The High Court has quashed the conviction and three-year prison sentence of local businessman Tinaapi Nyawo after his lawyers successfully argued that the ruling by former regional magistrate Clever Tsikwa—delivered two days after his elevation to the Labour Court bench—was unlawful.
The judgment convicting the businessman was delivered by Regional Magistrate Feresi Chakanyuka, acting on behalf of Tsikwa, who was attending a swearing-in ceremony for judges at the time.
Nyawo represented by Advocate Garikai Sithole, instructed by Admire Rubaya successfully argued that his July 2025 conviction was ‘an exercise in futility’ and unlawful as Magistrate Tsikwa had already been gazetted as a High Court judge and Magistrate Chakanyuka lacked the authority to deliver the judgment in his stead.
The lawyers argued that once the President appointed Tsikwa and his name was gazetted, he effectively ceased to be a magistrate. They contended that since he could not hold both judicial offices simultaneously, the criminal proceedings should have been stayed and restarted before a different judicial officer.
“The appointment as a Judge automatically terminated the appointment as a Magistrate by operation of law. He could not be a judge and a magistrate at the same time in the same body,” the appeal documents read.
“The previous judicial officer had become functus officio, and proceedings were now a nullity. The decisions of Chakanyuka cannot withstand scrutiny in terms of the law. They are invalid and grossly irregular as to implicate this Honourable Court’s powers of review.
“The grossness of the errors of Magistrate Chakanyuka who was being cheered on by the State, is self-evident as she exercised non-existent powers and/or jurisdiction which is undoubtedly and brazenly invalid,” the Appeal documents read.
Appeal court judges, Justice Benjamin Chikowero and Justice Takuva upheld Nyawo’s appeal, setting aside both the guilty verdict and the three-year jail term.
“In the exercise of the court’s powers of review the conviction is quashed and the sentence set aside….,” the court said.
In addressing the merits of the appeal, the court challenged the State’s position. The bench queried Chief Public Prosecutor Kachidza regarding her appreciation of the appointment protocol, specifically noting that a judge’s appointment takes effect upon receipt of their appointment letter, preceding the gazetting process.
The judges concurred with Nyawo’s counsel, ruling that a judicial appointment takes effect the moment it is made, as the oath of office is administered to someone who is already legally a judge. Consequently, they found that Justice Tsikwa lost the jurisdiction to preside over a magistrate’s criminal trial as soon as he was appointed on July 2, 2025—two days before he was formally sworn in.
Consequently, the Court held that the proceedings conducted by Justice Tsikwa between 2 July 2025 and the conclusion of the judgment were a nullity.
The actions of Magistrate Chakanyuka were similarly invalidated, as the judgment was predicated on gross procedural irregularities, rendering the three-year custodial sentence untenable.
