By Mashudu Netsianda
One of the nine suspects allegedly involved in the theft of nearly $1 million worth of gold kept as an exhibit at Plumtree Police Station has approached the High Court challenging the dismissal of their application for recusal of the judge presiding over their matter.
Jefat Chaganda, through his lawyers Nyikadzino, Simango and Associates, filed an application for leave to appeal to the Supreme Court against the dismissal of their application for the recusal of Justice Thompson Mabhikwa from the matter.
Chaganda together with his co-accused persons, among them Plumtree regional magistrate Timeon Tavengwa Makunde, Stanley Chinyanganya who is the area public prosecutor, prominent lawyer Admire Rubaya and six others, including police officers, had filed an application for Justice Mabhikwa’s recusal from the matter, accusing him of bias.
Justice Mabhikwa, however, dismissed their application in which they sought his recusal.
In dismissing the application for his recusal, Justice Mabhikwa ruled that the applicants failed to prove evidence of bias on his part.
He argued that the fact that litigants suspected that a conviction is to ensue did not justify his recusal.In his application filed at the Bulawayo High Court, citing the State and his co-accused persons Dingumuzi Ncube, Tyson Ruvando, Godfrey Makuvadze, Rubaya, Chinyanganya, Makunde, Tamboonei and Detective Assistant Inspector Ladislous Tinacho, who is in charge of the ZRP Minerals and Border Control, as respondents, Chaganda said the judge failed to interrogate the concept of judicial bias.
“For the reason that the court favoured the wrong test, its judgment is liable to being set aside. This is a matter which imperils my liberty and I have the right to vindicate my constitutional rights to the fullest extent,” he argued.
Chaganda said the court ought to afford him the opportunity to approach the Supreme Court.
“I have been advised that if a judge does not recuse himself when he should do so, the proceedings become a nullity. It is therefore in everyone’s interests that the Supreme Court expresses itself on whether recusal should have occurred otherwise we may rush through abortive proceedings. The balance of convenience accordingly favours the granting of this application,” he said.
Chaganda, Makunde, Chinyanganya, Rubaya, Ncube, Ruvando, Tinacho, Tamboonei and Makuvadze are facing charges of theft and obstructing the course of justice. According to court papers on July 7, 2018 at Plumtree Police Station, gold weighing 28kg and worth $970 000 was stolen from the armoury through unlawful entry.
The offence came to light on July 15 when Chief Inspector Mangena, who was reporting for duty, noticed that two FN rifles which were booked in the charge office were not physically there in the armoury.
The gold was later intercepted by police leading to the arrest of Chaganda. He was found in unlawful possession of part of the stolen gold weighing 14 kg which he intended to smuggle to Botswana.
Chaganda was arrested in a Botswana-bound train while his accomplice Ncube, who was in his company, managed to flee.The recovered gold was seized by Zimra and handed over to the police in Plumtree.
It is alleged that the nine accused persons hatched a plan to steal the impounded gold and allegedly played various roles in the scheme. When Chaganda appeared in court charged with unlawful possession and smuggling of gold, Ncube allegedly sought the services of one Vusumuzi Sayi who in turn contacted his friend, Kailos Moyo to secure the services of Lovemore Sibanda.
Sibanda’s documents for his Qalo Syndicate were fraudulently used in court to claim ownership of the seized gold.Tinacho contacted Rubaya to represent Chaganda.
Rubaya allegedly roped in Makunde and Chinyanganya to further their plan of stealing the gold.
Tamboonei, a police officer, gave false evidence in court under cross examination by Rubaya while Makunde and Chinyanganya, who were aware of the scam, allegedly adopted an armchair approach during the court proceedings. The Chronicle