By Mashudu Netsianda
Jailed chief, Felix Nhlanhlayamangwe Ndiweni, who was last week jointly convicted with his 23 subjects for destroying a villager’s property in Ntabazinduna, has approached the High Court seeking bail pending appeal.
Ndiweni (54) and 23 other villagers pleaded not guilty to damaging Mr Fetti Mbele’s property but were convicted by Bulawayo magistrate, Ms Gladmore Mushove.
Chief Ndiweni and his subjects were each sentenced to 24 months in jail and six months were suspended for five years on condition that they do not within that period commit a similar offence.
Chief Ndiweni was sentenced to an effective 18 months in jail while his subjects had their remaining 18 months wholly suspended on condition that they perform 525 hours of community service at local schools and clinics.
The chief, through his lawyer Mr Dumisani Dube of Mathonsi Ncube Law Chambers, filed the application for bail pending appeal at the Bulawayo High Court citing the State as a respondent.
In his bail statement, Chief Ndiweni said there were prospects of success in his appeal against conviction and sentence such that if granted bail there was no likelihood of him endangering the interests of justice by absconding.
“The applicant submits that his admission to bail pending the determination of his appeal does not in any way endanger the interests of justice in that he is a chief and an established member of his community who is also a family man and has no prospects of absconding,” said Mr Dube.
Chief Ndiweni’s lawyer said the magistrate failed to appreciate that the State did not prove all the essential elements of the offence of malicious damage to property.
“It is therefore only fair, proper and just that the applicant be admitted to bail pending the determination of his appeal. Even if his conviction were to be upheld by this honourable court, his appeal against sentence has reasonable prospects of success in that the custodial sentence imposed by the court a quo induces a sense of shock,” he said.
Mr Dube argued that the magistrate failed to give cogent reasons for discriminating against Chief Ndiweni by denying him the option to perform community service while his co-accused were granted that option.
The State is yet to respond to the application.
According to court papers, Mr Fetti Mbele of Ntabazinduna was banished from the village by the chief after his wife Ms Nonkangelo Mpengesi was allegedly caught having sex with another villager in 2017.
Chief Ndiweni ruled that Mr Mbele’s wife should vacate her husband’s home, but she did not comply with the order since they had resolved the matter as a couple, prompting the chief to order the destruction of the couple’s fence and kraal. The Chronicle