Justice Elias Musakwa said he had not seen "any provision that empowers a magistrate who thinks that he or she has erred to refer such matters for review by a High Court judge before the proceedings have been concluded."
"Where a magistrate errs or blunders, he or she must live with that error unless one of the parties before the court moves to take corrective action. I do not think that the review mechanism is designed to cater for errors made by a magistrate before the proceedings have been concluded," Justice Musakwa added.
The High Court would be "clogged" with such cases if magistrates "routinely refer cases for review at every turn."
Harare magistrate Gloria Takundwa asked for the High Court's opinion after a top prosecutor – who had earlier been prevented from prosecuting Biti after being found to lack impartiality – described her ruling as "either brave, very stupid or both".
The case has raised questions about external interference in court proceedings, with the magistrate seeking a review of her decision after scathing criticism from Chief Prosecutor Michael Reza, who sent the stinging text message to Thabani Mpofu, who heads the President's Special Prosecutions Unit.
Reza, in the text message to Mpofu, which was leaked to Biti's defence team and brought up in court, appeared to suggest Takundwa could not make the decision without approval from Chief Justice Luke Malaba.
Seeking a review of her decision, Takundwa said: "I am of the firm view that jurisdiction was absent in light of the fact that the application for media live streaming was done in terms of the right to access to information.
"I granted the order in error in that no specific media house was appointed nor mentioned and whether such media house is licenced.
"There is no law regulating such an application so the court acted outside the confines of the law."
Justice Musakwa did not get into the merits of whether Takundwa acted outside the law. Instead, the judge said once the decision was made it stood unless either the defence or the prosecution elected to challenge it – which so far did not appear to be the case.
"It is also apparent that despite the state having opposed the application, it does not seem to be aggrieved by the order," the judge said.
In finality, the judge said he "declined to consider the matter for review as requested."
Lawyer and MDC official David Coltart said on Twitter: "It's utterly bizarre that a m agistrate should give a ruling like this – which simply confirms fundamental Constitutional rights in the first place – and then has second thoughts. The question I have is why did the magistrate have second thoughts- was there any political pressure?"
Biti is on trial for allegedly breaching election rules by announcing unofficial results which he said showed MDC leader Nelson Chamisa had won elections held on July 30.
The Electoral Act says only the Zimbabwe Electoral Commission can announce election results.
Biti, who is also the MDCs deputy national chairman, has challenged his prosecution at the High Court, and wants the charges dismissed.
