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Mashudu Netsianda, Senior Court Reporter
THE High Court has quashed the conviction and sentence of MDC legislator Mr Amos Chibaya and another party member who in 2013 were fined $150 or 30 days in jail for mobilising party youths to attack patrons at a beer garden.

The MDC members attacked one of the patrons and bundled him into their vehicle.

Amon Chibaya (34), who is the MP for Mkoba Constituency in Gweru and Livingstone Chimina (31), an MDC party member, were in March 2013 convicted of charges of malicious damage to property by a Gweru magistrate Ms Mildred Matuvi.

They were each fined $150 or 30 days imprisonment.

In addition to the sentence, they were each slapped with two months in jail, which were wholly suspended for three years on condition that they did not within that period commit a similar crime.

Dissatisfied with both conviction and sentence, Chibaya and Chimina through their lawyers Chitere, Chidawanyika and Partners, lodged an appeal at the Bulawayo High Court citing the State as the respondent.

In their grounds of appeal, the appellants challenged their conviction and sentence, arguing that in light of the nature of the offence, the sentence imposed was manifestly excessive and induced a sense of shock.

They further argued the magistrate erred when she dismissed their evidence without the State having made any attempt to discredit their testimonies.

The appellants said the magistrate also misdirected herself by accepting two conflicting evidences of two State witnesses.

“The learned magistrate erred in accepting the evidence of the two State witnesses, the evidence relied on was not sufficient to prove the offence of malicious damage to property beyond reasonable doubt,” argued the appellants’ lawyers.

The State, which was being represented by Ms Sifiso Ndlovu-Sibanda, conceded. She said the two State witnesses contradicted each other.

“Given the criticism that the court a quo gave to the State case, it’s a wonder how it then arrived at the conclusion that it had proved its case beyond reasonable doubt. The judgment does not support the verdict that the magistrate arrived at. It is for these reasons that the respondent does not support the conviction and sentence of both appellants,” she said.

Justice Nokuthula Moyo, who was sitting with Justice Thompson Mabhikwa during a criminal appeals court on Monday, upheld the appeal and set aside both conviction and sentence.

“The appeal succeeds in its entirety. The conviction and sentence is hereby set aside,” ruled Justice Moyo.

On October 22 in 2013 at about 7.30AM, Chibaya, Chimina and eight MDC youths in their party regalia were travelling from Gweru to Mberengwa to attend a rally when they made a stopover at Thandanani Beer Garden in Guinea Fowl to buy beer.

When they entered the bar, they confronted a bar lady and demanded to know why she was playing a revolutionary song. They bought beer and promised to return to deal with her before they proceeded to Mberengwa.

The court heard that later at around 10PM, on their way back to Gweru, they passed through Thandanani Beer Garden and found the bar lady playing the same revolutionary song. They verbally attacked her before ordering her to switch off the music.

One the party youths switched off the radio and cut off one of the cables connecting to the speakers.

They then approached one Stanley Madungwe, a patron and indiscriminately assaulted him before bundling him into their car.

They later threw stones at the bar resulting in patrons fleeing. Chibaya, Chimina and the party youths damaged property. Madungwe managed to jump off the car before Chibaya, Chimina and the MDC youths drove away.

A report was made to the police leading to Chibaya and Chimina’s arrest.—@mashnets