High court judge Justice Chinembiri Bhunu has ordered that Frederick Mtandah, owner of FCM Motors, be tried afresh before a different magistrate, bringing a new twist to the CAPS Holdings saga in which Mtandah is facing a $25 million fraud charge.
Justice Bhunu made the order after dismissing an application by Mtandah’s lawyer, Linda Chipato, who had applied for an order seeking to bar the State from arresting the CAPS boss, Mtandah, on any charges arising out of facts pertaining to CAPS Holdings Limited.
Mtandah’s case has taken twists and turns with serious allegations being levelled against judicial officers, which resulted in presiding magistrate Kudakwashe Jarabini recusing himself from the case on the grounds that “the courts’ feathers had been ruffled”.
In his five-page judgment, Justice Bhunu said: “Litigants and legal practitioners must be warned strongly against making idle unsubstantiated malicious, slanderous and scurrilous allegations against judicial officers and court officials.”
He further said: “It is also of crucial importance that proceedings in the lower court should be allowed to flow smoothly without undue interference from this court.”
The Judge also said assuming that there was merit in the allegations levelled against Jarabini, once he had recused himself from the proceedings and sent the record for review of the proceedings to be set aside to facilitate a trial de novo, it was no longer necessary for Mtandah to mount another application for review seeking the same relief.
“I hasten to point out that nothing must be swept under the carpet in this case.
“There must be a proper investigation of the allegations levelled against the presiding magistrate,” Justice Bhunu said.
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“If he is guilty as alleged, then the law should take its course and the same should apply to the legal practitioner and her client should the allegations be found to be baseless.”
Justice Bhunu directed the Registrar of the High Court to serve a copy of his judgment to Attorney-General (AG) Johannes Tomana, the Judicial Service Commission (JSC) and the Secretary of the Law Society.
Jarabini recused himself from the matter after Mtandah wrote to the AG’s Office raising concerns over the manner in which his case had been handled by the courts.
Chipato threatened to make an application to the Supreme Court for violation of Mtandah’s rights, miscarriage of justice and abuse of office and claiming of damages against all parties concerned should fears raised by Mtandah came to fruition.
Mtandah is jointly charged with CAPS Pharmaceuticals general manager Justice Majaka in a matter where the State alleges they applied for deregistration of 50 drug formulas from CAPS Holdings and subsequently registered them under CAPS International, an allegation they denied.
