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Tendai Rupapa : Senior Court Reporter

The National Prosecuting Authority has insisted that suspended Prosecutor-General Johannes Tomana be called to court to personally respond to the application for legal costs incurred in the private prosecution of former Bikita West legislator Munyaradzi Kereke. In a letter addressed to the court, Acting Prosecutor-General Advocate Ray Goba said Tomana, whose decision not to publicly prosecute Kereke is in question, should be given an opportunity to explain himself.“In order that the court may properly determine the question of costs, I respectfully submit that it is fair and reasonable that the then Attorney-General whose decision is impugned be afforded an opportunity to be heard in person,” he said.

“I further submit that an informed appraisal of the circumstances of that decision is only possible after giving him audience.”

Adv Goba said since the State was not part of the prosecution, the “audi alteram partem principle” (principle to natural justice) should be visited and State should be given an opportunity to be heard before a decision is made.

He, however, likened private prosecution to private litigation saying that in civil matters, the losing party bears costs.

“In any event, in the penultimate analysis and considering that a private prosecution is in the nature of ‘private litigation’, it stands to reason that like in civil matters, the burden of costs ought to fall on the unsuccessful party,” reads part of Adv Goba’s letter dated August 5.

Adv Goba further said that there has to be exceptional and compelling reasons for the State to be burdened by the costs other than the mere allegation that Tomana’s decision turned out to be wrong.

“If such were to be visited on the State then as the matter is one of statutory discretion, then such must be exercised judiciously and on exceptional grounds other than merely that the decision of the public prosecutor/AG turned out to have been wrong,” he said.

Principal Law Officer Mr Morgan Dube, who was in charge of set down office then, deposited an affidavit that was attached to the letter in which he narrated how Tomana declined to prosecute Kereke.

He said whatever he did on the case, he was working under Tomana’s instructions.

“On September 22 2011, the then AG instructed that prosecution be declined in the matter of State versus Munyaradzi Kereke who was facing rape and indecent assault charges indicating that there were inconsistencies in the evidence of witnesses,” he said.

Munyaradzi Kereke

“After a lapse of about a year, the complainant’s guardian continued to write letters seeking to know the position of the case, and I would each time brief the then AG. He later ordered me to recall the docket from the police and send it for prosecution.”

He said the matter was finally set down for trial on October 10, 2012 and the trial date was November 14 of the same year.

“The then AG Johannes Tomana then instructed me to halt the process of service of summons to the accused person pending a fresh recording of a witness statement from the rape victim. The complainant’s guardian refused to give another statement stating that he was satisfied with what was in the docket.

Johannes Tomana

“Mr Tomana indicated that the decision to decline prosecution was to stand,” he said.

In a letter to private prosecutor Mr Charles Warara, regional magistrate Mr Noel Mupeiwa said: “As we agreed, the matter is set down for August 15. If Hon Johannes Tomana manages to avail himself on that day, then we will hear his submissions, but if he fails to avail himself, be prepared to answer to these submissions and the ruling will then follow.”

Mr Warara made the application for legal costs three weeks ago, in terms of Section 22 of the Criminal Procedure and Evidence Act.

In his application, he wants the court to consider the legal costs either against the PG’s Office or Kereke.