By Mary Taruvinga, Senior Reporter
SOUTH Africa based property mogul, Frank Buyanga, currently locked up in a South African prison, has applied for recusal of High Court judge Justice Pisirayi Kwenda in a case he is seeking freedom.
Buyanga is currently involved in a bitter legal battle with his former girlfriend, Chantelle Muteswa. The two are fighting over custody of their eight-year-old son.
Buyanga was locked up earlier this year after Muteswa sued him for kidnapping their son. He was picked up by the Interpol in South Africa after an arrest warrant was issued against him.
The businessman was then denied bail awaiting his transfer to Zimbabwe for prosecution.
In a turn of events, a Harare magistrate, Judith Taruvinga cancelled the arrest warrant used to lock up the business mogul, ruling that it was issued erroneously.
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Unhappy with the move, Prosecutor General Nelson Mutsonziwa appealed against the magistrate’s ruling.
The appeal automatically blocked Buyanga’s release.
Before the review application could be heard, Kwenda threw himself into the proceedings at the lower court, stating that he had read in the newspapers that the arrest warrant against Buyanga had been cancelled.
The judge said after perusing the record at the lower court he established that the magistrate had erroneously reached the decision to cancel the warrant.
The judge’s case stole the limelight, overtaking State’s appeal that was before him.
This triggered the latest battle after Buyanga, through his lawyer Admire Rubaya of Rubaya and Chatambudza sought recusal of the magistrate for being biased.
Rubaya argued that the judge’s action resulted in his court dealing with two cases, which is unfair and unlawful according to Buyanga’s lawyers.
“It is important that I pause to point out that the process initiated by his lordship, Kwenda J was given priority notwithstanding that the State had filed its application for review.
“For instance, the process initiated by Kwenda was to be heard ahead of the state’s application for review. For the record, I wish to point out that there are no process integrity issues in respect of the application brought by the State,’ he said.
Buyanga said whilst there were two processes before the court, priority had now been given to the process initiated by Kwenda over the party’s own process.
It did not sit well with him that both processes had somehow found themselves before the same judge and that a reasonable man might think that Kwenda had taken an interest in the matter.
Kwenda refused to recuse himself but Buyanga argued that his ruling had nothing to do with the argument he presented centred on the judge’s involvement.
This prompted the Supreme Court appeal, which is going to be determined Wednesday.
Through his lawyer Advocate Thabani Mpofu who is taking instructions from Rubaya, Buyanga said “Kwenda erred and misdirected himself by misconstruing the grounds upon which the application for his recusal was brought and determining issues that were never argued before him.
He said Kwenda erred in failing to deal with any of the grounds upon which the application for his recusal was made.
“When all these circumstances are considered, there can be no doubt that the court aquo (lower court) fell into error in not allowing a proper ventilation of this dispute. It ought to have given the parties the opportunity to resolve their dispute before a judge whose impartiality would not be questioned,” said Buyanga in his urgent chamber appeal.