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Mashudu Netsianda, Senior Court Reporter
ANTI-Government activist, Josphat “Mzaca” Ngulube who is serving seven years in jail for burning three vehicles belonging to Zanu-PF Bulawayo provincial women’s league chairperson, Cde Eva Bitu during last year’s January violent protests has been granted $2 000 bail pending appeal.
As part of the bail conditions, High Court judge Justice Martin Makonese ordered Ngulube (33) of Sizinda suburb, a Bulawayo South Constituency losing independent candidate in the July 2018 harmonised elections, to report once every two weeks at Tshabalala Police Station and continue to reside at his given address until the finalisation of his appeal.
Ngulube and three others Fortune Masuku (30), Melusi Moyo (33) and Otilia Sibanda (35) were convicted for public violence and malicious damage to property by Bulawayo magistrate Mr Tinashe Tashaya for burning three vehicles belonging to Cde Bitu in Sizinda suburb during the protests. They were each sentenced to an effective six years in jail after one year was suspended on condition they do not commit a similar offence in the next five years.
Ngulube, through his lawyer Mr Nqobani Sithole of Ncube and Attorneys, filed an application for bail pending appeal against conviction and sentence at the Bulawayo High Court under HCA193/19, citing the State as a respondent.
In his bail statement, Ngulube said his appeal challenging both conviction and sentence had prospects of success, arguing that the evidence adduced by the State failed to sustain the allegations raised against him beyond reasonable doubt.
“The evidence on record clearly did not prove the State allegations against the applicant. In fact, as a result of the size of the crowd that went to Eva Bitu’s house, most State witnesses could not identify the perpetrators of the criminal offence,” said Ngulube.
“Those that witnesses could identify were never brought to court with the applicant. Evidently, in the circumstances the State did not prove its case beyond reasonable doubt.”
He said the evidence adduced in court and on record proved that there was strong political rivalry between himself and the State witnesses thus compromising the veracity of their testimonies.
“In fact, one of the State witnesses Eva Bitu even admitted during cross examination that I was disrespectful and that during the campaigns I insulted her and her political party leadership,” said Ngulube.
He said he produced a video indicating that on the day in question he was attending a funeral, which the magistrate dismissed.
“On that note the trial court misdirected itself by reasoning that the applicant was supposed to prove its case beyond reasonable doubt. Further, and alternatively, the applicant’s appeal against sentence enjoys prospects of success in that the trial court erred and improperly exercised its discretion in passing the sentence,” said Ngulube.
Mr Sithole argued there was no evidence that his client pre-planned or acted in cahoots with his accomplices that was adduced by the State.
“The applicant avers that his conviction and sentence was improper and his appeal enjoys prospects of success on appeal as the appeal court is likely to interfere and set aside his conviction and sentence by the trial court,” said Mr Sithole.
In his grounds of appeal, Ngulube said the lower court erred by placing reliance on the evidence of suspect State witnesses whose testimonies did not corroborate each other in material respect.
“The magistrate erred in arriving at the conclusion that the State witnesses were credible, against the reality of conflicting and contradicting State witnesses’ evidence. The magistrate erred in failing to assist the appellant to fairly prosecute his defence by failing to direct the State to produce evidence tending to exonerate the appellant from the offence, which evidence is held by State functionaries,” he argued. — @mashnets
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