Zimpapers Logo

Mashudu Netsianda, Senior Court Reporter
A HIGH Court judge has blasted magistrates and prosecutors for continuously flooding superior courts with unwarranted cases coming on appeal in defiance of the High Court’s guidelines.

Bulawayo High Court judge Justice Nicholas Mathonsi made the remarks following an application for bail pending appeal by Clive Ndlovu of Esigodini.

Esigodini magistrate Mr Lungile Ncube sentenced Ndlovu to an effective 12 months in jail for assaulting a local businessman he suspected of having an affair with his wife.

Justice Mathonsi’s anger was directed at Mr Ncube who settled for a term of imprisonment when Ndlovu actually met the threshold for community service.

“Owing to this intransigence on the part of magistrates who continue to studiously ignore the guidelines given by this court in respect of community service, and a prosecution that will oppose anything for the sake of it, this court is inundated, as it is now, with so many cases coming on appeal and as opposed bail applications which should not be opposed at all,” said the judge.

“Both the prosecution and magistrates appear impervious to the pronouncements of superior courts in this jurisdiction relating to considerations of community service as an option where the court has, in sentencing an accused person, settled for a term of imprisonment which is less than two years and the accused person meets the threshold for community service.”

Justice Mathonsi said decisions by superior courts were binding on all lower courts.

“It is time to remind them (magistrates) that this court, being a superior court, is not only a court of record but its decisions are binding on all inferior courts. They are binding on all the magistrates who are bent on ignoring them,” he said.

Ndlovu was granted a $200 bail pending appeal after noting an appeal at the Bulawayo High Court citing the State as the respondent. He was ordered to report once a week at Esigodini Police Station and to reside at his given address until the matter is finalised as part of the bail conditions

Justice Mathonsi ruled that there was misdirection on sentence. He said magistrate did not make an inquiry into the suitability of community service for Ndlovu.

“The trial court did not conduct an inquiry into the suitability of community service for the accused person, which was misdirection. In addition, the trial did not consider the mitigating factors set out by the appellant,” he said.

Justice Mathonsi said the magistrate’s finding that the injuries sustained by the complainant were life threatening, was not supported by medical evidence.

The judge said Ndlovu’s appeal has prospects of success.

Ndlovu, through his lawyer, Mr Siphosenkosi Nkomo of Mathonsi Ncube Law Chambers, argued that the sentence imposed on him was excessive and induced a sense of shock considering the circumstances of the case.

Mr Nkomo said although his client qualified for community service, the magistrate did not bother to consider that option.

The lawyer argued that if given bail, there was no likelihood that Ndlovu would abscond.

The State, through Mr Trust Muduma, opposed the application, arguing that there were no prospects of success against conviction.

The court heard that Ndlovu assaulted the complainant at Habane Township in Esigodini on suspicion that he was having an affair with his wife because of the manner he called her.

He confronted the businessman at a bar in Esigodini leading to an altercation. Ndlovu struck the complainant on the forehead with a brick and inflicted a deep cut.

Last week the Deputy Chief Justice Luke Malaba blasted his sub-ordinates at the Bulawayo High Court for “poorly” handling matters involving of rival camps fighting over the control of the Apostolic Faith Mission of Africa (AFMA), saying they exuded a lack of understanding of the law.

The judges who handled the controversial AFMA matters include Justices Nokuthula Moyo, Martin Makonese, Maxwell Takuva and Lawrence Kamocha.

@mashnets