Fairclotte Investments and Paragon Printing in Court

Prosper Dembedza Court Correspondent

The trial of two Harare men who illegally erected billboards in Borrowdale has hit a brick wall after their lawyer told the court that he intends to file an application for a stay of proceedings.

Grant Russell and Mark Strathen who are represented by Tendai Biti had their last application for review dismissed by the High Court.

The matter was deferred to June 8 for ruling in the application for stay of proceedings after the defence told the court that it will file its application before the end of the day.

On their previous appearance, Harare magistrate Shane Kubonera dismissed the duo’s application for exception saying they must stand trial to answer to their allegations.

Aggrieved by the dismissal of their application, the duo filed a review of Magistrate Kubonera’s determination at the High Court.

However, Justice Bachi Muzawazi dismissed their application saying she found no reason to interfere with the incomplete proceedings before the primary court.

According to the court documents, Russell is the director of Fairclotte Investments while Strathen is the director of Paragon Printing and Packaging services company.

Russell and Strathen are the applicants together with their companies as the first applicant to fourth respectively.

They cited Magistrate Kubonera and the State prosecutor Shambidzeni Fungura as respondents.

The duo had challenged that the contents of the billboard did not disclose an offence.

They further argued that the contents of the billboard did not interfere with the ordinary comfort, convenience, peace or quiet of the public or any section of the public thereof.

Magistrate Kubonera turned down the application on the defective charge and did not make a determination on the constitutional arguments, ruling that a determination on the appropriateness of the charge, whether it disclosed an offence or not, cannot be made at that stage but only after hearing evidence.

After that decision by Magistrate Kubonera, the duo filed an urgent chamber application for a stay of proceedings pending the review.

Magistrate Kubonera and Fungura however, challenged the applicants saying the words used by the duo fall within the ambit of criminal nuisance hence it discloses an offence and that his decision was not grossly irregular or irrational.

“However, as a general rule, courts are reluctant to interfere with the un-terminated proceedings of a lower court unless there is a gross miscarriage of justice. In essence, incomplete criminal proceedings are prone to intervention by the Upper Courts in isolated but deserving circumstances,” Justice Mzawazi ruled.

“Whilst superior courts play an oversight role over the subordinates courts and judicial bodies by ensuring the necessary checks and balances as earlier stated, to safeguard the interests of justice, they can only interfere with interlocutory proceedings of the lower courts if continuation will result in irreversible gross miscarriage of justice.”

In analyzing the matter Justice Mzawazi ruled that the court’s decision was that it was premature to make a determination, at the initial stage of the trial, on whether the charge against the backdrop of the contents of the billboard disclosed an offence or not, saying in its discretion the court felt it wise to make that decision after hearing evidence.

The billboard erected was discouraging people from buying land from a developing company in Borrowdale.

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