Prominent lawyer released

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Tarisai Machakaire
STAFF WRITER
machakairet@dailynews.co.zw

THE Supreme Court has released prominent Harare lawyer Admire Rubaya from a week-long incarceration after the Bulawayo High Court revoked his bail together with eight other accused persons on theft allegations involving gold worth US$1 million.

Rubaya is jointly charged with Jefat Chaganda and eight others, Plumtree regional magistrate Timeon Tavengwa Makunde, Stanley Chinyanganya, who is the area public prosecutor, as well as Dingumuzi Ncube, Tyson Ruvando, Godfrey Makuvadze, Ladislous Tamboonei and detective assistant inspector Ladislous Tinacho, who is in charge of the ZRP minerals and border control, on theft charges or alternatively obstructing the course of justice.

Supreme Court judge Nicholas Mathonsi yesterday granted an order for Rubaya’s release and for him to continue abiding by conditions that were initially set by a magistrates’ court when they were arrested in July 2018.

“I have no doubt in my mind that the decision by the High Court to revoke the applicant’s bail is capricious. It is arbitrary in the circumstances. It has to be vacated,” Mathonsi said.

“Applicant shall continue to observe the conditions on the basis upon which he was freed on bail by the magistrates’ court sitting at Bulawayo.”

The accused were remanded in custody on June 23 during routine remand proceedings after Chaganda failed to pitch up for court and his lawyer claimed he had died, but could not produce any proof, prompting Justice Thompson Mabhikwa to revoke bail.

In the appeal filed by Thabani Mpofu Chambers, instructed by Rubaya and Chatambudza Legal Practitioners, they argued that the procedure followed by the High Court leading to the incarceration of the applicant was not provided for by law and not governed by the rules.

Rubaya further argued that Mabhikwa had erred by incarcerating him yet he had not violated any of the conditions under which he was admitted to bail.

He said there was no risk of interfering with evidence since the State case had been closed, adding that he had never been convicted of any offence.

“In all circumstances, the order issued by the High Court is grossly irregular and void in that it was issued in breach of appellant’s right to liberty, equal treatment before the law and fair hearing in a criminal matter and constitutes on the part of the judge concerned, an abdication of judicial function,” read the appeal.

Rubaya said his incarceration was unjustified considering that the criminal trial had been moved to September 20 owing to lockdown restrictions.

However, the trial prosecutor Nonhlahla Ndlovu in her response emphasised that the High Court had jurisdiction to revoke bail in the circumstances.

“Section 126 of the Criminal Procedure and Evidence Act does provide for the revocation of bail at any stage when it becomes necessary or advisable in the interests of justice to do so.

“The procedure adopted by the court a quo is thus not alien at law,” Ndlovu said.

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