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Fidelis Fengu challenges court's restitution order
01 Dec 2015 at 05:14hrs | Views
Political activist Fidelis Fengu, who was jailed for masquerading as an immigration principal director and forging a letter for a Chinese who wanted a residence permit, has approached the court seeking suspension of restitution pending his appeal.
Fengu was sentenced to 12 months in jail and four months were suspended for five-years on condition he does not commit a similar offence.
The magistrate Mr Tendai Mahwe, suspended another four months on condition that he restitutes $2 000 before or on November 30.
Mr Mahwe effected four months, but Fengu was granted bail pending appeal at the High Court.
He is appealing against both conviction and sentence.
In his application through his lawyer, Mr Rungano Mahuni, Fengu argued that the court misdirected itself in ordering the restitution. He also argued that if he is to restitute the complainant, he would suffer prejudice in the event that his appeal succeeds.
"The court in its reasons for judgment it alluded to the fact that both parties knew each other and also knew that what they were doing was illegal.
"The argument is simply that it is against public policy that courts should be made to bless illegal transactions. The court erred by ordering restitution. This is a case were a loss must lie were it falls," he said.
The State led by Miss Samantha Dlamini, opposed the application saying that Fengu should pay back the complainant.
"If a court grants a ruling for restitution, it must be obeyed and that order cannot be suspended. What the court did was appropriate. Your Worship the application must be dismissed for there are no prospects of success," she said.
Mr Mahwe rolled over the matter to today for ruling.
Between July 16 and July 23, Fengu and his accomplice Francis Hungwe, received $2 000 from Guo Nyogwei to facilitate the processing of a residence permit on behalf of Mr Shu Xiaofeng.
This was after Mr Shu's previous application was rejected by the immigration department.
Fengu and Hungwe produced a fake document, which they photocopied and gave to Shu.
They lied that the document was issued by the immigration department and was genuine.
Mr Shu presented the document to immigration on July 23 assuming that it was genuine.
On verification, the immigration department discovered that the document was fake.
Investigations by the Immigration Department also showed that Mr Shu had been previously denied a permit and had a pending appeal.
Mr Shu caused the arrest of Hungwe who implicated Fengu.
Fengu was sentenced to 12 months in jail and four months were suspended for five-years on condition he does not commit a similar offence.
The magistrate Mr Tendai Mahwe, suspended another four months on condition that he restitutes $2 000 before or on November 30.
Mr Mahwe effected four months, but Fengu was granted bail pending appeal at the High Court.
He is appealing against both conviction and sentence.
In his application through his lawyer, Mr Rungano Mahuni, Fengu argued that the court misdirected itself in ordering the restitution. He also argued that if he is to restitute the complainant, he would suffer prejudice in the event that his appeal succeeds.
"The court in its reasons for judgment it alluded to the fact that both parties knew each other and also knew that what they were doing was illegal.
"The argument is simply that it is against public policy that courts should be made to bless illegal transactions. The court erred by ordering restitution. This is a case were a loss must lie were it falls," he said.
The State led by Miss Samantha Dlamini, opposed the application saying that Fengu should pay back the complainant.
Mr Mahwe rolled over the matter to today for ruling.
Between July 16 and July 23, Fengu and his accomplice Francis Hungwe, received $2 000 from Guo Nyogwei to facilitate the processing of a residence permit on behalf of Mr Shu Xiaofeng.
This was after Mr Shu's previous application was rejected by the immigration department.
Fengu and Hungwe produced a fake document, which they photocopied and gave to Shu.
They lied that the document was issued by the immigration department and was genuine.
Mr Shu presented the document to immigration on July 23 assuming that it was genuine.
On verification, the immigration department discovered that the document was fake.
Investigations by the Immigration Department also showed that Mr Shu had been previously denied a permit and had a pending appeal.
Mr Shu caused the arrest of Hungwe who implicated Fengu.
Source - the herald
