Fidelis Munyoro Chief Court Reporter
The appeal against a decision by a High Court judge not to recuse himself from the application by the National Prosecuting Authority for a review of cancellation of Frank Buyanga Sadiqi’s Zimbabwean warrant of arrest will be heard urgently, the Supreme Court has ruled.
The ruling comes after South African-based Zimbabwe businessman Frank Buyanga Sadiqi approached the Supreme Court challenging Justice Pisirayi Kwenda’s decision not to step down from the review and he asked for the appeal to be treated as urgent.
Supreme Court Judge Justice Susan Mavangira heard the chamber application on Wednesday for the appeal to be treated as a matter of urgency, and granted the application by Buyanga Sadiqi that this appeal relating to the decision by High Court Judge Justice Kwenda be heard urgently by three appeal judges.
The legal arguments presented also deal with the actual main decision by the High Court that the warrant was wrongly cancelled.
If that appeal succeeds it means the High Court judgment reinstating the warrant of arrest against Buyanga Sadiqi becomes void. If the Supreme Court confirms the High Court decision then the warrant remains live.
Justice Kwenda who delivered his ruling on Wednesday reinstated the warrant of arrest for South Africa-based controversial businessperson Frank Buyanga Sadiqi, after the court initiated an automatic review process after Harare Magistrate Judith Taruvinga cancelled the Interpol warrant of arrest issued on Buyanga, last month.
Buyanga Sadiqi, who is not happy with the reinstatement of his warrant of arrest, wants the Supreme Court to quash the High Court decision on the grounds that the High Court misdirected itself when it dismissed the application for the recusal of Justice Kwenda without dealing with any of the grounds upon which the judge’s recusal was sought. Buyanga Sadiqi argues that then proceeding to deal with the matter in circumstances showed valid grounds for the judge’s recusal.
Buyanga Sadiqi was recently arrested in South Africa on a warrant of arrest issued by magistrate Ms Judith Taruvinga over charges of kidnapping his own son in Zimbabwe and being in contempt of court. South African prosecutors have added their own charges. Ms Taruvinga subequently cancelled the warrant of arrrest. The National Prosecuting Authority challanged that cancellation and obtained a review judgement in the High Court.
It is that review judgment that Buyanga Sadiqi is first indirectly challenging by arguing that the judge who made it should not have heard the appeal.
He then moves onto the merits arguing that the High Court erred in holding that Ms Taruvinga had no jurisdiction to cancel a warrant that she issued. Buyanga Sadiqi argued that the Criminal Procedure and Evidence Act expressly gave her this jurisdiction, argued lawyer Mr Admire Rubaya for Buyanga Sadiqi.
It is also argued that the High Court erred in finding that Ms Taruvinga had misconstrued the application before her to be a default enquiry, when she was aware it was an application for cancellation of a warrant of arrest under the Criminal Procedure and Evidence Act.
The defence will also argue on appeal that the High Court erred in finding that the magistrate had committed an irregularity by hearing Buyanga Sadiqi was fugitive when at the time of the cancellation application he was under arrest and in lawful custody in South Africa and so no longer a fugitive, with his son having been taken into its mother’s custody.
In his ruling Justice Kwenda sitting with Justice Benjamin Chikowero noted that Ms Taruvinga grossly misdirected herself in her judgment, when she overturned two judgments of the superior courts. “She failed to appreciate the difference between the procedure of setting aside an irregular proceeding and cancellation of an order,” he said.
Buyanga Sadiqi is in custody in South Africa facing charges of child trafficking and violating that country’s immigration laws, as well as the Zimbabwean charges of kidnapping his son and contempt of the Zimbabwean courts that were subject of the Zimbabwean warrant that were used to effect the original arrest.
This means that even if the Zimbabwean warrant is eventually cancelled the South African prosecuting authority can continue seeking a conviction on the South African charges, although any extradition hearing falls away.
Justice Pisirayi Kwenda last week threw out an application by Sadiqi seeking his recusal. He also ruled there was a prima facie view that there was a sound legal basis to review the magistrates’ court proceedings and requested both the State and defence to file heads of argument before the parties presented their oral arguments.
The defence team viewed this as separate proceedings being initiated and brought against their client, hence the application for the judge’s recusal.
The defence argues that a pair of proceedings are now running parallel to each other when there should have been one.
Buyanga Sadiqi’s South African identity documents says he was born in Zimbabwe yet his Zimbabwean passport says he was born in the United Kingdom.
When he first appeared in court he was remanded in custody to allow the Zimbabwean authorities to authenticate documents sent to the South African director of prosecutions by the Chief magistrate in Harare which was presented in court.
It emerged in court that Buyanga Sadiqi was now seeking a prison transfer after he was allegedly attacked in remand prison. The South African courts have so far denied him bail.