High Court warns Kombi drivers, touts

The kidnapping and attack of the police officers humiliates and causes general disrespect to the police force and it will not be condoned, the High Court of Appeal judges Martin Makonese and Andrew Mutema have said.

They said this last week while delivering sentence in an appeal case filed by three touts Mthulisi Tshuma, Luckmore Chigogo and Mkhululi Sibanda.

Tshuma, Chigogo and Sibanda were found guilty and sentenced to 48 months in prison by the West Commonage Court trial Magistrate Maphios Moyo for kidnapping a police officer in uniform and on duty at Emakhandeni in 2012. Chigogo was freed by the High Court of Appeal after the state conceded that there was not enough evidence to warrant a conviction.

However, Justice Makonese and Mutema upheld the 48 months sentence against Tshuma and Sibanda in a unanimous ruling agreeing that the trial magistrate rightly convicted the two appellants after weighing all the relevant evidence. Justice Makonese added that the offence committed by Tshuma and Sibanda was serious and it should be treated as such.

"Court is concerned about the incidents of Kombi drivers, touts and rank marshals who impede the police in carrying out their duties. Such behavior tend to cause disrespect to the police force in general," said Justice Makonese,

However, Tshuma and Sibanda through their lawyer Taboka Nyathi also told the High Court of Appeal bench that the trial magistrate erred by convicting them as the evidence presented in court was unsubstantiated.

"The Court a quo erred in convicting the Appellants on the uncorroborated evidence of a single witness as the other witness who was called by the state could not give meaningful account of what transpired save to state complainant bought a candle and that  Tshuma was arrested for urinating in public," said Nyathi through notice of appeal.

"The court misdirected itself in convicting the Appellants when their guilt was not proven beyond reasonable doubt and when there was a possibility that the complainant got into the Kombi out of his own volition and an independent witness testified to that effect and this was corroborated by all the accused persons."

In his response to the touts grounds of Appeal magistrate Moyo told the High Court of Appeal that Tshuma was reprimanded for public urinating at Woza Woza shops in Emakhandeni. Tshuma tried to run away but the police officer held him. Thereafter Tshuma's accomplices stormed out of their Kombi vehicle and aggressively advanced towards the police officer demanding an explanation.

"Those people and many others who had gathered were shouting in isiNdebele saying Umpholisa lo uyazenzisa. Asihambeni laye meaning this officer is silly. Let us take him away with us," said Moyo.

He added that Tshuma who was forcibly released from the grip of the police officer reversed his Kombi to where the police officer was. "When Tshuma finally stopped the vehicle, the police officer was bundled inside and ordered to sit on the middle seat. In this regard the police officer never wanted to be in the vehicle at all. As the vehicle moved Tshuma's accomplices started assaulting the police officer indiscriminately with clenched fists. The officer was further struck with a bottle once on the back of the head and once on the side of the head," added Moyo.

"He produced a medical report in respect of the injuries he sustained on the head. It also indicates that the degree of force applied was severe and that the injuries sustained were serious."