The Prosecutor-General (PG’s) Office has urged the High Court to dismiss an application by suspended PG Johannes Tomana seeking bail and surety refund, saying he intended to flee the jurisdiction of the country’s courts.TomanaOK

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Responding to Tomana’s application, State representative senior law officer Edmore Nyazamba said no basis had been laid out by Tomana to show that magistrate Tendai Mahwe exercised his judicial discretion “irrationally or capriciously”.

“The order that is sought is designed to enable the applicant to flee from this jurisdiction,” Nyazamba said, adding it was misleading for Tomana to suggest Mahwe imposed bail conditions without being requested by the State.

“Attention is drawn to the Form 242 on which certain conditions of bail were proposed. The proposed conditions were that accused (Tomana) shall deposit $5 000, surrender passport, surrender title deeds to immovable property and not to interfere with witnesses and investigations,” Nyazamba said in his response filed at the High Court.

“I need to point out that bail is a matter in the discretion of the court. The magistrate was specifically empowered to consider the issue of admitting the accused to bail. He was not obliged to rubber-stamp the agreement between the local public prosecutor and the counsel for the accused to be released without bail.

He added: “It is not difficult to see why the magistrate acted in the manner he did. It must have weighed on his mind that the additional charges might induce the appellant not to stand trial when eventually required . . . he (the magistrate) was alive to the fact that accused was already on bail in respect of other charges. In light of the fact that the current charges are serious, it was competent of the magistrate to impose conditions relevant for those charges.”

A week ago, Tomana approached the High Court seeking a refund of the bail money and the surety upon being remanded on five fresh counts of criminal abuse of duty or alternatively defeating the course of justice.

The appeal followed Mahwe’s decision ordering him to deposit $2 000 bail, and surrender $250 000 surety and a passport, coupled with stringent reporting conditions.

However, through his lawyer Tazorora Musarurwa, Tomana challenged Mahwe’s decision, arguing he already was on bail on a similar charge and, therefore, should not have been ordered to deposit bail which the State had not requested, an assertion dismissed by the State.

Tomana also urged the High Court to censure Mahwe for allegedly adopting an irregular procedure “at such a time when all efforts are being made in improving the quality of justice in this country”.

The matter is set to be heard on Monday.