Magaya fails to shake off rape trial

Walter Magaya

Walter Magaya

Mashudu Netsianda, Senior Court Reporter
THE High Court has dismissed an application for leave to appeal at the Supreme Court by Prophetic Healing and Deliverance Ministries founder Walter Magaya who is challenging the decision to continue prosecuting him for allegedly raping a congregant.

Magaya, who is represented by Advocate Thabani Mpofu instructed by Rubaya and Chatambudza Legal Practitioners, in April filed an application at the Harare High Court challenging the State’s decision to continue with his prosecution in light of the complainant’s confession that she had filed a false rape report against him.  The alleged victim and prime witness in the matter, Petronellah Donhodzo Mandaza, has since sued Prosecutor-General Ray Goba at the same court contesting the State’s decision to subpoena her, arguing she is no longer a complainant in the matter having confessed to falsely accusing Magaya of rape.

Harare High Court judge Justice Emy Tsanga ruled that Magaya’s application lacks merit.

She said conducting the trial, which started on April 3 this year is within the dictates of the constitution.

“The application for leave to appeal lacks merit. The legal provisions and procedures laid out in the Criminal Evidence and Procedure Act on the conduct of a criminal trial do not in any way interfere with the accused’s right to a fair trial,” she said. The judge said there was nothing unconstitutional about the State proceeding with the trial on the basis of a reasonable suspicion that a crime had been committed.

“Applicant appears to have been led to misconstrue his right as being the liberty to do whatever he wants to do as the basis of constitutionalism as opposed to doing what is correct within the confines of appropriate procedures laid down in the law. Furthermore, whether or not his constitutional rights have been or are being violated can only be properly assessed once this court has heard the State case against him from the evidence,” said Justice Tsanga.

In dismissing Magaya’s application, Justice Tsanga said the proportionality analysis is key in deciding whether the infringements of rights complained of are either justified or unjustified.
“The court is then seized with a criminal trial and must emptively hold that the trial should not take place when the State itself says it has reasonable grounds for suspecting that a crime was committed. The trial should therefore proceed and the application for leave to appeal lacks merit and is accordingly dismissed,” ruled the judge.
Magaya in his application wanted the court to acquit him on the grounds of the confession made by Mandaza under oath.
He argued that the State had no basis to continue with the trial, saying it was unconstitutional under the circumstances.
In his affidavit, Magaya said having already pleaded to the charges, he was entitled to his acquittal in terms of section 180(6) of the Criminal Procedure and Evidence Act.
Magaya said there is also an affidavit which supports an application made by the complainant in which she states that she was never raped.
Magaya queried why the prosecution wanted to have its star witness arrested when she had filed an application seeking to be excused from testifying, saying the move was meant to violate his rights.
He argued that there are certain constitutional questions he strongly feels the High Court should determine.
Magaya wanted the court to determine whether or not the decision of the prosecution to bring him to trial amounted to harassment and in breach of the protection of the law guaranteed as encapsulated in section 56(1) of the Constitution and, therefore, an abuse of court process.  He cited several constitutional provisions in an attempt to prove that his rights were being violated.
The State, through the National Prosecuting Authority (NPA) opposed the application saying it was unprocedural. The State said the order sought by Magaya was a mockery to the criminal justice system in that he wanted a dismissal of his matter without a hearing yet he had a case to answer. — @mashnets.

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  • Roscoe

    Probably took a leaf from Gumbura’s famous textbook…lol

  • Ziyabheda

    And the complainant has turned hostile. So both of them will do time. What a case.

  • siphilanzima

    kunzima either the guy committed the rape case or is being framed, we no longer know which is which because there was no immediate report after the rape case

  • Rings

    Magaya should allow the court process to clear him of any allegations that are being preferred against him. Why resist if he is innocent? Is there something that he is scarred of?

    • takunda nigel

      Innocent pple would DEMEND a trial to clear their name .Not fight to avoid a trial .We need due process even in cases when a person is clearly guilty as charged .

  • Chokwadi

    Who is Emy Tsanga ! ? Surely we don’t need the white men to undermine our rights and be racist towards us : we are doing it to ourselves…

    What does it mean that the application lacks merit. The only basis, evidence and witness of this trial was the complainant. There is no other witness, no video or audio recording, no medical report by a Dr, No evidence of witness tempering…just her word against Magaya’s. Maybe if she was a minor (under 18) I would understand.

    She has withdrawn her charges and claims they were false, they have no other evidence and no other witness and no case against Magaya. Did anybody else witness him rape the woman ? No. The man has to be acquitted immediately..

    Who is Emy Tsanga ? She is clearly doing somebody a favor …or she has an agenda… women shouldn’t be allowed in such positions…I have no doubt she has mishandled other cases before…

    • takunda nigel

      In Form 1 maths teacher writes
      3x + 5 = 12 and asked me to find x .
      I said x was right there behind 3 .Where else could I find x when the teacher put it right there !
      I was beaten and could not sit down for weeks .
      No need being over simplistic .

  • Mike Thando Tsuro

    Muporofita wenhema uyu anenge anopadawo panyora !!

  • Legal Eagle

    There are different scenarios that could have been in play here. There have been occasions where such crimes have been committed and reported and the defendant hires someone to make a Private deal with the victim to drop the charges for a monetary concession. Now if the court feels that this might be the case they are correct in not excepting the reversal of that statement. There are other pieces of evidence that will not be readily available to the public and press that will be available to the Prosecution and they might not want to try this case VIA the press. Was the statement retracted due to duress or was the complainant paid off? Either way if the Court feels a crime has been committed not even the complainant can decriminalize it. What is against this man is that he is a person of means and there is no real reason why such accusations could be levelled against him if he followed the Golden rule that if you are a man of the cloth always be in the presence of the opposite gender with a witness of that gender so that you will not be tempted or accused. There is no smoke without fire.

    • mbizo uyangibiza

      what makes that a bit tricky is that man is always in the company of his body guards, his guards should also testify

      • Legal Eagle

        If the Guards gave a statement when the report was made it would help him. If they decide to give statements at this late period they will be be liable to a charge of perjury and attempting to defeat the course of Justice and even accessory after the fact. In this type of crime that might attract a prison sentence.

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