The case of Dynamos Football Club chairman Bernard Marriot Lusengo, who is accused of fraudulently awarding himself majority shareholding at the club has been deferred to March 8 pending a High Court review of his application to use a lawyer who was barred from representing him over conflict of interest.
Lusengo's lawyer, Advocate Tawanda Zhuwarara has filed an application for referral to the Constitutional Court after a magistrate barred the DeMbare chairman’s preferred legal representative, Herbert Mutasa from representing him.
He has also asked the court to grant him the application to have his matter referred to the Constitutional Court, and to declare the decision of the magistrate prohibiting Mutasa from representing him as unlawful as it violates the right to fair hearing.
Lusengo also filed a review for an application of exception that was dismissed by magistrate Barbara Mateko who said he was raising triable issues.
He was dragged to court in October 2021 on allegations that he unlawfully made a misrepresentation to Dynamos Football Club that he had acquired the majority shareholding at the club.
“In readiness for the criminal trial, I duly appeared before the second respondent represented by a Herbert Mutasa who is duly registered and a senior legal practitioner who is also a partner with Messrs. Gill Godlonton & Gerrans," Lusengo submitted.
“It must be noted that the said Mutasa legally represented me from the time the police were investigating the matter, the initial appearance where l was remanded on the aforementioned charge and the subsequent remands. It was Mutasa that was served with the State papers and arranged for the trial date to be the 28th of September 2021.”
Lusengo said on the date of trial, prosecutor Tapiwanashe Zvidzai applied for the recusal of Mutasa, alleging that he was conflicted.
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He said there was no evidence proffered and Zvidzai simply made representations from the bar and called no witness.
“On the 29th of September 2021, magistrate Barbara Mateko proceeded to grant Zvidzai's application for Mutasa's removal as my legal representative and this evidences the violation of my constitutional right to legal representation.
“I have been advised, which advice I take that I have the constitutional right to be represented by a lawyer of my choice. Such right is fundamental, and I desire to actuate its full effect," Lusengo submitted.
“The ruling by Mateko negates and abrogates my constitutional right to choose legal representation of my choice. There is no statute or regulation that I am aware of that gave Zvidzai the power to remove the legal practitioner of my choice.
“I sought the referral of the issue to the Constitutional Court through Advocate Zhuwarara and again Zvidzai refused such request on such an important point. ”
“While Advocate Zhuwarara is a fine lawyer I have only engaged him to deal with the preliminary matters and not the trial. I still desire the trial to be handled by Mutasa whom I have a longer relationship with and has handled the criminal allegations from inception,” Lusengo submitted.
Lusengo further said Mateko violated his fundamental right without any lawful authority and proceeded to refuse him the right to be vindicated by referral to a superior court.
