By Duncan Mlanjira
High Court Judge, Justice Lovemore Chikopa, SC, says the Judiciary has before expressed its unhappiness at the lackadaisical attitude the State sometimes takes in court matters, saying this should be discouraged.
This was said in his ruling in a hearing over the dragging murder charges case laid against Misozi Chanthunya, who is being accused of murdering Linda Gasa.
“It smacks of disrespect towards the courts and does not befit officers of the court,” said Justice Chikopa when make a ruling over an appeal in which Chanthunya is appealing against an earlier ruling in which he is against stopping his legal counsel Maele from representing him.
Chikopa said this should certainly not come from the Director of Public Prosecution’s Chambers.
“We, therefore, order that this ruling/order should be brought to the attention of the Director of Public Prosecution (DPP) and our above sentiments specifically brought to her attention.
“We shall expect an indication from her honorable office that the same has been done and that henceforth positive changes shall be effected.”
According to the hearing made on November 3, 2019, that had Ngunde of Councel for Chanthunya as his applicant/appellant and Masanjala as Senior State Advocate of Counsel for the Respondent, Justice Chikopa says he has dismissed the appeal by Chanthunya seeking to reinstate Maele as his legal representative in the murder case.
The ruling says Chanthunya, who is appearing before the High Court in Zomba, was being represented by lawyer Maele but the state raised an objection that Maele should be recused because he had earlier been in the case representing the State, thus presenting himself in a conflict of interest in the case.
“The Triail Court agreed with the State and ordered that Counsel Maele forthwith ceases to act for the Applicant herein,” says Justice Chikopa in his ruling.
But Chanthunya decided to appeal against this ruling and in his ruling Justice Chikopa says such an appeal could not have come from Chanthunya himself but rather from the lawyer Maele if it was to hold some legal substance as based on the premise that Chanthunya has the right to legal representation — as enshrined in the Constitution of Malawi under Section 44(4).
In his appeal, Chanthunya insists on having Maele as his lawyer and appealed to be granted an extension of time to his appeal but “the State was not heard on this application”.
“[The State] were not present during the hearing thereof even though it is obvious that they were aware not just of the application but also of its date of hearing.
“They did not even have the courtesy of informing us why they could not attend. We, therefore, allowed the Applicant to proceed,” says Justice Chikopa.
It is on this premise that Justice Chikopa made the few words of the State’s conduct that made him express the High Court’s unhappiness at the lackadaisical attitude the State sometimes takes in court matters.
And coming back to the issue at hand, Justice Chikopa says the application for an extension of appeal is without merit as the Appeal Court understand that the application from the State on the conflict of interest was against lawyer Maele, not on Chanthunya.
“If anybody was aggrieved by the said order it was Counsel Maele. Not the Applicant. We would think, therefore, the if anyone was going to appeal it was not going to be the Applicant. It was Counsel Maele.
“To that extent it is our view that the Applicant has, with the greatest respect, no business asking this Court, indeed any court, for an extension of time within which to appeal against the said order.”
Justice Chikopa further agrees with Chanthunya that in accordance with Section 44(4) of the country’s Constitution he has the right to be represented by Counsel of his choice and his is Maele, but the Constitution does not for instance speak of a lawyer of one’s choice or a Counsel of one’s choice.
“It provides for a legal practitioner of one’s choice. It is a deliberate choice of words, in our view, for in this jurisdiction it is not every lawyer who has the right of audience in our courts.
“It is only those that are more than lawyers. Those that have the necessary wherewithal to be admitted to the Bar and have actually been so admitted.
“When the Constitution, therefore, speaks of a legal practitioner of one’s choice it means a legal practitioner as at law commonly understood — admitted to the Bar, licenced and without anything preventing them from appearing before the Courts.
“…It is our considered view that as soon as Counsel Maele was in this case declared conflicted and therefore incapable of acting for the Applicant, he immediately ceased to be a legal practitioner in respect of whom the Applicant could exercise his Section 44(4) rights.
“And once that happened it was not and it still is not for the Applicant to appeal against such finding in the hope that upon success he can then be a legal practitioner of his choice.”
Justice Chikopa then delivered that Chanthunya’s appeal is “clearly misconceived” and that “any application to extend the time within which such an appeal should be lodged is itself misconceived”.
“The appeal thought of herein in respect thereof is accordingly dismissed,” says the ruling. “Any application to extend the time within which such an appeal should be lodged is itself misconceived. The application in respect thereof is dismissed.
“The application for a stay proceedings in the Trail Court is premised on their being an appeal against the order against Counsel Maele.
“The application for an extension of time having been dismissed, there will not be no such appeal. The application for a stay is equally dismissed,” says Chikopa in his ruling.