High Court judge Justice Chinembiri Bhunu yesterday dismissed an application for review filed by the Prosecutor-General (PG) seeking to force regional magistrate Noel Mupeiwa, to order the surrendering of the Bentley Continental vehicle to a Harare businessman who allegedly “seeded” the car to Spirit Embassy founder Uebert Angel.
BY CHARLES LAITON
Prosecutor Editor Mavuto had appeared on behalf of the PG’s Office, arguing Mupeiwa erred by not issuing an order for the return of the Bentley valued at $300 000 to its former owner, Ndava Shava, after finding that it had been illegally sold by Angel to a third party.
However, in his judgment Justice Bhunu said the PG’s Office had wrongly filed the application for review based on its “misapprehension of the law”.
“With respect, the State’s complaints appear to be misplaced, irrational and wholly based on a serious misapprehension of the law. To begin with, the section (relied upon by the State) is not couched in peremptory terms,” Justice Bhunu said.
“It confers the trial magistrate with discretion to dispose or not to dispose of an exhibit at the conclusion of the criminal trial in so far as it uses the permissive term ‘may’.
“Secondly, the section makes it clear that it is undesirable if not prohibited for a judicial officer to order disposal of an article which may be required in further or other judicial proceedings as an exhibit.”
Apparently, when Mupeiwa delivered his judgment in the criminal trial, there was a pending ownership wrangle at the High Court over the same car between Shava and Angel.
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“Now that the trial magistrate was faced with a situation where the ownership of the vehicle was the subject of litigation in a related matter in the High Court, his decision not to order disposal of the motor vehicle pending the determination of the superior court was eminently reasonable, for doing otherwise was fraught with the danger of placing the lower court on a collision course with the superior court,” Justice Bhunu said.
“. . . in any case the doctrine of binding precedent makes it sensible if not imperative for the lower court to await guidance from the superior court . . .
“From the foregoing, I come to the conclusion that there is absolutely no merit in this application for review,” the judge said, before dismissing the PG’s application.
