HARARE - In a surprise turn of events in the Bernard Mutanga fraud case, defence counsel Admire Rubaya has applied for prosecutor Michael Reza’s recusal on the basis that he had participated in an earlier case featuring the state’s star witness.
On a day magistrate Adonia Masawi was to hear Phillip Macquire’s continued testimony, the self-styled developer’s lawyer sought to side-line the feisty prosecutor on the grounds that he might use privileged information to take down his client.
“We are applying that he (Reza) recuses himself… (as) it is highly prejudicial to the accused person (Mutanga) that the counsel who participated on his behalf is now in the opposition,” Rubaya said.
“What this means is that the prosecutor… probably had access to information that the witness ordinarily didn’t have. In all fairness, the prosecutor is seeking to use content which he got from the accused person during the time he was a complainant,” he said in reference to company registration documents, which had been used in Phillip and his brother Chris’ conviction.
However, Reza strongly objected to the application on the grounds that it was Dumisani Mthombeni, who had prosecuted the earlier case.
“Long before this trial started, defence counsel… asked me to recuse myself and I explained… that I did not prosecute in the mentioned case. That is… why he never raised that issue when this trial started,” the respected prosecutor said, adding he had “only read the aggravation on his colleague’s behalf.
The trial at hand relates to how Mutanga has allegedly tried to muscle in on Gurlyn Barton A (Gurlyn) Farm in Borrowdale by imposing himself as a director and shareholder of Twairob Investments (Private) Limited, the company which owns the land.
As such, the state argues that the 48 year-old businessman had falsely claimed before the registrar of companies that he had lost his original deed for the property also known as Makomo Farm and when the paper or documents were with the Macquires.
On Thursday, Mutanga’s lawyer had two objections – related to whether his move to carve out pieces of Gurlyn perpetuated his fraud and that Reza’s asking of Phillip to recount his major complaint – thrown out.