Mashudu Netsianda, Senior Court Reporter
JAILED former Midlands Provincial Affairs Minister Jason Machaya had his application for bail pending appeal against conviction and sentence dismissed by the High Court while his accomplice, provincial planning officer Chaisayanyerwa Chibururu was released on $50 000 bail.
Machaya (68) and Chibururu (50) were last year in September each sentenced to 48 months imprisonment for criminal abuse of office.
They were convicted by provincial magistrate Ms Charity Maphosa for unlawfully allocating 17 799 stands to land developers in Gokwe town, who in turn gave the pair 1 000 stands worth US$900 000 which was computed as $900 000 in local currency.
The court ruled against an application by the State for the accused persons to pay restitution of 1 000 stands to Gokwe town saying they had benefitted nothing from the criminal abuse of office charges.
The court also ruled against the State’s application to call to the witness stand a Government estate evaluator to give the new value of the stands.
The ruling by Justice Christopher Dube-Banda follows an application for bail pending appeal by Machaya and Chibururu. They are challenging their conviction and sentence under case number HCA90/20.
Machaya and Chibururu, through their lawyers Mbidzo, Muchadehama and Makoni Legal Practitioners and Mapaya Law Chambers, filed the application at the Bulawayo High Court citing the State as a respondent.
In his judgment, Justice Dube-Banda said Machaya failed to discharge the onus upon him to proffer positive grounds warranting his release.
“The first appellant (Machaya) has failed to satisfactorily to demonstrate his prospects of success on appeal. In my view, the prospect of a prison term coupled with his fresh experience of post-trial incarceration, affords abundant incentive for him to abscond,” said the judge.
Justice Dube-Banda ruled that Machaya was not a proper candidate for bail.
“The prospects of success and the possibility of abscondment are interconnected.
“The less likely prospects of success, the more the inducement for first appellant to abscond. In the circumstances, there is a real likelihood that he will be tempted to abscond and not wait to serve the prison term at the conclusion of the appeal,” said the judge.
“Accordingly, his appeal against the refusal of the court a quo to admit him to bail pending appeal must fail.”
Justice Dube-Banda said in the case of Chibururu there is evidence suggesting that his appeal is reasonably arguable.
“The second appellant (Chibururu) has a fighting chance as he has discharged the onus of showing that it is in the interest of justice that he be admitted to bail pending appeal. In the result, the appeal succeeds,” ruled the judge.
As part of the bail conditions, Chibururu was ordered to surrender his passport to the Clerk of Court in Gweru and to report once a week at Gweru Central Police Station until his appeal is finalised. He was also ordered to continue residing at his given address.
In his grounds of appeal, Machaya argued that the lower court erred and misdirected itself by convicting and sentencing him when he was ill and unable to follow or comprehend proceedings thus violating his right to a fair trial.
He said he was convicted for the offence which the State had not outlined and proved.
Chibururu said the lower court erred by convicting him on the basis that he formed a common purpose with Machaya when there was no proof.
The two appellants said the State failed to prove the allegations beyond reasonable doubt.
They wanted the court to set aside their conviction and sentence. They further argued that the sense was too harsh and induced a sense of shock.
The State, which was represented by Mr Khumbulani Ndlovu opposed the application, arguing that there was no guarantee that if released on bail the two appellants would not abscond.
He said the two appellants lost the benefit of the presumption of innocence following their conviction.
“It is contended that prospects of success exist on appeal if the matter is reasonably arguable and not manifestly doomed to failure,” he said
According to court papers, it was stated that between 2011 and 2017, Machaya used his official powers to acquire 1 000 residential stands that were available in Mapfungautsi suburb in Gokwe town.
The area is under Gokwe Town Council’s administration and Machaya’s conduct was contrary to Government policy which authorises the Local Government Ministry to acquire only 10 percent of residential stands.
Due to Machaya’s conduct, Gokwe Town Council lost revenue.
Machaya further imposed a land developer, Striations World Marketing Property Developers, to service and sell stands without following proper tender procedures.
In 2013, Machaya made verbal demands to Gokwe Town Council to release 1 000 stands as opposed to written requests made by the Local Government Ministry.
Chibururu working in cahoots with Machaya drew plans before the stands were allocated to private land [email protected]