By Desmond Chingarande
The application by contractor Georgios Katsimberis to have his case referred to the Constitutional Court has been dismissed on grounds that it lacks merit for it to be referred to the Apex court.
Katsimberis, who is being charged with fraud, is accused of duping Pokugara Properties (Pvt) Limited of close to US$1 million in a joint venture to build cluster homes in Harare’s Borrowdale suburb.
In his application for referral Katsimberis had submitted that he cannot be an accused and witness at the same time in a case with the same facts.
Through his lawyer Tendai Biti, Katsimberis said his application was based on two grounds; one of equal protection before the law and the right to a fair hearing and that the previous prosecutor who was handling the matter was biased, therefore his client’s right to a fair trial were being infringed on.
In dismissing the application magistrate Letwin Rwodzi ruled that if a constitutional matter arises, a magistrate dealing with the matter is entitled to refer the matter to the Constitutional Court unless the court find it frivolous or vexatious.
“It is clear that applicant has not come up with a constitutional question to be referred to the Constitutional Court,” Rwodzi said.
Rwodzi said Katsimberis is being accused of fraud and is a witness in another case of perjury hence the decision to dismiss his application stands.
“The two said prosecutors have since been removed from handling the matter and the matter is now being dealt with by senior prosecutor, Michael Reza, therefore that reason has fallen away. The applicant has not come up with any constitutional question that requires the matter to be referred to the Constitutional Court therefore the application is hereby dismissed,” she said.
Biti however submitted that he intends to apply against the dismissal of their application to the Constitutional Court.
The court heard that it was only during filing of the application that Katsimberis decided to make a counter report against council officials and Pokugara Properties employees; two months after his pending fraud case had already been reported to the police. This, the court said, was an attempt to create confusion.
The matter was deferred to June 18.