Machaya (71) and Chibururu (53), were in September 2020
convicted by provincial magistrate Ms Charity Maphosa for unlawfully allocating
17 799 stands to land developers in
Gokwe town, who in turn gave them 1 000
stands worth US$900 000 which was computed as ZW$900 000.
The court ruled against an application by the State for
Machaya and Chibururu to pay restitution of 1 000 stands to Gokwe town saying
they had benefited 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.
Dissatisfied with both conviction and sentence Machaya and
Chibururu through their lawyers Mbidzo, Muchadehama, and Makoni Legal
Practitioners, filed an appeal at the Bulawayo High Court challenging the lower
court’s decision under case number HCA90/20.
In acquitting Machaya and Chibururu, Bulawayo High Court
judge Justice Evangelista Kabasa who was sitting with Justice Nokuthula Moyo
during a criminal appeals court, ruled that the case against the appellants was
not proved beyond a reasonable doubt.
“We, therefore, came to the conclusion that the case
against the appellants was not proved beyond a reasonable doubt. The conviction
is therefore not safe and cannot stand, and with the conviction being vacated,
the sentence equally falls away,” he ruled.
“In the result, the appeal be and is hereby allowed and the
decision of the court a quo is set aside and both accused persons are found not
guilty and acquitted.”
Justice Kabasa said the finding by the lower court that
Machaya and Chibururu flouted due process for the purpose of showing favour to
Striations under the pretence of pursuing Government and public interest
including bullying Gokwe Town Council to apportion the land and ultimately
selling it to the detriment of the targeted beneficiaries, was not borne out by
the evidence.
“The court a quo, therefore, made findings and reached
conclusions not borne out by evidence, and therein lies the misdirection. The
appellate court can interfere with the court a quo’s findings if such findings
are not supported by the evidence,” she said.
In their grounds of appeal, the appellants argued that the
lower court erred in convicting them when the evidence by State witnesses
failed to establish the offence which they were charged for.
“The court a quo erred and misdirected itself in holding
that the first appellant (Machaya) had no right to call Gokwe Town Council
officials to a meeting when his duties allowed him to do so,” argued the
appellants’ lawyers.
“The court a quo erred and misdirected itself in holding that
the 1 000 stands given to Striations were commonage stands and thus failed to
appreciate that the principle that a crime must be proved to have occurred
before a person can be convicted of committing that crime, was no existent.”
They said the lower court erred by imposing a sentence that
did not take into account the mitigatory factors and overemphasised the
aggravatory ones.
“The court a quo erred in coming up with a wholly
inappropriate sentence which is not in line with precedent and which was informed
by irrelevant consideration,” argued the appellants.
According to court papers, between 2011 and 2017, Machaya
allegedly 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 is alleged to have 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. Chronicle
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