BULAWAYO High Court judge Justice Nicholas Ndou — who was presiding over the Mthwakazi Liberation Front (MLF) activists’ treason trial — has resigned before delivering his judgment on the matter, raising fears that it might take long to finalise the case.
REPORT BY RICHARD MUPONDE SENIOR COURT REPORTER
But lawyers yesterday said legally, Ndou could be re-appointed acting judge to enable him to finalise cases he would have partially heard before his resignation as it would be “incompetent” to give the cases to another judge.
Ndou’s resignation was announced by Judge President George Chiweshe at the official opening of the 2013 legal year at the Bulawayo High Court yesterday.
“Mr Justice Ndou has resigned from the service with effect from December 31, 2012. We wish him well in his new endeavours,” Justice Chiweshe said.
He did not give reasons for Ndou’s resignation and where he would be heading to, raising speculation that the move could have been triggered by the treason case.
The suspicion has been compounded by the fact that soon after hearing the treason trial, Justice Ndou went on leave and resigned without coming back to the bench.
MLF activists — Paul Siwela (49), Charles Thomas (44) and John Gazi (54) — are awaiting judgment following their application for discharge filed in October last year.
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They were expecting a ruling on the matter during this term of the legal year after Justice Ndou indefinitely reserved judgment in October last year.
The resignation leaves the Bulawayo High Court bench with four judges, the Cheda brothers Maphios and Meshack, Martin Makonese and Lawrence Kamocha.
In an interview with NewsDay after Justice Chiweshe’s address, Matshobane Ncube, a lawyer representing Siwela and Thomas, said it would be prudent for the judge to return and conclude the case.
“Legally he (Ndou) should be re-appointed as an acting judge so that he will come back and hear the MLF case. It will be incompetent to give the case to another judge. If that happens, then it will be a retrial and they have to call again State witnesses. The law requires that the judge comes back to finalise his partly-heard matters,” Matshobane said.
Gazi is represented by Advocate Sabelo Sibanda.
Siwela, Thomas and Gazi denied charges of plotting the overthrow of President Robert Mugabe’s government through unconstitutional means.
The trio was arrested in March 2011 over allegations that they distributed flyers bearing the logo of the MLF — a pressure group-cum-political party — agitating for Egypt-style uprisings against Mugabe.
Their lawyers applied for discharge at the close of the State case, arguing that prosecutors Lovack Masuku and Samuel Pedzisai had failed to prove their clients had a case to answer.
Advocate Lucas Nkomo, also representing Thomas and Siwela, argued that the court was obliged to return a “not guilty” verdict since the prosecutors had failed to present evidence on which a “reasonable court” could convict them.
He said the evidence of State witnesses was only centred on the arrest of the trio, items recovered during the arrest and messages on some of the items that were recovered.
Advocate Sibanda agreed the evidence that the State was seeking to rely on was “unreliable”, adding there were no grounds for putting Gazi to his defence.
But the prosecutors insisted that the essential elements of the offence had been proved, hence there was sufficient evidence on which a reasonable court, acting carefully, might properly convict.
