Update on both cases – Monday 14th December:
In the case of Jenni Williams and Magodonga Mahlangu, the file was still not available. Magistrate Mkhonto still refused to entertain any application to have the pair refused off remand, citing her need to have the file before her before she makes any decision on the case. The state did agree to the defence’s request to make the application for removal off remand to another magistrate however. Williams and Mahlangu will therefore appear before Magistrate Msipa at 8am on Tuesday 15th December.
Magistrate Msipa presided over several hearings on the case during the year and is therefore considered to be familiar with the case. She denied the defence’s application to be given leave to appeal to the Supreme Court, ruling that a constitutional case was ‘frivolous and vexatious’. The appeal to the Supreme Court was finally made in terms of Section 24 (1) of the Constitution – applicants can apply directly to the Supreme Court if they feel that they are still aggrieved.
In the case of the Refugee Seven, the magistrate was not available and therefore the group has been remanded to 6 January. They had appeared in court on 10 December to hear whether they can be removed off remand whilst a constitutional challenge is being taken to the Supreme Court.
WOZA leaders, Jenni Williams and Magodonga Mahlangu, appeared in Bulawayo Magistrate’s Court on Monday 7th December as instructed only to be informed that their court record file, which is kept separate for security reasons, was not accessible. They did not appear in court but were asked to return on Tuesday 8th December.
Upon returning on 8th, their lawyer, Kossam Ncube, was informed that the file is locked in an ‘exhibit’ room and the person with the keys is away on leave but they were trying to call her to come and hand over the file. Later it was said that her line was not reachable.
One of the prosecutors then suggested a duplicate file be prepared, upon which Mr Ncube agreed as long as the state agreed not to oppose his application for a removal off remand. Whereupon the prosecutor advised that he had to take the matter to his chief law officer, Mrs Cheda – ‘you know these political cases are sensitive’ he said. The reply forthcoming from Mrs Cheda was that she had to consult ‘Harare’ (the Attorney General’s office) and could not get through on the telephone. The matter was then postponed to later in the afternoon.
When the matter reconvened in the afternoon, Magistrate Mkhonto refused to hear any of the defence’s arguments whilst the file is not before her. She further remanded the pair to Monday 14th December and instructed the state to produce the original file. When Mr Ncube asked if she would entertain an application on the 14th if the file is not to hand, her reply was that she would only be prepared to entertain any application with the record present. WOZA members in solidarity in the court counted at least seven plain-clothed state agents in the court room.
Meanwhile seven members arrested on 17 June 2009 in Bulawayo during a peaceful protest under the theme “Real People, Real Needs” on UN World Refugee Day also appeared on the same day in the same court and were again represented by Kossam Ncube. Magistrate Tancy Dube was due to deliver a ruling on whether she would allow the defence to take a constitutional challenge in regard to the matter.
After a late start, she granted the application for the matter to be taken to the Supreme Court. The state did not oppose this application. Mr Ncube then immediately applied for his clients to be removed off remand, as they could not continue appearing in court for an indefinite period of time as the Supreme Court has a large backlog. The state, represented by prosecutor Jeremiah Mutsindikwa, opposed this application. He argued that one could not predetermine that the Supreme Court application would not be resolved speedily and that the police could not be burdened to re-summons the accused when the Supreme Court would have dismissed the defence application. Mutsindikwa argued that it was not a limitation on their liberty to keep appearing in court and he would be generous and agree to a long remand period. The magistrate will give her ruling on 10 December, International Human Rights Day, on whether the seven members can be removed off remand.
WOZA is disappointed that, once again, justice had been delayed in these two matters. Williams and Mahlangu were arrested on 16th October 2008 for demanding that the food situation in Zimbabwe be declared a national disaster and all Zimbabwean be able to access food aid. They have been out of custody in this matter since the High Court granted them bail on 5th November 2008.