THE High Court has dismissed an application for permanent stay of proceedings filed by Marry Mubaiwa who is being accused of attempting to kill her ex-husband, Vice-President Constantino Chiwenga.
Justice Jacob Manzunzu dismissed Mubaiwa’s application which cited Harare regional magistrate Feresi Chakanyuka and Prosecutor-General as respondents.
He ruled that he found no merit in the preliminary point raised by Mubaiwa and dismissed her submissions.
“The purpose of investigation is to get the truth of the matter. In casu, the purpose of investigation is to examine and see if there has been an unreasonable delay. What form should an investigation take? A formal or informal inquiry?
“Whatever form it takes, what is critical though is whether the court is able to achieve the factors laid down in section 167A.
“There is nothing wrong, where the court feels factors in section 167A(2) cannot be realised without viva voce evidence, to call for such evidence.”
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Justice Manzunzu said where an informal inquiry achieved the desired purpose, the court could proceed to consider the application as presented on paper.
“The remand history of the matter is already part of the record. If all facts are apparent from the record, there is no need to do a formal inquiry calling viva voce evidence as opposed to an informal inquiry,” he said.
“I am not persuaded that the court a quo failed to investigate before a ruling was made. The first ground for review is dismissed.”
Justice Manzunzu further ruled that a reading of the ruling by the magistrate was clear in that the issue of delaying the decision of the court was outrageous in its defiance of logic was considered pre and post-trial.
“The court should also interfere in limited circumstances. The applicant has not shown that the proceedings were in any way grossly irregular. The trial could not proceed in the court a quo mainly at the instance of the applicant who required medical treatment,” he said.
Mubaiwa had filed an application for review of Chakanyuka's decision after she dismissed an earlier application for a permanent stay of proceedings.
Mubaiwa is facing attempted murder allegations and was arrested on December 14, 2019.
She mad the application on November 8, 2024, in terms of section 167A of the Criminal Procedure and Evidence Act [Chapter 9:07].
The application was opposed by the National Prosecuting Authority.
The application was premised on the ground that there had been an inordinate and unreasonable delay in the completion of the criminal proceedings against her.
On November 22, 2024, in a written ruling, Chakanyuka dismissed the application for permanent stay of proceedings.
The court found that the delay in the finalisation of the matter was not due to the State, but rather the trial failed to commence at the instance of Mubaiwa.
Mubaiwa alleged that Chakanyuka committed a gross irregularity by deciding the application for permanent stay of prosecution without conducting the mandatory investigation required in terms of section 167A of the CP& E Act.
She made an application for review in terms of sections 26, 27 and 29 of the High Court Act as read with rule 62 of the High Court Rules.
Mubaiwa based her application for review on grounds that Chakanyuka committed a gross irregularity when she determined the application for a permanent stay of prosecution without conducting the necessary investigation envisioned under section 167A of the Criminal Procedure and Evidence Act.
She submitted that Chakanyuka further committed a gross irregularity when she found that only unreasonable delays “mainly or solely attributable to the State” can properly justify an application for permanent stay of prosecution.