The Sunday News
Rutendo Nyeve, Sunday News Reporter
THE trial of the unlawful occupation of Esidakeni Farm by the three Kershelmar directors, Siphosami Malunga, Zephania Dhlamini and Charles Moyo commenced at the Tsholotsho Magistrates Court on Friday with the magistrate postponing the case to 25 October for continuation of trial.
The trio appeared before Tsholotsho Magistrate Mr Victor Mpofu with the defense counsel challenging the charges saying they do not show any criminal offence. This was after the court had dismissed an application for postponement of the proceedings by the accused’s attorney Mr Josphat Tshuma of Webb Low and Barry Legal Practitioners. In his application for postponement of proceedings, Mr Tshuma 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 opposed the application of the postponement of the proceedings saying the section cited by the defense was inappropriate.
Mr Mpofu then dismissed the application on the grounds that it lacked merit and could not be sustained. Mr Tshuma then filed an answer to the charge and excepted to it on the grounds that it did not disclose any offense.
“For there to be an offense, the law is quite clear, you must give the occupiers who have remained in occupation a three months’ notice. There is no notice which was given and therefore to that extent that charge does not disclose any offence,” he argued.
He further argued that the charge did not take into cognizance some constitutional amendments with regards the law.
When the magistrate asked the State to respond on the amendments to the law cited by the defense, the State led by Mr Reza then requested for 15 minutes to go through the said amendments. After the 15 minutes’ adjournment, the State appraised the court that they had failed to download the particular law leading to the court to postpone the trial to 25 October.
The defence counsel is expected to file its application of exception before the State responds after which both parties will simultaneously file their heads of arguments paving way for the commencement of trial.