By Mary Taruvinga, Senior Reporter
TWO Borrowdale men accused of criminal nuisance after they mounted a blackmail billboard had their appeal against a magistrate’s ruling on their application for exception dismissed by the High Court.
The two are Grant Russell and Mark Strathen, who insist the charge against them does not form a criminal offence.
Harare magistrate, Shane Kubonera, had dismissed their application, saying the two must stand trial.
Aggrieved by the dismissal of their application, the duo filed a review of Kubonera’s determination at the High Court.
But Justice Catherine Bachi Muzawazi said she has no reasons to interfere with the lower court’s decision.
“Whilst superior courts play an oversight role over the subordinate courts and judicial bodies by ensuring the necessary checks and balances as earlier stated, to safeguard the interests of justice, they can only interfere with interlocutory proceedings of the lower courts if continuation will result in irreversible gross miscarriage of justice,” Muzawazi ruled
“The degree and extent of the repugnance, discomfort and inconvenience, like the court of first instance noted, can only be tested after hearing evidence. Accordingly, the trial court had the discretion to make a finding on whether the words disclosed a charge at the initial stage and preempt the trial, or to make a decision at the conclusion of the state case or the trial. Either way, I am not convinced that its decision was irrational or grossly irregular to warrant the interference of this court,” the judge ruled.
According to court documents, Russell is a director of Fairclot Investments, while Strathen is the director of Paragon Printing and Packaging Services Company.
Russell and Strathen the first and second applicants while their respective companies are third and fourth respondents.
They cited Magistrate Kubonera and the state prosecutor, Shambidzeni Fungura, as respondents.
The duo had challenged that the contents of the billboard did not disclose an offence. They further said they argued that the contents of the billboard did not interfere with the ordinary comfort, convenience, peace or quiet of the public or any section of the public thereof.
Magistrate Kubonera turned down the application on the defective charge, and did not make a determination on the constitutional arguments, ruling that a determination on the appropriateness of the charge, whether it disclosed an offence or not, cannot be made at that stage, but only after hearing evidence.
After that decision by Kubonera, the duo filed an urgent chamber application for stay of those proceedings pending the review.
The billboard erected was discouraging people from buying land from a developing company in Borrowdale.