admin
Fidelis Munyoro
Chief Court Reporter
THREE jailed cable thieves on Wednesday got a reprieve after the High Court granted them $10 000 bail each pending appeal against both conviction and the 10 year-sentence.
Lovemore Madzande, Michael Antonio and Chrisly Chimutu had their appeal postponed four times because their lawyer Mr S Mandizha was unprepared to argue the matter each time he appeared at the High Court, until a senior lawyer, Advocate Givemore Madzoka, took over the case on pro-deo basis (defending one without the usual fee).
They had unsuccessfully sought bail pending appeal before the trial court, which ruled that they did not have prospects of success on appeal, prompting a High Court appeal.
Adv Madzoka said certain elements of the offence were not proved before the trial magistrate, that is the tampering with the apparatus of generation and transmission of electricity, the absence of a reasonable excuse, and proof of interruption or cutting off the supply of electricity.
To this end, the prosecution did not prove any interference, but rather focused on possession, a concept different from tampering, argued Adv Madzoka.
He said possession was not criminalised under section 60A(3)(a) of the Electricity Act.
To this end, Adv Madzoka argued that his clients had a fighting chance having been convicted despite an essential aspect of the charge, namely the interruption of electricity, not being proved.
“On the whole, the appellants’ pending appeal is not doomed to fail,” he argued.
“It is free from predictable failure. The contrary determination by the magistrate, done without any regard to the substance of the application placed before him, ought to be set aside and the appellants admitted to bail pending appeal.”
Prosecutor Mr Ben Nyaunzvi conceded to the points raised by the defence and given the circumstances surrounding the case.
It was on that basis that Justice Webster Chinamora allowed the appeal and released the trio on bail pending appeal.
At the trial, key prosecution witness one, Batsirai Mbizi, confirmed that “the line was no longer in use and there were certain areas where the lines had fallen off”.
He further confirmed that the property in question was “disused property”.
Mbizi also affirmed that “there was no interruption on the transmission of electricity” because the line was “not in use”.
Justice Chinamora extended the court’s gratitude to Adv Madzoka for accepting the court’s request to represent the trio on a pro-deo basis.
“Given that they had already been convicted and sentenced to 10 years imprisonment, the input of counsel was of tremendous assistance to the court,” he said, adding that more legal practitioners should be encouraged to assist those who cannot afford paid legal services.
Adv Madzoka took over the matter at the request of the court two weeks ago, with Justice Chinamora intimating that it would help in ensuring that such intimate legal rights were protected and get fair hearing.
The trio was arrested along with a senior police officer Assistant Inspector Samson Murivire, Zimbabwe Electricity Transmission and Distribution Company artisan Victor Chirume and Shungu Navaya.
They were convicted at the Karoi Magistrates Court on two counts of contravening the Electricity Act.
The trial court heard that the gang was arrested at Nyamahombe Farm near Karoi on June 29, 2020 for vandalism and theft of aluminium conductors.
The gang vandalised 11kV line, took the aluminium conductors in broad daylight and hid the loot in a bush.
They later returned in a hired vehicle to collect the loot in the evening the same day.
Acting on a tip-off, police arranged a trap, leading to their arrest.
Online Reporter