FORMER cabinet minister Priscah Mupfumira’s case has taken a dramatic twist as the Supreme Court Tuesday nullified High Court Judge Erica Ndewere’s ruling to deny her bail on basis that her appearance before that court was irregular, Zim Morning Post has learnt.
Although she remains in remand prison, this development gives the former cabinet minister a lifeline as she has the opportunity to exercise her constitutional right to apply for bail at the Magistrate’s court.
The matter was heard before Justice Marie-Anne Gowora who queried on how the matter had made it to the Supreme Court when it was littered with massive irregularities.
At law, she was compelled to refer it back to the Magistrate’s Court where proper court process should be followed.
She noted that the determination by the Acting Chief Magistrate Munamato Mutevedzi on the certificate by the Prosecutor General was not appealed against.
The High Court ‘bail hearing’ was therefore a non-event hence Mupfumira approached the Supreme Court without following proper court processes at the lower courts.
my view, the court a quo was not properly seized with this matter and the
decision to set aside was a gross irregularity.
“There was no legal premise before the court a quo to interfere with the certificate. Its acceptance by the Acting Chief Magistrate was an exercise of his discretion in terms of the Act which exercise was never challenged. The court a quo was invited and persuaded to set it aside on the basis of submissions made to it by appellant’s counsel premised on the alleged constitutional invalidity of s 32(3b) of the Act. I have already found that those remarks by the court a quo have no legal justification,” Gowora noted.
“On close scrutiny it becomes evident that the appellant sought reliance on Section 116 and 117 of the Act, which sections apply to initial applications for bail.
“The relevant section of the Act, s 121 was not applicable for reasons that will be discussed later during the course of this judgment.
“In my view, the appeal filed by the appellant to the High Court having been made in terms of ss 116 and 117 was irregular.
“Those sections are relevant to
initial applications for bail before a court of first instance, which in this
case the High Court was not, nor was it the contention by the appellant that it
was. Section 117 provides in relevant part as follows:
117A Application for bail, bail proceedings and record thereof
(1) Subject to the proviso to section 116, an accused person may at any time apply verbally or in writing to
the judge or magistrate before whom he or she is appearing to be admitted to bail immediately or may make such application in writing to a judge or magistrate.”
Interestingly, Mupfumira’s co-accused James Chihuta and Ngoni Masoka were both granted bail rendering the case tantamount to selective application of justice, submitted a legal expert who spoke to this publication.
Mupfumira was arrested July 25 by members of the Zimbabwe Anti-Corruption Commission (ZACC) and is facing seven counts of criminal abuse of office in terms of s 174 (1) (a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Meanwhile, Zim Morning Post understands that the former cabinet minister’s bail hearing is set down for Friday at Harare Magistrate’s Court.