Zvikomborero Parafini, Court Reporter
Former Vice President Phelekezela Mphoko whose trial was set to kick off yesterday was postponed once again after his lawyers filed an application for exception.
Mphoko, appeared before Harare regional magistrate Hosea Mujaya and was represented by Advocate Thembinkosi Magwaliba.
The State is now being led by Chief Law Officer Micheal Reza together with Lovett Masuku and Admire Kumire.
Magwaliba was the first to address the court informing it that he hadn’t been able to adequately advise his client because the clerk of court had failed to avail the record of proceedings timeously for him to familiarize himself with the matter.
Magwaliba assumed agency after Advocate Tawanda Zhuwarara was fired by the Former Vice President before trial as they ‘differed’ in opinion on how to proceed with the matter.
“Before we get to the business of the day, there’s an issue that we request the court to hear, my instructing practitioners wrote a letter to the Clerk of Court requesting the record of proceedings as I wasn’t involved in the matter from the onset.
“The Clerk of Court failed to provide the record timeously and advised me that the record will only be available after the 21st of February, with the unavailability of the record, I am incapacitated to advise the accused person of his rights and how to proceed with the matter.
“On February 10 we also wrote another letter notifying the State of our intention to file an exception which we have since done so,” said Magwaliba.
In his application for exception, Mphoko is arguing that the State’s charge is inadequate and if they were to establish the facts which they allege, in terms of the law, there would be no criminal offence established.
Mphoko claimed that the charge is defective as it does not conform to the requirements of the charge.
Mphoko is facing criminal abuse of duty as public officer with an alternative charge of obstructing the course of justice.
Mphoko in his application went on to clarify on what his lawyers deemed the requisites of a valid charge particularly stating that the prosecution did not consider whether the essential elements of each of the offences has been made or mentioned in the charges submitting that Mphoko’s rights to a fair trial will be violated if he were made to answer to the charges.
He argued that the charges are vaguem too broad and don’t disclose an offense and because of that, he cannot adduce or challenge the evidence as he is not adequately informed of the charges he’s facing.
Micheal Reza on behalf of the State raised concerns that Mphoko’s application was just one of his delaying tactics and demanded progress on the matter.
Mujaya ordered the Clerk of Court to avail the record of proceedings on February 19 as it is in the interests of justice that Magwaliba motivates his application after acquainting himself with the record of proceedings.
Subsequently, the matter will be back in court on February 28 when both counsels are set to place their arguments on the application.
It is the State’s case that on May 6, 2016, the Zimbabwe Anti-Corruption Commission (Zacc) received a report of allegations of fraud and criminal abuse of duty against Zinara officials. Investigations that ensued resulted in the arrest of Davison Norupiri and Juma. The two were charged with criminal abuse of duty and their warned and cautioned statements were recorded on July 12, 2016.
He said after the arrest, Juma and Norupiri were taken to Avondale Police Station on the following day pending their appearance in court.
On the same day at around 6PM, Mphoko, who was at the time the Acting President, stormed the police station and criminally abused his duty as a public officer by ordering the immediate release of Juma and Norupiri from lawful police custody.
The Officer-in-Charge stood his ground challenging the unlawful instruction before he later complied with Mphoko’s order under duress and released the two men.
Mphoko drove away with them in his car.
When Zacc officials went to Avondale Police Station on the following day intending to take Juma and Norupiri to court, they discovered that police had released them acting on Mphoko’s orders.