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Fidelis Munyoro Chief Court Reporter
A former Kwekwe resident magistrate has lost his High Court appeal against conviction and sentence on charges of corruptly abusing his judicial function.
Story Rushambwa along with a clerk of court, Bright Mpiyabo, were convicted at the Midlands Anti-Corruption Court in Gweru in August last year on charges of criminal abuse of office as public offices after fraudulently releasing an impounded vehicle.
Rushambwa was slapped with an effective 15 months, while Mpiyabo got an effective nine months for the offence.
The magistrate had initially punished Rushambwa, now 51, with 30 months, with 15 months suspended, while Mpiyabo (48) was given 15 months with six months suspended.
Disputing both conviction and sentence, the two approached the High Court of appeal, but Justice Benjamin Chikowere sitting with Justice Pisirayi Kwenda upheld the trial magistrate decision.
Writing the judgment of the court, Justice Chikowero said the decision of the lower court to convict both appellants was unimpeachable.
He agreed with the findings of the trial court that Rushambwa was on leave when he abruptly returned to work just to deal with a fresh matter.
“It would have defied logic for Rushambwa while on leave, to have lawfully dealt with a fresh matter, being an ex-parte application in question,” he wrote in the judgment.
Justice Chikowero said the resident magistrates, a Mr Nzombe, was at the same court station throughout the day in December 2019 so was Mutukwa, whose duties included dealing with civil matters inclusive of the one that Rushambwa entertained and disposed of.
The judge also endorsed the lower court decision, saying it had not erred in concluding that the only reasonable inference to be drawn from the proved facts was that Rushambwa and Mpiyabo connived to have the clerk place the record of the matter in question before the magistrate.
This, he said, was done so that Rushambwa would corruptly favour John Mapurazi by granting him the order directing Zimbabwe Revenue Authority to release the vehicle.
“That was the only possible conclusion that the lower court could have reached on an assessment of evidence as a whole,” said Justice Chikowere.
“As observed by the lower court, the sequence of events on the day in question justifies the inference drawn that both appellants were guilty.”
Rushambwa was on leave when he dealt with the case and could even be argued that a judicial officer is not allowed to handle fresh matters unless authorised by the head of the station.
In October 2019, a Toyota Hilux vehicle was impounded by the police anti-corruption unit as an exhibit after it was fraudulently imported and was held at the Zimra Kwekwe offices for customs management and as an exhibit in the trial at the Bulawayo Magistrates Court.
Rushambwa and Mpiyabo planned to release the vehicle after John Mapurazi applied for this in December 2019.
Mpiyabo withheld the record relating to the application and on December 31, 2019, submitted it to Rushambwa who had broken his leave.
Rushambwa went on to grant a final order for the release of the vehicle to Mapurazi who was represented by Shepherd Tundiya, who is not a legal practitioner.
Mpiyabo handed over the order to Tundiya.
The State was, however, prejudiced of revenue in the form of customs duty and possible loss of the State case at the Bulawayo trial since the vehicle was an exhibit.
Three years ago, former officer in charge CID Gweru, Detective Inspector Leonard Gwandu was dismissed from work and later convicted on abuse of office charges after he fraudulently released another vehicle to Tundiya, a well-known car dealer based in Kwekwe.
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