BY DESMOND CHINGARANDE DYNAMOS Football Club chairperson Bernard Marriot Lusengo, who is accused of fraudulently awarding himself the majority shareholding of the club, has filed an application for referral to the Constitutional Court (ConCourt) after his lawyer Herbert Mutasa was barred from representing him because he was conflicted.
Lusengo wants the court to declare the decision by the magistrate prohibiting Mutasa from representing him unlawful, arguing that it violates his constitutional right to a fair hearing.
Lusengo was dragged to court in October 2021 on allegations of making misrepresentation to Dynamos Football Club that he had acquired the majority shareholding in Dynamos Football Club.
“In readiness for the criminal trial, I duly appeared before the second respondent represented by a Herbert Mutasa, who is duly registered and a senior legal practitioner who is also a partner with Messrs Gill Godlonton and Gerrans,” Lusengo submitted.
“It must be noted that the said Mutasa legally represented me from the time the police were investigating the matter, the initial appearance whereas I was remanded on the aforementioned charge and the subsequent remands. It was Mutasa (who) was served with the State papers and arranged for the trial date to be the 28th of September 2021.”
Lusengo said on the date of trial, the prosecutor Tapiwanashe Zvidzai proceeded to apply for the recusal of Mutasa on allegations that he was conflicted.
He said there was no evidence produced in court, adding that Zvidzai merely made representations from “the bar” and called no witness.
Lusengo said in opposition, his lawyer tendered a board resolution by Dynamos Football Club instructing him to be his representive.
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“On September 29, 2021, magistrate Barbara Mateko proceeded to grant Zvidzai’s application for Mutasa’s removal as my legal representative and evidences the violation of my constitutional right. My right to legal representation violated,” Lusengo submitted.
“I have been advised, which advice I took that I have the constitutional right to be represented by a lawyer of my choice. Such right is fundamental, and I desire to actuate its full effect.”
Lusengo insists he want to be represented by Mutasa and not any other lawyer.
“The ruling by Mateko negates and abrogates my constitutional right to choose legal representation of my choice. There is no statute or regulation that I am aware of that gave Zvidzai the power to remove the legal practitioner of my choice,” he said.
“I sought the referral of the issue to the ConCourt through Advocate Zhuwarara and again Zvidzai refused such request on such an important point.”
Lusengo said the State had opposed his application for referral to the ConCourt and it also scheduled his case to proceed to trial without his lawyer.
“While Advocate Zhuwarara is a fine lawyer I have only engaged him to deal with the preliminary matters and not the trial. I still desire the trial to be handled by Mutasa whom I have a longer relationship with and has handled the criminal allegations from inception,” Lusengo submitted.
The matter was postponed to May 29 for ruling on the application for referral.
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