A HARARE magistrate yesterday dismissed an application for exception filed by two opposition MDC legislators Amos Chibaya and Sibusisiswe Budha, who are accused of failing to stop a party demonstration last year.
Chibaya and Budha, represented by Obey Shava and Nontokozo Dube, had their application challenging the facts of the charges dismissed by magistrate Gloria Takundwa, who ruled that some of the issues raised were triable.
After the dismissal, prosecutor Mercy Ndingadii filed an application for postponement of the matter, saying their two witnesses had failed to attend court.
Ndingadii said of the two witnesses, she only got hold of one, Elias Chivandire, who was said to be in Kadoma and his vehicle broke down while on his way to court.
The prosecutor said another witness, Bila James Simbachako, could not be reached and he did not know what his reason for defaulting court was.
But the defence opposed the application, saying the court must remove the accused persons from remand.
Shava requested the court to issue Chivandire and Simbachako a warrant of arrest and remove the accused persons from remand.
But Takundwa dismissed the application, saying Chivandire and Simbachako could not be given warrants of arrest as they were not warned to appear for trial on the day.
The magistrate ruled that the witnesses had been religiously coming to court, but had not been formally advised of the trial date.
The ruling did not go well with the gallery, which was packed with Chibaya and Budha’s sympathisers.
The magistrate then ordered the two accused persons’ supporters not to attend the court session after a brief adjournment and Dube protested the decision, but Takundwa stood her ground saying she had made a ruling for them not to attend the court session, which also had MDC leader Nelson Chamisa in the gallery.
After the brief adjournment, the supporters trooped back into the court room despite Takundwa’s ruling, but she did not eject them.
Shava then filed a notice for the recusal of the magistrate, saying the accused persons doubted her impartiality.
Takundwa asked the defence to file a written submission of the recusal application and she would rule on the application on the next remand date.