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Fidelis Munyoro Chief Court Reporter

SOUTH AFRICAN-based Zimbabwe businessman Frank Buyanga Sadiqi has approached the Zimbabwe Supreme Court challenging the decision by a High Court judge who rejected to recuse himself from the application by the National Prosecuting Authority (NPA) for a review of cancellation of his Zimbabwean warrant of arrest.

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.

Justice Pisirayi Kwenda last week threw out an application by Sadiqi seeking his recusal.

Through his lawyer, Advocate Thabani Mpofu instructed by Mr Admire Rubaya of Rubaya and Chatambudza law firm, Buyanga disagreed with the judge’s approach to the review, which prompted the application for recusal.

This was after Justice Kwenda had 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.

After losing the battle with the judge, Buyanga Sadiqi now wants the intervention of the superior court to quash the judge’s decision and allow the State appeal heard first.

The defence argues that a pair of proceedings are now running parallel to each other when there should have been one.

“In this matter, not only has the State already placed an application for review before the court, the approach taken by his lordship is that his lordship’s process must have priority over the process of the State,” argued the defence.

“This cannot lawfully be done in terms of the law. It is problematic that his lordship, before whom even the review has been placed and who has prioritised the section 29(4) (of the High Court Act) has taken and recorded a prima facie view.

“Upon closer consideration, his lordship may wish to take the position that the recorded prima face view disqualifies him from continued involvement in this matter.”

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.

Following his arrest, his lawyers secured cancellation of a Zimbabwean warrant of arrest issued against him in 2021.

It emerged in court that Buyanga Sadiqi was now seeking a prison transfer after he was allegedly attacked in remand prison. In its review application, the Zimbabwean NPA wants the High Court to reverse the cancellation of a warrant of arrest for the businessman, the cancellation recently issued by Harare magistrate Mrs Judith Taruvinga.

Buyanga Sadiqi had his warrant of arrest cancelled at the Harare Magistrates Court after Mrs Taruvinga said she had issued the original warrant of arrest erroneously.

But Prosecutor-General Mr Nelson Mutsonziwa now wants the High Court to set aside Mrs Taruvinga’s judgment, arguing that the warrant was cancelled without following due processes.

Mr Mutsonziwa argues that a lower court presided over a matter in which it lacked jurisdiction to cancel a warrant of arrest after it had been executed by law enforcement authorities of South Africa under an extradition request made to it by Zimbabwe.

“There was a gross irregularity in the proceedings or the decision of the court in that the court perpetuated contempt of court by the second respondent by granting his legal practitioner audience in circumstances where the High Court, Supreme Court and Constitutional Court of Zimbabwe found him to have dirty hands and consequently denied him an audience,” he said.

Buyanga Sadiqi’s warrant of arrest upon which his current incarceration is premised was cancelled at the Harare magistrates’ court on November 14.