Case from 12 years ago haunts stock thief killer

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Mashudu Netsianda, Senior Court Reporter
THE High Court has rejected an application for a permanent stay of prosecution by a Gwanda man who allegedly shot dead a suspected stock thief 12 years ago.

Newton Ndlovu whose age was not given, ambushed an unidentified man and shot him dead as he tried to escape in September 2005 at Macanlays Resettlement area in Colleen Bawn.

Bulawayo High Court judge Justice Francis Bere dismissed Ndlovu’s application for lack of viva voce evidence – evidence given by a witness orally, as opposed to evidence given in a written form, such as an affidavit.

“It is abundantly clear in terms of the Constitutional Court rules that is not sufficient for the applicant to merely state his application on paper, but that he must give viva voce in support of his case. In the instant case, this was not done and in my considered view this defect in the application is fatal. In the result, the application is dismissed,” ruled the judge.

Ndlovu through his lawyers, Majoko and Majoko Legal Practitioners, sought an order permanently staying his prosecution, arguing that there was an inordinate delay in bringing his case to court.

He said the delay in prosecuting him was a violation of his constitutional right.

Ndlovu said the State failed to give a satisfactory explanation in relation to the delay in prosecuting his client.

The court heard that in September 2005, people resettled in the Macanlays Resettlement area had a serious challenge with stock theft.

On September 7 that year, in an effort to curb the crime, community members grouped and organised to lay an ambush on suspects.

The deceased and an accomplice walked into the trap on the same day.

Ordered to stop, the deceased tried to flee into the bush to evade arrest.

Ndlovu opened fire and shot the suspected thief on the right thigh and stomach.

He was taken to Gwanda Provincial Hospital before being transferred to the United Bulawayo Hospitals where he succumbed to the injuries three days later.

In his warned and cautioned statement, Ndlovu admitted the charge, saying it was not his intention to kill the deceased.

He said he only wanted to frighten the suspected thief when he opened fire.

The State, through Ms Nokuthaba Ngwenya, said Ndlovu never demanded to have a trial date or bring the case to their attention until he discovered that the matter had been set down.

“There was no evidence that the applicant had not asserted his right to trial within a reasonable time either in person or through his counsel,” she said.

@mashnets

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