A HIGH Court application by property developer George Katsimberis complaining about receiving unfavourable responses from Justice minister Ziyambi Ziyambi, magistrates and Prosecutor-General (PG) Nelson Mutsonziwa has been dismissed.
The application had cited Ziyambi, Mutsonziwa and magistrates Barbara Mateko, Noel Mupeiwa, Stanford Mambanje and Letween Rwodzi as first to sixth respondents
Katsimberis is battling a court case I which he is accused of fraudulently acquiring plans to build cluster houses in Borrowdale, Harare. The case began in June 2020.
From July 2020, he has been appearing as an accused person before the cited magistrates in the High Court papers.
He had alleged that the circumstances that gave rise to the charges against him and the said witnesses were the same, and further contended that the PG failed to fairly prosecute the matter in violation of his rights. He now seeks stay of proceeding in the matter he is charged with.
Katsimberis feels that the State’s decision to run processes concurrently have taken away his choice to decide whether or not to remain silent.
He feels that contradictory statements are being used in one court to allege that the plans existed, while another court alleges that they do not exist.
The land developer also claims that the entire process is so warped to the extent of constituting an absurdity because it has had several postponements and disruptions of trial dates.
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He also alleges that he was the first to make a police report, which must be the first case before the courts.
But the respondents on the matter averred that Pokugara Properties was the first to make a police report against Katsimberis, saying he opened his case two months later.
The respondents submitted that for unknown reasons, the police processed Katsimberis’ docket first as opposed to the Pokugara Property document.
Pokugara Properties also submitted that Katsimberis misrepresented that his building plans were approved by senior City of Harare officials, when they were, in fact, never approved.
High Court judge justice Siyabonga Paul Msithu ruled that according to law, the superior courts are generally slow to interfere with unterminated proceedings of lower courts except in very exceptional circumstances.
“The general rule is that a superior court should intervene in uncomplete proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice, which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.
“From the foregoing authorities, it is clear that a superior court will only interfere with unterminated proceedings of a lower court where grave injustice would materialise if there was no immediate intervention. It must also be demonstrated that the professed infractions necessitating an approach to the superior court are completely irredeemable as to necessitate the court’s intervention by granting the relief sought.
“The trial has already commenced and is underway. The applicant (Katsimberis) does not aver that in the conduct of his defence he indeed attempted to assert his right to remain silent but was impeded by the fact that he had made a separate statement as a witness,” the judge ruled.
Justice Msithu said the courts must not interfere with prosecutorial powers of respondents, but that the two must complement each other.
“There isa clear demonstration of grave injustice having been occasioned as a result of the parallel prosecution of the two matters. That has not been done and for that reason, the court does not accept the submission that the right to remain silent, which is intertwined with the right against self-incrimination, has become illusory,” the judge said and dismissed Katsimberis’ application.
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