Kumalo Primary School headmistress acquitted

STELLA MHLANGA, the Kumalo Primary School headmistress who was facing charges of peddling -ornographic material has been acquitted.

Mhlanga was in court for contravening Section 26 of the Censorship and Entertainment Control Act Chapter 10:04 (Possession of prohibited articles).

The accusations against her arose after claims that she accidentally shared a revealing picture of her private parts on her WhatsApp status.

In acquitting her, Bulawayo magistrate Marygold Ndlovu ruled that the State failed to establish essential elements of the charges levelled against her.

Ndlovu ruled that the evidence led on behalf of the State did not prove whether the images recovered through a forensic software were the same ones posted on her WhatsApp status.

"In the court's view, the fact that the images were only recovered through a forensic software makes the accused person's defence that everything was cleared at the time she received the cellphone reasonably possibly true.

"It is equally possible that these images had been deleted prior and were not visible in the gallery with a naked eye.

This possibly is further strengthened by the second State witness' findings that this cellphone was not the one used to post pornographic pictures to the accused's WhatsApp status.

"Further the evidence led on behalf of the State did not prove whether these are the same images posted to accused person's WhatsApp status.

"Had the State led evidence to prove that these were the same images posted on accused person's WhatsApp status the court could have been persuaded that accused had been in possession of the images at that time and had deleted them to conceal evidence.

"In case the court finds no reason to dismiss the accused's defence as not reasonably possibly true. In the premises, the State has failed to prove its case beyond reasonable doubt and the accused person is accordingly found not guilty and acquitted," ruled Ndlovu.

In her defence outline, Mhlanga through her lawyer Byron Sengweni of Sengweni Legal Practice stated that she was not in possession of the alleged pornographic content. She stated that sometime in December 2019 she received a phone from her sister Sibusisiwe Moyo who is based in South Africa after her phone had been stolen by her maid.

"Before handing the phone to the accused, the accused's sister cleared the phone memory and when she received the phone there was absolutely nothing in it. She will also deny ever posting pornographic images on her WhatsApp. The images were not posted via her phone but via some unknown device.

"She will further state that upon receiving news that offensive material had been posted on her WhatsApp she was advised that she had been hacked and was also advised to restore her phone to factory settings. When she restored the phone she lost all the data in her phone but even before that she maintains that she did not have any offensive material," her defence outline reads in part.

She argued that she was advised to stop using the phone in case the hackers may attempt to hack it again.

At the close of the State's case, her lawyer filed an application for discharge and in their application, they submitted that the State had failed to prove a prima facie case against the accused and that the evidence was unreliable.

It also submitted that the State had also failed to prove that accused had knowledge of the images or that the said images were in her gallery as the witnesses did not physically browse the gallery.

In response the State submitted that a prima facie case had been proven.

The State argued that the cellphone in question was seized from accused person and four pictures of an indecent nature were retrieved from the cell phone.

"The State will submit that it has a prima facie case against the accused for the following reasons: It is common cause that the accused person was in direct physical control of the Samsung cell phone with the serial number R58FBOTKJZZ. It is common cause the four pictures of an indecent or obscene nature were recovered from the accused person's Samsung cellphone with the serial number R58FBOTKJZZ.

"It is common cause that the accused person knew that they were prohibited images on her phone as she did see a nude picture on her WhatsApp status," argued the State.

Allegations which were levelled against Mhlanga were that on 2 August 2021, a tip-off was received at Provincial Victim Friendly Unit to the effect that she had posted pornographic material on her WhatsApp status.

Mhlanga is alleged to have taken down the uncensored picture, but not before some of her contacts including teachers and parents with children at her school, had saved it and forwarded it to their friends.

Investigations were later carried out by the police leading to her arrest. Upon her arrest her cell phone Samsung N910F Galaxy Note was also seized and taken to the police station.

The seized cellphone was then referred to CID National Cyber Forensics Laboratory, Bulawayo for examination.

During the forensic examinations four pornographic images were allegedly retrieved from her phone.