This comes after the National Prosecuting Authority (NPA) of Zimbabwe applied for a review of Harare magistrate Judith Taruvinga’s ruling that cancelled the warrant of arrest earlier this month.
In their judgment overturning the ruling by the lower court, High Court judges Justices Pisirayi Kwenda and Benjamin Chikowero said:
In a masterstroke, she overturned two judgments of the superior courts … She failed to appreciate the difference between the procedure of setting aside an irregular proceeding and cancellation of an order.
An irregular proceeding is a proceeding contrary to the law and is, thus, a nullity. Such a proceeding is a money event in the eyes of the law. It cannot be cancelled. It can only be set aside by a court of competent jurisdiction.
When the magistrate thought she was merely cancelling a warrant of arrest, she was in fact setting aside her previous order thereby reviewing her own work.
She had no jurisdiction to do so. She had become a functus officio.
According to an online source, functus officio means “of no further official authority or legal effect” and is “used especially of an officer who is no longer in office or of an instrument that has fulfilled its purpose.”
Justice Kwenda claimed that he had been harassed by Buyanga’s lawyers who were three in number. He said:
I could have reviewed the proceedings and if need be, obtained concurrence from another judge, peacefully in the comfort of my chambers.
All hell broke loose when I decided to and did invite the legal practitioners who represented Frank Buyanga Sadiqi and the State in their capacity as officers of the court, to assist me with the legal issues which I had identified.
As soon as they arrived, Frank Buyanga Sadiqi’s legal practitioners, three in number, ganged up against me and presented a furious argument aimed at ejecting me from the review process, accusing me of bias.
If it was up to me and not a call of duty, I would have resolved never to do it again.
Buyanga was arrested in South Africa on 10 November 2022 on charges of child trafficking, immigration law violations, forgery and contempt of court.
He has so far been denied bail by the South African courts.
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