18 December 2018
Harare magistrate Nyasha Vhitorini yesterday dismissed three applications in the trial involving former Mines and Mining Development Minister Walter Chidhakwa and his Permanent Secretary Francis Gudyanga.
Through his defence counsel Advocate Sylvester Hashiti, Chidhakwa applied for stay of proceedings arguing that the trial could not kick-off with Michael Chakandida of the Special Anti-Corruption Unit handling the prosecution.
Initially, the case was being prosecuted by Zivanai Macharaga who was also recused.
Hashiti applied that Chakandida had to recuse himself because he had no powers to prosecute after a recent Constitutional Court order that recused a member of the unit in the Levy Nyagura case.
He said his client was entitled to a clear benefit of the law just like the University professor and therefore if Chakandida was to insist on the role he will be approaching the High Court for a determination.
In respect to his application, the court had already ordered that all new applications were to be filed on or before November 26.
Responding to the application, Chakandida said the defence counsel was supposed to seek an appeal or reveal of the matter before filing a new application.
He said he was confining himself to the magistrate’s court order which was not challenged and not the Concourt order.
However, magistrate Vhitorini ruled that the application was improperly before him and the defence counsel had not given due diligence to the court record.
After the ruling, Hashiti then applied for the recusal of magistrate Nyasha Vhitorini.
“Your, Worship with due respect, I am applying for your recusal on this matter.
“If you notice, the two accused persons appeared before Josephine Sande as the remand magistrate who referred the matter to Estere Chivasa for trial.
“The same matter has been placed before His Worship for trial with Chivasa having mysteriously disappeared,” he told the court.
He said the accused is now afraid he won’t be subjected to a free trial as his conduct begins with both the prosecutor and then the magistrate.
Hashiti alleged that the system had seen previous magistrate as lenient and wanted a more malleable judicial officer handling the matter.
In his submissions, Hashiti highlighted that a magistrate must not feel compelled or insist on hearing any matter especially when his client has been complying with the court since his arrest in November 2017.
In addition, Hashiti preferred to have his client’s matter before another magistrate preferably form outside Harare.
He said his request follows recent sentiments shared by the Chief Justice Luke Malaba, who told magistrates at a workshop that they should not launder litigants.
He said the statement insinuated that the Chief Justice was giving instructions to magistrates exposing lack of independence.
In his ruling, magistrate Vhitorini said he was not under any undue pressure and saw no reason to recuse himself and dismissing any chance of bias.
“I am independent in this matter and I am leaving room for you and your client to approach the High Court for determination and if there is another view by the higher court I will abide by that order,” he said.
Meanwhile, advocate Hashiti and Macharaga have given notice to separate Chidhakwa and Gudyanga’s trials.
The matter was postponed to January 4 2019.