THE State has opposed an application for removal from remand filed by two Harare men who allegedly erected an illegal billboard in Borrowdale with information discrediting a property development company.
The suspects Grant Russell and Mark Strathen had sought their removal from remand saying the case had not moved for a long time.
But prosecutor Shambadzeni Fungura opposed the application saying they are seeking to go off the hook through the back door after their application for exception had been dismissed by the lower court and the High Court.
The duo is facing criminal nuisance charges.
Russell and Strathen, through their lawyers had written to the State on June 6, 2023 asking it to withdraw the charges before plea.
In their application, the pair states that if the State is not prepared to withdraw charges, the court should order their removal from further remand.
They said failure to do so would greatly prejudice them in a matter that has been decided in all terms and for all purposes by the High Court of Zimbabwe.
In its response, the State said: “The State is opposed to such procedure being adopted and insists that the accused persons be subjected to trial whereupon their guilt or innocence will otherwise be proved.”
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The State further indicated that the facts as alleged disclose an offence.
“The accused attempts to resurrect its exception to the charge which was dismissed by then magistrate Shane Kubonera and as such this court is functus officio and cannot decide on whether the facts as laid do disclose a charge against the accused persons because such matter had already been dealt with by this court,” the State’s response read.
The State further stated that it is whimsical for the accused persons to simply allege that they are entitled to an acquittal because the charges do not disclose an offence.
“It must be noted that the accused persons entered a not guilty plea and accepted the charge which exception was heard and dismissed by Kubonera.
“There exists no legal basis to unwind the legal clock and resurrect through the back door the exception proceedings heard by Esquire Kubonera with a decision made thereto,” the State said.
Strathen and Russell are currently challenging a High Court order to proceed to trial in their matter after they unsuccessfully sought the court to quash their charges.
The duo had filed its application for exception at the lower court saying the charges were defective and must be quashed but then magistrate Kubonera dismissed its application saying it raised issues that could be tried.
Aggrieved by the dismissal of its application, it approached the High Court for review, but the upper court again ordered it to proceed to trial and defend itself.
Fungura has on several occasions challenged accused persons to go to trial to no avail.
It is the State’s case that on December 10, 2020 at around 2pm on the opposite side of Celebration Church in Borrowdale, Harare, the accused persons erected a billboard with damaging information on West Properties in a bid to tarnish its image.
It was alleged that Russell and Strathen caused false alarm to the public through the information which was contained on the billboard.
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