Mashudu Netsianda, Senior Court Reporter
THE National Prosecuting Authority (NPA) has filed a notice of opposition at the High Court challenging jailed former Midlands Provincial Affairs Minister Jason Machaya’s application for leave to appeal at the Supreme Court.
Machaya (68) last week filed his application for leave to appeal at the Supreme Court following the dismissal of his application for bail pending appeal against conviction and sentence by magistrate Ms Charity Maphosa.
Machaya and his accomplice, provincial planning officer Chaisayanyerwa Chibururu (50), were last September each sentenced to 48 months imprisonment for criminal abuse of office.
Chibururu has, however, since been released on $50 000 bail pending appeal.
They were convicted 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 benefited 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.
In dismissing Machaya’s application for bail pending appeal, Bulawayo High Court judge Justice Christopher Dube-Banda said the applicant failed to discharge the onus upon him to proffer positive grounds warranting his release.
Machaya, who is challenging his conviction and sentence under case number HCA90/20, through his lawyers Mbidzo, Muchadehama and Makoni Legal Practitioners, last week filed a fresh application at the Bulawayo High Court for leave to appeal at the Supreme Court citing the State as a respondent.
In his grounds of appeal, Machaya said Justice Dube-Banda misdirected himself by denying him bail on the basis that he would abscond, arguing that there was no evidence suggesting that he was a flight risk.
“The court also erred in holding that there was no prospect of success when there were such prospects of success on both conviction and sentence,” he said.
Machaya said the High Court ignored his explanation and evidence, arguing that the essential elements of the offence had not been proved.
“I feel discriminated by the court when it granted bail to my co-appellant and denied me bail. I have a right to appeal to the Supreme Court or Constitutional Court and it is my intention to appeal against the conviction and sentence right up to the last court, whatever it takes,” he argued.
Machaya said due to the Covid-19 measures that are being implemented by the courts, the delay of the prosecution of his appeal will be rendered useless if he is not granted bail.
“In the circumstances, I pray that I be granted leave to appeal this court’s refusal to grant me bail pending appeal to the Supreme Court,” he said.
In his notice of opposition, Mr Kudakwashe Jaravaza, who is representing the State, argued that there was no guarantee that if released on bail, Machaya would not abscond.
He said the court did not err in making the finding that Machaya had created a façade of a false meeting to create a falsehood that the awarding of the contract to Striations World Marketing Company was done by the housing committee.
Mr Jaravaza said the law allows that co-accused be treated differently depending on surrounding circumstances.
“It is clear that appellant (Machaya) has no prospects of success against both conviction and sentence unlike his co-accused who has an arguable case,” he said.
According to court papers, 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 developers. — @mashnets