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Published On: Tue, Aug 23rd, 2016

Tomana wins bail appeal

The High Court has reversed the magistrates’ court decision to place suspended Prosecutor-General Johannes Tomana on bail on fresh charges of criminal abuse of office.

Tomana is facing five fresh charges of criminal abuse of office.

He was freed after paying $2 000 bail and surrendering surety worth more than $250 000.

But the defence protested the manner the proceedings were conducted.

Both the defence and the prosecution counsel were not given an opportunity to address the court on the issue of bail.

The defence bid to be heard was turned down, sparking a heated argument between the presiding magistrate Mr Tendai Mahwe and defence counsel Mr Tazorora Musarurwa.

The defence took the matter to the High Court on appeal.

Yesterday, Justice Nyaradzo Priscilla Munangati-Manongwa delivered her judgment.

She set aside the lower court’s decision citing gross misdirection on the part of the presiding magistrate.

“The right to be heard is the central pillar that supports the right of access to justice,” said Justice Munangati-Manongwa.

“One has to be heard. A decision reached without hearing an accused (save where he has exercised his right to silence) has the risk of being arbitrary and capricious.”

She said in bail applications, a judicial officer should hear the applicant and the State’s submissions.

The judge said it was through weighing the facts presented and balancing them with the interest of justice that a fair and competent decision could be arrived at.

“This simply did not take place. Failure to hear the applicant’s submissions was a gross misdirection and this vitiates the proceedings,” she said.

The judge queried the basis upon which the court arrived at the bail conditions, when it was not privy to the appellant’s circumstances.

“The audi alti patem rule is sacrosanct and it is my view the cradle of justice and fairness in all legal proceedings.”

The audi alti patem rule is a concept in Criminal Law that no person should be condemned unheard.

The judge also said once a litigant — be it in criminal, civil, administrative, disciplinary or any proceedings that affect a person’s rights — was denied the opportunity to present their case, the outcome could not be in accordance with real and substantial justice.

“It is due to the foregoing that I find that there was a misdirection by the court, a quo arising out of a procedural irregularity, which visited the court. In the result, the order it gave in the form of bail conditions cannot stand,” she said.

Justice Munangati-Manongwa then ordered the Clerk of Court to refund Tomana the $2 000 he paid for bail and return the recognisances surrendered to the court, to the suspended PG.

This means Tomana will continue to observe the conditions of bail set in the previous charges that would be married with the new set of charges.

In his appeal, Tomana who was being represented by Advocate Thabani Mpofu instructed by Mr Alex Mambosasa and Mr Musarurwa of Mambosasa Legal Practitioners, had argued that the manner in which the proceedings were conducted by the lower court were grossly irregular and demanded that the entire proceedings be set aside.

The defence also sought to have Mr Mahwe censured for allegedly making “blatant irregularities” on the matter.

The prosecution led by Mr Edmore Nyazamba of the National Prosecuting Authority had strenuously opposed the appeal.

This is despite the fact that at the lower court, the State had consented to have Tomana remanded out of custody on the already set bail conditions.

Tomana appeared in court on July 11 facing five fresh charges of criminal abuse of office.

Earlier this year, he was also freed on $1 000 bail following his arrest on allegations of abuse of office.

He was accused of releasing suspects that allegedly sought to bomb President Mugabe’s business premises, Gushungo Holdings in Mazowe. – Herald