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The truth behind Temba Mliswa, Paul Westwood and Never Katiyo contested case

24 Jun 2020 at 17:47hrs | Views
There has been a talk about Temba Mliswa and Westwood and the criminal activities Temba is alleged to have committed abusing ZANU PF and the first family then. A lot of complaints were lodged and accusations and counter-accusations.

Zimbabwe prides itself in the rule of law and in all the procedures the nation puts its trust in the due process. We are Zimbabweans and we surely have our own way. There are two models in crime-fighting which are crime control and due process. Both models try to tackle crime and punish the people who have committed a deviant act. For example, the crime control model would say a person is guilty until proven innocent by the courts, whereas the due process model would say that an individual is innocent until proven guilty. The crime control model and the due process model, represent the two competing systems of values operating within criminal justice. The tension between the two accounts for the conflict and disharmony that now is observable in the criminal justice system.

In the Zimbabwean system, due process prevails, the most important function of criminal justice should be to provide due process or fundamental fairness under the law. Police powers should be limited to prevent official oppression of the individual. The government shouldn't hold a person guilty solely on the basis of the facts; a person should be found guilty only if the government follows legal procedures in its fact‐finding.

So the case of Temba Mliswa was dealt with according to the Zimbabwean laws and unfortunately for Mr Westwood Temba was acquitted.

Temba Mliswa, who is now an independent MP, is a Former Warriors fitness trainer and businessman was acquitted on charges of trying to wrestle a million-dollar vehicle accessories company, Noshio Investments, from Paul Westwood. In this charge, he was together with five other people.

The problem we have is we judge these cases on emotions and in the social media. Mliswa in the eyes of every layperson was guilty and indeed there was no need to try him but to send to prison and throw away the keys. Temba is a loudmouth person who made many people angry. But his character was not supposed to be punishable by detention.

Zimbabwe was at a time where the police were a law unto themselves. The police became judges and everything. We reached all-time low when the police control the court. The police had purely no five O levels but some doctorate they forced their subordinates to write for them, and then they wanted to judge the judges. At one time the Police arrested the whole court for granting a suspect bail. On the 10th January 2004, a senior magistrate of Harare Mrs. Caroline Chigumira together with a public prosecutor from Harare Magistrates Court Mrs. Blessing Gorejena-Chinawa and a very senior Harare lawyer Mr. Wilson Manase were arrested and detained by members of the Zimbabwe Republic Police. Mrs. Chigumira, a magistrate of 15 years' service was arrested at her office in a manner that reminds us of the arrest of Justice Benjamin Paradza. Preliminary investigations by Zimbabwe Lawyers for Human Rights (ZLHR) show that the three were arrested and detained merely for doing their job in a manner, which caused dissatisfaction to some elements within the state. The initial view of ZLHR is that this is yet another case where members of the legal profession have become subject to harassment merely for doing their job. The police seem to have again fallen into the error of arresting first and investigating later. As usual, the timing of the arrest was consistent with the practice of arresting around the weekend in order to maximize the possible pre-trial incarceration of suspects especially in cases where the prospects of a successful prosecution are seen as remote as in this case.
During this time Chihuri had become the law unto himself and the police became something else.

In Temba Mliswa's court hearing the court gave a ruling, according to the Regional Magistrate Never Katiyo a very learned and reasonable magistrate he said.

"No reasonable court acting carefully could convict the accused persons and putting them on their defence would be bolstering the State case," regional magistrate Never Katiyo said before acquitting Mliswa, Hammarskjold Banda, Brendaly Banda, Alfred Mwatiwamba, Martin Mutasa and George Marere.

The acquittal followed an application for dismissal of case at close of the State case by their lawyer, Charles Chinyama. The ruling comes barely a week after the Attorney-General's representative Godwin Takawira Nyasha and Chinyama were arrested and charged for allegedly influencing the outcome of the case. The trend at that time was if the police are not happy they will arrest the judge prosecutor, interpreter and anybody they want. Temba Mliswa had crossed path with Chihuri as Chihuri wanted a share of the loot and he used his powers to fix Temba and he punished anyone who was in his way.

So Chihuri placed lawyer Chinyama on remand on a charge of defeating the course of justice while Nyasha was charged with criminal abuse of duty as a public officer. In all this time Chihuri through the police was gunning for Katiyo the magistrate. They made arrangements to arrest Katiyo for acquitting Temba. Chihuri persuaded Westwood to press charges and peddle unsubstantiated allegations of bribery against Never Katiyo.

Katiyo was sworn to uphold the law and to enforce it, he boldly expressed displeasure in the manner this matter had been handled. "This has not been a pleasing case to be handled by this court," the magistrate Katiyo said. "Both the State (Nyasha) and the defence (Chinyama) have been placed on remand because of this case. I will deal with this case as a magistrate and dispense justice." Katiyo was not tainted with threats or real risk of arrest. he went on to say
"The State attempted to come up with a shocking application to reopen the State case and the court wonders up to now what was to be achieved," he added.

The magistrate said charges laid against the accused were totally misplaced as the evidence presented by Westwood had not shown there was reasonable suspicion the accused committed the offence. Regardless of his stupidity Temba had not committed a crime. In his ruling Katiyo said  Noshio Investments, as a company, and not Westwood, should have come to court as the complainant, given the transfer of one's shares could not be regarded as fraud but a contravention of the Companies Act. Despite all the noise by the police and Westwood magistrate Katiyo also noted that Westwood's shares in the company were not tampered with and wondered why he regarded himself as a complainant. The court noted that the company was being run like a tuck-shop since its formation in the late '90s, and blaming Temba for their shortcomings.

In making their case look strong the state alleged that Temba was using the name of Kasukuwere and the former president Mugabe. On this allegation Katiyo reached a decision powered by evidence and ruled that

"In my view Westwood felt threatened by the accused. If the big names were mentioned they were meant to instil fear and not misrepresentation. Instilling fear does not amount to fraud," Never Katiyo added .

As Katiyo lamented this case was "not easy to handle".
Mr Mliswa (39) and Mr Mutasa (48) – who is son to Minister of State for Presidential Affairs Didymus Mutasa - who were being charged along with four others – Mr. Alfred Mwatiwamba, Mr George Marere (36) and Mr. Hammarsskjold Banda and his wife Brendaly - had pleaded not guilty to fraud charges involving over US$1 million.
Regional magistrate Mr. Never Katiyo presided over the case.

The six were cleared of the charges after their lawyer Mr Charles Chinyama applied for discharge at the close of the State case on the grounds that no prima-facie case had been proved against them.

Mr. Katiyo, however, said as a sworn-in magistrate his duty was to treat every case as equal without any fear or favour.

In applications of this nature the court, Mr Katiyo said, did not look at the credibility of witnesses but whether the State managed to prove its case beyond reasonable doubt. He added that even if the court was to accept that Mr Mliswa used the names of Minister (Saviour Kasukuwere) and his Excellency (President Mugabe) it was to instill fear in the complainant Mr Paul Westwood and not to misrepresent."Now if the complainant as put by this case felt threatened then I believe the charges laid against these accused are totally misplaced. This was a highly technical issue which needed thorough consideration before being brought to court," he said. The police alledged that witnesses were not called and by so doing the case was subbortaged. In responding to this allegation Katiyo said
"even if the State was to call more witnesses the only relevant one was Mr Westwood as the case lingered on technical issues relating to Noshio Motors.

"In the final analysis it is this court's view that the mere transfer of shares into a trust cannot constitute fraud as the person (Mr Banda) who did remain as the owner of these shares. To show that the State case has always been weak it attempted to call the previous defence counsel engaged by the accused before following up with a mocking application of re-opening its case before this ruling was given . . . ," he said. Katiyo stood upright in defending the threads of the law without fear or favour.

The confusion of this case highlighted the dangers of ignoring the separation of powers. The police had been given so much power and did manage to destroy Zimbabwe's standing in the world. Mr Katiyo then said no competent court could convict the six on such evidence hence they were entitled to a discharge at the close of the State. Mr Mliswa was alleged to have misrepresented to Mr Westwood that President Mugabe and Youth, Indigenisation and Empowerment Minister Saviour Kasukuwere gave him permission to take over 50 percent of his company, Noshio Investments Limited. The company was valued at US$2, 1 million while Mr Banda owned the other half.

The State alleged that in October 2009, Mr Westwood and Mr Banda had a dispute over alleged misappropriation of money by Mr Banda's wife, Brendaly, who was the company's finance and human resources manager and had withdrawn US$25 000 without Westwood's knowledge.
The State alleged that in August 2009, Banda borrowed US$100 000 from Mr Mliswa at five- percent interest per month.

Mr Banda allegedly failed to repay the loan at the agreed rate and Mliswa is said to have demanded that he surrender his Noshio shares to him to offset the debt." so Mliswa's case was more civil than criminal.

The police took this case personally which suggested that Mr Westwood had himself bribed the police. The anger Chihuri had on Mliswa was beyond police work. Mliswa was to be prosecuted in instalments and each prosecution Mliswa was acquitted.

While some would want Mliswa to be called a thief this case which is always put in the same sentence with Mliswa's name is nothing but noise. Zimbabweans must learn to avoid building court cases in social media.

Good and honest Zimbabweans like Morgen Nemadire Munamato Mutevedzi and MAGISTRATE Never Katiyo were smeared by Mr Westwood.  Mr Westwood accused Katiyo of having been bribed by Mliswa this was a contemptuous assertion which if Chihuri was not compromised then he would have been arrested. Mliswa had not committed any crime and under due process he was acquitted by a competent court of law. .

Never Katiyo did not try the case out of emotions, this case was destined to fail because the state had not proved the five essential elements needed to prove fraud, these being
(i) A false statement of a material fact,
(ii) Knowledge on the part of the defendant that the statement is untrue,
(iii) Intent on the part of the defendant to deceive the alleged victim,
(iv) Justifiable reliance by the alleged victim on the statement, and
(v) Injury to the alleged victim as a result.

We saw an attack on Zimbabwe's judicial system by Mr Westwood. Mr Westwood forgot that Magistrates and senior civil servants are given cars by the state. Katiyo had been using a government car which Westwood thought that it was from his salary. The attack on pour judiciary is not fair and the behaviour of the police at that time was despicable.

In short Temba Mliswa had no case to answer and we must respect that, furthermore Morgan Nemadire had nothing to do with this case and the case he dealt with, he discharged his best and should be applauded. In the case were Mutevedzi was presiding the key witness told the court that he was not complaining and was surprised why he was in court.

As Zimbabweans we must learn to divorce social media claims from the truth. Never Katiyo was tortured by the baseless allegations by Westwood and these allegations are online. Westwood wants to appear as a victim when he has wrecked lives, dignity and soiled characters and integrity of KATIYO, NEMADIRE, and MUTEVEDZI.


Source - Dr Masimba Mavaza
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