By Desmond Chingarande
Warrent of arrest was issued against one of the Harare men accused of erecting an illegal billboard in Borrowdale discrediting a property developing company.
Paragon Printing director Mark Strathen failed to appear before magistrate Shane Kubonera yesterday.
Strathen is being jointly charged with Fairclotte Investments director Grant Russell.
The matter was however postponed to June 14.
The duo recently had their application for review dismissed by High Court judge Justice Bachi Muzawazi.
Russell and Strathen are represented by Tendai Biti.
The duo filed the application for exception to charges of criminal nuisance last year but was dismissed by Harare magistrate Kubonera on the grounds that it was marred by triable issues.
In dismissing their application for exception Kubonera the duo must stand trial to answer to their allegations.
Aggrieved by the dismissal of their application Russell and Strathen filed a review of Kubonera’s determination at the High Court.
Justice Bachi Muzawazi dismissed their application saying she find no reason to interfere with the incomplete proceedings before the primary court.
According to the court documents Russell is a director of Fairclot Investments while Strathen is the director of Paragon Printing and Packaging services company.
Russell and Strathen are the applicants together with their companies as first applicant to fourth respectively.
They cited magistrate Kubonera and the State prosecutor Shambidzeni Fungura as respondents.
The duo had challenged that the contents of the billboard did not disclose an offence.
They further said they argued that the contents of the billboard did not interfere with the ordinary comfort, convenience, peace or quite of the public or any section of the public thereof.
Magistrate Kubonera turned down the application on the defective charge, and did not make a determination on the Constitutional arguments ruling that, a determination on the appropriateness of the charge, whether it disclosed an offence or not cannot be made at that stage but only after hearing evidence.
After that decision by Kubonera the duo filed an urgent chamber application for stay of those proceedings pending the review.
Kubonera and Fungura however challenged the applicants saying the words used by the duo fall within the ambit of criminal nuisance hence it discloses an offence and that his dicision was not grossly irregular or irrational.
“However, as a general rule courts are reluctant to interfere with the un-terminated proceedings of a lower court unless there is a gross miscarriage of justice. In essence, incomplete criminal proceedings are prone to intervention by the Upper Courts in isolated but deserving circumstances,”Justice Mzawazi ruled.
The degree and extent of the repugnance, discomfort and inconvenience, like the court of first instance noted can only be tested after hearing evidence.
“Accordingly, the trial court had the discretion to make a finding on whether the words disclosed a charge at the initial stage and preempt the trial or to make a decision at the conclusion of the state case or the trial. Either way, I am not convinced that its decision was irrational or irregular to warrant the interference of this court.
“Whilst superior courts play an oversight role over the subordinates courts and judicial bodies by ensuring the necessary checks and balances as earlier stated, to safeguard the interests of justice, they can only interfere with interlocutory proceedings of the lower courts if continuation will result in irreversible gross miscarriage of justice”she ruled.