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High Court judges slate prosecutors

by Staff reporter
17 Sep 2019 at 07:30hrs | Views
BULAWAYO High Court judges yesterday lambasted prosecutors from the lower courts, saying they lacked enthusiasm and determination in their approach to legal matters resulting in wrongly convicted persons being acquitted on appeal.

Justices Maxwell Takuva and Thompson Mabhikwa took turns to berate prosecutors in the magistrates' courts, saying they lacked a better understanding of the law as evidenced by concessions by the State on appeal at the High Court.

The two judges, who were presiding over criminal appeals at the Bulawayo High Court, said there was laxity in the manner in which prosecutors in the lower courts handled criminal matters.

"There is laxity in terms of prosecution in the lower courts, which in most cases results in concessions and subsequently acquittals when the matters are brought here on appeal. In some cases, you find that exhibits are not even produced in courts, which in itself is a reflection of insouciance and poor prosecution. If fact, they lack thoroughness in handling matters," said Justice Takuva.

His anger was directed at Beitbridge regional court prosecutor Mr Munyonga Kuvarega whom he described as exuding lack of understanding of the law when he handled a matter involving a senior army cleric who was last year jailed six years for "stealing" a car belonging to a Gwanda businessman and stripping it.

Solomon Ndlovu (50), a captain in the Zimbabwe National Army (ZNA) and chaplain at Mbalabala Barracks, was in January last year convicted of theft of a motor vehicle by Beitbridge regional magistrate Mr Mark Dzira after a full trial.  Ndlovu was yesterday acquitted after successfully challenging his conviction and sentence before Justices Takuva and Mabhikwa.

The State, which was represented by Mr Khumbulani Ndlovu, conceded to the appeal, saying the matter was more civil than criminal.

Justice Takuva described as "nonsensical" the record of proceedings, saying it was full of irrelevant and unhelpful information.

"There is a need for someone to be serious about their work. It is absolutely nonsensical to bring a whole lot of documents to the High Court for us to go through when the information contained would be irrelevant. It's an issue of concern to us when the law is not being followed by prosecutors in the lower courts, particularly in this matter before us," he said.

Justice Mabhikwa weighed in: "Clearly, it appears the appellant (Solomon Ndlovu) in this matter got into a deal with the complainant, which could have somehow gone sour resulting in him reporting a case of vehicle theft. The prosecutor who handled the matter took a lackadaisical approach in this matter, a problem that is now more pronounced in the lower courts.

"The appeal is hereby allowed and both conviction and sentence are set aside. Accordingly, the appellant is found not guilty and acquitted".

Ndlovu was sentenced to six years in jail of which two months were suspended for five years on condition of good behaviour.  

A further six months were suspended on condition he restituted the businessman $2 500 leaving him with an effective 64 months to serve. Ndlovu allegedly borrowed a Toyota Hilux vehicle from the businessman, Mr Osfael Mazibuko and later stripped and stole the engine and gearbox.

He then fitted the engine and gearbox onto another vehicle. Aggrieved by both conviction and sentence, Ndlovu, through his lawyer Mr Abel Ndlovu of Dube and Associates, filed an appeal at the Bulawayo High Court citing the State as a respondent.

In his grounds of appeal, Ndlovu said Mr Dzira erred and misdirected himself by attaching a criminal liability to him for deviating and failing to perform according to the agreement that allowed him to take lawful possession and use the car. He argued that the agreement between himself and Mr Mazibuko was purely a civil matter.

"The trial court misdirected itself in holding that the State had proven the existence of my intention to deprive the owner permanently yet there was no evidence of the complainant demanding back the car any time before someone reported on his behalf," said Ndlovu.  

He argued that there was misdirection on the part of the magistrate who convicted and sentenced him. Ndlovu said the sentence imposed by the lower court was excessive and harsh such that it induced a sense of shock and revulsion. The State did not oppose the application, saying both the conviction and sentence were not proper.  

The complainant, who lives in Bulawayo, owns Fast Track Electrical Company in South Africa and runs farming and conservancy projects in Zimbabwe. According to State papers, sometime in July 2016 while in Bulawayo, Ndlovu was given the Toyota Hilux by Mr Mandla Sibanda, a manager at Mr Mazibuko's farm who had received instructions via the phone to do so from his boss.

On March 30 last year, Ndlovu drove the car from Bulawayo to Zezani turnoff along the Bulawayo-Beitbridge road. He then contracted a mechanic, Mr Norbert Mazhambe, who is employed by one Mr Lizwe Ndlovu, to remove the vehicle's engine and gearbox.

Mr Mazhambe removed the engine and gearbox as instructed before fitting them onto a Mazda B2200 vehicle. Ndlovu then dumped the Toyota Hilux body at Zezani turnoff. The offence was discovered when Mr Dennis Ndlovu found the vehicle body dumped and called Mr Mazibuko.  

A report was made to the police leading to Ndlovu's arrest.


Source - chronicle

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