Tomana lawyer, magistrate in verbal tiff

By Fungai Lupande

A lawyer representing suspended Prosecutor-General Johannes Tomana, Mr Tazorora Musarurwa, yesterday exchanged harsh words with magistrate Mr Tendai Mahwe over a bail quantum of $2 000 and $250 000 surety.

Tomana appeared before Mr Mahwe facing five counts of criminal abuse of office.

Prosecutors Messrs Gwinyai Shumba and Timothy Makoni submitted that Tomana was not supposed to pay bail according to Section 117 of the Criminal Procedure and Evidence Act (CPEA).

“He was arrested and released. He came to court on his own, in the company of his defence counsel,” said Mr Shumba.

“According to Section 117 of CPEA if the accused is not in the custody of the police, the issue of bail falls away.”

Mr Musarurwa consented with the State.

Mr Mahwe took a brief adjournment and said he saw no law saying bail is of no issue when an accused is coming from home.

“Accused to pay $2 000 bail, report twice a week on Monday and Friday at CID Law and Order,” ruled Mr Mahwe.

“Surrender your passport and submit surety to the tune of $250 000 with the clerk of court.”

Mr Musarurwa stood up and said the magistrate had already made a ruling without hearing the side of the accused.

“This is a violation of the basic principles of our system,” said Mr Musarurwa. “May the court allow us to make submissions.”

Mr Mahwe said the defence had already addressed the court.

“If the ruling of the court is wrong then remedy lies with the High Court. If this court reveals its own judgment it becomes functus officio,” said Mr Mahwe.

Mr Musarurwa replied: “It’s not every mistake that leads to the High Court. The court made a ruling without hearing our side that is the mistake.”

“You are saying things this court has not said. This court is not agreeing that it made a mistake. Your remedy lies at the High Court,” said Mr Mahwe.

Mr Musarurwa said he was disappointed and will make complaints against the magistrate.

Tomana constantly shook his head.

Allegations are that in 2004 Bright Matonga, the former chief executive of Zimbabwe United Passengers Company (Zupco), was charged with culpable homicide.

It is alleged the charged arose from a traffic accident that claimed the life of Chipo Chikowore.

Tomana allegedly called for the docket and instructed that the charges to be dropped.

In 2006 Matonga was charged with contravening sections of the Prevention of Corruption Act.

In December 2008, it is alleged Tomana instructed Morgan Dube to drop charges after plea against Matonga.

The court heard that in 2006, Zupco board chairman Charles Nherera was charged with contravening the Prevention of Corruption Act.

Tomana testified as a defence witness and Nherera was sentenced to three years in prison.

After sentence, Nherera unsuccessfully applied for bail pending appeal and his appeal was dismissed at the High Court.

Nherera served his sentence and was released from prison in December 2008.

When Tomana was appointed AG, he declared that Nherera was innocent and wrongfully convicted.

The court heard that former Bindura Hospital acting medical superintendent Beauty Basile was charged with criminal abuse of duty.

She appeared before Harare Regional Magistrates Court and Tomana instructed the withdrawal of charges after plea on November 24, 2009.

The court heard that in October 2009, Patrick Mavros, a gold dealer, was charged with possession of gold without a licence.

Mavros admitted to the charges and Tomana directed that prosecution be declined.