Judge recuses himself from opposition activists' public violence appeal

Judge Christopher Banda-Dube of the Bulawayo High Court has withdrawn from presiding over a court application involving former deputy mayor Mlandu Ncube and his associates. They were seeking to challenge their convictions related to public violence.

Ncube and six others had been convicted and sentenced by Bulawayo Magistrate Sithembiso Ncube to 12 months in prison, with six months suspended on the condition of good behavior, and the remaining six months commuted to 210 hours of community service each. Represented by Prince Butshe of Mathonsi Ncube Law Chambers, the group had filed an appeal at the Bulawayo High Court to overturn both their convictions and sentences.

Justice Dube-Banda's recusal led to the removal of the case from the court's docket.

According to court documents, the public violence incidents occurred in 2018, resulting in more than 15 people injured, four damaged vehicles, and five office windowpanes destroyed at the then-united MDC-T's provincial offices in Bulawayo.

In their grounds of appeal, the appellants contended that the lower court had made an error by relying on the testimony of accomplice witnesses without appropriately considering the risks of relying on uncorroborated evidence.

"The lower court erred in applying a boxing ring approach to assign blame to the appellants. The evidence presented was primarily that of the State witness against that of the appellants. Consequently, the appellants request that the appeal be upheld, and their convictions be overturned," argued Butshe.

The appellants argued that the State had not presented direct evidence in court to prove that they had violated section 36(1)(a) of the Criminal Law (Codification and Reform) Act.

"It is argued that the appellants were victims of circumstance and should not have been found guilty solely based on their presence at the premises. The appellants made it clear before the lower court that they were present but did not participate in the public violence," Butshe asserted.

He further contended that, as a matter of principle, the lower court should have ensured that the essential elements of the case were proven beyond a reasonable doubt, and that witnesses corroborated each other's accounts before convicting the appellants.

"In this case, if the lower court had exercised extreme caution, considering the contradictory evidence, the magistrate would not have found the appellants guilty. Consequently, it is argued that this is not a suitable case in which the appellants should have been convicted of violating section 36 of the Criminal Code," Butshe argued.

On behalf of the State, Kudakwashe Jaravaza opposed the application, asserting that the lower court had not erred in finding all the appellants guilty, as they had been identified by all testifying witnesses.

"It is evident that the appellants were present at the crime scene, and there is no conceivable way that the complainants would have caused property damage or inflicted injuries upon themselves to falsely implicate the appellants. The evidence on record conclusively demonstrated that the altercation involved individuals who were familiar with one another, and the violence occurred over an extended period," he stated.

"In cases of this nature, it is my view that it was unnecessary for the State to determine individual actions; what mattered was establishing that the appellants had acted in concert with others to engage in criminal activities."

Jaravaza contended that the appellants had not disavowed themselves from the unlawful actions of their associates.

"Therefore, it is my position that the court did not err in finding all the appellants guilty, as they were positively identified by all the witnesses who gave testimony. Consequently, I request that the application be dismissed," he concluded.