HARARE — The High Court has set aside a ruling that allowed three women accusing PHD Ministries founder Walter Magaya of rape to testify in a Victim Friendly...
HARARE — The High Court has set aside a ruling that allowed three women accusing PHD Ministries founder Walter Magaya of rape to testify in a Victim Friendly Court, finding that the regional magistrate did not properly apply the legal requirements for determining whether witnesses were vulnerable.
Justice Tawanda Chitapi remitted the matter to the regional court for reconsideration, allowing both the prosecution and Magaya’s lawyers to raise the vulnerable-witness application again. The judge directed that the matter be reconsidered in accordance with the requirements of the Criminal Procedure and Evidence Act (CPEA).
Magaya is facing three counts of rape involving three women who were congregants of his church. The alleged offences are said to have occurred at Yadah Hotel in Waterfalls, Harare, with the prosecution alleging that the first complainant was raped in Villa 13 in July 2020, while the second and third complainants were allegedly raped in the hotel’s Presidential Suite in July 2023 and December 2023 respectively.
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The complainants were aged 24, 22 and 21 at the time of the alleged offences. Magaya’s lawyers objected to the proceedings being conducted in the Victim Friendly Court before he could be asked to plead, arguing that the trial should take place in the ordinary open court where he had previously appeared during remand proceedings.
The prosecution, led by prosecutor Clemence Chimbari, applied under section 319B of the CPEA for the trial to proceed in the Victim Friendly Court and for the complainants’ evidence to be heard in camera. Chimbari told the regional court that the three women were vulnerable witnesses who had experienced significant mental and emotional distress.
The prosecution also argued that some of the complainants had expressed reservations about being in direct contact with Magaya. Chimbari said their previous relationship with Magaya as members of his church, together with the presence of other church members following the proceedings, could place additional pressure on the witnesses.
Magaya’s lawyers opposed the application, arguing that the State had not produced medical or psychological evidence to establish that the complainants were vulnerable. They argued that the prosecutor was neither a medical doctor nor a psychologist and should not determine whether the women would suffer emotional distress while giving evidence.
The defence also urged the magistrate to personally interview the complainants as provided for under section 319C(2), rather than relying on submissions made by the prosecutor. The lawyers further argued that preventing Magaya from facing his accusers in an ordinary open court would affect his constitutional right to a fair trial.
Magistrate Ester Chivasa rejected the objection and granted the prosecution’s application. She held that a vulnerable witness was a person whom the court believed required special protection because giving evidence in a normal court environment could cause serious distress or trauma.
Chivasa also held that vulnerability did not have to be proved with certainty and that medical evidence was not necessarily required to establish emotional stress. She concluded that witnesses in rape cases were vulnerable and could not be forced to testify in an open court.
Justice Chitapi disagreed with that approach, particularly the finding that all witnesses in rape cases are automatically vulnerable. “I must however note that it is an overstatement to say all witnesses in rape matters are vulnerable,” he said.
The High Court found that the central problem with the magistrate’s ruling was the failure to properly consider the factors set out in section 319C(1) of the CPEA. The provision requires the court to consider matters including the witness’s age, mental and physical condition, cultural background, relationship with the accused and the interests of justice before protective measures are granted.
Justice Chitapi held that the factors had to be considered together rather than treating one factor as automatically decisive. He found that the magistrate had not properly addressed the statutory checklist and had not made the necessary factual findings on the individual circumstances of the three complainants.
“The court’s role in such applications is therefore not a passive one,” Justice Chitapi said. “The court must enquire into the listed factors… all must be traversed and findings of fact made.”
The judge also pointed to what he considered an inconsistency in the magistrate’s treatment of age. While Chivasa had acknowledged that a child, an adult or an elderly person could be a vulnerable witness, she later held that age was not a factor to consider in the case.
Justice Chitapi, however, rejected the defence argument that the magistrate’s failure rendered the proceedings a nullity. He said the magistrate had not acted in a manner prohibited by law but had instead failed to carry out an obligation imposed by the legislation.
“The applicant misses the point,” the judge said. “The first respondent (magistrate) did not do anything which the law prohibits. The first respondent omitted to do what the law requires.”
The High Court also declined Magaya’s request for the matter to be transferred to another magistrate. Justice Chitapi said the defence had not provided sufficient justification for the recusal of Chivasa from continuing to preside over the case.
The judge ordered that Chivasa’s February 16 ruling be set aside and that the matter be returned to the regional court. The prosecution and defence may raise the vulnerable-witness issue again, but the magistrate must reconsider it while properly applying the relevant provisions of the CPEA.
The ruling does not determine the merits of the rape allegations against Magaya. The High Court’s decision was concerned with the procedure used to determine whether the complainants should receive special protection when giving evidence.
Advocate Thabani Mpofu appeared for Magaya, alongside Admire Rubaya and Everson Chatambudza, instructed by Rubaya & Chatambudza. Chimbari appeared for the Prosecutor-General with Tendayi Shonhayi, Angeline Munyirwa, Kudakwashe Chigwedere and Foelane Chipo Muronda, instructed by the National Prosecuting Authority.
