Mag­is­trate sets date for Kereke le­gal costs rul­ing

Chronicle (Zimbabwe) - - National News - Harare Bureau

HARARE re­gional mag­is­trate Mr Noel Mu­peiwa is on Fri­day ex­pected to make a de­ter­mi­na­tion on who is sup­posed to pay the le­gal costs in­curred in the pri­vate pros­e­cu­tion of for­mer Bikita West leg­is­la­tor Mun­yaradzi Kereke. The mag­is­trate will de­cide who among the three — Na­tional Prose­cut­ing Au­thor­ity, sus­pended Pros­e­cu­tor-Gen­eral Jo­hannes To­mana in his per­sonal ca­pac­ity or Kereke — will pay the le­gal costs.

Pri­vate pros­e­cu­tor Mr Charles Warara made the ap­pli­ca­tion for le­gal costs last month in terms of Sec­tion 22 (3) of the Crim­i­nal Pro­ce­dure and Ev­i­dence Act which states that, “Where a per­son pros­e­cuted at the in­stance of a pri­vate party is con­victed, the court may or­der the con­victed per­son to pay the costs and ex­penses of the pri­vate pros­e­cu­tion.”

The sec­tion fur­ther pro­vides that, “If the pri­vate pros­e­cu­tion was in­sti­tuted after a cer­tifi­cate by the Pros­e­cu­tor-Gen­eral that he de­clined to pros­e­cute the court may or­der costs to be paid by the State.”

Last week, Act­ing Pros­e­cu­tor-Gen­eral Ad­vo­cate Ray Goba said To­mana, whose de­ci­sion not to pub­licly pros­e­cute Kereke is in ques­tion, should be given an op­por­tu­nity to ex­plain him­self in court.

In a let­ter to Mr Warara fol­low­ing Adv Goba’s re­sponse, Mr Mu­peiwa said: “As we agreed, the mat­ter is set down for Au­gust 15. If honourable Jo­hannes To­mana man­ages to avail him­self on that day, then we will hear his sub­mis­sions, but if he fails to avail him­self, be pre­pared to an­swer to these sub­mis­sions and the rul­ing will then fol­low.”

How­ever, Mr To­mana did not at­tend court yes­ter­day to re­spond to the ap­pli­ca­tion de­spite be­ing ex­pected to give his side of the story. In his sub­mis­sions yes­ter­day, Mr Warara said: “Mr To­mana failed to show up know­ing that the way the mat­ter was con­ducted was un­pro­ce­du­ral. He did not come be­cause he has noth­ing to say,” he said. “What the PG’s of­fice did dur­ing that time was cor­rup­tion which is so glar­ing be­cause they favoured an ac­cused per­son. If it was just an old man from Chi­un­dura, would To­mana have in­ter­vened? The court must look into all these is­sues to come up with a de­ter­mi­na­tion.”

He added that Kereke was also to blame for try­ing to evade jus­tice say­ing he made at­tempts to frus­trate jus­tice.

Mr Warara said: “I do not know how To­mana came up with his de­ci­sions. There­fore, I do not want to make sub­mis­sions at­tack­ing him per­son­ally. It would have been fair if he was here to­gether with a rep­re­sen­ta­tive from the PG’s of­fice so that they could ex­plain them­selves.”

Mr Warara ques­tioned why the PG’s of­fice got in­volved in the vet­ting of Kereke’s docket.

“This was an or­di­nary rape case which did not re­quire Mr Dube the de­po­nent of the set down of­fice, to at­tend to the docket. From the po­lice sta­tion, the docket should have been vet­ted by the se­nior pub­lic pros­e­cu­tor at the Rot­ten Row court be­fore re­fer­ring the mat­ter to a re­mand court for ini­tial re­mand. The ques­tion is why was the set down of­fice, which deals with High Court mat­ters, in­volved with a mat­ter which falls within the ju­ris­dic­tion of the se­nior pub­lic pros­e­cu­tor? This is where the al­leged cor­rup­tion arose,” he said.

Through his lawyers, Kereke is re­fus­ing to pay le­gal costs say­ing he was nei­ther the one who barred his pros­e­cu­tion nor the one who runs the PG’s of­fice. His lawyer Mr Mar­shal Hondo Chit­sanga said there was no rea­son why the NPA should not be or­dered to meet the costs.

“If the pri­vate pros­e­cu­tion is look­ing for some­one to bur­den with the costs, then the NPA should be blamed for not prose­cut­ing him. There is no ba­sis why the ac­cused should be bur­dened with the costs,” he said.

Mr Chit­sanga added that there was no ev­i­dence to show that Kereke in­flu­enced Mr To­mana’s de­ci­sion not to pros­e­cute him.

The de­fence also ar­gued that Mr Warara’s ap­pli­ca­tion was misplaced adding that the court be­came func­tus-of­fi­cio when it jailed Kereke. How­ever, Mr Warara in re­sponse, said the is­sue of costs could not have risen be­fore con­vic­tion there­fore his ap­pli­ca­tion was prop­erly be­fore the court.

Mun­yaradzi Kereke

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