Van Blerk’s application for exception thrown out

Prosper Dembedza
Court Correspondent
Harare Magistrate Mr Ngoni Nduna has dismissed an application for exception by former Pokugara Properties (Pvt) Ltd employee John Micheal Van Blerk  who is facing perjury charges.

Mr Nduna said there is a nexus between the accused and the commission of the offence and therefore the matter should proceed to trial.

In their application for exception Van Blerk’s lawyer Advocate Tawanda Zhuwarara argued that the charge is baseless, embarrassing and unsustainable at law.

Through Advocate Zhuwarara, Van Blerk is denying the allegations, arguing that they are calculated to embarrass him and affirms that he and his former employer never acted unlawfully in any way.

In his  defence outline, Van Blerk is arguing that the allegations he is facing are based on facts that the complainant (George Katsimbiris) admitted under case HC 8943/18 and that each allegation the prosecution now claims to have falsely averred was admitted by the complainant by non-contravention.

“Our law relating to all allegations made in affidavit is very clear and leaves the present prosecution still-born and embarrassing to respond to.

“The prosecution cannot sustain allegations of perjury where the averments contained in the affidavit in question were admitted by the complainant,” reads their defence outline.

Van Blerk went on saying that the prosecution’s papers do not reveal a cognisable offence at law.

“Once the complainant legally admitted the averments as contained in the second accused’s affidavit in HC 8943/18, then such averments cannot be impugned as having been false in a lower court such as this one. An admission whether made directly or indirectly is binding,” states the defence outline.

Van Blerk further stated that the prosecution cannot predicate a prosecution of perjury where the averments made by an accused in civil proceedings were admitted by the complainant.

“Perjury cannot actuate from an affidavit whose averments were admitted by the complainant as having been true in the proceedings wherein such affidavit was lodged.

“The charge is therefore incompetent and embarrassing and must be quashed,” said Van Blerk in his defence outline.

He said the complainant never disputed the allegations in aforestated affidavit despite having been served with the same under HC 8943/18.

The show house was then lawfully demolished at the instance and direction of the City of Harare who were acting in terms of section 32,34 and 35 of the Regional Town and Country Planning Act.

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