THE High Court has dismissed property developer George Katsimberis' review court application in which he was seeking an order to compel then prosecutor Michael Reza to testify in a case he is accused of fraud.
Katsimberis had cited presiding magistrate Vongai Guwuriro and the National Prosecuting Authority as respondents. The property developer through his laywer Tino Chinyoka had filed the application for review of Guwuriro's ruling which precluded Reza from testifying in the matter.
However High Court judge Justice Munamato Mutevedzi dismissed the application for review with costs saying the lawyer was using a backward strategy in his effort to win the case for his client.
"In my judicial experience, I have observed that lawyers as a species, notwithstanding their success or lack of it, enjoy the attention they generate. It is their privilege but, in that glory, they must not forget crucial lessons. It cannot be forgotten that although the great Tshaka Zulu’s cow-horn formation and scorched earth policy were a stroke of genius, highly effective and revered military strategies during his reign, they are now so outdated that they would be laughable in any warfare today," Mutevedzi said.
The judge said each lawyer has their own method of advocacy but his view is that a near riotous approach to litigation is unnecessary in this era where cutting edge techniques are available for a legal practitioner or a prosecutor to effectively discharge his or her mandate.
According to the court papers at some stage during the criminal proceedings, Katsimberis felt aggrieved by the conduct of the NPA that they had refused to give him State papers saying they have no intention to use them, saying he had lied to the court on several occasions, that he has brazenly published court proceedings in the mainstream and social media platforms.
As a result of his unhappiness, Katsimberis decided to apply for a referral of certain constitutional issues to the Constitutional Court for its determination and the application is pending.
Katsimberis also accused Guwuriro of refusing to compel Reza, who is now chairperson of the Zimbabwe Anti-Corruption Commission to be on standby as a witness saying she arrogated to herself a non-existent discretion. But the NPA responded to Katsimberis application for review saying the procedure of seeking to call a prosecutor to the witness stand to explain allegations levelled against him amounts to placing him on trial to defend himself against the applicant's’' accusations.
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The NPA further argued that the applicant, instead of seeking a review had other remedies at his disposal which he could have utilised; and these included applying for the recusal of the prosecutor if he thought that he was no longer objective or reporting the prosecutor’s alleged corrupt practices to the Prosecutor-General or the investigative agencies in the country.
The NPA further argued that the application by Katsimberis was designed to delay the trial on fraud allegations.
"My primary reason for the extension is that it would be a catastrophe if a prosecutor were to be compelled to testify in the same trial that he or she is handling, on the basis of what he or she saw or did in court in the course of his or her duties. In fact, such course would render any criminal proceedings in which that would happen a complete circus," Justice Mutevedzi ruled.
The judge said Katsimberis argument to call the prosecutor on witness stand he just wanted to potray him as unethical but not to aid his case "The court in assessing the factors at play has the following questions, who will be representing the state and will embark on cross examination of the prosecutor if he is to take to the witness stand in a matter in which he is representing the state?
"Does it mean that defence counsel is now directing these proceedings during the period the state will be handicapped? Again from their explanations it appears the defence is fixed on getting explanations from the state counsel without really applying their mind on the integrity of court proceedings.
In the circumstances, it is ordered as follows the applicant’s application is dismissed in its entirety and the applicant shall pay the second respondent’s costs of suit," Mutevedzi ruled.
