adminMashudu Netsianda Senior Court Reporter
A WOMAN from Inyathi who is on bail pending appeal for stocktheft, has dragged two Bulawayo High Court judges and the National Prosecuting Authority (NPA) to the Constitutional Court.
Zondiwe Ncube is challenging a decision by Justices Maxwell Takuva and Andrew Mutema to refer her case back to the magistrate’s court for retrial, arguing that it was an infringement of her fundamental rights in terms of the constitution.
In the court papers, Ncube, who is being represented by Job Sibanda of Job Sibanda and Associates, is the applicant while Justices Takuva, Mutema and NPA were cited as first, second and third respondents respectively.
In her founding affidavit, Ncube said the application was in terms of section 85 of the Constitution of Zimbabwe Amendment (No.20).
“The application is for declaration that my fundamental right as enshrined in section 70(5) (b) of the constitution to note an appeal following my conviction, and to have the appeal determined according to the law, was infringed when second respondent automatically reviewed a criminal matter in which I was an accused person when I had in fact noted an appeal at the High Court,” said Ncube.
Ncube, who did not have legal representation at the time, was on May 12, 2014 convicted of stocktheft by a magistrate in Inyathi and sentenced to an effective 15 years in jail.
In her defence, Ncube told the court that she stole the four heifers from her brother to recover a debt of $1, 454.
She then sought a lawyer and lodged an appeal against both conviction and sentence under Case Number HCA 195/14 on May 27, 2014, before filing a bail application pending appeal under Case Number HCB 80/14 the following day.
The application under HCB was heard on June 27, 2014, before Justice Takuva who granted Ncube a $100 bail pending appeal which subsequently led to her release from Mlondozi Prison on July 1, 2014.
“Following my noting of the appeal, I expected to be invited to file my heads of argument in support of my appeal, and in due course, to be invited to come and argue my appeal. I believe that such right to note an appeal is protected by section 70 (5) (b) of the constitution. While awaiting due process to unfold in my case, I was taken aback to discover that Justice Takuva reviewed my matter on January 29, 2015, and remitted it to the magistrate’s court for re-trial upon a plea of not guilty,” said Ncube.
Sibanda argued that the decision by Justice Takuva in agreement with Justice Mutema was a violation of his client’s right in term of the provisions of the constitution.
Section 70 (5) (a) of the constitution provides for an accused person who has been convicted of an offence the right to have his/her case reviewed by the High Court. Section 70 (5) (b) of the constitution provides for an accused person who has been convicted of an offence that right to appeal to a higher court against conviction and sentence.
“It is therefore clear that having been convicted of an offence, my client exercised her right to appeal in terms of section 70 (5) (b) of the constitution. Such right encapsulates the right to note such an appeal and proceed with it until it is finalised and as it is my client’s appeal is pending,” argued Sibanda.
Ncube said her right to appeal to a higher court was infringed by the review of her case while she was waiting for the appeal process to be finalised.
“Since an order remitting my matter to the magistrate’s court for retrial has been made it means I can no longer proceed with my appeal unless the order by the Honourable judge is quashed and set aside.
“I strongly believe that Justice Takuva reviewed the matter as a result of a clerical error. I therefore pray for an order that declares the review judgment under HB14/15 be hereby quashed and the appeal under case number 195/14 be set down for hearing in the High Court in accordance with the law,” said Ncube.
The applicant also seeks an order that compels NPA to pay the costs of suit.
Online Reporter