Fidelis Munyoro-Chief Court Reporter
Former Chitungwiza municipality chamber secretary Priscilla Vengesai’s trial on charges of bribing a High Court judge and a prosecutor will now continue under the same magistrate and prosecutor after her request for removal of the two was rejected by the High Court.
She is facing two counts of bribery after she allegedly offered an unsolicited payment of US$500 to then High Court Judge Justice Felistas Chatukuta as a reward for rendering a judgment which happened to be in favour of Avondale Holdings (Pvt) Ltd.
She is also being accused of offering a US$1 000 bribe to prosecutor Mr Michael Reza.
When her trial commenced before now retired regional magistrate Mr Hosiah Mujaya, Vengesai unsuccessfully sought the recusal of the magistrate citing “real danger of bias” by him and the prosecutor.
The established principle is that an application for recusal must meet the high threshold of satisfying the “real danger of bias” test, that there is a real danger that the magistrate or judge might unfairly regard with favour or disfavour to one of the parties.
In this case, the trial magistrate was not convinced by anything Vengesai had said that the test for apparent or actual bias was made out.
Aggrieved by the magistrate’s decision, Vengesai approached the High Court seeking a review and quashing of the proceedings.
But a two-judge bench of Justices Pisirayi Kwenda and Benjamin Chikowero dismissed the application.
Justice Kwenda, who wrote the judgment, said review and appeal should take place after a matter has been determined with finality.
“Therefore, the power of this court to descend into the arena of a criminal trial in progress before another judicial officer is not a carte blanche,” he said.
“In other words, this court does not have the unrestricted power to sidetrack a criminal trial in progress before another court, albeit of inferior jurisdiction, ticking boxes as the trial progresses and ruling on every queried decision, for to do so is to interfere with a judicial function.
“It does not matter that such side tracking is emanating from the top, it remains interference.”
Vengesai also moved the court to order the prosecutor-general to remove and replace the prosecutor handling her case, but did not give any reasons for the removal of the prosecutor.
In that regard, Justice Kwenda ruled there was no cause of action against the prosecutor complained against.
According to court indictment, Vengesai tried to bribe Justice Chatukuta, but the judge reportedly recorded the conversation before reporting the matter to the police.
She had presided over a case involving Avondale Holdings and TM Supermarkets and ruled in favour of Avondale Holdings.
It is alleged Vengesai then approached Chatukuta in her chambers.
She reportedly offered her cash which was in an envelope, saying it was a token of appreciation from Avondale Holdings.
Justice Chatukuta turned the gift down and called the police.
A docket was prepared against Vengesai who was charged with bribery before it was taken to the magistrate’s court for vetting and setting of a trial date.
Vengesai, who was out of custody, then got information that Mr Reza was the one dealing with her case.
She reportedly approached Mr Reza in his office and again offered him US$1 000 for him to decline prosecution, the court heard.
As she was offering the money, Mr Reza started recording the conversation before alerting the police who rushed to his office and caught Vengesai red handed while handing over the cash to him.
Vengesai’s approach to Justice Chatukuta followed the latter’s visit to Chitungwiza municipality to process a relative’s papers in May 2014.
She approached Vengesai for assistance and the reportedly pair exchanged phone numbers.
The following day Vengesai allegedly sent a text message to Justice Chatukuta asking to see her.
She later booked an appointment on June 26 before proceeding to Justice Chatukuta’s chambers.
Vengesai, it is alleged, told Justice Chatukuta that she had been sent by the owners of Avondale Holdings to deliver a token of appreciation for the favourable judgment.
She took out a khaki envelope from her hand bag which had cash and tried to hand it over to the judge.
Justice Chatukuta refused to accept the cash and expressed her displeasure about Vengesai’s conduct.
She then recorded their conversation before making a report to the police, it is alleged.