Ndiweni High Court appeal fails to take off

BULAWAYO High Court judges Justices Martin Makonese and Nokuthula Moyo declined to hear dethroned Ntabazinduna Chief Nhlanhlayamangwe Ndiweni's appeal against conviction and sentence in his absence.

Ndiweni (58) was last year declared a fugitive from justice after a Bulawayo magistrate issued a warrant of arrest against the ex-traditional leader for violating his bail conditions.

He ceased to be Ntabazinduna chief on 30 November 2019 and was subsequently stripped of all Government benefits accruing to him.

Ndiweni was in August 2019 sentenced to an effective 18 months in jail for ordering 23 villagers to destroy property belonging to a family that he had banished from his area.

Aggrieved by the conviction and sentence, Ndiweni, through his lawyer Mr Dumisani Dube of Mathonsi Law Chambers, appealed at the High Court challenging the verdict of the lower court.

He cited the State as a respondent.

Ndiweni was, however, later released by Bulawayo High Court judge, Justice Thompson Mabhikwa on $500 bail pending appeal against both conviction and sentence.

As part of the bail conditions, the judge ordered Ndiweni to report once a week on Fridays at ZRP Ntabazinduna and to reside at his given address until the matter was finalised.

He, however, defaulted and reportedly fled to the United Kingdom (UK) under the pretext of seeking medical attention.

Justices Makonese and Moyo were supposed to hear the appeal last Monday but the matter was struck off the roll.

The judges concurred that the appeal will only be heard once the appellant and his subjects have been cleared of contempt of court charges.

"The appeal is struck off the roll and shall not be re-set until the appellants purge their contempt of court," ruled Justice Makonese.

Ndiweni's 23 subjects were ordered to perform community service for destroying the villager's property.

They, however, disregarded the court ruling without making an application for stay of execution of the judgment of the court.

They were also cited as appellants in Ndiweni's appeal.

The High Court also refused to entertain their appeal due to contempt of court.

Ndiweni and the 23 villagers pleaded not guilty to damaging Mr Fetti Mbele's property but were convicted by Bulawayo magistrate, Ms Gladmore Mushove.

They were each sentenced to 24 months of which six months were suspended for five years on condition that they do not within that period commit a similar offence.

Chief Ndiweni was left with an effective 18 months to serve while his subjects had their remaining 18 months wholly suspended on condition that they performed 525 hours of community service at local schools and clinics.

In his heads of argument, Ndiweni through his lawyer, Mr Dumisani Dube of Mathonsi Law Chambers argued that the lower court erred by failing to appreciate that he had no intention or knowledge of wrongdoing that constitutes part of a crime since he was executing a valid court order.

"Whether or not the court a quo erred in failing to appreciate that whatever the first appellant (Ndiweni) did was in terms of what he subjectively believed was within his powers to do so.

The court also failed to appreciate that Ndebele culture and customary law empowered the first appellant to banish any subject convicted of a customary offence," said Mr Dube.

He said the lower court failed to appreciate that the State had not proved beyond reasonable doubt that Ndiweni had no intention or knowledge of wrongdoing when he committed the offence.

"The appellant prays that the conviction and sentence passed against the appellant be set aside and appellant be found not guilty and acquitted.

Alternatively, if conviction is upheld, the first appellant prays that his sentence be substituted with a wholly suspended prison term on condition that he performs 525 hours of community service," said Mr Dube.

The State, which was represented by Mr Thobekani Nyathi opposed the appeal against conviction.

"The respondent prays for dismissal of the appellants' appeal against conviction.

However, the appeal against sentence by the first appellant be upheld and that he be ordered to perform 525 hours of community service," he said.

According to court papers, Mr Mbele of Ntabazinduna was banished from the village by Ndiweni after his wife Ms Nonkangelo Mpengesi was allegedly caught having sex with another villager.

In July 2018, Ndiweni, who was then the chief, ruled that Mr Mbele and his "adulterous" wife should be banished from Sifelani Village, saying "prostitution" will not be tolerated in his area.

It is stated in court papers that on July 26 in 2017 at around 4PM, Mr Mbele and his wife arrived from Bulawayo to find some villagers standing outside their homestead.

Kimpton Sibanda (72), a village head and two other villagers, claimed they were ordered by Ndiweni to destroy Mbele's garden fence and kraal.

Sibanda instructed the villagers to destroy the fence and kraal.

At around 5PM, Ndiweni arrived and ordered the villagers to continue destroying Mr Mbele's fence and kraal.

The order followed Mr Mbele's alleged defiance of Ndiweni's verdict to divorce his wife.

Ndiweni had given a ruling that Mr Mbele's wife should vacate her husband's home but she did not comply with the order since they had resolved the matter as a couple prompting the then chief to order the destruction of his fence and kraal.