Sivako acquitted of stock theft

Sivako (51), Nomsa (49), their two sons William (21) and Gavin (27), nephews Carlos Dumani (20) and Emmanuel Campbell (20) as well as his brother-in-law Mhlawempi Ndlovu (30) who all reside at 3910 Luveve 4 in Bulawayo, and Never Sibindi (48), of 36 Devos Road in Queens Park East, Khululani Dube (28) of Gwamba Village in Lupane, Fidiam Ngulube (56) of 469 Nkulumane 5, Eldora Matsekwa of 603 Nkulumane 5, Oscar Ndazama (28) of 2764 Emakhandeni, Duncan Dube, Vusumuzi Nkomo (31) from Bethel Village in Gwanda were arrested in November last year and have been on routine remand.

William and Gavin Sivako, Dumani, Nkomo, Ndlovu and Nomsa had their charges withdrawn before plea early this year while Matsekwa was put off remand a few months ago.
Mthabisi Sivako, Ngulube, Tshuma, Sibindi Campbell, Ndazama and Dube remained on routine remand until they were discharged at the close of the State’s case on Friday.
Mr Shepherd Chamunorwa of Calderwood Bryce Hendrie and Partners represented Sivako, and his family.
Mr David Mhiribidi of Phulu and Ncube Legal Practitioners represented Ngulube while Mr Liberty Mcijo of Lazarus and Sarif Legal Practitioners and Mr Simbarashe Chivaura of Mashayamombe and Partners represented Matsekwa and Sibindi respectively.

The defence counsel made an application for discharge at the close of the State’s case in terms of Section 198 of the Criminal Procedure and Evidence Act, Chapter 9:07.
The argument was that the State failed to discharge its onus, as it did not establish a prima facie case against the accused.
The defence counsel submitted that there was nothing, according to the evidence led in court, that linked the accused persons to the theft of the beasts.

It further argued that the evidence presented by witnesses was unreliable and fraught with inadmissible hearsay.
It suggested the State could have led evidence at least from one of the people who had made indications about the case or one of the accused as an “accomplice witness” than the “grab all” approach, which ultimately weakened the case.

Delivering the judgment on Friday, Bulawayo magistrate Mr Victor Mpofu said although roughly cut meat, axed beasts, pieces of hides, ear tags, a wheelbarrow, axe and fridge had been recovered, there was no direct evidence linking the accused persons to the case as no witness had seen them committing the offence.
He said even though witnesses had positively identified Ngulube and Sibindi, none of them had seen the duo commit the offence, thereby making the case weak.

The magistrate said the State then sought to rely on circumstantial evidence, which proved a mammoth task and thereby “disarmed and made harmless the whole case”.
Mr Mpofu said, “Basing on the guidance of the Criminal Procedure and Evidence Act as a legal authority and other decided cases, it is this court’s considered view that the State case has crumbled for want of evidence and for this reason the seven accused persons are therefore discharged at the close of the State’s case.”

The State’s case was that the 14 had allegedly carried out cattle rustling activities in Matabeleland North Province to supply meat to Sivako Butcheries dotted around Bulawayo.
They were arrested after allegedly ensnaring and slaughtering four head of cattle that were in calf in November last year. The cattle belonged to a farmer in Dovenby, about 32 km along the Bulawayo-Victoria Falls Road.

They allegedly went to the farm and set wire snares near the boundary fence, next to the road. Thereafter, they allegedly drove a herd of cattle towards the snares and four were trapped. They allegedly quickly slaughtered the beasts using axes and cut them into pieces without skinning them.
All the four cows were in calf and they allegedly removed the foetuses, including the innards, which they left at the scene of the crime.

Guards from a neighbouring farm, made a report to the police on the following day, when they saw the dead calves.
A tip-off by members of the public led to the arrest of the suspected syndicate.

Police impounded the white three-tonne Mitsubishi Canter Truck, registration number AAT 1038 belonging to Matsekwa, which was reportedly being used to ferry the meat.
Sibindi was alleged to have converted a carport in his yard in Queens Park East into an abattoir, where stolen cattle were skinned, sliced and kept.
The meat would allegedly then be taken to Sivako’s Butcheries dotted around the city.