Chronicle Editor
Mashudu Netsianda, Deputy News Editor
FORMER Vice President Phelekezela Mphoko’s son Siqokoqela, who is facing charges of raping his 12-year-old niece has approached the High Court seeking an order barring the lower court from proceeding with his trial pending a review of the dismissal of his application for discharge.
Mphoko (45) of Hillside suburb in Bulawayo is facing three counts of rape and escaping from lawful custody. He is out of custody on $50 000 bail.
The former VP’s son, through his lawyer, Mr Zibusiso Ncube of Ncube and Partners, filed an urgent chamber for a stay of trial proceeding pending review, at the Bulawayo High Court.
In papers before the court, Bulawayo regional magistrate Mr Elisha Singano who presided over the trial proceedings, and the State, were cited as respondents.
Mphoko is challenging the decision by Mr Singano to dismiss his application for discharge at the close of the State case under case number CRB R652/22.
Mr Singano said the application lacked merit. The magistrate ruled that a prima facie case of rape had been established against Mphoko hence he should be put to his defence to answer to the allegations.
In his founding affidavit, Mphoko said his application for review under case number HC (CAPP) 56/23, which is still pending before the High Court, has prospects of success.
He said the magistrate did not apply his mind properly when he dismissed his application for discharge. Mphoko argued that the evidence by the State was grossly unreliable and discredited during cross-examination.
“The first respondent (Mr Singano) disregarded the other evidence that was led and assessed the evidence of two witnesses. The State witnesses materially contradicted each other as to be mutually destructive,” argued Mphoko.
“The magistrate thus committed a gross irregularity at law in dismissing my application by ignoring the evidence of the State witness who out of the blue influenced the complainant to name an accused and used threats to achieve this.”
Mphoko said in its response to his application for discharge, the State also analysed the evidence of the complainant and that of the doctor and disregarded the other useful evidence.
“I verily believe that the evidence of the third witness Mantombi Ndlovu coupled with that of the complainant justified my acquittal. I believe I have made out a good case for the urgent stay of the trial proceedings against me pending the finalisation of the court application for review, which is before this honourable court under case number HC (CAPP) 56/23,” he argued.
“There is no conceivable prejudice to the interests of justice and efficient administration of justice if the trial proceedings stay pending the application for review. The application for review has prospects of success.”
In his grounds of review, Mphoko said the magistrate grossly erred in failing to consider that the evidence of the State had been grossly unreliable and discredited in cross-examination.
“In addition, the magistrate committed a procedural irregularity in assessing the evidence of two witnesses for the State and disregarding the rest of the evidence led. The application for discharge was based on criticism of all evidence and it was a gross irregularity to consider only part of that evidence,” he argued.
Mphoko said the essential elements of the offences had not been established hence there is no need for him to be put to his defence.
“In relation to the charge of escaping from lawful custody, the witnesses contradicted each other in material fact and their evidence was discredited under cross-examination. Police exercised their discretion and allowed me to go home,” he said.
“I returned on my own the following morning so that police could continue with their investigations. It is apparent that the ruling of the first respondent is afflicted with gross maladies which render it susceptible to be set aside in the present matter.”
The State, which is being represented by Mr Thobekani Mathanzima Nyathi, is yet to respond to the application.
According to court papers, it is alleged that sometime between May and August last year, Mphoko unlawfully and intentionally had sexual intercourse with his niece aged 12 (name withheld) thrice without her consent.
Mphoko is also charged with escaping from lawful custody. On August 30, at around 4.30 PM and at ZRP Hillside Charge Office, Mphoko was arrested and brought to the charge office for the crime of rape by Assistant Inspector Admire Donha.
While in the charge office, he was booked for detention under ZRP Hillside detention book reference number 284/22 and he had signed for his belongings for detention.
Mphoko requested to get his medication from his motor vehicle which was parked outside the charge office, before he could be taken to the police cells for detention.
He was escorted by Constable Chimuka to his motor vehicle. Upon arrival, he jumped into his vehicle and sped off to unknown destination. — @mashnets
Online Reporter