Wednesday, 5 June 2019

CONVICTED WHITE FARMER TAKES MAGISTRATE TO THE HIGH COURT


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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