BULAWAYO deputy mayor Mlandu Ncube and two others who were part of a group of 12 MDC-T members involved in violent skirmishes that rocked the opposition party in March 2018 have approached the High Court challenging their conviction and sentence.
More than 15 people were injured when members of the MDC-T factions fought running battles at the party’s provincial offices in Bulawayo.
At the time, MDC-T had been divided along factional lines, pitting the party’s former deputy president Dr Thokozani Khupe, and her rival Advocate Nelson Chamisa who was then the president of the opposition party.
Ncube (35) together with his predecessor Gift Banda and 10 others were charged for public violence as defined in section 36(1)(a) of the Criminal Law (Codification and Reform) Act.
Banda and four others who included Robson Tera, Donaldson Mabuto, Sibongubuhle Sibanda and Edith Moyo were later found not guilty and acquitted.
However, Ncube, Felix Mhaka, Kunashe Muchemwa, Raymond Gombedza, Michael Mubasa, Takunda Madza and Erick Gono were convicted by Bulawayo magistrate Ms Sithembiso Ncube and sentenced to 12 months imprisonment of which six months were suspended for five years on condition that they do not within that period commit a similar crime.
The remaining six months were further suspended on condition they performed 210 hours of community service.
They performed community service at various schools and police stations in Bulawayo.
Ncube, Mhaka, and Gono through their lawyer Mr Prince Butshe of Mathonsi Ncube Law Chambers, filed a notice of appeal filed at the Bulawayo High Court citing the State as a respondent.
In their grounds of appeal, the trio argued that the lower court erred by relying on the evidence of accomplice witnesses without cautioning itself against the dangers of basing on uncorroborated proof.
“The court a quo erred at law when it adopted the boxing ring approach in apportioning blame on the appellants the evidence led was just that of the State witness against that of the appellants. Wherefore, the appellants pray that the appeal be upheld and conviction be set aside,” argued Mr Butshe.
The appellants argued that there was no direct evidence led by the State in court to prove that they violated section 36 of (1)(a) of the Criminal Law (Codification and Reform) Act.
“It is submitted that appellants were victims of circumstances and should not have been found guilty simply because of their presence on the premises. Appellants made it clear before the court a quo that they were present on the premises, but did not participate in the public violence,” said Mr Butshe.
He further argued that as a matter of principle, the lower court should have ensured that the essential elements were proved beyond a reasonable doubt, and that witnesses corroborated each other’s evidence prior to convicting the appellants.
“In casu, if the court a quo had approached the evidence with extreme caution, which was in contradiction, the magistrate should not have found the appellants guilty. Accordingly, it is therefore submitted that this is not a proper case in which appellants should have been found guilty of contravening section 36 of the Criminal Code,” argued Mr Butshe.
The State, which was represented by Mr Kudakwashe Jaravaza, opposed the application, arguing that the lower court did not err in finding all the appellants guilty as they were identified by all witnesses who testified.
“It is clear that the appellants were at the scene of the crime, there is no way that the complainants could have damaged their own property or injured themselves and then incriminate the appellants.
There is clear evidence on record which established that the fracas involved people who were known to each other and the violence took place over a protracted period of time,” said Mr Jaravaza.
“It is my view that in a case of this nature, it was not necessary for the State to ascertain who did what, what was important was that the State was able to demonstrate that the appellants acted in common purpose with others to engage in criminal acts.”
Mr Jaravaza said the appellants did not disassociate themselves from the unlawful actions of their colleagues.
“It is therefore my view that the court did not err in finding all the appellants guilty as they were identified by all witnesses who testified. Wherefore, I pray that the application be dismissed,” he said.
According to court papers, it was stated that on March 4, 2018, there was a meeting at the MDC-T Bulawayo provincial offices between 2nd and 3rd Avenue along Fort Street.
During the course of the meeting, the appellants acting in cahoots, went to the venue of the meeting and tried to force their way into the meeting.
They were, however, denied entry by a team which was manning the entrance. After they were denied entry, the accused persons started throwing stones at the people who were attending the meeting.
They as a result injured some people and damaged windscreens of a Range Rover Discovery, Honda Fit, Toyota Fortuner and a Nissan Xtrail.
The total value of the damaged property is US$5 200. A report was made to the police leading to the arrest of the accused persons. – The Chronicle
