JAILED chief, Felix Nhlanhlayamangwe Ndiweni and his 23
subjects who were last week jointly convicted for destroying a villager’s
property in Ntabazinduna, have approached the High Court challenging their
conviction and sentence.
Ndiweni (54) and 23 other villagers pleaded not guilty to
damaging Mr Fetti Mbele’s property but were convicted by Bulawayo magistrate,
Ms Gladmore Mushove.
Chief Ndiweni and his subjects were each sentenced to 24
months in jail and six months were suspended for five years on condition that
they do not within that period commit a similar offence.
Chief Ndiweni was sentenced to an effective 18 months in
jail while his subjects had their remaining 18 months wholly suspended on
condition that they perform 525 hours of community service at local schools and
clinics.
The 24 appellants, through their lawyer Mr Dumisani Dube of
Mathonsi Ncube Law Chambers, filed a notice of appeal at the Bulawayo High
Court citing the State as a respondent
In their grounds of appeal in respect to conviction, the
appellants said the magistrate erred by failing to appreciate that what Chief
Ndiweni did was in terms of what he subjectively believed was within his powers
as a traditional chief.
“The court a quo erred in failing to appreciate that the
first appellant (Chief Ndiweni) had a defence of a claim of rights as provided
for in terms of sections 236 and 237 of the Criminal Law (Codification and
Reform) Act. The court a quo erred in failing to appreciate that the State has
not proven beyond reasonable doubt the fact that the appellants had the
requisite knowledge of wrongdoing that constituted part of their offence,” said
Mr Dube.
The lawyer said the court grossly erred in finding that Chief
Ndiweni’s moral blameworthiness was very high.
“The court a quo grossly erred in finding that community
service was not an appropriate sentence for the first appellant when the
imposed prison term falls within the 24 months imprisonment threshold. The
court a quo erred in not considering other forms of punishment considering the
value of the destroyed property, which was less than the value of $300,” said
Mr Dube.
He wants the appellants’ conviction and sentence to be set
aside or alternatively if conviction is upheld, the sentence be substituted
with a $20 fine each.
The State is yet to respond to the application.
According to court papers, Mr Fetti Mbele of Ntabazinduna
was banished from the village by the chief after his wife Ms Nonkangelo Mpengesi
was allegedly caught having sex with another villager.
In July last year, Chief Ndiweni ruled that Mr Mbele and
his “adulterous” wife should be banished from Sifelani village, saying
“prostitution” will not be tolerated in his area.
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 Chief Ndiweni to destroy Mbele’s garden
fence and kraal.
Sibanda instructed the villagers to destroy the fence and
kraal. At around 5PM, Chief Ndiweni arrived and ordered the villagers to
continue destroying Mr Mbele’s fence and kraal.
The order followed Mr Mbele’s alleged defiance of Chief
Ndiweni’s verdict to divorce his wife.
Chief 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 chief to order the
destruction of his fence and kraal. Chronicle
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