Fraud suspects seek magistrate’s recusal

TWO men accused of defrauding Mashwede Holdings of fuel coupons worth nearly US$17 850 have applied for the recusal of the magistrate.

They argue that the court was no longer impartial after dismissing their application for a delay to allow time for a review of the dismissal of their application for discharge after the conclusion of the State case.

When the prosecution fails to establish there is a basic case against an accused it is possible for the accused person to be acquitted and discharged before having to mount a defence.

Most such applications are dismissed, meaning the person on trial has to then show factual errors in the prosecution case if they wish to raise reasonable doubt.

Edson Mashamhanda and Nevanji Madanhire want magistrate Mrs Evelyn Mashavirakure to step down from handling their case claiming she was no longer impartial. The two are charged with theft of trust property.

The State led by Mr Moses Mapanga opposed the application, saying it was only a delaying tactic being employed by the two.

Mr Mapanga said the two sought postponement of the matter numerous times and they would have indicated that the magistrate was impartial at those material times.

“This issue is being raised at the eleventh hour, yet the matter was postponed more than nine times at the defence case stage only,” he said. “On no occasion had any intimation been given that such recusal would be sought. This is clearly a dilatory tactic by the accused persons to secure a postponement at all costs.

“Be that as it may, Mr Gift Nyandoro, the lawyer for the second accused person had promised to file this application on January 16 2022.”

Mr Mapanga said the State was supposed to file the response thereof on January 18, 2022, but Mr Nyandoro did not live up to his undertaking, and only filed the application on January 31, two weeks later.

He said after the application for discharge at the close of State case was dismissed by the court on October 25 last year, Mashamhanda and Madanhire took the court’s decision on review with the High Court on November 9 and then sought a trial delay while that review was in progress.

The application for a delay was rejected on January 5 and now the recusal application arising from that refusal is the one before the court

But Mashamhanda and Madanhire, in their application, said Mrs Mashavirakure asked to go and seek for instructions from her superiors after they applied for postponement.

They said the manner in which the court postponed the matter on January 5 raised doubts about its impartiality in the handling of the case.

Mrs Mashavirakure is expected to make a ruling in the matter on Monday.