Tendai Rupapa Senior Court Reporter
The Prosecutor-General’s Office is still to respond to the application for legal costs incurred in the private prosecution of former Bikita West legislator Munyaradzi Kereke despite having been served with an order from the court directing them to do so last week.
Mr Charles Warara made the application last Tuesday in terms of Section 22 of the Criminal Procedure and Evidence Act and in his application, he wants the court to consider the costs either against the PG’s Office or Kereke.
Mr Warara urged the court to grant the costs on a higher scale.
According to the section, the court might consider ordering the costs against the accused person or the PG’s Office.
Kereke wants the PG’s Office to pay the costs on the basis that he was not responsible for the refusal by that office to publicly prosecute him.
After hearing submissions from both counsels, regional magistrate Mr Noel Mupeiwa said since there was a possibility that the PG’s Office would be ordered to pay the costs, there was need for a response from the PG’s Office.
He then remanded the matter to yesterday to allow the PG’s Office to respond.
However, by yesterday the PG’s Office had not responded.
Mr Mupeiwa gave them more time and further postponed the matter to next Monday, adding that if they did not file their response before that date, he would give his ruling.
Kereke’s case had to proceed through private prosecution after suspended Prosecutor-General Johannes Tomana refused to prosecute him, saying there was no evidence linking the former lawmaker to the offence.
His lawyer, Mr Marshal Hondo Chitsanga, said there was no reason why the PG should not be ordered to meet the costs.
He said his client was neither the one who barred his prosecution nor the one who runs the PG’s office.
“The prosecution should show good cause why the PG should not be burdened by such costs,” he said.
“The court, in its judgment, clearly stated that the convicted person did not act unlawfully when he was not publicly prosecuted. The decision to decline prosecution was made by the PG ,not our client. He could not have possibly attended trial after the PG, who has authority, had declined his prosecution,” he said.
Mr Chitsanga said there was no evidence which was led to show that Kereke influenced the PG’s decision not to prosecute him.
“Your Worship, in fact my client wanted the proceedings to come to finality,” he said.
In his application, Mr Warara said: “If the court was to order costs against the PG’s Office, the court must take into consideration the conduct of the PG. It was not a simple matter. It took years for the PG to react. It took a lot of time for the convicted person to be brought to book and a lot of effort for justice to finally take place. The PG’s conduct, which he displayed, left a lot to be desired.”
He added: “Kereke was the beneficiary of the misconduct by the PG to defy justice and if it was not for the apex court, he would be roaming freely in the streets. The court should order him or the PG’s Office to pay the costs and the costs must be punitive.”
Mr Mupeiwa sentenced Kereke to 14 years imprisonment for raping his then 11-year-old niece six years ago, but set aside four years for five years on condition he does not commit a similar offence within that period.