Monday, 9 September 2019

JAILED ARMY CLERIC FIGHTS FOR FREEDOM


A SENIOR army cleric, who was last year jailed six years for stealing a car belonging to a Gwanda businessman and stripping it, has approached the High Court challenging his conviction and sentence.

Solomon Ndlovu (50), a captain in the Zimbabwe National Army (ZNA) and chaplain at Mbalabala Barracks, was in January last year convicted of theft of a motor vehicle by Gwanda regional magistrate Mr Mark Dzira after a full trial.

He was sentenced to six years in jail of which two months were suspended for five years on condition of good behaviour. A further six months were suspended on condition he restituted the businessman $2 500 leaving him with an effective 64 months to serve. 

Ndlovu borrowed a Toyota Hilux vehicle from the businessman, Mr Osfael Mazibuko, which he later stripped and stole the engine and gearbox.

He then fitted the engine and gearbox onto another vehicle.

Aggrieved by both conviction and sentence, Ndlovu through his lawyer Mr Abel Ndlovu of Dube and Associates, filed an appeal at the Bulawayo High Court citing the State as a respondent.

In his grounds of appeal, Ndlovu said Mr Dzira erred and misdirected himself by attaching a criminal liability to him for deviating and failing to perform according to the agreement that allowed him to take lawful possession, use and possession of the car. 

He argued that the agreement between himself and Mr Mazibuko was purely a civil matter.

“The trial court misdirected itself in holding that the State had proved the existence of my intention to deprive the owner permanently yet there was no evidence of the complainant demanding back the car any time before someone reported on his behalf,” said Ndlovu.

He argued that there was misdirection on the part of the magistrate who convicted him.

He said the sentence imposed by the lower court was excessive and harsh such that it induced a sense of shock and revulsion.

“Wherefore, the appellant prays that should the court not be moved on appeal against conviction it interferes with the sentence by replacing it with a fine,” argued Ndlovu.

The State, which is being represented by Mr Khumbulani Ndlovu, opposed the application saying the conviction is proper. 

He, however, said although the issues of sentence are the domain of the trial court, the magistrate properly exercised his sentencing discretion when he imposed and meted out a sentence of six years, part of which was suspended.

“The sentence is in the purview of those imposed in similar type of cases and meets the justice of the case in view of the fact that aggravatory features far outweigh the mitigatory ones, “said the prosecutor.

The complainant, who lives in Bulawayo, owns Fast Track Electrical Company in South Africa and runs farming and conservancy projects in Zimbabwe.

According to State papers, sometime in July 2016 while in Bulawayo, Ndlovu was given the Toyota Hilux by Mr Mandla Sibanda, a manager at Mazibuko’s farm who had received instructions via the phone to do so from his boss.

On March 30 last year, Ndlovu drove the car from Bulawayo to Zezani turnoff along the Bulawayo-Beitbridge road. He then contracted a mechanic Mr Norbert Mazhambe, who is employed by one Mr Lizwe Ndlovu to remove the vehicle’s engine and gearbox.

Mr Mazhambe removed the engine and gearbox as instructed before fitting them onto a Mazda B2200 vehicle.

Ndlovu then dumped the Toyota Hilux body at Zezani turnoff. The offence was discovered when Mr Dennis Ndlovu found the vehicle body dumped and called Mr Mazibuko.

A report was made to the police leading to the arrest of the army cleric. Chronicle

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