THE High Court has set aside a lower court decision to dismiss an application for exception filed by Harare mayor Jacob Mafume, who wanted the corruption allegations against him quashed.
The top court has ordered the State to amend the charges if it wants to proceed with the case.
High Court judge Justice Never Katiyo ruled in the application for review filed by Mafume who cited the Prosecutor-General and presiding magistrate Vongai Guwuriro as respondents.
Mafume was being charged with criminal abuse of office on allegations that in March 2020, he asked Harare housing and community development director Addmore Nhekairo to allocate residential stands to his sister, Rotina and Rutendo Muvuti, a colleague at Mafume Law Chambers.
It is alleged that the request was made when interviews for the Westlea stands had already closed and the two beneficiaries were not on the waiting list hence had no waiting list numbers.
Mafume was allegedly informed of the anomalies, but insisted that the two be allocated stands.
Rotina was allocated a stand under waiting list number 1317/3/10, which did not exist on the council waiting list database.
Muvuti was allocated stand number 11565 in Westlea under Harare City Council housing waiting list number 903/11/16, which belonged to Winnie Mandishona.
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It was, therefore, alleged that Mafume showed favour to his sister and workmate, thereby abusing his office as a councillor and also showed disfavour to Mandishona, who was duly on the waiting list.
Mafume initially objected to the charges as being vague and embarrassing, adding that they were not disclosing any offence.
He further argued that the charge did not disclose the exact executive duties at council which he was subservient to and also that the allegation by the State that it was never his duty to allocate land was equally embarrassing.
However, the State admitted that it was never his duty to allocate land.
Guwuriro, however, dismissed Mafume’s application for exception and he filed an application for review of her decision at the High Court.
On the grounds for review, Mafume alleged that Guwuriro’s decision was grossly irregular, saying irregularity is one of the grounds on which the application had been brought under review.
Mafume said the magistrate applied the wrong statutory test and departed from the inquiry and procedure as envisaged under section 178(1) of the Criminal Procedure and Evidence Act.
Justice Katiyo concurred with Mafume’s defence saying the magistrate, instead of answering the question that she was called upon to determine, she alleged that the charge was straightforward and informed the applicant how to proceed.
He said the purpose of a charge sheet was to inform the accused person in clear and unmistakable language what the charge is or what the charges are.
Justice Katiyo said the charge sheet did not state how Mafume ordered Nhekairo to issue the stands and contrary to what duties.
“The applicant has conceded that they are prepared to accept the alternative relief. Looking at [the] State outline attached, there is nothing disclosing how he directed both one Edgar Dzehonye and Addmore Nhekairo to allocate the stands.
“I feel the court a quo erred when it held [that] the charge is straightforward. I feel there was need for an amendment as to provide sufficient particulars to the applicant before he pleaded. The first respondent still has a chance to do so should he wish to proceed.
“From the arguments and analysis supra, I am persuaded by the applicant that indeed interference is warranted,” Justice Katiyo said.
