Nembaware
was
presiding
over
a
case
involving
three
men—Shelton
Dube
(21),
Sibangiswani
Ncube
(48),
and
Gilbert
Ncube—who
faced
stock
theft
charges
after
allegedly
stealing
18
cattle.
He
denied
bail
to
the
accused
and
ordered
the
case
to
proceed
to
trial.
The
suspects,
represented
by
lawyer
Nqobani
Sithole,
then
applied
for
Nembaware
to
recuse
himself,
alleging
bias.
Nembaware
rejected
the
application,
prompting
the
suspects
to
seek
a
High
Court
review.
While
the
High
Court
was
considering
their
review
application,
the
trial
began
in
the
lower
court.
However,
Justice
Moyo,
hearing
the
unopposed
review
application,
ruled
in
favour
of
the
suspects
and
ordered
that
a
different
magistrate
take
over
the
case.
On
October
9,
Nembaware
sought
clarification
from
the
High
Court
Registrar,
questioning
whether
the
trial
should
restart.
“On
the
3rd
of
October
2024,
the
Honourable
Judge
Mrs.
Justice
Moyo
J
issued
an
order
ordering
the
1st
Respondent
(Nembaware)
to
recuse
himself
from
presiding
over
the
above
matter.
The
trial
of
the
matter
had
already
commenced
and
the
state
had
closed
its
case.
The
Honourable
Judge
ordered
that
the
trial
be
commenced
before
a
different
Magistrate.
The
Honourable
Judge,
however,
did
not
order
a
trial
de
novo.
Kindly
bring
this
to
the
attention
of
the
Judge
so
that
she
gives
directions,”
Nembaware
wrote.
In
her
response,
Justice
Moyo
provided
a
detailed
explanation.
“The
effect
of
the
order
is
to
set
aside
the
proceedings
before
first
respondent
and
to
have
them
commenced
before
a
different
magistrate
as
the
order
speaks
to
that.
It’s
either
proceedings
are
ordered
to
commence,
which
means
to
start,
to
begin
before
a
different
magistrate
or
the
term
de
novo
is
used
without
the
term
commence
as
the
2
cannot
be
used
together,
they
become
superfluous.
It
is
either
the
proceedings
commence
before
a
different
magistrate
or
a
trial
de
novo
is
ordered
before
a
different
magistrate.
De
novo
itself
is
a
Latin
term
which
means
anew,
start
again,
to
begin
which
is
a
synonym
of
commence,
which
is
to
begin
or
start.
So,
the
proceedings
must
be
initiated
by
a
different
magistrate,
the
order
is
very
clear.
Moreso,
the
order
has
already
set
aside
what
has
been
done
so
far
by
1st
Respondent,
so
it
is
no
longer
there
for
another
magistrate
to
continue
with
except
to
commence(start)”.
The
state
alleges
that
on
January
28,
at
Lydead
Farm,
the
accused
had
plotted
to
steal
cattle
from
grazing
paddocks.
Acting
on
a
tip-off,
police
intercepted
the
trio
as
they
were
driving
the
cattle
away,
leading
to
their
arrest.