Regional magistrate Mr Stanford Mambanje noted that Nduna
and his two alleged accomplices, Wonder Chisikwa and Tawanda Marufu, have a
case to answer and dismissed their application for discharge at the close of
the State’s case.
Nduna, Chisikwa and Marufu were jointly appearing with
Vengai Musengi and Nyasha Nyikadzino at Chinhoyi Magistrates Court.
In dismissing their application, Mr Mambanje said: “At this
stage of proceedings, the simple question is, on the record is there evidence
against accused person which requires a reply from him?
“I take the view that indeed there is evidence before the
court, that is, accused 1, 2 and 4 (Nduna, Chisikwa and Marufu) are connected
to the extraction of the mineral ore, that is, prospecting.
“None has produced licence or permit for it. While accused
2 (Chisikwa) was not at the scene, his involvement is quite distinct, making
him an accomplice through common purpose.”
Mr Mambanje said the evidence of facts placed before the
trial court clearly establish that the applicants, particularly Nduna, Chisikwa
and Marufu, are “quite connected to the offence”.
“In my view, the State has placed its evidence before the
court, which evidence to a reasonable court raises questions about accused
conduct.
“In view of the questionable conduct, the court should
place the three accused persons to their defense since what was before the
court was no doubt a prima facie case.”
However, Mr Mambanje discharged and acquitted Musengi and
Nyikadzino, who were jointly charged with Nduna, Chisikwa and Marufu.
Musengi, who was being represented by lawyer Mr Admire
Rubaya, successfully applied for discharge at the close of the State case
saying there was no evidence linking him to the offence.
He told the court that there was no evidence that proved he
was involved in the loading of ore into the JCB.
The State has failed to link the 3rd accused (Musengi) to
what is alleged to be the actus reus (the act or omission that comprise the
physical elements of a crime as required by statute). There is no evidence that
the accused person was linked to the loading of the JCB neither is there
evidence that shows that he attended a meeting wherein it is allegedly agreed
that a JCB be hired for the purposes of extracting mineral ore,” he said.
He also told the court that all the State witnesses failed
to link him with the offence.
Musengi, through Mr Rubaya, said in his application that
the State should not attempt to extract evidence from him and strengthen its
case against him.
“The court should not get tempted to invoke powers of any
nature to seek to assist the State by ordering accused to his defence for
purposes of bolstering the State’s case and or remedy the shortcomings of how
the State’s case was presented,” he said. Herald
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