Murder-acused former army commander, Lieutenant General (Lt-Gen) Tlali Kamoli, and others yesterday lost their application for the recusal of Judge Charles Hungwe from trying them for the June 2015 murder of army commander, Lt-Gen Maaparankoe Mahao.
However, the trial is not likely to begin anytime soon after Justice Hungwe gave them the greenlight to challenge his ruling in the Court of Appeal whose 2020 sitting is set for April.
Lt-Gen Kamoli and his co-accused allege that they will not get a fair trial and want the Zimbabwean judge to recuse himself on the grounds that he had prejudged them even before the trial.
They have had their 6 January 2020 application for Justice Hungwe's recusal dismissed by the same judge on 21 January 2020 on the grounds the application lacked merit and the applicants had failed to prove that he was biased against them as they had claimed.
And when it appeared that their trial would finally get underway last Thursday, Justice Hungwe had to stop the proceedings after they applied for leave to appeal his recusal judgement in the Court of Appeal.
Yesterday, Justice Hungwe dismissed their application to challenge his recusal verdict in the Court of Appeal, saying they had "dismally failed to demarcate and delineate their grounds of appeal".
"One is left wondering what the Court of Appeal is being asked to determine. In any event, the applicants have failed to demonstrate that their proposed grounds of appeal enjoy reasonable prospects of success. Consequently, I find that there are no reasonable prospects of success and therefore I dismiss the application for leave to appeal."
However, the Zimbabwean judge gave the accused the greenlight to appeal to the Court of Appeal on the grounds that it was in the interests of justice for the apex court to test the merits of their recusal application.
"However, this (verdict) is not the end of the matter. Whilst this court has found that the applicants failed to meet the requirements for this court to grant leave of appeal, I believe that it is in the interest of justice that my findings on whether this particular application has merit ought to be tested in the Court of Appeal, if the applicants so wish.
"Therefore, I will hold this trial in abeyance until such time as the applicants have duly exercised their rights in this regard. This is meant to avoid a situation where a decree of nullity would be returned after the trial has run its full course," ordered Justice Hungwe.t
Should Lt-Gen Kamoli and his co-accused appeal Justice Hungwe's verdict, this would only serve to further delay their murder trial because the Court of Appeal is only expected to begin its 2020 sitting in April.
Lt-Gen Kamoli, Captain Litekanyo Nyakane, Captain Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi 'Moleli, Corporal Motṧoane Machai, Corporal Mohlalefi Seitlheko and Corporal Tṧitso Ramoholi are accused murdering Lt-Gen Mahao on 25 June 2015.
They appeared before Justice Hungwe on 6 January 2020 but the trial failed to proceed beyond the preliminary stages. This after Fako, Machai and Ramoholi demanded the recusal of Justice Hungwe on the grounds that he had prejudged them even before the trial.