A FORMER Tsholotsho councillor who sent insulting texts on WhatsApp has been fined $50 000 and jailed for 10 months.
Patrick Magomora Ngwenya had been charged with violating a section of the Cyber Security and Data Protection Act 12:07- cyber bullying and harassment.
The law, promulgated in 2021, primarily mandates data controllers to take applicable technical and organisational measures that are necessary to protect data from unauthorised destruction, negligent loss, unauthorised alteration or access and any other unauthorised processing of the data.
It also guards against cyberbullying and abuse of social media to cause harm.
Ngwenya (64), a former Ward 16 councillor in Tsholotsho sent offensive messages via a WhatsApp platform, directed at Tsholotsho South legislator Musa Ncube in which he labelled her a prostitute.
On Friday, he appeared at Tsholotsho Magistrates Court before provincial magistrate Mr Victor Mpofu and pleaded guilty.
For the State, prosecutor Ms Sheron Phiri said on the period extending from November 8, 2022 to November
10, 2022, Ngwenya unlawfully and intentionally by means of a computer or information system, generated and sent WhatsApp messages and audios to groups in the district, insulting the legislator, calling her a prostitute.
The prosecutor said the messages were sent to the WhatsApp groups with the intention to harass, bully or cause substantial emotional distress or to degrade and to humiliate the Member of Parliament.
“He was removed from the group by the administrator who is also the complainant. On November 9, 2022, in another group titled “Interdistrict Group”, Ngwenya also sent an audio message shouting vulgar terms at the complainant and was immediately removed from the group by one Sithandazile Moyo. As if that was not enough, on November 10, Ngwenya went to legislator Ncube’s inbox and sent an audio message calling her in iSiNdebele, “wule” (prostitute),” said Ms Phiri.
The legislator filed a police report leading to Ngwenya’s arrest.
Her cellphone was taken as an exhibit and forwarded to Cyber Laboratory where audio messages were extracted and analysed and a specialist report was compiled.
“It is the State’s view that the words used were humiliating and gender insensitive,” said Ms Phiri.
In passing sentence, Mr Mpofu described Ngwenya’s behaviour as toxic and loathsome adding that considering his age, he should have exercised self- restraint even when allegedly provoked.
“In coming up with an appropriate sentence, the court considered that the accused pleaded for a lenient sentence by pleading guilty to the offence out of his own volition. He did not put the State to the strictest of proof. He is a first-time offender and as such the court could be lenient on a non-repeat offender.”
In his defence, Ngwenya said he committed the offence after being provoked by the legislator.
The magistrate said the court noted that Ngwenya is a mature elder whose age has reached that legal age of retirement and the court has a duty of not imposing a shocking punishment which could prejudice the health of elderly citizens.
“The court could not however condone Ngwenya’s toxic discourse, especially considering the fact that he should be assumed to be mature and possess self- restraint but what he did was morally loathsome and should be discouraged.
“The novelty of the legal instrument however made the court to be carefully considerate when assessing for an appropriate sentence,” said Mr Mpofu.
The 10 months sentence was suspended for three years on condition that Mpofu does not within that period commit an offence involving the provisions of the Cyber Security and Data Protection Act. If he does, he will be given an imprisonment term without the option of a fine. – The Chronicle
