12 December 2012

Zimbabwe: Deputy Minister Attacks Lawyer Over Kunonga

DISGRACED former Bishop Nolbert Kunonga has drawn the ire of the Deputy Minister of Justice and Legal Affairs, Obert Gutu following revelations of a planned Supreme Court appeal after his High Court application seeking control of Anglican Church properties was dismissed with costs this week.

On Monday, Judge President George Chiweshe upheld a ruling by Supreme Court judge Deputy Chief Justice Luke Malaba that stripped Kunonga of custody of disputed church properties.

In his brief ruling, Chiweshe said he had no jurisdiction to hear the fresh application by Kunonga and subsequently ordered the former bishop to pay the full costs of the suit.

But it is understood Kunonga is contemplating filing an appeal at the Supreme against Chweshe's ruling, much to the chagrin of Gutu.

Gutu, a senior lawyer who is not a member of the Anglican Church, charged that if Kunonga's lawyers proceeded to file a Supreme Court appeal, it was tantamount to abuse of court processes.

He added that Jonathan Samukange, a senior lawyer who is representing Kunonga, should know better that when the highest court in the land has ruled on a matter, it is final and cannot be appealed and "any decent lawyer would appreciate what the principle of res judicata denotes".

"In my capacity as a duly registered legal practitioner as well as Deputy Minister of Justice and Legal Affairs in Zimbabwe, it should, really, not be my business lambasting and denigrating a fellow legal practitioner.

"However, it has been brought to my attention that Nolbert Kunonga has since noted an appeal in the Supreme Court, against the ruling of Judge President George Chiweshe ... when an otherwise senior member of the legal profession blatantly abuses court process in this manner, it is my humble opinion that the Law Society of Zimbabwe (LSZ) should intervene in order to protect the integrity of the learned profession," wrote Gutu on a social networking site.

When Kunonga lost his case at the Supreme Court last month, he engaged senior lawyer Samukange to lodge an appeal at the High Court saying it was a fresh case as the appeal was now being made by his Province of Zimbabwe Church.

But Chiweshe dismissed the case this week saying the Supreme Court had ruled on the matter to the effect that the disputed Anglican Church properties belong to the Anglican Church of the Province of Central Africa led by Bishop Chad Gandiya.

Consequently, Samukange indicated that he would be appealing to the Supreme Court, a decision that has attracted ridicule in legal circles.

The Harare based lawyer confirmed to The Financial Gazette yesterday that he was going to the highest court of the land but could not give the basis of his appeal as he was at the courts in Bindura when the paper caught up with him.

"Yes, I am appealing at the Supreme Court but I cannot talk about it now because I am at the courts in Bindura," said Samukange in a telephone conversation.

But Gutu explained that while he was not seeking to improperly interfere with the independence of the judiciary, Justice Chiweshe's ruling invoking the principle of res judicata essentially means that "the High Court is an inferior court to the Supreme Court and, mutatis mutandis, it follows that it cannot overturn the decision of a superior court".

He said once the High Court makes its decision on a matter, it becomes functus officio and thus, it cannot revisit its decision and/or seek to amend or alter the same. An appeal should only be noted to a superior court if and only if, the appellant is legitimately convinced that the prospects of success on appeal are bright.

"If an appeal is noted merely as a delaying tactic and/or to frustrate the operation of a court order, ordinarily an order of costs de bonis propriis will be made against the offending lawyer; simply meaning that that lawyer will have to pay the costs from his own pocket," charged Gutu.

The LSZ declined to comment on the matter as they are a regulatory body for legal practitioners.

However, other contributors to Gutu's post said Samukange was only after making money and "will dump Kunonga the way he dumped Henrietta Rushwaya (a former football administrator) a few months ago." But others reasoned that Samukange must first be heard as the case might have merit.

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