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Prosper Dembedza
Herald Correspondent

The State has opposed an application by two Harare men who are facing charges of erecting an illegal billboard in Borrowdale with damaging information to a development company saying they wanted to bring back through the back door exception proceedings which were dismissed.

Grant Russel and Mark Strathen who are facing criminal nuisance charges through their lawyers wrote to the State on June 6, 2022 asking it either to withdraw the charges against them or alternatively withdraw the charges before plea.

In their application the pair states that if the State is not prepared to withdraw charges, the court should order their removal from further remand.

They said failure to do this would be greatly prejudicing them against the matter that has been decided for in all terms and purposes by the High Court of Zimbabwe.

This prompted the State to respond to the application.

“The State is opposed to such procedure being adopted and insists that the accused persons be subjected to trial whereupon their guilt or innocence will otherwise be proved,” reads part of the State’s response.

The State in it’s response said the facts as alleged disclose an offence.

“The accused attempt to resurrect it’s exception to the charge which was dismissed by magistrate Shane Kubonera and as such this court is functus officio and cannot decide on whether the facts as laid do disclose a charge against the accused persons because such matter had already been dealt with by this court,” noted the State in its response.

The State further stated that it is whimsical for the accused persons to simply allege that they are entitled to an acquittal because the charges do not disclose an offence.

“It must be noted that the accused persons entered a not guilty plea and excepted to the charge which exception was heard and dismissed by Mr Kubonera. There exists no legal basis to unwind the legal clock and resurrect through the back door the exception proceedings heard by Esquire Kubonera with a decision made thereto,” the State said.

Russell and Strathen are currently challenging a High Court order to proceed to trial in their matter after they unsuccessfully sought the court to quash their charges.

The duo had filed their application for exception at the lower court saying the charges were defective and must be quashed but Harare magistrate Mr Kubonera dismissed their application saying they raised triable issues.

Aggrieved by the dismissal of their application, they approached the High Court for review but the upper court again ordered them to proceed to trial and defend themselves.

Prosecutor Mrs Shambadzeni Fungura is on record challenging the accused persons to trial to no avail.

It is the State’s case that on December 10, 2020 at around 2pm on the opposite side of Celebration Church in Borrowdale, Harare, the accused persons erected a billboard with damaging information on WestProperties in a bid to tarnish it’s image.

It was alleged that Russell and Strathen caused false alarm to the public through the information which was written on the billboard.

The State alleges that the billboard erected by the two had contents which were likely to interfere with the ordinary comfort or convenience of the complainant’s clients.

The complainant made a report to the police leading to their arrest.