News / National
Machaya in fresh bid to get out of jail
04 Feb 2021 at 05:56hrs | Views
JAILED former Midlands Provincial Affairs Minister Jason Machaya has filed an application for leave to appeal at the Supreme Court after his application for bail pending appeal against conviction and sentence was dismissed by the Bulawayo High Court judge Justice Christopher Dube-Banda.
Machaya (68) and his accomplice provincial planning officer Chaisayanyerwa Chibururu (50) were last year in September each sentenced to 48 months imprisonment for criminal abuse of office. Chibururu has however, since been released on $50 000 bail pending appeal.
They were convicted by provincial magistrate Ms Charity Maphosa for unlawfully allocating 17 799 stands to land developers in Gokwe town, who in turn gave the pair 1 000 stands worth US$900 000 which was computed as $900 000 in local currency.
The court ruled against an application by the State for the accused persons to pay restitution of 1 000 stands to Gokwe town saying they had benefitted nothing from the criminal abuse of office charges.
The court also ruled against the State's application to call to the witness stand a Government estate evaluator to give the new value of the stands.
In dismissing Machaya's application for bail pending appeal, Justice Dube-Banda said the applicant failed to discharge the onus upon him to proffer positive grounds warranting his release. Machaya, who is challenging his conviction and sentence under case number HCA90/20, through his lawyers Mbidzo, Muchadehama and Makoni Legal Practitioners, yesterday filed a fresh application at the Bulawayo High Court for leave to appeal at the Supreme Court.
In his grounds of appeal, Machaya said Justice Dube-Banda misdirected himself by denying him bail on the basis that he would abscond, arguing that there was no evidence suggesting that he was flight risk.
"The court also erred in holding that there was no prospect of success when there were such prospects of success on both conviction and sentence," he said.
Machaya said the High Court ignored his explanation and evidence, arguing that the essential elements of the offence had not been proved.
"In regard to sentence this court's default position was that sentencing was in the direction of the trial court. The court even sought to magnify the aggravating factors in the matter. The harshness of the sentence imposed show that up-service was done to the factors of mitigation I had advanced," he argued.
"I feel discriminated by the court when it granted bail to my co-appellant and denied me bail. I have a right to appeal to the Supreme Court or Constitutional Court and it is my intention to appeal against the conviction and sentence right up to the last court, whatever it takes."
Machaya said due to the Covid-19 measures that are being implemented by the courts, the delay of the prosecution of his appeal will be rendered useless if he is not granted bail.
"In the circumstances, I pray that I be granted leave to appeal this court's refusal to grant me bail pending appeal to the Supreme Court," he said.
The State is yet to respond to Machaya's latest application. Initially, the State, which was represented by Mr Khumbulani Ndlovu had opposed the application, which Machaya had jointly filed with Chibururu, arguing that there was no guarantee that if released on bail the two appellants would not abscond.
Mr Ndlovu said the appellants lost the benefit of the presumption of innocence following their conviction.
According to court papers, between 2011 and 2017, Machaya used his official powers to acquire 1 000 residential stands that were available in Mapfungautsi suburb in Gokwe town.
The area is under Gokwe Town Council's administration and Machaya's conduct was contrary to Government policy which authorises the Local Government Ministry to acquire only 10 percent of residential stands.
Due to Machaya's conduct, Gokwe Town Council lost revenue. Machaya further imposed a land developer, Striations World Marketing Property Developers, to service and sell stands without following proper tender procedures.
In 2013, Machaya made verbal demands to Gokwe Town Council to release 1 000 stands as opposed to written requests made by the Local Government Ministry.
Machaya (68) and his accomplice provincial planning officer Chaisayanyerwa Chibururu (50) were last year in September each sentenced to 48 months imprisonment for criminal abuse of office. Chibururu has however, since been released on $50 000 bail pending appeal.
They were convicted by provincial magistrate Ms Charity Maphosa for unlawfully allocating 17 799 stands to land developers in Gokwe town, who in turn gave the pair 1 000 stands worth US$900 000 which was computed as $900 000 in local currency.
The court ruled against an application by the State for the accused persons to pay restitution of 1 000 stands to Gokwe town saying they had benefitted nothing from the criminal abuse of office charges.
The court also ruled against the State's application to call to the witness stand a Government estate evaluator to give the new value of the stands.
In dismissing Machaya's application for bail pending appeal, Justice Dube-Banda said the applicant failed to discharge the onus upon him to proffer positive grounds warranting his release. Machaya, who is challenging his conviction and sentence under case number HCA90/20, through his lawyers Mbidzo, Muchadehama and Makoni Legal Practitioners, yesterday filed a fresh application at the Bulawayo High Court for leave to appeal at the Supreme Court.
In his grounds of appeal, Machaya said Justice Dube-Banda misdirected himself by denying him bail on the basis that he would abscond, arguing that there was no evidence suggesting that he was flight risk.
"The court also erred in holding that there was no prospect of success when there were such prospects of success on both conviction and sentence," he said.
Machaya said the High Court ignored his explanation and evidence, arguing that the essential elements of the offence had not been proved.
"In regard to sentence this court's default position was that sentencing was in the direction of the trial court. The court even sought to magnify the aggravating factors in the matter. The harshness of the sentence imposed show that up-service was done to the factors of mitigation I had advanced," he argued.
"I feel discriminated by the court when it granted bail to my co-appellant and denied me bail. I have a right to appeal to the Supreme Court or Constitutional Court and it is my intention to appeal against the conviction and sentence right up to the last court, whatever it takes."
Machaya said due to the Covid-19 measures that are being implemented by the courts, the delay of the prosecution of his appeal will be rendered useless if he is not granted bail.
"In the circumstances, I pray that I be granted leave to appeal this court's refusal to grant me bail pending appeal to the Supreme Court," he said.
The State is yet to respond to Machaya's latest application. Initially, the State, which was represented by Mr Khumbulani Ndlovu had opposed the application, which Machaya had jointly filed with Chibururu, arguing that there was no guarantee that if released on bail the two appellants would not abscond.
Mr Ndlovu said the appellants lost the benefit of the presumption of innocence following their conviction.
According to court papers, between 2011 and 2017, Machaya used his official powers to acquire 1 000 residential stands that were available in Mapfungautsi suburb in Gokwe town.
The area is under Gokwe Town Council's administration and Machaya's conduct was contrary to Government policy which authorises the Local Government Ministry to acquire only 10 percent of residential stands.
Due to Machaya's conduct, Gokwe Town Council lost revenue. Machaya further imposed a land developer, Striations World Marketing Property Developers, to service and sell stands without following proper tender procedures.
In 2013, Machaya made verbal demands to Gokwe Town Council to release 1 000 stands as opposed to written requests made by the Local Government Ministry.
Source - chronicle
