Harare provincial magistrate Mrs Vongai Guwuriro-Muchuchuti has dismissed Tendai Biti’s application for referral to the Apex Court describing it as frivolous and vexatious.
Biti is facing charges of manhandling a Zimbabwean investor Mrs Tatiana Aleshina at the Magistrates Court.
In his application, Biti blames Zanu PF party and it’s Secretary for Finance Patrick Chinamasa for infringing his rights.
He also blames The Herald, Police Commissioner General Godwin Matanga and Secretary for Information Publicity and Broadcasting Services Mr Nick Mangwana of also infringing his constitutional rights from the day he was arrested.
The magistrate found Biti’s application as frivolous and vexatious like what deputy prosecutor General Mr Micheal Reza had submitted in opposing this application.
Mr Reza requested that the charges be put to Biti which was opposed by his lawyer Mr Alec Muchadehama who applied for a postponement, saying they wanted to approach the Apex Court against the court’s ruling.
For two years it has been application after application. This is probably the longest application that has happened in the courts.
The court allowed Mr Reza to put the charges to Biti.
After charges were read to him, Biti told the court that he intends to make an application for the recusal of Mrs Muchuchuti from handling this case.
The matter was deferred to Wednesday for continuation.
Last week in his response, Mr Reza said an application to the Constitutional Court is not granted at the drop of a hat. He said its not an application that is granted as a matter of course.
“There have to be valid grounds before it can be granted. The court is obliged to refuse to grant the application if in its considered opinion the application is merely frivolous and vexatious,” said Mr Reza.
The deputy prosecutor general said in the case for Martin vs Attorney General and Another 1993 (1) ZLR 153(S) it was held that the ordinary and natural meaning of the words “frivolous and vexatious” in the context of the Constitution had to be borne in mind and applied to the facts by the person presiding in the lower court to form the requisite opinion.
He further stated that Gubbay CJ at 57 said in the context of S 24(2) the word “frivolous” connotes in its ordinary and natural meaning, the raising of a question marked by a lack of seriousness; one inconsistent with logic and good sense, and clearly so groundless and devoid of merit that a prudent person could not possibly expect to obtain relief from it.
“The word ‘vexatious’, in contra-distinction, is used in the sense of the question being put forward for the purpose of causing annoyance to the opposing party in the full appreciation that it cannot succeed.
“To add to what the learned judge described “frivolous” as, one may add that such an application would be flippant, waggish, jokey, facetious, inane, shallow, superficial, senseless, thoughtless, ill-considered, non-serious, daft, flimsy, time wasting, trivial, petty, worthless, valueless, pointless, niggling, peripheral, hare-brained. All the above adjectives, without exception, fully capture the application that has been submitted by the accused person,” he said.
Mr Reza added that where the question of a violation of a fundamental right arises during proceedings before a subordinate court, the court or the party to the proceedings can refer the matter to the Constitutional Court in terms of Section 175(4) of the constitution. – The Herald
