Judge roasts magistrate for seeking guidance in Biti live-streaming saga

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By Court Reporter

A HARARE magistrate who allowed reporters to film proceedings during MDC deputy national chairperson Tendai Biti’s trial, is in soup after the High Court declined to review the matter.

The upper court concurred with the prosecutor who accused the magistrate, Gloria Takundwa of being “brave or stupid” for allowing live-streaming in court saying the decision was erroneously arrived at.

High Court Judge Joseph Musakwa said if a magistrate errs or blunders, he or she must live with that error unless one of the parties before the court moves to take corrective action.

“One can only imagine how the High Court will be clogged with such cases if magistrates routinely refer cases for review at every turn where they believe that they have erred,” said the Judge in declining to give guidance.

“It is akin to seeking legal opinion from the High Court. It is an established principle that superior courts only interfere in unterminated proceedings in exceptional cases.”

Biti is facing two charges of violating the Electoral Act after he allegedly made unofficial or false declaration of poll results for the highly contested July 30 elections.

His lawyer, Beatrice Mtetwa had recently applied for her client’s case to be live-streamed.

Takundwa granted the application, allowing reporters to live cast the court proceedings.

The case however took a new twist and failed to commence after chief prosecutor, Michael Reza attacked the magistrate for not taking orders from the Chief Justice.

Takundwa told the court that she is referring the matter to the High Court for guidance.

On December 11, Takundwa wrote to the High Court saying she “erred and had no jurisdiction” to grant permission for live streaming of the proceedings.

In the letter, Takundwa also stated that there is no law regulating such an application.

Musakwa said review mechanism is not designed to cater for errors made by a magistrate before the proceedings have been concluded.

He also said Takundwa erred by not inviting submissions from the State and defence.

“A decision was made after hearing submissions from both the State and the defence. By parity of reasoning and in accordance with the dictates of the rules of natural justice, the trial magistrate should have invited submissions from the State and the defence before referring the matter for review,” Musakwa said.

“Apart from the fact that there are no conditions governing the live streaming, it is also apparent that despite the state having opposed the application, it does not seem to be aggrieved by the order.

“I have not seen any provision that empowers a magistrate who thinks he or she has erred to refer such a matter for review by the High Court. The ruling granting live streaming comprises two sentences and that in such an important matter, detailed reasons should have been given.”

“One has no idea what factors the trial magistrate considered when she granted the relief sought,” Musakwa said.

Biti will be back in court next year for trial commencement.