BULAWAYO High Court judges yesterday lambasted prosecutors
from the lower courts, saying they lacked enthusiasm and determination in their
approach to legal matters resulting in wrongly convicted persons being
acquitted on appeal.
Justices Maxwell Takuva and Thompson Mabhikwa took turns to
berate prosecutors in the magistrates’ courts, saying they lacked a better
understanding of the law as evidenced by concessions by the State on appeal at
the High Court.
The two judges, who were presiding over criminal appeals at
the Bulawayo High Court, said there was laxity in the manner in which
prosecutors in the lower courts handled criminal matters.
“There is laxity in terms of prosecution in the lower
courts, which in most cases results in concessions and subsequently acquittals
when the matters are brought here on appeal. In some cases, you find that
exhibits are not even produced in courts, which in itself is a reflection of
insouciance and poor prosecution. If fact, they lack thoroughness in handling
matters,” said Justice Takuva.
His anger was directed at Beitbridge regional court
prosecutor Mr Munyonga Kuvarega whom he described as exuding lack of
understanding of the law when he handled a matter involving a senior army
cleric who was last year jailed six years for “stealing” a car belonging to a
Gwanda businessman and stripping it.
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 Beitbridge regional magistrate Mr Mark
Dzira after a full trial.
Ndlovu was yesterday acquitted after successfully
challenging his conviction and sentence before Justices Takuva and Mabhikwa.
The State, which was represented by Mr Khumbulani Ndlovu, conceded to the
appeal, saying the matter was more civil than criminal.
Justice Takuva described as “nonsensical” the record of
proceedings, saying it was full of irrelevant and unhelpful information.
“There is a need for someone to be serious about their
work. It is absolutely nonsensical to bring a whole lot of documents to the
High Court for us to go through when the information contained would be
irrelevant. It’s an issue of concern to us when the law is not being followed
by prosecutors in the lower courts, particularly in this matter before us,” he
said.
Justice Mabhikwa weighed in: “Clearly, it appears the
appellant (Solomon Ndlovu) in this matter got into a deal with the complainant,
which could have somehow gone sour resulting in him reporting a case of vehicle
theft. The prosecutor who handled the matter took a lackadaisical approach in
this matter, a problem that is now more pronounced in the lower courts.
“The appeal is hereby allowed and both conviction and
sentence are set aside. Accordingly, the appellant is found not guilty and
acquitted”.
Ndlovu 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 allegedly borrowed a Toyota Hilux vehicle from the businessman,
Mr Osfael Mazibuko and 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 and use 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 proven 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 and sentenced him. Ndlovu said the sentence imposed by
the lower court was excessive and harsh such that it induced a sense of shock
and revulsion.
The State did not oppose the application, saying both the
conviction and sentence were not proper.
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
Mr 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 Ndlovu’s arrest.
Chronicle
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