This was after Mahachi’s defence team led by lawyer,
Tinashe Runganga from Tanaka Law Chambers, made an application for recusal of
the presiding officer as they felt it would be in the “best interest of
justice”.
“Taking into account the discussions made, it will be in
the best interest of justice that this matter be dealt with by another
presiding officer, this is nothing against the presiding officer but it is in
the interest of justice,” said Runganga.
Prosecutor Karen Gundani did not oppose the application.
“The State is not opposed to the application. Too many
opinions have been shared,” she said.
After Runganga and Gundani had shared their positions on
the recusal application, magistrate Ncube agreed to step aside.
“Application for recusal is granted. I recuse myself from
this matter.
It will be before a different court,” he said.
Mahachi was then remanded out of custody to 8 July.
Meanwhile, Runganga made an application for an exception to
the charge in terms of Section 171 of the Criminal Procedure and Evidence Act
Chapter 9:07 as he argued in court that the charge of theft must be dismissed
because his client, Mahachi, was the one who purchased the phone that he later
gifted his sister.
Mahachi is alleged to have snatched and damaged Meline
Mahachi’s iPhone XR smartphone on 13 June as part of concerted efforts to
destroy evidence nailing him for purportedly scalding his four-year-old son
with boiling water.
According to the State, Mahachi unlawfully took the iPhone
XR cellphone with a Econet sim card knowing that Meline was entitled to own,
possess or control the property or realising that there was a real possibility
that Meline Mahachi might be deprived ownership or control of the smartphone.
However, on Wednesday Mahachi, through his lawyer, sought
to have the charges dropped as he said he owned the phone, which is valued at
US$400.
“It is the defence’s submissions that the property the
accused is alleged to have stolen, that is an iPhone XR belongs to the accused
and as such renders the charge vague and embarrassing.
The defence further submitted that with the fact that the
alleged stolen property belonged to accused, in mind the charge against the
accused should fall away,” argued Runganga.
The State objected to the application averring that the
issue of ownership of the property in question being raised by the defence is
not a ground of excepting to a charge but is a defence to the charge.
Magistrate Ncube dismissed the application as he ruled that
“the charge has sufficient details that warrants the accused to plead to it.
“It is ordered that the exception taken by the accused in
terms of Section 171 of the Criminal Procedure and Evidence Act Chapter 9:07 be
and is hereby dismissed.” B Metro
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