CONVICTED Chipinge white farmer, who shot and injured his
employee, claiming that he had mistaken him for a stray dog and later blamed
the victim for the incident, has taken the trial magistrate and
Prosecutor-General Kumbirayi Hodzi to the High Court.
Joubert Francois Johannes (36) of Lushof Farm, was last
month convicted by Chipinge magistrate, Joshua Nembaware for negligently
causing serious bodily harm to his employee, Frank Makuyana.
After convicting him, Nembaware stopped the proceedings and
remanded the matter to June 11 for sentencing as the court sought the
Prosecutor-General (PG)’s Office to increase its sentencing jurisdiction.
However, Johannes applied to Masvingo High Court, seeking
an order barring the magistrate from applying for an increased sentencing
jurisdiction, describing his decision as traumatic.
“The decision to stop proceedings, seeking increased
jurisdiction made by the first respondent (Nembaware), thus grossly irregular
in that there’s simply no sound basis upon which that decision was arrived at.
It’s gross miscarriage of justice that I have been made to wait and endure the
delay and anxiety … as I now fear that justice will not be done,” submitted
Johannes in his application filed by his lawyer Langton
Mhungu.
“It’s clear that first respondent intends to give me a long
imprisonment in excess of five years when in fact there are other possible
sentencing options available in terms of section 90 of the Criminal Law
(Codification and Reform) Act. The trauma that the first respondent’s decision
has caused and is causing is unbearable.”
In his defence, he said his employee Makuyana was to blame
for not being at his usual workplace at the time of the shooting.
“I was not negligent at all. It’s the complainant who is to
blame. Had the complainant not moved away from his usual workplace, he wouldn’t
have been shot,” Johannes said.
In convicting him, the magistrate noted that Johannes did
not take proper care in the circumstances.
“In convicting the accused, the court noted that the
accused didn’t act like a reasonable person in the circumstances. He didn’t
exercise proper care and wasn’t even remorseful. He blamed the complainant for
his negligence,” Nembaware said.
In mitigation, through his lawyer, Johannes pleaded for a
non-custodial sentence, arguing that he was a first offender who had no
intention to injure the complainant. However, in aggravation, prosecutor Gift
Bikita called for a deterrent sentence.
Bikita told the court that on October 5 last year, Johannes
and Makuyana were under a dairy shed at around 6am. Johannes then saw stray
dogs which had entered his kraal and went to his farmhouse to collect his
shotgun. While shooting at the dogs, a stray bullet hit Makuyana. Newsday
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