Mashudu Netsianda, Senior Court Reporter
JAILED chief, Felix Nhlanhlayamangwe Ndiweni and his 23 subjects who were last week jointly convicted for destroying a villager’s property in Ntabazinduna, have approached the High Court challenging their conviction and sentence.
Ndiweni (54) and 23 other villagers pleaded not guilty to damaging Mr Fetti Mbele’s property but were convicted by Bulawayo magistrate, Ms Gladmore Mushove.
Chief Ndiweni and his subjects were each sentenced to 24 months in jail and six months were suspended for five years on condition that they do not within that period commit a similar offence.
Chief Ndiweni was sentenced to an effective 18 months in jail while his subjects had their remaining 18 months wholly suspended on condition that they perform 525 hours of community service at local schools and clinics.
The 24 appellants, through their lawyer Mr Dumisani Dube of Mathonsi Ncube Law Chambers, filed a notice of appeal at the Bulawayo High Court citing the State as a respondent
In their grounds of appeal in respect to conviction, the appellants said the magistrate erred by failing to appreciate that what Chief Ndiweni did was in terms of what he subjectively believed was within his powers as a traditional chief.
“The court a quo erred in failing to appreciate that the first appellant (Chief Ndiweni) had a defence of a claim of rights as provided for in terms of sections 236 and 237 of the Criminal Law (Codification and Reform) Act. The court a quo erred in failing to appreciate that the State has not proven beyond reasonable doubt the fact that the appellants had the requisite knowledge of wrongdoing that constituted part of their offence,” said Mr Dube.
The lawyer said the court grossly erred in finding that Chief Ndiweni’s moral blameworthiness was very high.
“The court a quo grossly erred in finding that community service was not an appropriate sentence for the first appellant when the imposed prison term falls within the 24 months imprisonment threshold. The court a quo erred in not considering other forms of punishment considering the value of the destroyed property, which was less than the value of $300,” said Mr Dube.
He wants the appellants’ conviction and sentence to be set aside or alternatively if conviction is upheld, the sentence be substituted with a $20 fine each.
The State is yet to respond to the application.
According to court papers, Mr Fetti Mbele of Ntabazinduna was banished from the village by the chief after his wife Ms Nonkangelo Mpengesi was allegedly caught having sex with another villager.
In July last year, Chief Ndiweni ruled that Mr Mbele and his “adulterous” wife should be banished from Sifelani village, saying “prostitution” will not be tolerated in his area.
On July 26 in 2017 at around 4PM, Mr Mbele and his wife arrived from Bulawayo to find some villagers standing outside their homestead.
Kimpton Sibanda (72), a village head and two other villagers, claimed they were ordered by Chief Ndiweni to destroy Mbele’s garden fence and kraal.
Sibanda instructed the villagers to destroy the fence and kraal. At around 5PM, Chief Ndiweni arrived and ordered the villagers to continue destroying Mr Mbele’s fence and kraal.
The order followed Mr Mbele’s alleged defiance of Chief Ndiweni’s verdict to divorce his wife.
Chief Ndiweni had given a ruling that Mr Mbele’s wife should vacate her husband’s home, but she did not comply with the order since they had resolved the matter as a couple, prompting the chief to order the destruction of his fence and kraal.—@mashnets