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Johannes Tomana

Court Reporter
The High Court has ordered Prosecutor-General Mr Johannes Tomana to pay legal costs on a punitive scale to Government for demonstrating insincerity in his battle to stop the setting up of a tribunal to determine his suitability to hold the esteemed office.

The Ministry of Justice, Legal and Parliamentary Affairs and the Judicial Service Commission, which were cited in Mr Tomana’s challenge as respondents, will now recover the costs they incurred in defending the now aborted urgent interdict filed by Mr Tomana.

Mr Tomana in February this year filed an urgent chamber application at the High Court to bar the Judicial Service Commission from instituting disciplinary proceedings against him on allegations of defying court orders.

While the urgent chamber application was pending, Mr Tomana filed another application for referral of the matter to the Constitutional Court contesting the constitutionality of having a serving High Court judge hearing his urgent application.

Justice Lavender Makoni threw out the referral application and ordered the immediate set down of the urgent chamber application.

Mr Tomana then filed another application to remove the urgent chamber application from the urgent roll and to have it treated like an ordinary court application.

Granting the application for the removal of the matter from the urgent roll, Justice Makoni questioned Mr Tomana’s sincerity in filing the urgent chamber application in the first place.

“As I have already alluded to, the applicant brought the respondents to court on an urgent basis.

“He has elected to withdraw the determination of the matter on an urgent basis from the court, for no good cause.

“His conduct leaves one in doubt whether he was sincere when he filed the urgent chamber application.

“The respondents have incurred unnecessary expenses in defending themselves. They have to be effectively indemnified by an order of costs on a higher scale,” ruled Justice Makoni.

The operative part of the order reads:

“In the result, I make the following order –

1) The matter is removed from the urgent roll.

2) The applicant to pay the first and second respondent’s costs on an attorney-client scale.”

Mr Tomana’s challenge will now be heard as an ordinary court application despite having been filed as an urgent chamber application four months ago.

Mr Tomana, who is facing criminal charges at the Harare Magistrates’ Courts’ involving a foiled plot to bomb Gushungo Dairy, was in October last year slapped with a 30-day term of imprisonment for contempt of court after he defied court orders to issue certificates for the private prosecution of Bikita West legislator Munyaradzi Kereke and Telecel shareholder Jane Mutasa.

Kereke was accused of raping an 11-year-old relative, while Mutasa was facing charges of swindling the company of airtime recharge cards worth millions of dollars.

Tomana was fined by a nine-member judges’ panel of the Constitutional Court led by Chief Justice Godfrey Chidyausiku.

The sentence was, however, wholly set aside on condition that he complied with the court orders and issue private prosecution certificates to Mr Francis Maramwidze and Telecel, within 10 days, failure which he would be barred from practising as a lawyer in Zimbabwe.

The following month, Tomana was again at the centre of another storm for allegedly abusing the court process to rubber-stamp the acquittal of former Zupco board chairman Professor Charles Nherera, who was charged with corruption.

The abuse reportedly occurred at the time when Tomana was the Attorney-General.

Prof Nherera was acquitted by the High Court in November 2009, barely a year after Tomana was appointed to the post of then AG.

Upon receipt of the letters from JSC demanding his explanation of the two court orders he failed to comply with, Mr Tomana, through his lawyers Mambosasa Legal Practitioners, filed an urgent chamber application at the High Court seeking to bar JSC from recommending his removal from office and proceeding with the disciplinary process.