Former State prosecutor turned private lawyer, Mr Moses Mapanga, has been called out for possible conflict of interest after he apparently misled the Harare Magistrates Court into issuing a warrant of execution against a local real estate company which had won a High Court appeal against the attachment of its property.
Mr Mapanga was the prosecutor in a civil case involving Mr Prosper Sanyamuwera, who was seeking compensation amounting to US$9 450, from Root Pro Properties Real Estate after a dispute over a residential stand.
After Mr Sanyamuwera initially won the case at the Harare Magistrates Court, Root Pro Properties lodged an appeal at the High Court which was upheld by Justice Pisirayi Kwenda on January 12 this year, effectively staying the warrant of execution.
Mr Mapanga, who has moved into private law practice with Mapfidza, Rutsito Legal Practitioners, surprisingly started representing Mr Sanyamuwera, a complainant in a case he formerly prosecuted.
Mr Mapanga somehow managed to convince Harare magistrate, Mr Lazini Ncube, into issuing the warrant of execution against the real estate company on February 8 this year despite Justice Kwenda having earlier quashed the award.
This development has brought into sharp focus, Mr Mapanga's impartiality in the matter in which he formerly acted as prosecutor.
Questions have also been raised on how a lower court appeared to wilfully disregard a ruling from a higher court.
In upholding the appeal, Justice Kwenda dismissed the earlier award saying the trial court had imposed an "incompetent sentence".
"At the end of the trial, the appellant was convicted and sentenced to pay restitution in the sum of US$9 450, in default of which the Messenger of Court would recover the amount through the sale in execution of the appellant's property.
"The appellant appealed against both conviction and sentence. As against conviction, the appellant relied upon seven grounds of appeal.
"The essence of the appeal is that the trial court erred in convicting the appellant in circumstances where its defence had not been disproved by the State.
"We will deal with the sentence first because of the glaring irregularity afflicting it. The trial court imposed an incompetent sentence.
"The sentence is incompetent because it is not provided for at law. An order for restitution is not one of the various forms of punishment listed in (Section) 336 of the Criminal Procedure and Evidence Act (Chapter 9:07).
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"Restitution is imposed by the criminal court either, as a condition of the suspension of a prison sentence in terms of Section 368 of the Criminal Procedure and Evidence Act or as an executable award in terms of Section 368 of the Criminal Procedure and Evidence Act," said Justice Kwenda in a ruling on January 12.
Justice Kwenda added: "The award is incompetent in so far as it purports to be the sentence. It is therefore, a nullity.
"In any event, the award for restitution could only be made in local currency at the rate of one is to one with the United States dollar as provided for in Section 22(4) (a) of the Finance Act No.2 of 2019."
Despite this ruling, Mr Ncube proceeded to issue the warrant of execution on January 26 resulting in the real estate's company's lawyers, Musengi and Sigauke, writing to the Clerk of Court seeking recourse.
"The application was premised on a Magistrate's Court judgment from the Harare Criminal Court, Harare CRB HREP 3972/20 which found the respondent guilty and also ordered that the respondent restitute the applicant US$9 450."
"Kindly be advised that the judgment under CRB 3972/20 has since been overturned by the High Court which set aside the conviction on appeal.
"In terms of section 40(2) of the High Court Act (Chapter 7:)06) if a conviction is quashed on appeal, any award or order ancillary to conviction shall not take effect. Therefore, the award for restitution cannot be given effect whatsoever."
