The Sunday News
Thulani Ndlovu Court Correspondent
A CITY lawyer has filed a High Court review application to set aside a judgment by a maintenance court which revised his maintenance obligations upwards, accusing the provincial and maintenance court magistrates of corruption, bias and gross irregularities in the execution of their duties.
Tungamirai Nyengera, of house number 5952 Luveve and working under Bulawayo law firm Shenje and Company, deposed a lengthy founding affidavit alleging that the Bulawayo provincial magistrate Enias Magate corruptly appointed Takunda Mtetwa who presided over his maintenance trial, to “serve his (Magate’s) interests at the expense of justice”.
Mtetwa reviewed Nyengera’s obligations from $60 per month to $250 per month. According to Nyengera he takes home about $450 a month.
He was taken to court by Thembelani Sibanda who has two daughters aged six and three with him. Nyengera is married to another woman and has six children in total.
However, Magate and Mtetwa in their opposing affidavits strenuously denied the allegations of bias and gross irregularities saying they are “flimsy, spurious and unsubstantial”.
Through his founding affidavit, Nyengera said on the eve of the date of hearing of his maintenance trial, Sibanda approached him saying that she wanted to go to South Africa.
“On the appointed day, I went to the civil court (maintenance court) intending to defend myself. I saw Sibanda by the court door and she frowned and shouted that she was going to see Magate (first respondent),” said Nyengera. “I did not appreciate why she behaved that way and worse still informing me of Magate’s involvement.”
He added that Sibanda left the courtroom and in light of her threats he assumed that she had gone to Magate’s office.
“I remained by the court door and my case was called by the court orderly. I entered the courtroom and sat in the gallery while the court orderly continued to call Sibanda three times.”
Mtetwa struck the matter off the roll due to Sibanda’s absence.
“I must state that it was the second time the matter was being struck off the roll due to the third respondent’s default,” alleged Nyengera.
Nyengera said as he walked out of the courtroom heading towards the first floor at Tredgold building he observed Sibanda walking with Magate along the corridor near the provincial magistrate office which he knew very well.
“I did not stop to talk to either of the two. Third respondent (Sibanda) went downstairs and quickly came to me along the corridors and shouted that Magate was going to fix me,” alleged Nyengera.
Further, Nyengera contends that he was served with the same variation summons to appear in court again for the third time in relation to the same matter on 9 July 2014.
“On this fateful day, the third respondent was present in court. Our matter was first to be heard.
“Mtetwa walked into court and stated that he had come to specifically deal with my case as Mr Victor Mpofu (magistrate) had recused himself. I wondered how and when Mr Mpofu made the recusal as my case was the first to be called and no other magistrate had entered to make such a recusal or deal with the matter,” Nyengera said.
He added that although he had no difficulties with Mpofu or anyone recusing themselves, the manner in which the recusal was done in his trial was not transparent and the reasons for such recusal were not furnished in open court.
Said Nyengera: “The proper procedure in my respectful view was to have the record endorsed by the recusing magistrate rather than have the second respondent (Mtetwa) becoming a spokesperson for the recusing magistrate.”
Furthermore, Nyengera claimed that he handed his notice of opposition to the upward review of his maintenance obligations to Mtetwa but his opposing papers were not in the court record. He added that detailed submissions made by his legal representative also do not appear in the court record.
“The manner in which second respondent (Mtetwa) imposed himself in this case and later handled the case was not procedural in that he was, to my perception, acting on instructions from Magate that he should deal with the matter and put the interests of Sibanda’s children ahead of my other four children,” said Nyengera.
The lawyer further stated that Sibanda told him that Mtetwa had been scheduled to be at Mbembesi Circuit Court but he abandoned his mission for that day specifically to discharge instructions given by Magate against him.
Nyengera reiterated that the recusal by Mpofu was not done in the interests of justice but to protect the interests of Sibanda.
“It was influenced by Magate whom I have occasionally seen in the company of Sibanda at Tredgold building.”
