Harare — PRESIDENTIAL Affairs Minister Didymus Mutasa should not testify as a defence witness in a land case in which a Mutare former commercial farmer is refusing to vacate State land, a Mutare magistrates' court has ruled.

Manicaland provincial magistrate Mr Billiart Musakwa said compelling Minister Mutasa to give evidence in the trial was a way of attacking the Land Reform Programme and exposing him to ridicule and belittlement.

He said this while granting an application by the minister challenging testifying as a defence witness in the trial of Mutare farmer Mr Alan Mcgregor.

"In the final analysis, this court is of a well considered and founded opinion that calling former Minister of National Security and Lands, Land Reform and Resettlement is not to bolster the defence case. But it is a way of attacking the land reform programme and exposes him to ridicule and belittlement in the eyes of the public.

"Therefore, the application by the minister is accordingly upheld. The minister is not compelled to be a defence witness as is aptly analysed and adumbrated above in accordance with the laws of the country. He shall not be compelled to give evidence in this case.

But on Tuesday, Justice Bharat Patel ruled that Minister Mutasa should testify as a defence witness in a case in which a Mhangura farmer Mr Robert Mckersie is being charged with refusing to vacate Chipungu Farm.

Dismissing an urgent chamber application by Minister Mutasa to bar a Chinhoyi magistrate from compelling him to give evidence, Justice Patel said the evidence to be led from the minister was relevant and he should testify.

Justice Patel ordered Minister Mutasa to pay for the costs of suit incurred by Chinhoyi magistrate Mr Ngoni Nduna on a legal practitioner and client scale.

He said he could not find a logical basis for the privilege claimed by Minister Mutasa when he challenged the requirement for him to testify.

"I am satisfied that the testimony required from the applicant as to whether he (Minister Mutasa) did or did not issue an offer letter to the respondent (Mckersie) is highly relevant and clearly admissible for the purposes of the respondent's acquittal or conviction.

"I am therefore unable to perceive any logical basis for the privilege claimed by the applicant on the facts of this case.

"As for the possible degradation of his character, there is nothing meaningful in the founding papers to substantiate the apprehended attack on his character," said Justice Patel.

Justice Patel said the minister failed to establish any basis for justifying the interim relief sought and that the court could not interfere with the subpoena issued by the lower court.

"Accordingly, this court cannot interfere with the subpoena issued by the Chinhoyi Magistrates' Court by barring the first respondent or any other magistrate from compelling the applicant to testify in the trial. As a result, this application is dismissed with costs," he said.

Last week, Mr Nduna recused himself from hearing the trial citing interference and the lawsuit in which he was cited in his personal capacity.

Mr Nduna said he was humiliated on a pirate radio station when he was described as "very stupid."

He added that the same information was published by online publications.

This means another magistrate will now have to start the trial afresh.

The Mhangura farmer, Robert Mckersie, is being charged with contravening sections of the Gazetted Lands (Consequential Provisions) Act by allegedly refusing to vacate Chipungu Farm, which was compulsorily acquired by the State. Mckersie's lawyer, Advocate Thabani Mpofu, successfully sought an order compelling Minister Mutasa to give evidence in the defence case, but he did not attend trial early this month. Mr Nduna issued him with a warrant of arrest that was cancelled two days later.

Commenting on the ruling, Principal Director in the Ministry of Presidential Affairs Retired Brigadier-General Walter Tapfumaneyi said it was a misdirection on a point of fact because the offer letter that Mr Mckersie is claiming to have was never produced in court.

"The fact of existence of an offer letter was not proved in court.

"The judge never laboured on the matter and while he finds in favour of the minister on issues of law and procedure he finds against the minister on the issue of the offer letter," said Rtd Brig-Gen Tapfumaneyi. He said the offer letter Mr Mckersie is claiming to have been issued should have been produced in court because Ministry of Lands records show an offer letter issued to Mr Nyangani who was allocated the farm.