A Zimbabwean businessman named Stewart Drynan has claimed that there is widespread corruption within the judiciary system, citing his own case as an example of mishandling.
What transpired:
Drynan owns several old collector cars and attempted to exempt some of them from licensing. However, he was told by a Zimbabwe National Roads Administration (ZINARA) officer that he needed a letter from a commercial garage certifying that the vehicles were inoperative at the garage. Drynan says he refused to pay the bribe that the officer was soliciting and sought clarification from ZINARA’s head office. After receiving no response for five years, Drynan visited the local ZINARA office and was informed that there was no such requirement. He exempted one vehicle but was still required to pay a penalty.
Drynan filed a summons against ZINARA for the return of the penalty and was granted a default judgment when ZINARA failed to appear in court. However, ZINARA later applied for the default judgment to be cancelled, claiming that the summons had been served on a different date. The presiding magistrate ruled in favour of ZINARA and granted the application for rescission despite acknowledging that 7 days had passed since Drynan had served the summons as required by the law.
Drynan then applied to the High Court for a review of the magistrate’s ruling, but ZINARA’s attorney opposed the application, claiming that Drynan had failed to comply with a specific rule. In response, Drynan argued that the rule did not require him to state the grounds of his application on the face of the notice. Despite this, Justice Muzenda dismissed Drynan’s application, citing past court cases as justification.
Drynan discovered that the extracts cited by ZINARA’s attorney and Justice Muzenda did not support the judge’s claims. He also questioned the punitive cost award given by Justice Muzenda, which he believed was unjustified. Drynan wrote to the judge seeking an explanation but received a response from the registrar instead, directing him to the judge’s judgment. Drynan sent a copy of Justice Muzenda’s ruling to Pindula News. He also wrote narrating what transpired:
CRIMINAL ABUSE OF PUBLIC OFFICE, FRAUD and FORGERY BY THE JUDGES OF THE
MUTARE HIGH COURT
JUSTICE MUZENDA 2
Background
My property abuts the Cecil Kop Nature Reserve and there is an access road through the Reserve to communications broadcast towers at the top of the mountain. Following authorisation from the security guards, I walked up the road for exercise, without paying, a number of times a week for almost three years. In October 2018, tree felling and sawmilling started taking place in the Reserve and, when it continued unabated, I raised a concern about it on a local Google group. There was an aggressive response from Wildlife & Environment Zimbabwe, which I had not known leases the Reserve from the Mutare City Council, and when I next attempted to enter the Reserve the security guards informed me that their instructions were that I should in future pay an entry fee. I expressed my disgust at this on the Google group and openly disclosed that I had been entering the Reserve without paying, whereupon I received an invoice from WEZ for “Last 3 years – 1095 x 2 = $ 2190”.
I responded to WEZ that their guards had permitted me to enter without payment, and that they were therefore legally estopped from now attempting to retrospectively charge me and, furthermore, that raising an invoice for every day for a full three years was ridiculous and confrontational. In response, I was served with a summons for $ 2 190.
In the magistrates court, WEZ’s manager informed the magistrate that the $ 2 190 was calculated after deducting Saturdays and Sundays from a three year period and, as proof that his statement was perjured, I did a calculation which showed that a claim for the actual period I had been entering, less weekends, would have been 680 days x 2 = $ 1360. WEZ’s attorney then made a written submission to the court in which he tried to suggest that I had calculated that I owed WEZ $ 1 360:
‘He challenges the entry fees of $ 2 190 and calculated it to be at $ 1 360. The Defendant admits the Plaintiff’s claim to be probable and proceeded to his defence…The Plaintiff accepts his quantification of both the number of days to be 680 days at the rate of $ 2.00 per day which translates to $ 1 360. Wherefore the Plaintiff prays for judgment in the reduced sum of $ 1 360.’
I responded:
‘This is a totally dishonest attempt at legal chicanery – I did not challenge the entry fees, and calculate it to be $ 1 360. I challenged, as perjury, WEZ’s manager’s sworn statement that the sum of $ 2 190 was calculated by subtracting Saturdays and Sundays from the period I had been entering Cecil Kop and I provided proof of the perjury by a calculation which showed that if he had carried out the calculation as he claimed to have, the result would have been $ 1 360. At the end of my cross-examination by WEZ’s attorney I very clearly brought to the attention of the Court that my calculation was intended specifically to demonstrate to the Court the manager’s perjured statement concerning how he had calculated $ 2 190, AND NOTHING ELSE.’
The magistrate’s judgment entirely circumvented my legal defence of estoppel and concluded thus:
‘In court Defendant chose to lead evidence to prove that he owed Plaintiff $1 360.00 entry fees. Such amount to an admission, how can he choose to lead such evidence? In other words he admits that he owes Plaintiff $1 360.00 and not $2 190.00…He was aware that he owed Plaintiff but decided to drag Plaintiff to trial wasting the court’s time and Plaintiff was put to unnecessary expense. In the result, it is ordered that Defendant pays Plaintiff $1 360.00 being the fee charged for entrance into Cecil Kop Nature Park for the period April 2016 – November 2018. Defendant is ordered to pay Plaintiff’s costs on a higher scale.’
I made an application for review and I cited the magistrate as the first respondent – as I had done in the previous review application – and, although I disputed the honesty of the High Court’s earlier judgment, I amended the front page of the application – Form 29 – to include the ‘relief sought’ and the ‘grounds for review’:
APPLICATION FOR REVIEW
The applicant intends to apply to the High Court for an order in terms of the draft order annexed hereto (to set aside the 1st Respondent’s judgment) on the grounds of illegality, irregularity, dishonesty and bias and that the accompanying affidavit and documents of James Stewart Drynan will be used in support of the application.
The application was opposed by WEZ’s attorney on the identical ground used by the previous attorney:
‘The application does not comply with the mandatory provisions of rule 257 of the High Court rules in that it does not state shortly and clearly the grounds upon which the applicant seeks to have the proceedings in the court a quo set aside and the exact relief prayed for. The application, as distinguished from the founding affidavit, must include the grounds for review. The papers filed by the applicant do not comply with the peremptory requirements and are thus fatally and incurably defective.’
‘The application is fatally and incurably defective in that the applicant has cited the trial magistrate in her individual capacity as if she acted as a private citizen in presiding over the trial…’
I responded: ‘I disagree that the documents presented to the Court fail to comply with the Rules of the High Court. The magistrate has been cited in her personal capacity as it is not my contention that her alleged acts of bias and dishonesty were carried out in her official capacity on behalf of the State. Attached are two High Court review applications in which the presiding magistrate was cited individually without any complaint by the High Court or the opposing counsel. My understanding of the law is that I have submitted to the Court a notice of an intention to make an application to the Court at a future hearing, at which time I will prove the validity of my given grounds for review. There is no requirement for me to attempt to “prove” my grounds in an affidavit.’
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“High Court Rule 239: At the hearing of the application, unless the court otherwise orders, the applicant shall be heard in argument in support of the application, and thereafter the respondent’s argument against the application shall be heard, and the applicant shall be heard in reply”.
WEZ’s attorney failed to appear for the ‘hearing’ and, instead of ‘being heard in argument in support of the application’, the following brief exchange took place between Justice Muzenda and I:
Judge: ‘What do you want?’
Drynan: ‘The judgment to be set aside and the case sent back for another magistrate to hear.’
Judge: ‘You are using the wrong procedure – this should have been an appeal.’
Drynan: ‘The grounds given in the application are illegality, irrationality, bias and dishonesty and
the High Court Act, Section 27, lists those as grounds for review.’
Judge: ‘You have some good points, but you should hire a lawyer to appeal for you.’
Drynan: ‘I don’t agree that it should be an appeal, and I don’t require a lawyer.’
Judge: ‘You have to state and prove your grounds in the application.’
Drynan: ‘There is no requirement for me to ‘prove’ anything on the face of an application.’
Judge: ‘The application is dismissed.’ [i.e. for using the wrong procedure of having
applied for a review instead of having noted an appeal]
In his written judgment, Justice Muzenda departed from his dismissal as having been on the ground that I had used the wrong procedure, to that of my having made another ‘fatally defective’ review application. He first contradicted what was plainly stated on the face of my application:
‘The court application for review on its face does not comply with the mandatory provisions of r 257. The court application does not state shortly and clearly the grounds upon which applicant sought to have the proceedings in the court a quo set aside on review…’
In his next sentence, he contradicted his previous sentence in order to manufacture a second defect upon which to ‘fatally’ fault my application:
‘In the applicant’s founding affidavit the grounds of review specified on the face of the application: “illegality, irregularity, dishonesty, and bias” are not explained extensively.’
For a third ‘fatal defect’, the judge found that:
‘…deliberately dragging a court official who was doing her work in an official capacity…is a fatal misjoinder to review proceedings. The citation of the magistrate should have the words ‘Nomino Officio’…Failure to cite the presiding judicial officer in his or her official capacity is a violation of r 256 of the High Court Rules.’
“Rule 256. Any proceedings to bring under review the decision or proceedings of any inferior court…shall be by way of court application directed and delivered by the party seeking to review such application to the magistrate…”
At the conclusion of his judgment, the judge stated that he had dismissed the application in the court room on the above grounds:
‘The following order was returned – “The application for review does not comply with rr 256 and 257 and is accordingly dismissed with no order as to costs”.’ (my underlining)
So whereas my previous omission of not citing the magistrate as ‘nomino officio’ (correctly spelled, ‘nomine officio’) had not been a ‘fatal misjoinder’, my failure to cite the second magistrate as ‘nomino officio’ was now a ‘fatal misjoinder’ which warranted summary dismissal of the application.
Justice Muzenda’s judgment also included the following statements:
‘The amount of $ 1 360 was deduced by the trial court to be the amount admitted by Drynan…Drynan has a good argument on that aspect but nevertheless brought review proceedings instead of an appeal…had Drynan not poked his nose into the goings on at the park he would have continued to use the gravel road without incidence.
Both WEZ’s attorney and Justice Muzenda brazenly lied about what was plainly stated in the application in front of them. Following his dismissal in the court room on the ground of incorrect procedure, Justice Muzenda illegally amended the grounds for dismissal in the written judgment. I directed my application to “Magistrate Manhibi” (which is in fact her ‘official title’), exactly as as directed in High Court rule 256, and Justice Muzenda fabricated this as being a failure to comply with the rule which could be neither ‘condoned nor corrected in the interests of justice’…’even though I had a good argument…’
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