Biti’s application to take case to ConCourt dismissed
Mrs Vongai Guwuriro-Muchuchuti, a Harare provincial magistrate, dismissed Tendai Biti’s application for referral to the Apex Court, calling it frivolous and vexatious.
At the Magistrates Court, Biti is accused of assaulting Zimbabwean investor Mrs Tatiana Aleshina.
Biti accuses the Zanu PF party and its Secretary for Finance, Patrick Chinamasa, of violating his rights in his application.
He also accuses The Herald, Police Commissioner General Godwin Matanga, and Secretary for Information, Publicity, and Broadcasting Services Mr Nick Mangwana of violating his constitutional rights beginning with his arrest.
The magistrate dismissed Biti’s application as frivolous and vexatious, much like the opposition submitted by Deputy Prosecutor General Mr Micheal Reza.
Mr Reza requested that Biti be charged, which was opposed by his lawyer, Mr Alec Muchadehama, who requested a postponement, stating that they planned to appeal the court’s decision to the Apex Court.
It’s been application after application for the past two years. This is most likely the longest application ever heard in court.
Mr Reza was granted permission by the court to charge Biti.
After the charges were read to him, Biti informed the court that he intends to file an application to have Mrs Muchuchuti recused from handling this case.
The matter was postponed until Wednesday for further consideration.
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.
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