Machaya acquitted

FORMER Midlands Provincial Affairs Minister Jason Machaya and provincial planning officer Chaisayanyerwa Chibururu who recently completed their 48 months imprisonment term for criminal abuse of office had their conviction quashed by the High Court following an appeal.

Machaya (71) and Chibururu (53), were in September 2020 convicted by provincial magistrate Ms Charity Maphosa for unlawfully allocating 17  799 stands to land developers in Gokwe town, who in turn gave them 1  000 stands worth US$900 000 which was computed as ZW$900 000.

The court ruled against an application by the State for Machaya and Chibururu to pay restitution of 1 000 stands to Gokwe town saying they had benefited nothing from the criminal abuse of office charges.

The court also ruled against the State's application to call to the witness stand a Government estate evaluator to give the new value of the stands.

Jason Machaya

Dissatisfied with both conviction and sentence Machaya and Chibururu through their lawyers Mbidzo, Muchadehama, and Makoni Legal Practitioners, filed an appeal at the Bulawayo High Court challenging the lower court's decision under case number HCA90/20.

In acquitting Machaya and Chibururu, Bulawayo High Court judge Justice Evangelista Kabasa who was sitting with Justice Nokuthula Moyo during a criminal appeals court, ruled that the case against the appellants was not proved beyond a reasonable doubt.

"We, therefore, came to the conclusion that the case against the appellants was not proved beyond a reasonable doubt. The conviction is therefore not safe and cannot stand, and with the conviction being vacated, the sentence equally falls away," he ruled.

"In the result, the appeal be and is hereby allowed and the decision of the court a quo is set aside and both accused persons are found not guilty and acquitted."

Justice Kabasa said the finding by the lower court that Machaya and Chibururu flouted due process for the purpose of showing favour to Striations under the pretence of pursuing Government and public interest including bullying Gokwe Town Council to apportion the land and ultimately selling it to the detriment of the targeted beneficiaries, was not borne out by the evidence.

"The court a quo, therefore, made findings and reached conclusions not borne out by evidence, and therein lies the misdirection. The appellate court can interfere with the court a quo's findings if such findings are not supported by the evidence," she said.

In their grounds of appeal, the appellants argued that the lower court erred in convicting them when the evidence by State witnesses failed to establish the offence which they were charged for.

"The court a quo erred and misdirected itself in holding that the first appellant (Machaya) had no right to call Gokwe Town Council officials to a meeting when his duties allowed him to do so," argued the appellants' lawyers.

"The court a quo erred and misdirected itself in holding that the 1 000 stands given to Striations were commonage stands and thus failed to appreciate that the principle that a crime must be proved to have occurred before a person can be convicted of committing that crime, was no existent."

They said the lower court erred by imposing a sentence that did not take into account the mitigatory factors and overemphasised the aggravatory ones.

"The court a quo erred in coming up with a wholly inappropriate sentence which is not in line with precedent and which was informed by irrelevant consideration," argued the appellants.

According to court papers, between 2011 and 2017, Machaya allegedly used his official powers to acquire 1 000 residential stands that were available in Mapfungautsi suburb in Gokwe town.

The area is under Gokwe Town Council's administration and Machaya's conduct was contrary to Government policy which authorises the Local Government Ministry to acquire only 10 percent of residential stands.

Due to Machaya's conduct, Gokwe Town Council lost revenue.

Machaya is alleged to have further imposed a land developer, Striations World  Marketing  Property Developers, to service and sell stands without following proper tender procedures.

In 2013, Machaya made verbal demands to Gokwe Town Council to release 1 000 stands as opposed to written requests made by the Local Government Ministry.