Prosper Dembedza
Court Correspondent
The matter for two Harare men who illegally erected a billboard in Borrowdale Harare with damaging information about a land developing company has been deffered to June 27 following indications that the presiding magistrate is not feeling well.
Mark Strathen and Grant Russell are facing criminal nuisance charges.
On the previous sitting the pair was issued with a warrant of arrest after failing to show up in court.
Their recent application for review was dismissed by High Court judge Justice Bachi Muzawazi.
Russell and Strathen who are represented by Tendai Biti, last year filed the application for exception to charges of criminal nuisance which was dismissed by Harare magistrate Mr Shane Kubonera on the grounds that it was marred by triable issues.
In dismissing their application for exception, Mr Kubonera said the duo must stand trial to answer to their allegations.
Aggrieved by the dismissal of their application, Russell and Strathen filed a review of Kubonera’s determination at the High Court.
Justice Muzawazi dismissed their application saying she found no reason to interfere with the incomplete proceedings before the primary court.
Russell and Strathen are the applicants together with their companies as first applicant to fourth respectively.
They cited magistrate Kubonera and the State prosecutor Shambadzeni Fungura as respondents.
The duo had challenged that the contents of the billboard did not disclose an offence. They further said they argued that the contents of the billboard did not interfere with the ordinary comfort, convenience, peace or quiet of the public, or any section of the public thereof.
Magistrate Kubonera turned down the application on the defective charge, and did not make a determination on the Constitutional arguments ruling that, a determination on the appropriateness of the charge, whether it disclosed an offence or not cannot be made at that stage but only after hearing evidence.
After that decision by Kubonera, the duo filed an urgent chamber application for stay of those proceedings pending the review.
“However, as a general rule courts are reluctant to interfere with the undetermined proceedings of a lower court unless there is a gross miscarriage of justice. In essence, incomplete criminal proceedings are prone to intervention by the Upper Courts in isolated but deserving circumstances,”Justice Mzawazi ruled.
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