By Mashudu Netsianda
Chief Felix Nhlanhlayamangwe Ndiweni, who was recently sentenced to 18 months imprisonment following his conviction together with his 23 subjects for destroying a villager’s property in Ntabazinduna, was yesterday released by the High Court on $500 bail.
Ndiweni (54) and his accomplices were found guilty of destroying Mr Fetti Mbele’s property by Bulawayo magistrate, Ms Gladmore Mushove.
Bulawayo High Court judge Justice Thompson Mabhikwa ruled that Chief Ndiweni’s appeal against both conviction and sentence had prospects of success and dismissed the State’s assertion that if granted bail he was likely to abscond.
“It is a basic tenet of our law both in civil and criminal litigation that a litigant has a right of correctness of a judgment passed against him or her by a lower court to be tested by a higher court. I am not inclined to believe that the appeal is either devoid of merit or doomed to fail such that it be described to be frivolous. I therefore hold the view that there are prospects of success on appeal and accordingly the application for bail pending appeal succeeds,’ ruled Justice Mabhikwa.
As part of the bail conditions, the judge ordered Chief Ndiweni to report once a week on Fridays at ZRP Ntabazinduna and to reside at his given address until the matter is finalised.
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 Professor Welshman Ncube of Mathonsi Ncube Law Chambers, then filed the application for bail pending appeal at the Bulawayo High Court citing the State as a respondent.
In his heads of argument, Chief Ndiweni, through his lawyer said there were prospects of success in his appeal against conviction and sentence such that if granted bail they 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 he has no prospects of absconding,” said Prof Ncube.
He said the sentence imposed on his client was excessive and induced a sense of shock.
“It is respectfully submitted that the imposition of an effective custodial sentence of 18 months for a conviction of malicious damage to property valued at US$30 induces a sense of shock and manifestly excessive and unjust such that it constitutes a miscarriage of justice and is mostly likely to be set aside on appeal by this honourable court,” argued Prof Ncube.
He said his client had an arguable case for setting aside his conviction because the lower court failed to appreciate that the applicant could not have intended to maliciously damage the complainant’s property given that it was damaged pursuant to the enforcement of the ruling of a traditional court.
Prof Ncube said the magistrate failed to give cogent reasons for discriminating against Chief Ndiweni when she denied him the option to perform community service while his co-accused were granted that option.
The State, which was represented by Mr Kudakwashe Jaravaza, opposed the bail application, saying there were more aggravating features than mitigatory ones. He further argued that there was no particular section in the Traditional Leaders Act which empowered Chief Ndiweni to act in the manner he did.
“The applicant as a quasi-judicial officer had a role to promote and uphold the law but in this case he took the law into his hands and the aggravating circumstances outweigh the mitigatory factors given that he ordered the destruction of the complainant’s property despite the presence of police officers at the scene. It is humbly submitted that the application has no prospects of success against conviction and the custodial sentence was proper in the circumstances,” he said.
Mr Fetti Mbele of Ntabazinduna was banished from the village by Chief Ndiweni after his wife Ms Nonkangelo Mpengesi was allegedly caught having sex with another villager.
In July 2017, Chief Ndiweni ruled that Mr Mbele and his “adulterous” wife should be banished from Sifelani village, saying “prostitution” was not be tolerated in his area.
On July 26 in 2017 at around 4PM, Mr Mbele and his wife arrived from Bulawayo to find some villagers standing outside their homestead.
Kimpton Sibanda (72), a village head and two other villagers, claimed they were ordered by Chief Ndiweni to destroy Mbele’s garden fence and kraal.
Sibanda instructed the villagers to destroy the fence and kraal. At around 5PM, Chief Ndiweni arrived and ordered the villagers to continue destroying Mr Mbele’s fence and kraal. The order followed Mr Mbele’s alleged defiance of Chief Ndiweni’s verdict to divorce his wife.
Chief Ndiweni had given a ruling 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 banish the couple from his area. The Chronicle