JAILED former Midlands Provincial Affairs Minister Jason Machaya has filed an application for leave to appeal at the Supreme Court after his application for bail pending appeal against conviction and sentence was dismissed by the Bulawayo High Court judge Justice Christopher Dube-Banda.
Machaya (68) and his accomplice provincial planning officer
Chaisayanyerwa Chibururu (50) were last year in September each sentenced to 48
months imprisonment for criminal abuse of office.
Chibururu has however, since been released on $50 000 bail
pending appeal.
They were convicted by provincial magistrate Ms Charity
Maphosa for unlawfully allocating 17 799 stands to land developers in Gokwe
town, who in turn gave the pair 1 000 stands worth US$900 000 which was
computed as $900 000 in local currency.
The court ruled against an application by the State for the
accused persons to pay restitution of 1 000 stands to Gokwe town saying they
had benefitted nothing from the criminal abuse of office charges.
The court also ruled against the State’s application to
call to the witness stand a Government estate evaluator to give the new value
of the stands.
In dismissing Machaya’s application for bail pending
appeal, Justice Dube-Banda said the applicant failed to discharge the onus upon
him to proffer positive grounds warranting his release.
Machaya, who is challenging his conviction and sentence
under case number HCA90/20, through his lawyers Mbidzo, Muchadehama and Makoni
Legal Practitioners, yesterday filed a fresh application at the Bulawayo High
Court for leave to appeal at the Supreme Court.
In his grounds of appeal, Machaya said Justice Dube-Banda
misdirected himself by denying him bail on the basis that he would abscond,
arguing that there was no evidence suggesting that he was flight risk.
“The court also erred in holding that there was no prospect
of success when there were such prospects of success on both conviction and
sentence,” he said.
Machaya said the High Court ignored his explanation and
evidence, arguing that the essential elements of the offence had not been
proved.
“In regard to sentence this court’s default position was
that sentencing was in the direction of the trial court. The court even sought
to magnify the aggravating factors in the matter. The harshness of the sentence
imposed show that up-service was done to the factors of mitigation I had
advanced,” he argued.
“I feel discriminated by the court when it granted bail to
my co-appellant and denied me bail. I have a right to appeal to the Supreme
Court or Constitutional Court and it is my intention to appeal against the
conviction and sentence right up to the last court, whatever it takes.”
Machaya said due to the Covid-19 measures that are being
implemented by the courts, the delay of the prosecution of his appeal will be
rendered useless if he is not granted bail.
“In the circumstances, I pray that I be granted leave to
appeal this court’s refusal to grant me bail pending appeal to the Supreme
Court,” he said.
The State is yet to respond to Machaya’s latest
application. Initially, the State, which was represented by Mr Khumbulani
Ndlovu had opposed the application, which Machaya had jointly filed with
Chibururu, arguing that there was no guarantee that if released on bail the two
appellants would not abscond.
Mr Ndlovu said the appellants lost the benefit of the
presumption of innocence following their conviction.
According to court papers, between 2011 and 2017, Machaya
used his official powers to acquire 1 000 residential stands that were
available in Mapfungautsi suburb in Gokwe town.
The area is under Gokwe Town Council’s administration and
Machaya’s conduct was contrary to Government policy which authorises the Local
Government Ministry to acquire only 10 percent of residential stands.
Due to Machaya’s conduct, Gokwe Town Council lost revenue. Machaya
further imposed a land developer, Striations World Marketing Property
Developers, to service and sell stands without following proper tender
procedures.
In 2013, Machaya made verbal demands to Gokwe Town Council
to release 1 000 stands as opposed to written requests made by the Local
Government Ministry.
Chibururu working in cahoots with Machaya drew plans before
the stands were allocated to private land developers. Chronicle
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