PROMINENT Harare-based lawyer Admire Rubaya has filed a complaint with the Judicial Service Commission over the conduct of Bulawayo High Court Judge Justice Thompson James Mabhikwa whom he accuses of unlawfully revoking his bail without any application from the state.
BY DESMOND CHINGARANDE
Rubaya, the principal partner at Rubaya & Chatambudza Legal Practitioners, also filed a report to the Zimbabwe Anti-Corruption Commission and the police seeking a probe into acts of misconduct by the judge whom he alleges was complicit in a plot to illegally detain him.
This was after he was forewarned by a Facebook character by the name Cde Andrew Maimba, who posted on June 11 that on June 23 his bail would be revoked.
Rubaya, together with seven others, are accused of theft after nearly US$1 million worth of gold kept as an exhibit at Plumtree Police Station was stolen. The eight are alternatively charged with obstructing the course of justice.
The accused persons were out of custody on $300 bail each pending trial before Justice Mabhikwa unilaterally revoked bail and locked them up on June 23, a course of action and date pre-warned by the faceless Facebook character.
In his letter of complaint to the JSC, Rubaya said he appeared before Justice Mabhikwa on May 12 together with his co-accused and the trial failed to kick off due to the Covid-19 lockdown and restrictive measures relating to social distancing.
The other reason was that one of the co-accused, Japhet Chaganda, had filed an application for extension of time within which to file an application for leave to appeal at the Supreme Court and the application was still pending as of May 12.
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“On account of the two reasons, the registrar of the High Court communicated with my lawyers by copy of a letter dated May 7, 2020 that the matter was postponed,” Rubaya wrote.
“The matter was then postponed to September 8 for trial continuation in the hope that the Covid-19 restrictions would be eased and that the matter of Chaganda would be finalised.”
Rubaya said Mabhikwa, on May 12, curiously ordered that they appear in court on June 23 as a formality.
Mabhikwa also allegedly advised them that there was no need for them to bring their legal practitioners as the appearance was merely procedural for the purpose of remand.
“The public prosecutor applied to have our matter postponed to September 8 as previously agreed by the parties.
“This position was confirmed by my lawyer on the day. Faced with such a request, Mabhikwa took an adjournment to his chambers,” Rubaya said.
Rubaya said during the adjournment, he received information that Mabhikwa was busy conferring with another judge in his chambers and conniving to detain them.
“Mabhikwa resumed his seat without warning and pronounced that we were to be retained in custody pending finalisation of the trial.”
Rubaya argues that Mabhikwa’s attempt to waylay them into not bringing their lawyers to proceedings on the day betrayed dishonesty and ill-intent.
“Even though Chaganda was on an outstanding warrant of arrest, there was no reason to detain me on account of that fact. Besides, Chaganda could actually be deceased.”
Rubaya said the Facebook prediction by Cde Andrew Maimba persuaded him that Mabhikwa’s actions were extra-judicial, malicious and in connivance with other persons or institutions who shared the information with social media trolls like Maimba.
The lawyer was released after approaching the Supreme Court, which found that Mabhikwa erred by acting as a prosecutor, executor and a judge by remanding them in custody despite not having an application from prosecutors.
“Even if he had intended to act in terms of S176 (1) of the CPEA, he could only do so upon new facts being brought to his attention. No such new facts were presented. The judgment on revocation of bail was a glaring irregularity, it ought to be vacated,” Justice Mathonsi ruled.
Mabhikwa is not new to controversy. In 2017, he was appointed as a judge at the High Court through what appeared curious circumstances. He reportedly failed to disclose that a judgement was obtained against him for failing to pay rentals to a pension fund.
Mabhikwa failed to pay rent amounting to US$23 306,73 on two properties in Gwanda and Esigodini, which are owned by the Construction Industry Pension Fund and he proceeded not to comply with the court order, prompting the pension fund to approach the High Court for a writ of execution.
