Judge faults magistrate’s ruling on victims’ alleged vulnerability without proper enquiry
Source: High Court quashes ruling shielding Magaya rape accusers from open trial – Zimbabwe News Now
HARARE – The High Court has set aside a ruling by Harare regional magistrate Ester Chivasa that cleared the way for three women who accuse preacher Walter Magaya of rape to testify in a Victim Friendly Court, finding that the magistrate failed to properly apply the legal test for declaring a witness vulnerable before granting them special protection.
Justice Tawanda Chitapi remitted the matter back to the regional court, directing that the prosecution and Magaya’s lawyers may raise the same dispute afresh, this time with the magistrate properly guided by the requirements of the Criminal Procedure and Evidence Act.
Magaya, the founder and leader of PHD Ministries, is facing three counts of rape involving congregants of his church, allegedly committed at the Yadah Hotel in Waterfalls, Harare.
The prosecution alleges he raped first victim in Villa 13 at the hotel on an unknown date in July 2020, and that he raped the second and third complainants in the hotel’s Presidential Suite in July 2023 and December 2023 respectively. The three complainants were aged 24, 22 and 21.
Magaya’s trial was set down before Chivasa on February 16 this year in the Victim Friendly Court, a specially equipped room at the Harare Magistrates Court complex normally reserved for cases involving vulnerable witnesses such as children.
His lawyers objected before he could even be asked to plead, arguing the trial should instead be held in the ordinary open court where he had previously appeared for remand hearings.
The prosecutor, Clemence Chimbari, then made an application under section 319B of the Criminal Procedure and Evidence Act to have the trial proceed in the Victim Friendly Court and to have the three complainants’ evidence heard in camera. He argued that “the complainants who are supposed to testify before this court are vulnerable witnesses” who had been going through “quite a lot mentally, emotionally,” and that some had “expressed their reservations to be in direct contact with the accused.”
Chimbari also told the court the complainants were former congregants of Magaya’s church and that other church members following the proceedings would place “a heavy burden on the witnesses who are the victims.”
Magaya’s legal team opposed the application, arguing the state had produced no medical or psychological evidence to back its claims. His team submitted that the prosecution “was not a medical doctor to judge that the witnesses would suffer emotional stress” and was “not a psychologist” either, and urged the magistrate to interview the complainants herself under section 319C(2) rather than rely on submissions “over the bar from a lawyer.”
The lawyers said denying Magaya an opportunity to face his accusers eyeball to eyeball would breach his constitutional right to a fair trial.
Chivasa dismissed the objection and granted the state’s application. In her ruling, she reasoned that a vulnerable witness is “someone who the court believes needs special protection when giving evidence because testifying in a normal court set up may cause serious distress or trauma,” and that the law required only that vulnerability “appear” to the court, not be proved with certainty. She held that medical evidence of emotional stress was unnecessary, and concluded that “in rape matter[s] all witnesses are vulnerable and cannot force them to testify in an open court.”
In his July 30 judgement, Justice Chitapi took issue with that reasoning.
“I must however note that it is an overstatement to say all witnesses in rape matters are vulnerable,” he wrote, though he agreed with the magistrate’s rejection of the defence’s argument that the arrangement amounted to a “secret trial,” noting Magaya retained the right to be present, legally represented, and to cross-examine his accusers.
The heart of Justice Chitapi’s ruling turned not on whether the complainants deserved protection, but on process. Section 319C(1) of the CPEA requires a court to “pay due regard” to a list of factors — among them the witness’s age, mental and physical condition, cultural background, relationship to the accused, and the interests of justice — before granting protective measures.
Because the factors are joined by the word “and,” the judge held, they “must therefore be considered cumulatively and interdependently with no one factor having an overriding effect on the others.”
Chivasa’s ruling, he found, never engaged with that checklist.
“She did not even advert to the section by reference,” Justice Chitapi found, adding that on the specific question of the complainants’ age — one of the listed factors — the magistrate had contradicted herself, first acknowledging that a “child, an adult or even a grandfather or 80-year-old could be a vulnerable witness” before then ruling that age simply “was not a factor to consider in this case.”
The judge said that a magistrate weighing such an application is not a passive umpire.
“The court’s role in such applications is therefore not a passive one,” he said. “The court must enquire into the listed factors… all must be traversed and findings of fact made.”
Even so, the judge rejected Magaya’s broader argument — grounded in the common-law principle that an act done contrary to a peremptory legal provision is void — that the magistrate’s error rendered the whole process a nullity.
“The applicant misses the point,” Justice Chitapi wrote. “The first respondent (magistrate) did not do anything which the law prohibits. The first respondent omitted to do what the law requires… The first respondent did not therefore commit a void act or an illegality.”
The court declined to grant Magaya’s request that a different magistrate take over the case, noting he had “not proffer[ed] any justification for recusal of the first respondent from continuing to preside over the case.”
Justice Chitapi ordered that the February 16 ruling be set aside and the matter remitted to Chivasa, with either party free to raise the vulnerable-witness question again — this time, he directed, with the magistrate “properly guided by the operative sections” of the CPEA.
There was no order as to costs.
Advocate Thabani Mpofu appeared for Magaya with Admire Rubaya and Everson Chatambudza, instructed by Rubaya & Chatambudza.
Chimbari appeared for the prosecutor-general with Tendayi Shonhayi, Angeline Munyeriwa, Kudakwashe Chigwedere and Foelane Chipo Muronda instructed by the National Prosecuting Authority.
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