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Mzaca appeals for freedom

by Staff reporter
15 Apr 2020 at 19:53hrs | Views
ANTI-Government activist, Josphat "Mzaca" Ngulube who is serving seven years in jail for burning three vehicles belonging to Zanu-PF Bulawayo provincial women's league chairperson, Eva Bitu during last year's January violent protests, has approached the High Court for bail pending appeal.

Ngulube (33) of Sizinda suburb, a Bulawayo South Constituency losing independent candidate in the July 2018 harmonised elections, ganged up with Fortune Masuku (30), Melusi Moyo (33) and Otilia Sibanda (35) and burnt the three vehicles in Sizinda suburb during the protests.

They were convicted for public violence and malicious damage to property by Bulawayo magistrate Mr Tinashe Tashaya. They were each sentenced to an effective six years in jail after one year was suspended on condition that they do not commit a similar offence in the next five years.

Ngulube, through his lawyer Mr Nqobani Sithole of Ncube and Attorneys, filed an application for bail pending appeal against conviction and sentence at the Bulawayo High Court under HCA193/19, citing the State as a respondent.

In his bail statement, Ngulube said his appeal challenging both conviction and sentence had prospects of success, arguing that the evidence adduced by the State failed to sustain the allegations raised against him beyond reasonable doubt.

"The evidence on record clearly did not prove the State allegations against the applicant. In fact, as a result of the size of the crowd that went to Eva Bitu's house, most State witnesses could not identify the perpetrators of the criminal offence," said Ngulube.

"Those that witnesses could identify were never brought to court with the applicant. Evidently, in the circumstances the State did not prove its case beyond reasonable doubt."

He said the evidence adduced in court and on record proved that there was strong political rivalry between himself and the State witnesses thus compromising the veracity of their testimonies.

"In fact, one of the State witnesses Ever Bitu even admitted during cross examination that I was disrespectful and that during the campaigns I insulted her and her political party leadership," said Ngulube.

He said he produced a video indicating that on the day in question he was attending a funeral, which the magistrate dismissed.

"On that note the trial court misdirected itself by reasoning that the applicant was supposed to prove its case beyond reasonable doubt. Further, and alternatively, the applicant's appeal against sentence enjoys prospects of success in that the trial court erred and improperly exercised its discretion in passing the sentence," said Ngulube.

Mr Sithole argued that there was no evidence that his client pre-planned or acted in cahoots with his accomplices that was adduced by the State.

"The applicant avers that his conviction and sentence was improper and his appeal enjoys prospects of success on appeal as the appeal court is likely to interfere and set aside his conviction and sentence by the trial court," said Mr Sithole.

Ngulube offered to $2 000 bail and to report once every two weeks at Tshabalala Police Station as part of the bail conditions.

He said he was not a flight risk, arguing that if released on bail he would continue residing at his given address until the finalisation of his appeal.

In his grounds of appeal, Ngulube said the lower court erred by placing reliance on the evidence of suspect State witnesses whose testimonies did not corroborate each other in material respect.

"The magistrate erred in arriving at the conclusion that the State witnesses were credible, against the reality of conflicting and contradicting State witnesses' evidence. The magistrate erred in failing to assist the appellant to fairly prosecute his defence by failing to direct the State to produce evidence tending to exonerate the appellant from the offence, which evidence is held by State functionaries," he argued.

The State is yet to respond.

According to the state, on January 14 last year at around 7AM, Ngulube and about 100 other protesters, unlawfully blocked the free movement of traffic at an intersection between Sizinda Road and Nketa Drive.

The mob confronted Bitu at her home in Sizinda accusing her of benefiting from taxpayers' money.

They threw stones and damaged window panes before pushing Bitu's Ford Ranger out of the yard and set it on fire.

The accused persons returned to the yard where they had left a Nissan NP300 and a Toyota Vitz. They also set alight the Nissan NP 300 whose flames partly destroyed the Toyota Vitz.

The Ford Ranger and Nissan NP300 were reduced to shells.

The total value of the destroyed property is US$95 000.

Source - chronicle