adminmagistrate Mrs Lucie-Anne Mungwari exonerated the two following an application for discharge by their lawyer Mr Tinofara Hove of TK Hove and Partners at the close of the State case.
Mr Hove had argued that the two be exonerated as they did not steal the 10 cattle in question. However, Mabika was put on her defence to answer a separate stock-theft charge involving six dairy bulls donated to the party as well as another case of obstructing the course of justice, when she appeared before Ms Sekesai Chiundura.
In dismissing the application for Mabika’s discharge at the close of the State case, Ms Chiundura said the State had a strong case against the accused and as such she must give her account.
Mabika is expected back in the dock on June 20. Mrs Mungwari said it was clear that the Zanu-PF provincial executive was aware of the existence of the cattle in question. She noted that the 10 cattle were still at the seller, John Chirimambowa’s farm in Middle Sabi.
Mrs Mungwari said under the circumstances, it was difficult for the witnesses to explain how this amounted to stock theft if the cattle were at Chirimambowa’s farm.
“It is clear from the above that the State had a neatly made out case with witnesses corroborating each other. The only problem was with the direction the corroboration took, and whether this served any purpose enhancing the stock theft that the two accused persons are facing.
“It is clear from the facts that the livestock were purchased by members of the provincial executive committee for the purpose of feeding the masses at the 21st February Movement (celebrations). Due to reasons beyond the accused’s control, the beasts could not be transported even though an attempt was made by the seller to do so.
Furthermore there was no party farm to which the beasts could have been taken,” noted Mrs Mungwari.
“The facts at hand clearly fall short of establishing any intention to permanently deprive the owner. First, the cattle were never taken by the accused. In fact the accused never even saw the cattle and to date cannot even identify the cattle in question. After the purchase the cattle remained with the seller. The issue of not accounting for the cattle to the 21st February Movement or the national youth league at this juncture is immaterial as that is not the charge the accused persons are facing,” said Mrs Mungwari.
Mrs Mungwari said Madiro and Mabika declared the cattle to the provincial executive, most of whom confirmed knowledge of their existence.
“The three that were slaughtered, were slaughtered for a Zanu-PF function. All this belies the fact that there was any intention on part of the accused to permanently deprive Zanu-PF of its cattle.
Intention or mens rea and the act or actus reus are two very important components in fulfilling a charge of this nature, components which are glaringly absent from the evidence led by the State and which allow the State case to gently fall flat in its face,” said Mrs Mungwari.
“The evidence at hand failed to substantiate the charge of stock theft of the 10 beasts being levelled against the accused persons. It, however, fits squarely in the realm of disciplinary issues that can be tabled before the party as it is void of any criminal connotations.
“But failing to report the existence of the beasts to the national youth league, and reporting to the provincial executive instead, the accused might have offended proper reporting and accounting channels.
“However, the evidence does not establish a prima facie case as required by the law and as such the court is duty bound to discharge the accused persons at the close of the State case and return a verdict of not guilty,” said Mrs Mungwari.
Peter Tanyanyiwa
Online Reporter