Justice Bharat Patel on Tuesday dismissed with costs Mutasa’s application to bar a lower court from compelling him to testify as a defence witness.
In his judgment Patel said the former Lands minister should testify in the criminal case where commercial farmer Robert Mckersie faces prosecution before a Chinhoyi magistrate for allegedly contravening the Gazetted Lands Act by refusing to leave Chapungu Farm in Mhangura.
The judge said Mutasa’s evidence would be relevant to the case.
Mckersie’s defence is that he was given an offer letter by Mutasa which constitutes the requisite “lawful authority” entitling him to remain in occupation of the farm without contravening the Gazetted Lands Act.
Mckersie claimed he returned his offer letter to Mutasa to correct a spelling error of his name. The letter was never handed back to him.
“He now wants the applicant (Mutasa) to testify on his behalf by confirming that the offer letter was in fact originally issued to him,” reads Patel’s judgment.
However, Mutasa’s reasons for refusing to testify were that the evidence sought by Mckersie did not constitute a valid defence to the charge and was therefore irrelevant and inadmissible.
The minister also said he could not be compelled to divulge matters involving land allocation as these were privileged by dint of public policy and public interest and that he was only being called as a witness in order to degrade his character.
Patel threw out Mutasa’s arguments. The judge said where an offer letter is lost or destroyed, the evidence of the issuing authority or other public official may be necessary in order to establish that the letter was in fact issued to the occupier concerned at the relevant time.
Patel adjudged: “Such evidence would undoubtedly constitute the requisite lawful authority and a valid defence against a charge of contravening Section 3. Having regard to the foregoing, I am satisfied that the testimony required from the applicant (Mutasa) as to whether he did or did not issue an offer letter to the fourth respondent (Mckersie) in relation to the land in question is highly relevant and clearly admissible for the purposes of the fourth respondent’s acquittal or conviction under Section 3.”
“Moreover, given that such evidence is to be elicited from the applicant in relation to what he himself did or did not do vis a vis the fourth respondent as the authority responsible for issuing offer letters, there can be no question of him having to divulge any official secret or other confidential information inimical to public policy or the public interest. I am therefore quite unable to perceive any logical basis for the privilege claimed by the applicant on the facts of this case.”
Patel said as for the degradation of Mutasa’s character, there was nothing meaningful in the founding papers to substantiate the apprehended attack on his character.
“Ultimately any such apprehension must be weighed against the constitutional right of every accused person to be afforded a fair criminal trial as enjoined and guaranteed by Section 18 (3) of the constitution and in particular the right “to obtain the attendance and carry out the examination of witnesses to testify on his behalf”, reads the judgment.
Patel said Mutasa failed to establish a basis for justifying the interim relief that he sought and that the High Court could not interfere with the subpoena issued by the Chinhoyi Magistrate’s Court by barring Kutayi Ndudzo (magistrate) or any other magistrate from compelling Mutasa to testify at Mckersie’s criminal trial.
Mutasa was ordered to pay Ndudzo costs he incurred on legal practitioner and client scale.
“I am not persuaded that his (Mutasa) approach to this court was so unjustified or unnecessary as to warrant a punitive award of costs,” said Patel.
Initially, a warrant of arrest was issued against Mutasa by Ndudzo on October 6 after he failed to turn up at Chinhoyi courts to testify.
The warrant was cancelled on October 9, the day Mutasa made an application to the High Court for him not to testify in the case.
Mckersie’s case resumes on November 4.
Meanwhile, in a similar case a Mutare provincial magistrate Billiart Musakwa granted Mutasa’s application not to testify as a defence witness in a case involving another white commercial farmer, Alan McGregor.
Musakwa ruled that compelling Mutasa to give evidence in the trial of McGregor was a way of attacking the land reform programme and exposing the minister to ridicule and belittlement.