High Court judge Justice Pisirayi Kwenda has ordered the Zimbabwe Prisons and Correctional Service (ZPCS) to bring fraud-accused businessman Mike Chimombe before the court this afternoon, having initially skipped amid reports that he is not well.
Trial in a case Chimombe is jointly charged with his colleague, Moses Mpofu, on allegations of swindling the state of US$7 million in a botched goats tender. The trial was scheduled to start at 10:00 hours but Chimombe was in a show for the second time.
Last week, the trial could not commence after the court was notified that Chimombe was sick and needed seven days to recuperate.
Kwenda had no kind words for the ZPCS and both parties after he only learnt that Chimombe was not in attendance after the court sat.
Five months later, the trial has been postponed several times on various grounds.
Professor Lovemore Madhuku, taking instructions from Ashiel Mugiya, who is representing Chimombe, asked for a postponement.
Madhuku also placed the blame on the State for not letting the court know Chimombe's whereabouts.
"He has been unwell since last week. This matter was postponed last week in the hope that he will be able to stand trial but we are informed that he is still unwell and was advised to further rest starting from the 28th.
Madhuku said he was relying on information he was told by Mpofu as well as Chimombe's relatives.
Kwenda then ordered the prisons officer who was in charge at the High Court to bring Chimombe to court at 1400 hours or come before the court with a detailed formal report on why he cannot attend court.
PCO Chikoto was grilled for failing to bring Chimombe and failing to update the state and defence on what was unfolding.
"Do I have to remind you that it is your responsibility to bring the accused to the court? This is your statutory obligation. That's why you exist," fumed Kwenda, further asking the officer his suggestions on the way forward.
Chikoto said, "Maybe the court should request him to appear."
Kwenda hit back. "As court, we don't request prisons to bring an accused to court. It's an order, and I expected to see the accused in court as was ordered last week.
Chikoto suggested that Chimombe could appear this Tuesday.
However, Kwenda said he will not tolerate that.
It is not up to you to keep him at prison if he is needed at court. You listen to court orders. He should be here at 2 pm; if not then you will explain," ordered the judge.
Madhuku then informed Kwenda that his client and Mpofu had an appeal being heard at the Supreme court at the same time.
The prominent lawyer also explained that at law, two courts cannot sit to hear matters involving the same people at the same time.
Kwenda said he could not rescind his ruling.
Madhuku insisted that the judge should reverse its ruling because it was handed down while he was not aware of the case being heard at the upper court.
If the courts want to see him for something else, he can be her, but if it is for trial ,he has to be represented in accordance with the law....again that's not allowed; this court can only sit with the accused as a trial court and nothing other than that.
"I think you have a room to correct your order, my Lord," Madhuku said, adding that all lawyers in the matter will be arguing their clients' cases at the Supreme Court; as such, no one will be available at the High Court.
Kwenda said his court will sit even if the lawyers do not show up.
"If you want to be at the Supreme Court, the court will sit and deal with the matter. Note that the court is always fair and aware of his rights to legal representation.
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He also blamed the state and the lawyers for failing to inform him about Chimombe's absence in advance.
The judge also expressed his disappointment on how the trial commencement has failed to start for five months, also suggesting that parties should consider if the case should still be live-streamed.
Witnesses were also dewarned because of the uncertainty.
The judge said they should stay within the court's jurisdiction in case they will be called at short notice.
The ZPCS later brought Chimombe to court.
He looked sick and slept in the dock as the judge asked him how to proceed.
"I have nothing to say. Had already given my lawyer instructions," he responded.
The matter was then postponed to March 17 for trial commencement.
