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Mr Lovack Masuku assisted by Mr Samuel Pedzisai, both from the Attorney General’s Office, had wanted to call Detective Sergeant Zibusiso Moyo, who was the exhibit officer when the trio was arrested.
Objecting to his testifying, Advocate Sabelo Sibanda defending John Gazi said Det Sgt Moyo was a surprise witness in the sense that when the trial opened, the State never indicated that they were going to call him to testify.
He argued that there was no sworn affidavit stating what Det Sgt Moyo was going to testify and that they were given photocopied documents that were going to be produced barely five minutes before the resumption of the afternoon session.
“I have not had sight of the original copies of the photocopies. The State had also indicated that Det Sgt Moyo and a Detective Assistant Inspector Mpofu would not be called to testify.
“The entire cross-examination pertaining to the exhibits has been done and his being called as a surprise witness would mean we cross-examine him without preparing the ground for his evidence,” said Adv Sibanda.
He noted that according to the summary of the State case, it was indicated that Det Sgt Moyo was going to testify on the recording of the warned and cautioned statements that the trio made freely and voluntarily.
He added: “There was no mention of this Moyo coming to testify in his capacity as the exhibit officer. During the course of the trial, the State witnesses, especially the police officers, were being questioned with regards to the exhibits. Now at the eleventh hour, Moyo is being called to speak about the exhibits which we asked for and we never saw.”
He said there was a need for him to be given enough time to get full instructions from his client, adding that Det Sgt Moyo would not be competent enough to answer some of the questions that the defence team would want clarified.
Advocate Lucas Nkomo, instructed by Mr Sindiso Mazibisa and Mr Robert Ndlovu, for Charles Thomas and Paul Siwela, said they were also objecting to the calling of Det Sgt Moyo on the same grounds advanced by Adv Sibanda.
He added that the State was bound by its declaration that it would not call Det Sgt Moyo as that declaration made the court and the defence counsels believe that they would not call him, only to turn around and say they were calling him.
“The subject of his testimony is totally different from the evidence contained in the summary of the State case. The reason why it is necessary for the State to disclose the witnesses is for the court and defence counsels to monitor the said witnesses and ensure that they do not sit in court and listen to other State witnesses testifying,” said Adv Nkomo.
He said if Det Sgt Moyo is allowed to testify, this would be prejudicial to the defence and an unfair advantage on the part of the State.
Mr Masuku said Det Sgt Moyo was the same witness listed in the summary of the State case, adding that the State had decided to call him in his capacity as the exhibit officer after realising that there were a lot of grey areas in the State case.
He said the purpose of calling Det Sgt Moyo was for him to clarify the movement of exhibits from the time the trio was arrested to the time of the commencement of the trial.
“In their defence outline, accused one and two (Thomas and Siwela) do not deny that there were fliers recovered but they deny that they contained subversive material. The State is not trying to lead new evidence as we informed the defence team that we were going to call the witness to clarify issues surrounding the movement of the exhibits,” said Mr Masuku.
Senior Bulawayo High Court judge, Justice Nicholas Ndou, sitting with Messrs Elliot Nyoni and Phanuel Damba, deferred ruling in the objection to today.
On Monday on the resumption of the trial of the three the chief interpreter for Bulawayo and Matabeleland North region, Mr Phillip Makondo, told the court that most of the isiNdebele words contained in the fliers have more than one meaning.
Mr Makondo said when the chief law officer for the Western Division, Mrs Martha Cheda, gave him the fliers, his brief was to translate and interpret the isiNdebele version into English. It was his evidence that isiNdebele is a tonal language, which meant that one word can have more than one meaning.
“One needs to get the tone of the person speaking or writing the text and then they can be able to interpret what the person is saying in English,” he testified led by Mr Masuku.
He said he looked at the literal meanings of the words in the fliers, adding there was a need to look at the possible meaning of the words used.
“One has to look at the surface and deeper meaning before they can come up with a closer meaning to what the writer might have been trying to put across,” testified Mr Makondo.
He said in his interpretation and translation of the isiNdebele texts in the fliers, he came up with many meanings of some words that are used.
Under cross-examination by Adv Nkomo, Mr Makondo admitted that it was not easy to know which was the correct interpretation or translation without knowing the intention of the author of the texts.
Under cross-examination by Adv Sibanda, Mr Makondo said he used a combination of methods to interpret the fliers.
It was his testimony that one cannot divorce cultural aspects in the issue of interpretation.
The text, Mr Makondo said, was of a political nature, adding that in his interpretation he did not lose sight of the culture of the language used in the fliers.
He denied having a motive to have the fliers say what he wanted or for the purposes of use in court since he knew that the trio was facing treason charges.
Mr Makondo said his approach in interpreting the words was that he imagined that he was communicating with a general English man which enabled him to come up with the interpretation that he did.
Earlier, Detective Constable Isheunesu Gadziwa had told the court that the fliers before the court were not the same as the ones they had recovered from Siwela’s office.
It was his evidence even during cross-examination by Mr Masuku that the fliers before the court were smaller than the ones that they had recovered.
Under cross-examination by Adv Nkomo, Det Cst Gadziwa admitted that he never had sight of the search warrant and that he only saw it when Detective Sergeant George Ngwenya handed it over to Siwela.
He further said after recovering the material in Siwela’s office, he handed it over to Det Sgt Ngwenya who in turn told him that there were 400 fliers.
Answering a question from Adv Sibanda, the constable said he did not know Gazi and never met him the day they went to search Siwela’s office.
Thomas (44), Gazi (54) and Siwela (50) have pleaded not guilty to the main charge of treason and the alternative charge of subverting a constitutional Government.
Thomas and Siwela, in their defence outline, have denied that they ever at any time from 1 March to 3 March 2011 acted in common purpose and conspired with any person to incite people of Zimbabwe or a section of them to rise against the Government by distributing fliers which contained messages calling on members of the public and the army to rise against the Government.
Gazi, through Adv Sibanda, states that at the time of the alleged offence, prior to his resignation from the MLF, he was its secretary-general.
He denies hatching a plan to distribute any fliers and conspiring to incite members of the public or anyone else to rise up against or seek to overthrow a constitutionally elected Government through unconstitutional means.
Online Reporter