
As such, he argued that the matter at the High Court takes precedence over the matter before the magistrate’s court.
The State represented by Mr Michael Reza had opposed the application of the postponement of the proceedings saying the section cited by the defence was inappropriate.
