DRAMA is unfolding in the trial of PHD Ministries leader Walter Magaya over rape allegations as one of the complainants has indicated she no longer wishes to pursue the case.
It has also emerged that the State has been preventing her from seeing her family lawyer, while police reportedly tracked the legal representative over unverified claims.
The trial, which began on Monday, opened with a fierce dispute over the placement of the hearing in the Victim Friendly Court (VFC), after the State argued the victim needed protection from certain church members.
The defence, led by Admire Rubaya and Everson Chatambudza, challenged the court, arguing the case should be heard in open court to ensure transparency.
However, the victim’s lawyer from TK Takaindisa Law Chambers submitted a letter stating that his client wishes to withdraw the matter. The State ignored the letter.
"We are duly instructed to formally notify your esteemed office that our client is no longer desirous of pursuing the complaint forming the basis of the present prosecution under case number HRER139/26,” the lawyers submitted.
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"The allegations concern an alleged offence of rape against Mr Walter Magaya. However, for personal reasons, our client has elected not to proceed further with the matter and does not wish to continue participating in the prosecution process, as she has nothing against the accused.
"Our client has deposed to a sworn affidavit of withdrawal confirming her position. The said affidavit was executed freely, voluntarily and without any form of coercion, undue influence, intimidation or improper inducement.
"She arrived at this decision with the benefit of independent legal advice and guidance from her legal practitioner," the lawyers submitted.
The letter also highlighted concerns over persistent pressure from third parties seeking to compel her to continue the case.
"Such conduct is improper and unwarranted, as she cannot be forced to testify against her desire or will. Should any such parties have independent advances against the accused, they are at liberty to pursue their own lawful remedies without involving or exerting pressure upon our client," the letter read.
Despite this, the State did not address the withdrawal in court and proceeded with its application for the case to be heard in VFC.
The complainant's lawyer, Tawanda Takaindisa, wrote to the National Prosecuting Authority of Zimbabwe, reporting anonymous calls from someone claiming to be from the Police Anti-Corruption Unit, inquiring about the legal representation of the complainant.
"We trust that this correspondence will receive your urgent and serious attention. We have since received an anonymous telephone call from an individual purporting to be an officer from the Police Anti-Corruption Unit, inquiring as to who instructed us to represent the complainant,” the lawyer wrote.
"We wish to place on record that Mr TK Takaindisa has indisputably been the ....(complainant) family’s legal practitioner for several years and is under no legal obligation to disclose to the police or any third party the basis or nature of his professional relationship with his client.
"Furthermore, it is improper for officers to make inquiries of this nature through unidentified telephone numbers without disclosing full names and official capacity. Any legitimate communication should be conducted transparently and through a proper channel."
Takaindisa said his client was being coerced and threatened against withdrawing the matter, notwithstanding that she had already deposed to an affidavit of withdrawal.
"She did not personally report the alleged offence, as portrayed but was instead contacted after a report had been filed on her behalf.
"We maintain that its not in the interest of justice to force our client or to threaten her simply because she is not interested in pursuing a matter that was reported by third parties or external forces," the lawyer wrote.
Takaindisa said he had privileged information and was unable to disclose it without his client's consent in accordance with the principles governing legal practitioner-client privilege.
He further submitted that there was no lawful basis for denying his client legal access to consult with her lawyers.
"Our client is currently unsettled and pressured against her will, including circumstances suggesting that the report may be acted upon without her express instructions.
"In these circumstances, we formally request immediate and unrestricted access to our client to enable us to properly advise her and attend to her welfare, including providing her with personal effects.
"We further request that your esteemed office communicate with the relevant police authorities to ensure that we are not obstructed in the execution of our professional and ethical duties. Our client is not the accused and should not be treated as such."
In yesterday's proceedings, Rubaya submitted an application for referral of the matter to the ConCourt. Magistrate Esther Chivasa is expected to rule on the application today.
Meanwhile, Magaya's lawyers yesterday also wrote to Prosecutor-General Loyce Matanda-Moyo seeking the recusal of prosecutor Tendai Shonhai in the matter, saying she is conflicted.
Shonhai is the chief director in the NPA and the lawyers claimed she is a member of Magaya's rival church, United Family International Church.
“Our client instructs and has it on good authority that Ms Tendayi Shonhayi is a member of a rival church known as United Family International Church (UFIC), which is considered by our client as a rival church to the accused person's church, PHD Ministries, as well as to the accused person himself,” the letter read.
"It is our client’s considered view that Ms Tendayi Shonhayi is on a mission of her own to try and persecute him on the basis that she wants to destroy our client’s church for the benefit of UFIC, which is a rival church.”