The Sunday News
Thulani Ndlovu
SUSPENDED senior Bulawayo magistrate Mr Sikhumbuzo Nyathi threatened a lawyer with arrest, ordered him to sit in the gallery and dismissed him from a case where he was representing a man on attempted murder charges before convicting the accused who no longer had legal representation.
The lawyer, Mr Jabulani Mhlanga of Masiye-Moyo and Associates, further alleges through a supporting affidavit for condonation of late noting of review, filed at the High Court on Friday last week that the trial that led to conviction of his client and was presided over by Mr Nyathi was unfair and fraught with irregularities.
Mr Nyathi convicted Sibukani Mguni of 7342/19 Tshabalala, Bulawayo on 21 October 2014 for firing a pistol at Tofara Sibanda, a police officer. Mguni had pleaded not guilty to the attempted murder charge.
Mguni, through his lawyer, petitioned the High Court to allow him to file a review of the magistrate’s decision against both his conviction and sentence even though the time for noting review has expired. The time within which to make an application for review in terms of the court rules is 10 days after conviction.
A review application is concerned with procedural irregularity, impropriety, irrationality, illegality or correctness of a presiding magistrate.
Mr Mhlanga said during trial proceedings at the magistrates’ court, he was dismissed by Mr Nyathi from the case although he had received instructions from Mguni to represent him.
“It puzzles me even today as to why I was removed from my clients’ case. The trial magistrate went on to threaten me with contempt of court proceedings if I continued addressing the court, a situation that amazed even the court officials,” said Mr Mhlanga.
He added that he had information and documentation that he intended to use to defend Mguni.
“The learned magistrate, I respectfully submit, was distractive, disruptive and so immodest that it shocked one’s sense of propriety,” he said.
The lawyer further alleged that Mguni was denied time to regroup and postpone the matter. He said he was forced to sit in the public gallery and follow the entire proceedings that led to conviction of his client.
Mguni, in his founding affidavit, reiterated the allegations of his lawyer against Mr Nyathi, saying: “The learned magistrate misdirected himself . . . to a point of creating confusion, compromising his impartiality and rendering my trial unfair.”
Mguni added that Mr Nyathi would answer for witnesses during cross-examination and refer to the evidence that was not led in court.
Mguni further alleged that he failed to apply for his review in time because Mr Nyathi denied his lawyer access to the record of proceedings after a written request.
“I am informed that my legal practitioner engaged the clerk of court as to our letter and response but was told by the clerk of court that the trial magistrate had given them instructions not to give us the record,” said Mguni.
“Seeing that I was in the same predicament that I was during the trial I then instructed my legal practitioner to approach the courts for relief as I was in urgent need to lodge a review application within time.
“My legal practitioner filed an urgent chamber application with the High Court under case number HC2620/14 to compel the trial magistrate Sikhumbuzo Nyathi and the clerk of court Justice Tede to release the record. On November 18, 2014 I was granted the order.”
However, Mguni said despite his lawyer being armed with a High Court order compelling Mr Nyathi and the clerk of court to release his record of proceedings, his lawyer was denied access to the record.
Said Mguni: “With the compelling order, still my legal practitioner was denied access to the record.
“The trial magistrate commented as follows ‘the record of proceedings was referred to the High Court for review on October 29, 2014 and is pending before the honourable Review Judge Kamocha’. Notwithstanding that my legal practitioner had requested to have access to the record soon after my sentence.”
Mguni said when Mr Mhlanga paid a visit to Justice Kamocha’s clerk to make a follow up on the record, the clerk indicated that the record was with transcribers at the regional court and not with the judge as alleged by Mr Nyathi.
Mr Mhlanga managed to obtain the record of proceedings after the intervention of magistrate-in-charge, Mr Trynos Utahwashe.
“I submit that the delay in filing an application for review within the stipulated time has not been willful and that the explanation for the delay is condonable. I was deliberately denied access to the record of proceedings by the trial magistrate,” said Mguni.
He further alleged that his case was reviewable and gave 21 reasons why his case had prospects of success. The reasons include the fact that he was convicted without Mr Nyathi hearing his side of the story, there were many discrepancies and variations apparent from witness evidence, Mr Nyathi dismissed his lawyer without justification and the magistrate misdirected himself by denying Mguni access to the record.
Mguni is at Khami Prisons and serving a 10-year sentence of which three years were suspended.
In the application for condonation for late noting of review, Mguni is the applicant and the respondent is the State. Nyathi is not a party to the proceedings despite the allegations against him.
Mr Nyathi is on suspension for a different matter.
According to chief magistrate Mr Mishrod Guvamombe, Mr Nyathi allegedly acted in a corrupt manner and sent a Lupane-based magistrate $305 via mobile money transfer to influence her judgment against a Clement Wanda.
Mr Guvamombe said his office got wind of Mr Nyathi’s alleged corruption through a whistle blower, leading to his suspension.
Mr Nyathi is yet to go for a hearing and will not be reporting for work until his matter is concluded.
He is said to have tried to influence a case involving a bar fight between a detective from the Criminal Investigations Department and Wanda, believed to be a Central Intelligence Organisation (CIO) agent.
Wanda was eventually convicted, jailed for six months and fined $300 by Ms Anele Munamati, the magistrate who Nyathi allegedly tried to bribe.
Mr Nyathi also recently made headlines for issuing a warrant of arrest against a prosecutor for failing to turn up for a case.
Prosecutor Ms Paida Zengeni was on leave, but the magistrate appeared impatient to conclude the case and ordered her arrest.
Last year, Mr Nyathi threatened court reporters in the middle of delivering a judgment, claiming that they had misquoted him.
