By Tendai Kamhungira
Prophetic Healing and Deliverance (PHD) Ministries leader Walter Magaya has escaped a bid by Prosecutor-General Ray Goba to have him incarcerated after pleading not guilty to rape, unlawful termination of pregnancy and defeating course of justice charges.
Goba had told High Court judge Emy Tsanga that by operation of Section 169 of the Criminal Procedure and Evidence Act, Magaya’s bail was terminated, adding that he was supposed to make a fresh freedom bid.
However, Magaya’s lawyer, Thabani Mpofu, said Goba was misguided, since his client was not on bail. He said Magaya had been removed from remand by the Harare Magistrates’ Courts, and had been reimbursed his bail money.
“There is nothing to terminate because the accused was not on bail. Once a bail order was terminated, it had to be reinstated for Section 169 to be reactivated,” Mpofu said.
Mpofu said the Section applied to those people who were on bail. Mpofu further took a swipe at Goba, whom he said if he still wanted his job, he was not supposed to act in the way he was doing. He said with prosecutors like Goba, the country was “doomed”.
Goba’s claim that the fact that Magaya had pleaded not guilty to the charge, constituted changed circumstances, could not find favour with the court. His argument that the magistrates’ court had made a mistake when it terminated Magaya’s bail, was also thrown out.
He said by taking Magaya in, it would limit him from interfering with State witnesses or the case in general. However, Tsanga said, the State had failed to make a case convincing enough for the court to rule otherwise.
Tsanga said, had Magaya intended to interfere with the case, he could have done it before being brought to court yesterday, further stating that the allegations of interference were unfounded.
After his bid to have Magaya incarcerated flopped, Goba, launched another bid to have the court issue a warrant of arrest against the complainant in the matter, Petronella Donhodzo Mandaza, following her failure to appear before the court yesterday.
Goba, who has lined up 10 witnesses, said Mandaza had been subpoenaed to appear before the court but had failed to do so, meaning she was in contempt of court.
Mandaza has, however, since filed an application before the High Court, stating that she will not be coming to testify in the case.
She accused Goba of forcing her to testify lies to the court, adding that she was never raped or forced to abort, and that she had never fallen pregnant in her life.
Goba, who appeared together with other prosecutors, Chipo Muronda and Justin Uladi, had earlier on told the court that he was going to respond to Mandaza’s application.
This resulted in the court turning down his request for the issuance of a warrant of arrest against Mandaza, after ruling the request was premature. Tsanga said she has to first hand down her ruling in the application, before Goba could take another step further.
Mpofu, who appeared together with Admire Rubaya, Everson Chatambudza and Oliver Marwa, told the court of his intention to challenge Magaya’s prosecution, claiming the charges are defective.
“The facts are part of the reason we had not wanted the State to proceed in this matter, because of what has been set out in the State outline. It (State) should not state that it would lead evidence or provide evidence when there is no such evidence. The State said it would lead evidence from … Mandaza but we are in possession of an affidavit in which she is saying she will not testify and is being forced by the prosecutor-general to lie,” Mpofu said.
Tsanga later ruled that the case must proceed on April 25, 2018. She asked Mpofu to file his application in which he will be challenging prosecution on April 5, while the State will respond on April 11. Mpofu was asked to file an answering affidavit on April 17, while the State was ordered to file its heads of argument on April 23.
The parties were also asked to respond to Mandaza’s application on the same dates. Mandaza was represented by Sylvester Hashiti. DailyNews