Mhlanga was in court for contravening Section 26 of the
Censorship and Entertainment Control Act Chapter 10:04 (Possession of
prohibited articles).
The accusations against her arose after claims that she accidentally
shared a revealing picture of her private parts on her WhatsApp status.
In acquitting her, Bulawayo magistrate Marygold Ndlovu
ruled that the State failed to establish essential elements of the charges
levelled against her.
Ndlovu ruled that the evidence led on behalf of the State
did not prove whether the images recovered through a forensic software were the
same ones posted on her WhatsApp status.
“In the court’s view, the fact that the images were only
recovered through a forensic software makes the accused person’s defence that
everything was cleared at the time she received the cellphone reasonably
possibly true.
“It is equally possible that these images had been deleted
prior and were not visible in the gallery with a naked eye.
This possibly is further strengthened by the second State
witness’ findings that this cellphone was not the one used to post pornographic
pictures to the accused’s WhatsApp status.
“Further the evidence led on behalf of the State did not
prove whether these are the same images posted to accused person’s WhatsApp
status.
“Had the State led evidence to prove that these were the
same images posted on accused person’s WhatsApp status the court could have
been persuaded that accused had been in possession of the images at that time
and had deleted them to conceal evidence.
“In case the court finds no reason to dismiss the accused’s
defence as not reasonably possibly true. In the premises, the State has failed
to prove its case beyond reasonable doubt and the accused person is accordingly
found not guilty and acquitted,” ruled Ndlovu.
In her defence outline, Mhlanga through her lawyer Byron
Sengweni of Sengweni Legal Practice stated that she was not in possession of
the alleged pornographic content. She stated that sometime in December 2019 she
received a phone from her sister Sibusisiwe Moyo who is based in South Africa
after her phone had been stolen by her maid.
“Before handing the phone to the accused, the accused’s
sister cleared the phone memory and when she received the phone there was
absolutely nothing in it. She will also deny ever posting pornographic images
on her WhatsApp. The images were not posted via her phone but via some unknown
device.
“She will further state that upon receiving news that
offensive material had been posted on her WhatsApp she was advised that she had
been hacked and was also advised to restore her phone to factory settings. When
she restored the phone she lost all the data in her phone but even before that
she maintains that she did not have any offensive material,” her defence
outline reads in part.
She argued that she was advised to stop using the phone in
case the hackers may attempt to hack it again.
At the close of the State’s case, her lawyer filed an
application for discharge and in their application, they submitted that the
State had failed to prove a prima facie case against the accused and that the
evidence was unreliable.
It also submitted that the State had also failed to prove
that accused had knowledge of the images or that the said images were in her
gallery as the witnesses did not physically browse the gallery.
In response the State submitted that a prima facie case had
been proven.
The State argued that the cellphone in question was seized
from accused person and four pictures of an indecent nature were retrieved from
the cell phone.
“The State will submit that it has a prima facie case
against the accused for the following reasons: It is common cause that the
accused person was in direct physical control of the Samsung cell phone with
the serial number R58FBOTKJZZ. It is common cause the four pictures of an
indecent or obscene nature were recovered from the accused person’s Samsung
cellphone with the serial number R58FBOTKJZZ.
“It is common cause that the accused person knew that they
were prohibited images on her phone as she did see a nude picture on her
WhatsApp status,” argued the State.
Allegations which were levelled against Mhlanga were that
on 2 August 2021, a tip-off was received at Provincial Victim Friendly Unit to
the effect that she had posted pornographic material on her WhatsApp status.
Mhlanga is alleged to have taken down the uncensored
picture, but not before some of her contacts including teachers and parents
with children at her school, had saved it and forwarded it to their friends.
Investigations were later carried out by the police leading
to her arrest. Upon her arrest her cell phone Samsung N910F Galaxy Note was
also seized and taken to the police station.
The seized cellphone was then referred to CID National
Cyber Forensics Laboratory, Bulawayo for examination.
During the forensic examinations four pornographic images
were allegedly retrieved from her phone. B Metro
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