BULAWAYO journalist, Zenzele Ndebele, who was found in
possession of a used teargas canister and cartridge as he entered State House
in Bulawayo on Thursday, was yesterday set free by a magistrate.
Ndebele, who is also a director of the Centre for
Innovation and Technology (CITE), an online media organisation, was arrested at
the entrance to State House where he was hoping to attend President Mnangagwa’s
engagement with Matabeleland civic groups.
Ndebele appeared before Bulawayo magistrate Mr Franklin
Mkhwananzi charged with possession of offensive weapons at a public gathering
or alternatively criminal nuisance.
Ndebele, through his lawyer, Mr James Sithole, made an
application for refusal of placement on remand challenging the charges levelled
against him and it was granted.
In his ruling, Mr Mkhwananzi said State House was a private
residence but on the day in question, it was a public place as there was a
meeting called by the Head of State and the accused attempted to get into a
public place with the said items.
“The offence turns on whether or not the canister or cartridge
can be classified as offensive weapons. It also defies logic that a person who
complied with a search of his vehicle and having items removed from it could be
charged with criminal nuisance,” he said.
“The reading of criminal nuisance would denote the accused
person being pro-active in engaging in an activity that disturbs the peace,
quiet or comfort of others. But in this case the accused was stopped at a gate
and complied with the searching officers. The evidence that is before this
court was recovered from his car and it boggles the mind as to how this can end
up being treated as criminal nuisance”.
Mr Mkhwananzi upheld the application by Ndebele for refusal
of placement on remand.
“His vehicle is searched and he is found with a used canister
and a cartridge. Had the canister been loaded it could have been a different
story. It beats logic that a used canister and an empty cartridge could be
defined as dangerous weapons, if weapons at all. Therefore the application has
been upheld. Remand is refused,” he said.
Mr Sithole asked the State to define an offensive weapon, a
public gathering and criminal nuisance.
“In the main charge, the accused is alleged to be in
possession of an offensive weapon at a public gathering as defined in Section
43 of the Criminal Law Codification Act. What is an offensive weapon? Section
43 (1) defines an offensive weapon as; (a) any weaponry or offensive material;
or (b) any object made or adapted to be used for causing injury to the person;
or (c) any stone,” argued Mr Sithole.
“We are told that the accused person was in possession of a
used tear smoke canister. We are further told that he was in possession of a
cartridge. These two if they were indeed in the possession of the accused
person are not defined in the Criminal Codification Act.”
The State represented by Mr Nkathazo Dlodlo said there was
reasonable suspicion that the offence was committed by Ndebele and objected to
the application.
The State alleged that on Thursday at around 10AM, Ndebele
arrived at a searching point at State House intending to attend a meeting with
the President.
“Accused person was driving a navy blue Toyota Prado and
security personnel manning the entrance into State House requested to search
his car. The security officers then recovered a CS Gren Hand irritant canister
and half inch catridge wrapped in a black shirt in the boot of his car.
“He was then arrested for possessing such material,” said
Mr Dlodlo. He conceded that the Criminal Codification Act was silent about an
empty canister and cartridge as offensive weapons.
“Where an offence is suspected to have been committed,
accused person is subject to standing trial. The gate where he was found in
possession of the canister and cartridge were a public place as there was a
public gathering called by the President and he was also going to attend it,”
said Mr Dlodlo. Chronicle
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